CEB has my article, “Does 998 cost-shifting apply to settlements? A three-way split?”

Tim Kowal March 27, 2024

CEB DailyNews has published my article, “Does 998 cost-shifting apply to settlements? A three-way split?” The article is about the Lemon Law case in Ayers v. FCA US, LLC (D2d8 Feb. 27, 2024 No. B315884), where the parties settled for less than defendant’s 998 offer. In a published opinion. the court held that, contrary to the plaintiff’s textual interpretation, “judgment or award” does not mean settlement. Instead, “a plain reading” yields the conclusion that the “more favorable judgment or award” language merely refers to a more favorable “terminat[ion].”

So if you settle for less than the 998 offer you rejected, prepare to get hit with the 998 penalties.

But note that the Supreme Court has granted review in Madrigal on this question. Which is why Justice Viramontes dissented.

The original article is here.

Kowal_998-Cost-Shifting Download

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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CEB has my article, “Does 998 cost-shifting apply to settlements? A three-way split?”

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"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"A judge is a law student who grades his own papers." — H.L. Mencken

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)