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Palmer v. Schindler Elevator Corp.

Court of Appeal of California, Second District, Division Seven
Mar 28, 2003
108 Cal.App.4th 154 (Cal. Ct. App. 2003)


holding initial settlement offer was revoked by subsequent offer

Summary of this case from Angel v. Tauch



Filed March 28, 2003 Pub. order April 28, 2003 Certified for Partial Publication

Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of the Factual and Procedural Background and parts 1 through 3 of the Discussion.

APPEALS from a judgment of the Superior Court for the County of Los Angeles, No. BC154349, Ernest G. Williams, Judge. Affirmed.

Seyfarth Shaw, John D. Dwyer, Steven B. Katz, Todd C. Hunt and Richard E. Elder for Defendants and Appellants.

Mardirossian Associates, Garo Mardirossian and Joseph M. Barrett; Law Offices of Charles B. O'Reilly and Charles B. O'Reilly for Plaintiff and Appellant.

Cindra L. Palmer suffered injuries when an elevator in which she was riding in a high-rise office building suddenly dropped several floors and came to an abrupt halt. She brought suit against the building owner, Equitable Real Estate and Investment Management, Inc. (Equitable), the building management company, Compass Management Leasing, Inc. (Compass) and the elevator company, Schindler Elevator Corporation (Schindler). After a lengthy trial the jury awarded Palmer $5.75 million in economic and noneconomic damages. The defendants have appealed, contending the jury verdict was inconsistent and the trial court made prejudicial evidentiary errors. Palmer has cross-appealed, contending the trial court erred in refusing to award her enhanced costs pursuant to Code of Civil Procedure section 998 and prejudgment interest pursuant to Civil Code section 3291 We affirm the judgment in all respects.

"Defendants' appeal is discussed in the unpublished portion of this opinion."


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1. The Jury's Verdict Was Not Inconsistent

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2. The Trial Court Did Not Abuse Its Discretion in Excluding Reference to Certain Incidents in Palmer's Past

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3. Defendants Have Not Demonstrated Admission of Dr. Wu's PET Scan Evidence Was Prejudicial

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4. The Trial Court Did Not Err in Finding Palmer Is Not Entitled to Enhanced Fees and Costs Under Code of Civil Procedure Section 998

In her cross-appeal Palmer contends the trial court erred in denying her motion for enhanced costs and prejudgment interest pursuant to Code of Civil Procedure section 998 and Civil Code section 3291 We find no error.

a. Palmer's 998 Offers and Application for Enhanced Costs and Prejudgment Interest

On June 29, 2000 Palmer served Schindler with an offer to allow judgment in the amount of $1,999,999.99 pursuant to Code of Civil Procedure section 998 (section 998). Schindler did not respond to the offer.

On July 18, 2000 Palmer served a section 998 offer on "defendants, jointly and severally" in the amount of $1,599,999.99. None of the defendants responded to the offer.

On September 29, 2000 the jury returned a verdict of $5.75 million in Palmer's favor and against Schindler, Compass and Equitable.

In posttrial motions Palmer took the position that, because the jury's verdict was greater than her July 2000 section 998 offer, she was entitled to enhanced costs pursuant to section 998 and to prejudgment interest pursuant to Civil Code section 32916 Defendants filed a motion to tax costs and an opposition to Palmer's motion for prejudgment interest, arguing Palmer's second section 998 offer revoked her first offer, and the second section 998 offer was ineffective because it was improperly directed to all defendants "jointly and severally."

The trial court agreed that the second offer was invalid and ordered further briefing on the issue whether the first offer was extinguished by the invalid second offer. After further briefing the trial court granted defendants' motion to tax costs, striking Palmer's expert witness fees and denying her motion for prejudgment interest.

b. A Section 998 Offer is Revoked by a Subsequent Section 998 Offer to the Same Party, Even if the Subsequent Offer Is Defective

To be effective, an offer to multiple parties under section 998 must be explicitly apportioned among the parties to whom the offer is made so that each offeree may accept or reject the offer individually. ( Taing v. Johnson Scaffolding Co. (1992) 9 Cal.App.4th 579, 586; Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 3d 102, 112.) Because Palmer's second 998 offer was directed to all three defendants, jointly and severally, it was ineffective. ( Taing, at p. 586 [reversing award of prejudgment interest and expert witness fees and holding "if a plaintiff elects to submit a Section 998 offer in cases involving multiple defendants, the offer to any defendant against whom the plaintiff seeks to extract penalties for nonacceptance must be sufficiently specific to permit that individual defendant to determine the exact amount plaintiff is seeking from him or her"].)

California law also provides that a prior settlement offer is extinguished by a subsequent settlement offer to the same party. ( Wilson v. Wal-Mart Stores, Inc. (1999) 72 Cal.App.4th 382, 389-391; Distefano v. Hall (1968) 263 Cal.App.2d 380, 385 [under predecessor to § 998, any new offer communicated prior to valid acceptance of a previous offer extinguished and replaced the previous offer]; see also T.M. Cobb Co. v. Superior Court (1984) 36 Cal.App.3d 273, 281-283 [under general contract principles, § 998 offer may be revoked prior to acceptance].) The trial court properly held that Palmer's July settlement offer to all three defendants, even though defective for purposes of section 998, extinguished her June settlement offer to Schindler.

On appeal Palmer argues the two offers were not made to the same defendants, and therefore the June offer to Schindler alone was not revoked by the July offer to all defendants. Palmer disingenuously insists Schindler could still have accepted the June offer and left the two remaining defendants to consider whether to accept the July offer (which was $400,000 less than the offer that would have been accepted). Obviously, once Schindler was in receipt of an offer to settle with all defendants for $1.6 million, there was no reason for it to consider, let alone accept, the previous offer for $2 million.

Palmer also argues a second section 998 offer that is "procedurally infirm" cannot extinguish a prior valid offer. She acknowledges Wilson v. Wal-Mart Stores, Inc., supra, 72 Cal.App.4th 382 held that, "if two offers were to the same defendant and within 30 days," then the second offer revokes the first, but argues Wilson is distinguishable because both offers in that case were valid. Palmer contends a second defective offer should not extinguish a valid initial offer because such a rule would undermine section 998's purpose of encouraging pretrial settlements. She proposes a "bright line rule in which the parties know that any judgment will be measured against a single valid statutory offer." We reject such a proposed rule because the validity of an offer will often be determined only in hindsight and would improperly place the consequences of an invalid, or arguably invalid, offer on the offeree, rather than on the offeror who caused the invalidity. Indeed, were we to adopt Palmer's analysis, a plaintiff could make multiple valid and invalid offers to single or multiple parties, then sit back and decide after the fact which offer is the most advantageous for purposes of enhanced costs and prejudgment interest.

Instead of the rule urged by Palmer, we adopt the bright line rule urged by defendants and utilized by the trial court: A later offer under section 998 extinguishes any earlier offers, regardless of the validity of the offers. This rule best serves the statutory purpose of encouraging settlement of lawsuits prior to trial ( T.M. Cobb Co. v. Superior Court, supra, 36 Cal.3d at p. 280) by providing offerees with clear direction as to what offers must be accepted on pain of enhanced fees and prejudgment interest. (See Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 272 [purpose of § 998 is best served by "bright line rule . . . under which a section 998 offer is not revoked by a counteroffer and may be accepted by the offeree during the statutory period unless the offer has been revoked"].) This rule is consistent with both general contract law ( Wilson v. Wal-Mart Stores, Inc., supra, 72 Cal.App.4th at p. 390; Rest.2d Contracts §§ 42, 43 ["An offeree's power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that effect"]) and with the purpose of section 998


The judgment of is affirmed. Each party is to bear its or her own costs on appeal.

The petition for rehearing is denied. This modification does not effect a change in the judgment.

We concur:



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Summaries of

Palmer v. Schindler Elevator Corp.

Court of Appeal of California, Second District, Division Seven
Mar 28, 2003
108 Cal.App.4th 154 (Cal. Ct. App. 2003)

holding initial settlement offer was revoked by subsequent offer

Summary of this case from Angel v. Tauch

In Palmer, the plaintiff served one defendant with a section 998 offer, and less than 30 days later served a second offer directed to all three defendants, jointly and severally.

Summary of this case from Martinez v. Brownco Construction Co., Inc.

invoking § 43 in concluding a later section 998 offer, although statutorily defective, extinguished an earlier unrevoked offer

Summary of this case from Varney Entm't Grp. v. Avon Plastics, Inc.

In Palmer, the plaintiff made a second offer to the defendants just 19 days after she made a first offer, and thus the defendants did not have the full 30 days provided by section 998 to accept or reject the first offer.

Summary of this case from One Star, Inc. v. Staar Surgical Co.

In Palmer, supra, the plaintiff made two offers to compromise: an initial offer that was valid under section 998, and a second offer three weeks later that was invalid under section 998.

Summary of this case from Easterby v. Clark
Case details for

Palmer v. Schindler Elevator Corp.

Case Details

Full title:CINDRA L. PALMER, Plaintiff and Appellant, v. SCHINDLER ELEVATOR…

Court:Court of Appeal of California, Second District, Division Seven

Date published: Mar 28, 2003


108 Cal.App.4th 154 (Cal. Ct. App. 2003)
133 Cal. Rptr. 2d 339

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