A 998 offer is valid only if the offer is within the “range of reasonably possible results” at trial and if the offeror knew that the offeree had reasonable access to the facts necessary to “intelligently evaluate the offer.” Three factors, in particular, should be considered in the latter regard: (1) how far into the litigation the 998 offer was made; (2) the information available to the offeree prior to the 998 offer’s expiration; and (3) whether the offeree let the offeror know it lacked sufficient information to evaluate the offer, and how the offeror responded. An offeree bears the burden of showing that an otherwise valid 998 offer was not made in good faith. Here, the offeree defendant sustained that burden by showing that the plaintiff made the 998 offer within 19 days after serving the complaint on the defendant, when the defendant had little information about plaintiff’s claimed injuries. And defendant had timely objected to the 998 offer on the ground it lacked enough information to evaluate the offer and the plaintiff did not send the defendant more information or extend its time to respond to the offer. The trial court did not abuse its discretion in holding that defendant then lacked sufficient information to reasonably evaluate the 998 offer, so the offer was not made in good faith and defendant’s failure to accept it did not subject it to liability for prejudgment interest in this medical malpractice case.
California Court of Appeal, Second District, Division 2 (Hoffstadt, J.); January 3, 2019; 30 Cal. App. 5th 918