For purposes of comparing a judgment with a rejected 998 offer to see whether the judgment is more favorable than the offer, the court adds to the jury’s verdict the amount of costs (and if attorney fees are recoverable, fees as well) that the prevailing plaintiff incurred before the 998 offer. However, if the 998 offer is silent as to costs and fees, it implicitly allows for the award of costs and fees, so for the purpose of making the comparison, pre-offer costs (and if recoverable fees) are also added to the amount of the offer. Here, the offer was silent as to costs and fees, so the pre-offer costs and fees were added to both the judgment and the offer, effectively canceling them out. The $12,000 offer was greater than the $11,500 jury verdict, so the plaintiff could not recover post-offer costs or fees.
California Court of Appeal, Fourth District, Division 3 (Ikola, J.); October 3, 2018; 27 Cal. App. 5th 1181