Albro Lundy argued before the California Supreme Court to change the use of 998 settlement offers and allow for the use of multiple offers to be taken into consideration for awarding expert fees in the Brownco v. Martinez case. The Court decided unanimously to allow recovery of fees from the date of the first offer. This changes 40 years of legal precedent. In the words of the court:

“Section 998 of the Code of Civil Procedure[1] was enacted to encourage the settlement of lawsuits prior to trial. The statute accomplishes this purpose by providing for augmentation and withholding of the costs recoverable at trial when a party fails to achieve a result better than it could have obtained by accepting an offer of compromise or settlement conforming to statutory requirements. Among other things, section 998 provides that a defendant may be ordered to pay a reasonable sum to cover the plaintiff’s postoffer costs of expert witness services when the judgment is not more favorable than the plaintiff’s settlement offer. (ยง 998, subd. (d).)

The terms of section 998 do not prohibit a party from making more than one settlement offer, but they are silent as to the effect of a party’s multiple offers. In this action, we consider whether a later offer extinguishes a previous offer for purposes of section 998’s cost-shifting provisions. We conclude that where, as here, a plaintiff makes two successive statutory offers, and the defendant fails to obtain a judgment more favorable than either offer, allowing recovery of expert fees incurred from the date of the first offer is consistent with section 998’s language and best promotes the statutory purpose to encourage settlements.”

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