Gallagher v. Heritage

Opinion

TROTTER, P. J.

Defendant, Thomas Heritage (Heritage), appeals from a postjudgment order awarding costs to plaintiff, Kellie Gallagher (Gallagher).

We are asked to decide whether defendant’s statutory offer to compromise, made pursuant to Code of Civil Procedure section 998, is revoked by

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a subsequent oral offer thus removing statutorily imposed cost burdens and benefits. For reasons set out below, we hold it is not.

Facts

Gallagher sued Heritage for personal injuries and property damage. Following a court ordered arbitration hearing (Cal. Rules of Court, rule 1600) Gallagher was awarded $7,500, however Heritage requested a trial de novo (Cal. Rules of Court, rule 1616). On January 5, 1982, Heritage served Gallagher’s attorney with an offer to compromise pursuant to Code of Civil Procedure section 998 in the sum of $6,001. It was not accepted. Shortly before trial, on May 19, an oral offer of $7,500 was made. It too was refused. The jury awarded Gallagher $4,000 in damages, and a memorandum of costs and disbursements was filed. Heritage also filed a memorandum of costs and a motion to tax plaintiff’s costs. The court awarded Gallagher certain costs requested including those incurred after the section 998 offer was rejected, and granted her motion to tax defendant’s costs in its entirety.

Discussion

Costs in the superior court are awarded following judgment in favor of plaintiff in an action for recovery of money or damages. (Code Civ. Proc., § 1032, subd. (a).) However, if plaintiff’s recovery is within the jurisdictional limits of a lower court the award of costs is discretionary. (Code Civ. Proc., § 1032, subd. (d).)

To encourage pretrial disposition of litigation the Legislature enacted Code of Civil Procedure section 997

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and its successor, Code of Civil Procedure section 998.

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