Bennett v. Brown

California Court of Appeal Feb 5, 1963 No. Civ. 10506Published

Before: Schottky

AI Brief

AI-generated · verify before citing

Holding. When a plaintiff in a damages-only action fails to obtain a judgment more favorable than a defendant's pretrial offer of compromise, the plaintiff cannot recover costs incurred after the offer and must pay the defendant's costs from that time.

Issues

Whether a plaintiff has obtained a 'more favorable judgment' under Code of Civil Procedure section 997 when the verdict plus pre-offer costs is less than the defendant's offer of compromise.

Disposition. reversed

Quotations verified verbatim against the opinion

“To determine whether a plaintiff has recovered a more favorable judgment costs incurred after the offer has been received must be excluded.”

“when you have a cause of action seeking damages only and the verdict of the jury is less than the offer of settlement plus costs incurred to that time, the judgment is not more favorable and the rule of section 997 must be applied.”

SCHOTTKY, J.

This is an appeal from an order retaxing costs.

Victor Bennett brought an action against Bernard Francis Brown to recover damages for personal injuries incurred as a result of an assault and battery.

On August 28, 1959, Bennett filed his complaint. On March 17, 1961, Brown served on counsel for Bennett an offer of compromise which read:

“Offer of Defendant To Compromise “To the Plaintiff Victor Bennett and to A. John Merlo, His Attorney:

“You and each of you will please take notice that the defendant, Bernard Francis Brown, does offer to allow judgment to be taken against him in the above-entitled action in the sum of $600.00 pursuant to the provisions of Section 997, Code of Civil Procedure of California.”

This offer was refused. The cause proceeded to trial and the jury returned a verdict of $500 in favor of Bennett. Bennett filed a cost bill totaling $198.40. Brown filed a cost bill of $570.30. The trial court awarded Bennett his costs and denied Brown’s costs. This appeal followed:

Section 997 of the Code of Civil Procedure provides : “The defendant may, at any time before the trial or judgment, serve upon the plaintiff an offer to allow judgment to be taken against him for the sum or property, or to the effect therein specified. If the plaintiff accept the offer, and give

[687]

notice thereof within five days, he may file the offer, with proof of notice of acceptance, and the clerk, or the judge where there is no clerk, must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence upon the trial; and if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant’s costs from the time of the offer.”

This section has been construed to mean that the plaintiff in an action may recover his costs accruing in his favor before an offer of judgment though he may recover a less favorable judgment and that he is to be charged with the defendant’s costs after that time.

Bennett v. Brown

AI Brief

SCHOTTKY, J.

More from California Court of Appeal

Related research

AI Brief