Plaintiff Antonio Puerta and Defendant Anna Berta Torres were involved in a car accident in Westminister, CA.  After prevailing at trial, Defendant filed a memorandum of costs.  Among other costs, Defendant sought $5,350.00 in expert witness fees pursuant to CCP §998 along with other costs pursuant to statue.  In opposition, Plaintiff filed a motion to tax costs, arguing that Defendant had not demonstrated she was entitled to recover expert costs because Defendant had failed to show that she had served a valid CCP §998.  In reply, Defendant submitted a declaration and copy of her CCP §998 offer, which sets forth an offer to dismiss in exchange for a waiver of costs and includes an expiration date 30-days after the offer was served.  Plaintiff filed an objection, arguing that Defendant’s offer had not complied with the language of the statute requiring that the offer include a provision for acceptance.

The Court ruled by minute order that Defendant had met the condition of providing evidence of a CCP §998 offer and denied Plaintiff’s motion to tax costs.  

CCP §998 states “The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.”  (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 443 [It is well-settled principle of statutory construction that the word... ‘shall’ is ordinarily construed as mandatory…”]  The statute was amended to require that acceptance of §998 offers, as well as the offers themselves, be in writing, and that the manner of acceptance must be indicated in the offer.

The portion of the judgment requiring Plaintiff to pay Defendant’s expert witness fees is reversed.