California Appellate Law Blog : California Appellate Lawyer & Attorney: Archer Norris Law Firm: Trial, Business, Torts: Sacramento, Bay Area, Los Angeles, California

Code of Civil Procedure section 998 offers rest upon a simple concept.  As one Court of Appeal put it, 998 offers "encourage settlement by providing a strong financial disincentive to a party--whether it be a plaintiff or a defendant--who fails to achieve a better result than that party could have achieved by accepting [a 998] settlement offer. (This is the stick. The carrot is that by awarding costs to the putative settler the statute provides a financial incentive to make reasonable settlement offers.)"  (Bank of San Pedro v. Superior Court (1992) 3 Cal. 4th 797, 804.)  But if the carrot and stick is a simple concept, it's the actual business that can be complicated. 

The starting point is a valid offer that a trial court finds to be "reasonable and made in good faith."  (See, e.g., Nelson v. Anderson (1992) 72 Cal.App.4th 111, 134.)  A recent Court of Appeal decision aptly demonstrates a wrinkle--the tricky business of serving a 998 offer with a complaint.  Wait a minute, can you do that?  The answer is, "it depends."

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I've been preparing for my 12th consecutive year teaching moot court class at Hastings.  This time, I'm using United States v. Pineda-Moreno.  That's the Ninth Circuit case holding that the Fourth Amendment is not violated when police officers sneak on to your driveway in the wee hours of the morning and attach a GPS tracking device to the underside of the car.  Have you looked under there lately?  Maybe that rattling noise is not just a loose muffler.  Anyway, as I've previously noted, some of the most entertaining judicial opinions are dissents.  Pineda-Moreno is no exception:

In the controlling opinion, Circuit Judge O'Scannlain writes that given the lack of a fence, gate or other obstruction, "If a neighborhood child had walked up Pineda-Moreno's driveway and crawled under his Jeep to retrieve a lost ball or runaway cat, Pineda-Moreno would have no grounds to complain."  (U.S. v. Pineda-Moreno, 593 F.3d 1212, 1215.)

In the subsequent dissent from the denial of the petition for rehearing en banc, Chief Judge Kozinski writes: "The panel authorizes police to do not only what invited strangers could, but also uninvited children--in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there's no limit to what neighborhood kids will do, given half a chance: They'll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people's curtilage."  (U.S. v. Pineda-Moreno, 617 F.3d 1120, 1123.)

Touche!

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The Great Recession has been a trying time, calling for innovative leadership and creative thinking by the California Legislature.  And the Legislature appears to have spent 2010 concerned with your spirits.  The fluid, drinkable kind, that is.  A review of the legislation enacted effective January 1, 2011 includes the following intoxicating mix of beverage measures.

The new laws:

Permit licensed winegrowers to produce "spirits of wine" without having to obtain a distilled spirits manufacturer's license.  Bus. & Prof. Code sections 23015; 23358; 23358.2, and 23390.5;

Create a new type of license allowing for wine, beer and distilled spirits tasting at off-sale licensed premises.  Bus. & Prof. Code sections 2339.6 & 25503.56;

Permit beer manufacturers and holders of beer and wine importer's licenses to conduct "instructional events" at on-sale retail licensee premises featuring beer.  Bus. & Prof. Code section 25503.45;

Allow for the return of wine taken out of state.  Bus. & Prof. Code sections 23661.7 & 25238;

Enable licensed distilled spirits rectifiers to donate or sell their "products" to specified nonprofit entities for the purpose of assisting in fund-raising efforts.  Bus. & Prof. Code section25503.9;

Enable guests to purchase beer and wine in sealed containers from hotel or motel gift shops.  Bus. & Prof. Code section 2339.61;

Permit armed forces members to buy alcohol using a military identification card.  Bus. & Prof. Code section 25660.

Oh, there is one other little change.  Civil Code section 1714 has been amended to limit the social host immunity of a "parent, guardian or another adult who 'knowingly furnishes' alcoholic beverages at his or her residence, to a person under 21 years of age..." 

Bottoms up!

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