Park v. Moore
Filed 4/25/06 Park v. Moore CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| DON PARK, Plaintiff, Cross-defendant and Appellant, v. MICHELLE L. MOORE, Defendant, Cross-complainant and Respondent. | G035563 (Super. Ct. No. 04CC06411) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Peter J. Polos, Judge. Reversed and remanded with directions.
Del Tondo & Thomas, Douglas J. Del Tondo and Bryan M. Thomas for Plaintiff, Cross-defendant and Appellant.
Manning & Marder, Kass, Ellrod, Ramirez, Brian T. Moss and Scott Wm. Davenport for Defendant, Cross-complainant and Respondent.
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INTRODUCTION
Plaintiff Don Park appeals from a judgment following his acceptance of defendant Michelle L. Moore's offer to settle Park's automobile accident lawsuit pursuant to Code of Civil Procedure section 998. (All further statutory references are to the Code of Civil Procedure unless otherwise specified.) Park contends the trial court's judgment erroneously set off $26,022.01 from a $50,000 settlement, giving credit to Moore for amounts previously paid on her behalf to repair Park's vehicle.
In her section 998 offer, Moore agreed to pay Park a total of $50,000 and dismiss her cross-claims against Park in exchange for his agreement to dismiss his claims against her and other consideration detailed in the offer. The offer was silent regarding any offset for amounts previously paid on Moore's behalf to repair Park's vehicle. Section 998 offers are to be strictly construed in favor of the offeree. The trial court's authority under section 998 was limited to entering judgment based on the terms of the offer. By including Moore's claimed offset as part of the judgment, the trial court erred because it necessarily adjudicated the terms of the settlement offer. We reverse and remand with directions that the clerk of the superior court enter judgment in the amount of $50,000 in favor of Park, without offset.
BACKGROUND
In June 2004, Park filed a complaint for negligence against Moore. The complaint alleged that on March 2, 2004, Park was driving his brand new Ferrari 360 Modena Spyder in a shopping center parking lot when Moore, who was driving a Ford Expedition at the time, collided with Park's vehicle. Park alleged $30,000 in physical damage to his vehicle, $225,000 in loss of use damages, and $90,000 in diminution of value damages. Moore filed a cross-complaint against Park for intentional infliction of emotional distress, alleging Park â€
