Filed 9/24/26 Slater v. Ford Motor Co. CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JEREMY S. SLATER,
Plaintiff and Respondent, G064350
v. (Super. Ct. No. 30-2020-
01147768)
FORD MOTOR COMPANY,
OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of
Orange County, Erick L. Larsh, Judge. Affirmed in part, reversed in part,
and remanded with directions.
Shook Hardy & Bacon, Andrew L. Chang and Amy P. Maclear for
Defendant and Appellant.
Law Offices of Jim O. Whitworth and Jim O. Whitworth for
Plaintiff and Respondent.
Plaintiff Jeremy S. Slater filed this lawsuit against defendant
Ford Motor Company (Ford) asserting claims regarding a Ford truck under
the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.; Song-
Beverly Act). Prior to trial, Ford sent an offer under Code of Civil Procedure
1
section 998, which, among other things, offered to pay $42,151.58, required
Slater to surrender the vehicle to Ford or its designee, and noted Slater could
move for an award of reasonable attorney fees and costs and would be treated
as having prevailed in the action. Slater did not accept the offer. Following a
bench trial at which Slater succeeded on one of his causes of action, the trial
court entered a judgment that, among other things, awarded Slater
$38,231.58 and required Slater to surrender the vehicle to Ford or its
designee. The parties thereafter filed memoranda of costs and competing
motions to tax costs. The parties disputed, among other things, whether
Slater obtained a more favorable judgment than Ford’s section 998 offer. The
trial court struck Ford’s memorandum of costs, concluding Slater obtained a
better result than Ford’s section 998 offer. The court also denied in part
Ford’s motion to tax Slater’s costs on that same ground. The court reasoned
that Slater obtained a better result because his recoverable preoffer fees and
costs should be added to the judgment before comparing the offer to the
judgment for purposes of section 998.
On appeal, Ford contends the trial court erred because it added
preoffer fees and costs in determining whether Slater obtained a more
favorable judgment but failed to also factor in that Slater could have
recovered those same fees and costs under Ford’s section 998 offer. We agree
1
All undesignated statutory references are to the Code of Civil
Procedure.
2
the court erred. Based on a proper comparison of the value of the judgment
and the value of Ford’s offer, we conclude Slater failed to obtain a more
favorable judgment than Ford’s section 998 offer within the meaning of
section 998, subdivision (c)(1). Because Slater is therefore not entitled to
recover his postoffer costs under section 998, subdivision (c)(1), we reverse
the court’s order denying Ford’s motion to tax costs as to Slater’s postoffer
costs and remand the matter to the court to determine the specific costs that
should be taxed on this ground. In all other respects, the order as to Ford’s
motion to tax costs is affirmed. We also reverse the court’s order granting
Slater’s motion to tax Ford’s costs because it erred in determining that
section 998, subdivision (c)(1), was inapplicable. Because the court did not
reach what specific costs Ford was entitled to under section 998, subdivision
(c)(1), and whether any of Ford’s claimed costs should be taxed on a different
ground, we remand the matter to the court to make those determinations.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2017, Slater purchased a new Ford truck from
Huntington Beach Ford. In June 2020, Slater filed this action. His first
amended complaint alleged causes of action for breach of express warranty
and breach of implied warranty against Ford.2
In August 2022, Ford served Slater with a settlement offer under
section 998, which Slater did not accept. Among other things, the section 998
offer stated Ford “offers to allow judgment to be taken against it” and “Ford
will pay to Plaintiff and Plaintiff’s current counsel of record the sum of forty-
2
Huntington Beach Ford was also named as a defendant on the
cause of action for breach of implied warranty, but it was dismissed from the
action at the commencement of trial. The trial proceeded with Ford as the
sole defendant.
3
two thousand one hundred fifty-one dollars and fifty-eight cents ($42,151.58).
This amount is in compromise of Plaintiff’s claim, and it may be more or less
than Plaintiff would recover if plaintiff’s claims are tried in court. Ford will
pay this amount within two business days after Plaintiff surrenders the
vehicle as described in Paragraph 3 and notifies Defendant’s counsel of the
completion of surrender of vehicle.” (Capitalization omitted.) It further noted,
however, “[i]f there is a remaining loan balance on Plaintiff’s vehicle, Plaintiff
will advise Ford of that amount and of the name of the lienholder upon
accepting this offer, and Ford will withhold that amount from the settlement
payment that is made directly to Plaintiff. Ford will then pay the loan
balance directly to the lienholder on Plaintiff’s behalf within seven (7) days
after Plaintiff surrenders the vehicle as described in Paragraph 3.”
Paragraph three stated, “Plaintiff will surrender the vehicle to Ford or its
designee on a date, time, and place mutually agreeable, no later than 60
calendar days after the parties’ counsel have accepted this Statutory Offer.
Plaintiff will surrender the vehicle with clear title, free and clear of all liens
and encumbrances, other than of the lender of record (if any) to be paid by
Ford as described in Paragraph 1. At the time of surrender, Plaintiff will
execute whatever documents are necessary to effectuate the transfer of the
vehicle to Ford.”
Regarding attorney fees and costs, the section 998 offer stated,
“[t]he judgment will include a provision allowing Plaintiff to petition the
Court for an award of reasonably and actually incurred attorney fees and
costs recoverable pursuant to California Code of Civil Procedure Section
1794(d). Any motion for fees must be made pursuant to California Rules of
Court, rule 3.1702. In ruling on Plaintiff’s fee/cost motion(s), the attorney
fees, expenses and costs amount shall be calculated as if Plaintiff was found
4
to have prevailed in this action under section 1794(d) of the California Code
of Civil Procedure as of the date of this offer of judgment. Ford expressly
reserves all defenses to Plaintiff’s fee/costs motion(s) and any award thereon.
Ford will pay the amounts determined by the Court within 30 days after
3
entry of the award unless either party has filed a notice of appeal.”
The case proceeded to a bench trial in 2023. Ford admitted
liability on the cause of action for breach of express warranty, and the trial
court found in favor of Slater on that cause of action. The court, however,
found Slater was not entitled to civil penalties, and it found in favor of Ford
on the cause of action for breach of implied warranty.
In October 2023, the trial court entered judgment. The judgment
stated “Slater shall recover from Defendant Ford Motor Company, a statutory
repurchase pursuant to California Civil Code section 1793.2, subd. (d)(2), in
the amount of $38,231.58, inclusive of damages for breach of the express
warranty. Prior to Plaintiff’s recovery, Plaintiff shall surrender the vehicle to
Ford or its designee on a date, time, and place mutually agreeable. Plaintiff
shall surrender the vehicle with clear title, free and clear of all liens and
encumbrances. At the time of surrender, Plaintiff shall execute whatever
documents are necessary to effectuate the transfer of the vehicle to Ford.”
The judgment also stated Slater shall not recover civil penalties or any
damages on his cause of action for breach of implied warranty, and costs and
attorney fees were to be determined.
3
The Code of Civil Procedure section 998 offer erroneously
referred to section 1794 of the Code of Civil Procedure, which does not exist.
Civil Code section 1794, subdivision (d), addresses attorney fees and costs.
Slater does not contend on appeal that this error invalidated the statutory
offer.
5
In December 2023, Ford and Slater each filed a memorandum of
costs, with Ford seeking costs of $40,534.08 and Slater seeking costs of
$54,805.13. Slater and Ford then each filed a motion to tax costs. Among
other things, the parties disagreed about whether the judgment was more
favorable than Ford’s section 998 offer. Slater contended it was. Ford
contended the judgment was not more favorable than its statutory offer and
accordingly (1) Slater was not entitled to an award of any of his postoffer
costs and (2) instead, Ford was entitled to its postoffer costs.
On June 24, 2024, the trial court issued its order on the various
motions regarding attorney fees and costs. The court granted Slater’s motion
to tax costs and struck the entirety of Ford’s memorandum of costs. In
determining whether section 998, subdivision (c) applied, the court rejected
Ford’s argument that its section 998 offer of $42,151.58 was more favorable
than Slater’s recovery at trial of $38,831.58. The court cited Kelly v. Yee
(1989) 213 Cal.App.3d 336, 342 (Kelly), for the proposition that “‘[i]n
determining whether [plaintiff] obtained a judgment more favorable than the
settlement offer, we first add to the judgment of damages those recoverable
costs and attorney’s fees authorized by statute and incurred before the
settlement offer.’” The court concluded Ford was not entitled to recover costs
under section 998 because adding Slater’s recoverable preoffer fees and costs
to the judgment “yields a better result than defendant’s 998 Offer.”
The trial court also granted in part and denied in part Ford’s
motion to tax costs. The court rejected Ford’s argument that Slater could not
recover his postoffer costs because, as the court explained, “plaintiff did in
fact obtain a better recovery than defendant’s 998 Offer once recoverable fees
and costs are included.” The court, however, granted Ford’s motion to tax
6
certain costs Slater had claimed on his memorandum of costs related to
4
expert witness fees, copies for experts, and court reporter fees.
Ford appealed.
DISCUSSION
I.
LEGAL PRINCIPLES
A. The Song-Beverly Act
The Song-Beverly Act “permits new vehicle buyers who have been
damaged by a manufacturer’s failure to comply with the [Song-Beverly] Act
to sue under [Civil Code] section 1794 for the recovery of damages and other
relief. [Citation.] The measure of a buyer’s damages in such an action
includes ‘replacement or reimbursement as set forth in subdivision (d) of
[Civil Code] [s]ection 1793.2 . . . .’ [Citation.] If a manufacturer is unable to
repair a new vehicle after a reasonable number of attempts, section 1793.2,
subdivision (d) requires the manufacturer to promptly replace the vehicle or
promptly pay restitution ‘in an amount equal to the actual price paid or
payable by the buyer,’ as specified. [Citation.] The manufacturer is entitled to
reduce the amount of restitution by the ‘amount directly attributable’ to the
buyer’s use of the vehicle prior to the time the buyer first delivered the
vehicle for repair.” (Niedermeier v. FCA US LLC (2024) 15 Cal.5th 792, 800–
801 (Niedermeier).) In Niedermeier, our Supreme Court held “that in an
action pursuant to [Civil Code] section 1794, neither a trade-in credit nor sale
4
The court’s June 24, 2024 order also ruled on Slater’s motion for
an award of attorney fees and costs, awarding Slater $74,745 for attorney
fees and $2,425.50 for paralegal fees. As neither party challenges that portion
of the court’s order on appeal, the award of attorney fees to Slater is not at
issue on this appeal.
7
proceeds reduce the statutory restitution remedy set forth in [Civil Code]
section 1793.2, subdivision (d)(2) at least where, as here, a consumer has
been forced to trade in or sell a defective vehicle due to the manufacturer’s
failure to comply with the [Song-Beverly] Act.” (Id. at p. 801.)
Under Civil Code section 1794, subdivision (d), “[i]f the buyer
prevails in an action under this section, the buyer shall be allowed by the
court to recover as part of the judgment a sum equal to the aggregate amount
of costs and expenses, including attorney’s fees based on actual time
expended, determined by the court to have been reasonably incurred by the
buyer in connection with the commencement and prosecution of such action.”
(Ibid.)
B. Section 998 and Costs
“The right to recover costs in litigation ‘“exists solely by virtue of
statute.”’ [Citations.] The general rule . . . is that the prevailing party is
entitled to recover its litigation costs. [Citations.] Section 998 ‘modifies the
general rule of section 1032 that only the prevailing party recovers its costs.’”
(Madrigal v. Hyundai Motor America (2025) 17 Cal.5th 592, 602 (Madrigal);
see also § 998, subd. (a).)
Under section 998, subdivision (c)(1), “[i]f an offer made by a
defendant is not accepted and the plaintiff fails to obtain a more favorable
judgment or award, the plaintiff shall not recover their postoffer costs and
shall pay the defendant’s costs from the time of the offer. In addition, in any
action or proceeding other than an eminent domain action, the court or
arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum
to cover postoffer costs of the services of expert witnesses, who are not
regular employees of any party, actually incurred and reasonably necessary
8
in either, or both, preparation for trial or arbitration, or during trial or
5
arbitration, of the case by the defendant.” (Ibid.)
“To trigger the operation of section 998, an offer must be valid
6
and made in good faith.” (Ayers v. FCA US, LLC (2024) 99 Cal.App.5th 1280,
1293 (Ayers).) “An offer is valid if it: (i) complies with the statutory
requirements that it be in writing, contains the terms of the offer, include
[sic] a mechanism for acceptance, and provides for entry of judgment or a
legal equivalent if accepted [citations]; and (ii) is ‘sufficiently specific to allow
the recipient to evaluate the worth of the offer and make a reasoned decision
whether to accept the offer’ [citation].”7 (Ayers, at p. 1293.) “An offer is
insufficiently specific if it contains terms making it ‘“exceedingly difficult or
impossible to determine the value of the offer to the plaintiff.”’” (Chen v.
BMW of North America, LLC (2022) 87 Cal.App.5th 957, 961.)
“‘A judgment is more favorable to the plaintiff than a prior
settlement offer only if the value of the plaintiff’s recovery in the judgment,
exclusive of the plaintiff’s postoffer costs, exceeds the value of the offer.’”
(Ayers, supra, 99 Cal.App.5th at pp. 1307–1308.) “[N]onmonetary terms may
have material value that must be accounted for in the comparison. Section
998 ‘does not describe the “offer” in monetary terms nor authorize cost-
shifting every time the monetary value of the damage award is less than the
5
“In determining whether the plaintiff obtains a more favorable
judgment, the court or arbitrator shall exclude the postoffer costs.” (§ 998,
subd. (c)(2)(A).)
6
Slater does not contend Ford’s section 998 offer was not made in
good faith.
7
“Section 998, subdivision (b) . . . sets out the requirements for
making and accepting an offer.” (Madrigal, supra, 17 Cal.5th at p. 602.)
9
monetary “term” of the defendant’s statutory offer. Instead an “offer” includes
all its terms and conditions and must be evaluated in the light of all those
terms and conditions.’ [Citation.] If the nonmonetary terms make it
‘exceedingly difficult or impossible to determine the value of the offer to the
plaintiff[,] . . . a court should not undertake extraordinary efforts to attempt
to determine whether the judgment is more favorable to the plaintiff’ but
should instead ‘conclude that the offer is not sufficiently specific or certain to
determine its value and deny cost shifting . . . .’” (Id. at p. 1308.)
“The clear policy behind section 998 is to encourage the
settlement of lawsuits before trial. [Citations.] It does so ‘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 his or her opponent’s 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.)’
[Citation.] ‘The basic premise of section 998 is that plaintiffs who reject
reasonable settlement offers and then obtain less than the offer should be
penalized for continuing the litigation.’ [Citation.] Or, as [our Supreme Court
has] explained, to encourage both the making and acceptance of reasonable
offers, section 998 treats even a losing defendant ‘whose settlement offer
exceeds the judgment . . . as if it were the prevailing party’ for purposes of
postoffer costs.” (Madrigal, supra, 17 Cal.5th at pp. 603–604.)
“We review the validity of a section 998 offer de novo. [Citation.]
Under that standard of review, we exercise our independent judgment; we do
not defer to the trial court’s decision and we are not bound by its reasoning.”
(Chen v. BMW of North America, LLC, supra, 87 Cal.App.5th at p. 961.)
“While the question of whether a plaintiff obtained a more favorable result is
10
ordinarily left to the trial court’s discretion [citation], where the question
turns on our statutory construction and the application of that construction
to undisputed facts, our review is independent [citation].” (Ayers, supra, 99
Cal.App.5th at p. 1293.)
II.
ANALYSIS
Ford argues the trial court erred in determining whether the
judgment was more favorable than Ford’s settlement offer because it added
preoffer fees and costs to the amount of the judgment but failed to take into
account that those preoffer fees and costs were also recoverable under the
section 998 offer. According to Ford, because Slater’s preoffer fees and costs
were recoverable under both the section 998 offer and the judgment, the
relevant comparison is the amount of the monetary compensation included in
each. And because the $38,231.58 awarded in the judgment is less than the
$42,151.58 offer, Ford contends Slater did not obtain a more favorable
judgment.
We agree with Ford that the trial court erred by adding Slater’s
preoffer fees and costs to the amount of the judgment in order to compare it
to Ford’s section 998 offer without taking into account that the offer also
provided that preoffer fees and costs would be recoverable. Ford’s section 998
offer stated Slater would be allowed to move for attorney fees and costs and
would be treated as having prevailed in the action.8 Because Slater could
8
As noted above, Ford’s Code of Civil Procedure section 998 offer
erroneously referred to section 1794 of the Code of Civil Procedure, rather
than the Civil Code. On appeal, Slater does not argue this made the statutory
settlement offer invalid or affected his ability to obtain attorney fees and
costs. Even if the offer were deemed to be silent on fees and costs under Civil
Code section 1794, subdivision (d), Slater’s preoffer fees and costs still would
11
recover preoffer attorney fees and costs as determined by the court under
both the judgment and the section 998 offer, that component was “‘effectively
9
a wash.’” (See Maneri v. FCA US LLC (2025) 116 Cal.App.5th 897, 908; see
also Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718, 725–726,
fn. 3.) Thus, comparing the value of the offer to the value of the judgment
leads us to the conclusion Slater failed to obtain a more favorable judgment
because the $38,231.58 judgment is less than the $42,151.58 section 998
offer.
Slater raises a series of arguments in an attempt to avoid this
result. None of them are persuasive.
Most of Slater’s arguments are based on his assertion that he had
already sold the vehicle (purportedly for approximately $31,500) when Ford
made its offer. From this, Slater argues that (1) when the $31,500 proceeds
from the sale of the vehicle are added to the $38,231.58 judgment in his favor,
his “net gain” (of more than $69,000) exceeded the amount of Ford’s section
be added to the value of the offer for comparison purposes. (See Martinez v.
Eatlite One, Inc. (2018) 27 Cal.App.5th 1181, 1185.) Citing Martinez, Slater’s
appellate brief asserts, “while pre-offer costs are added to the judgment, they
are not added to the section 998 offer unless the offer explicitly includes
them.” That is not what Martinez holds. Martinez addressed a Code of Civil
Procedure section 998 offer that did not explicitly state the plaintiff could
recover fees and costs, and the appellate court “conclude[d] the court should
have compared the jury’s award plus plaintiff’s preoffer costs and fees with
the amount of the section 998 offer plus plaintiff’s preoffer costs and fees.
Because, for comparison purposes, the preoffer costs and fees are added to
both the jury award and the (silent on costs) section 998 offer, we may simply
compare the jury award with the section 998 offer.” (Martinez, at p. 1185.)
9
The trial court relied on Kelly, supra, 213 Cal.App.3d 336, and
Stallman v. Bell (1991) 235 Cal.App.3d 740. Those cases, however, are
distinguishable because they involved section 998 offers that stated each
party was to bear its own costs. (Kelly, at p. 338; Stallman, at pp. 743, 749.)
12
998 offer; and (2) in any case, the offer was invalid at the outset because it
10
purported to require him to surrender the vehicle to Ford. We disagree with
both arguments.
We begin with Slater’s mathematical argument that, after
pocketing the proceeds from the sale of the truck, he had a “net gain” of
11
$69,731.58, which would be greater than Ford’s $42,152.58 offer. The math
checks out, but the reasoning does not.
The first problem with this argument is that Slater’s appellate
brief fails to include any record citations to support it. He provides no record
citations to evidence establishing that he sold the truck, when he sold the
truck, and what the sale proceeds were. “Rule 8.204(a)(1)(C) of the California
Rules of Court requires all appellate briefs to ‘[s]upport any reference to a
matter in the record by a citation to the volume and page number of the
record where the matter appears.’ It is well-established that ‘“[i]f a party fails
to support an argument with the necessary citations to the record, . . . the
argument [will be] deemed to have been waived.”’” (Conservatorship of Kevin
10
Slater does not contend the section 988 offer was otherwise
invalid because it did not comply with the “statutory requirements that it be
in writing, contains the terms of the offer, include a mechanism for
acceptance, and provides for entry of judgment or a legal equivalent if
accepted.” (Ayers, supra, 99 Cal.App.5th at p. 1293; see also § 998, subd. (b).)
Ford’s offer met those requirements.
11
We note Slater’s appellate brief is inconsistent on the timing of
the claimed sale. It sometimes states he sold the truck before Ford made the
section 998 offer. But it also says he rejected Ford’s offer and “subsequently
sold the vehicle for approximately $31,500.” (Italics added.) We need not
dwell on this inconsistency, as we conclude Slater’s arguments based on the
sale of the truck do not carry the day.
13
A. (2015) 240 Cal.App.4th 1241, 1253.) Thus, Slater has forfeited this
argument by failing to provide the necessary supporting record references.
The second—and even more fundamental—problem with this
argument is that it ignores the terms of the judgment. In making the
comparison required by section 998, we are required to compare the value of
the statutory settlement offer to the value of the judgment. (See Ayers, supra,
99 Cal.App.5th at pp. 1307–1308 [“‘A judgment is more favorable to the
plaintiff than a prior settlement offer only if the value of the plaintiff’s
recovery in the judgment . . . exceeds the value of the offer’”].) The judgment
required Slater to surrender the vehicle with clear title prior to Slater’s
recovery of $38,231.58. Thus, the entire premise of Slater’s argument—that
he was entitled to sell the truck, keep the proceeds, and then add them to the
amount of the judgment for purposes of section 998, subdivision (c)(1)—is
contrary to the judgment, which ordered him to surrender the truck to Ford.
To the extent Slater is suggesting the trial court erred in ordering
him to surrender the truck as part of the judgment, the burden was on him to
challenge the judgment and seek relief. Yet there is no indication in the
record Slater sought in any way to correct the judgment in the trial court,
and he does not argue on appeal that he attempted to do so. Although Slater
filed a notice of appeal from the judgment, his appeal was dismissed after he
failed to file his opening brief. Slater also points to the California Supreme
Court’s 2024 opinion in Niedermeier and asserts “Ford is not entitled to any
credit or offset for the value of the subject vehicle that Slater sold and does
not have to return nor can he return.” But again, the judgment required
Slater to surrender the car. To the extent Slater is suggesting Niedermeier
14
would have required reversal of the judgment on a direct appeal on this
12
ground, he did not seek that relief.
Slater’s next argument takes a different, but related, approach.
Slater correctly points out one of the requirements of a valid section 998 offer
is that the offer be “‘sufficiently certain and capable of valuation.’” (See
Covert v. FCA USA, LLC (2022) 73 Cal.App.5th 821, 841 [“‘[a]ny
nonmonetary terms or conditions must be sufficiently certain and capable of
valuation to allow the court to determine whether the judgment is more
favorable than the offer’”].) Slater argues “[t]he vehicle surrender
requirement in Ford’s offer was not ‘sufficiently certain and capable of
valuation’ given that Slater had already sold the vehicle,” and that
requirement therefore was “impossible.” Setting aside the fact that Slater’s
briefing also states that he sold the vehicle after the offer was made, as
explained above, Slater has waived any argument based on the purported
sale of the truck and his retention of the sale proceeds because of his failure
to provide the necessary supporting record citations.
12
In Niedermeier, our Supreme Court “conclude[d] that in an
action pursuant to section 1794, neither a trade-in credit nor sale proceeds
reduce the statutory restitution remedy set forth in section 1793.2,
subdivision (d)(2) at least where, as here, a consumer has been forced to trade
in or sell a defective vehicle due to the manufacturer’s failure to comply with
the [Song-Beverly] Act.” (Niedermeier, supra, 15 Cal.5th at p. 801, italics
added.) Our Supreme Court noted it was not deciding in Niedermeier how the
damages calculation might be impacted when “a manufacturer has violated
the [Song-Beverly] Act but has a good faith and reasonable belief that a
statutory obligation to pay restitution does not exist” or when “a buyer sells
or trades in a vehicle before a manufacturer has the opportunity to comply
with its obligation to promptly pay restitution.” (Id. at p. 819, fn. 8.)
15
Slater also points to the provision in the section 998 offer that
Slater would inform Ford of the amount of any remaining loan balance on the
truck, and Ford would then withhold that amount from the settlement
payment to Slater and instead pay that amount directly to the lienholder.
According to Slater, “the payoff had to be deducted from the stated amount of
$42,151.58,” which made “the actual net amount to plaintiff substantially less
than the judgment.” We disagree that this provision makes the value of the
section 998 offer less than the value of the judgment. Both the judgment and
the section 998 offer required Slater to surrender the truck. The judgment
required Slater to surrender the truck with clear title and free of any lien,
and the section 998 offer similarly required Slater to surrender the truck
with clear title, except if there was an outstanding loan, Ford would withhold
that amount from the settlement payment and pay that amount directly to
the lienholder. But this difference does not mean that the amount of the loan
should be deducted from the $42,151.58 in the section 998 offer in order to
compare the offer and judgment for purposes of section 998, subdivision (c)(1).
That is because, although Slater would be receiving less cash from Ford
under the offer if there was an outstanding loan, he effectively would be
receiving equivalent value by having his debt paid. For example, if Slater had
accepted the offer and owed $10,000 on the vehicle loan at the time, Ford
would have paid $32,151.58 to Slater and $10,000 to the lienholder, which is
effectively $42,151.58 in value to Slater in that he received $32,151.58 in
cash and had $10,000 of debt eliminated. In that hypothetical scenario, Slater
effectively would be no worse off than if Ford had paid to him the entire
$42,151.58 in cash and he then paid $10,000 to the lienholder.13
Slater claims this case is analogous to MacQuiddy v. Mercedes-
Benz USA, LLC (2015) 233 Cal.App.4th 1036. It is not. In MacQuiddy, a
16
section 998 offer included a term that the defendant would repurchase the
vehicle “‘in an undamaged condition, save normal wear and tear.’”
(MacQuiddy, at pp. 1041, 1050.) The court concluded, “[b]ecause of the
undefined and subjective nature of the term that Mercedes-Benz would
repurchase the ‘undamaged’ car, . . . the section 998 offer was at least
ambiguous, and was therefore not valid.” (Id. at p. 1050.) MacQuiddy is
inapposite because the section 998 offer here did not contain a similar
provision requiring the vehicle to be surrendered in an undamaged condition.
Finally, Slater argues Ford failed to provide an adequate record
on appeal because it did not provide a transcript of the trial or a transcript of
the hearing on the competing cost motions. Slater therefore urges us to reject
Ford’s appeal based on “the cardinal rule of appellate review that a judgment
or order of the trial court is presumed correct and prejudicial error must be
affirmatively shown.” (Foust v. San Jose Construction Co., Inc. (2011) 198
Cal.App.4th 181, 187.)
Slater is correct that Ford, as the appellant, “‘has the burden of
providing an adequate record’” for our review. (Foust v. San Jose
Construction Co., Inc., supra, 198 Cal.App.4th at p. 187.) He also is correct
that “dismissal of an appeal may be warranted in the absence of a reporter’s
transcript when such a transcript is necessary for meaningful review.” (Bel
Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 933.)
But Slater’s argument fails because we find the appellate record
is adequate for our review of the trial court’s order. (See People ex rel. Harris
& Becerra v. Shine (2017) 16 Cal.App.5th 524, 533 [“Because the absence of a
reporter’s transcript does not impair our review of the Fee Order, there is no
ground for declaring a forfeiture by the People”].) The record includes, among
other things, the judgment, the parties’ competing briefs and declarations
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regarding costs, the section 998 offer, and the trial court’s written order.
Ford’s arguments on appeal do not require us to consider either the
transcript of the hearing on the motions or the transcript of the trial. Nor
does Slater assert there was any specific evidence that was presented at the
hearing on the motions or at the trial that would require affirming the order
that is not already in the record on appeal.
Slater asserts Ford “included arguments in their brief that would
require review of the transcript.” According to Slater, a transcript of the
hearing on the cost motions is necessary “to fully review [Ford’s] argument
that the trial court abused its discretion striking Ford’s request for [c]osts as
unreasonable.” Ford, however, does not make that argument on appeal, and
the trial court’s order did not strike Ford’s request for costs because they
were unreasonable. The court did not reach the issue of whether Ford’s costs
were unreasonable given its determination that Ford was not entitled to costs
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under section 998, subdivision (c)(1).
In sum, Ford made a valid offer under section 998, and section
998, subdivision (c)(1), applies here because the record shows Slater failed to
obtain a more favorable judgment than Ford’s offer. We therefore reverse the
trial court’s order denying Ford’s motion to tax costs as to Slater’s postoffer
costs under section 998, subdivision (c)(1), and we remand the matter to the
court to determine the specific costs that should be taxed on this ground. In
14
Slater also argues “Ford contends the 998 is the best offer yet
fails to provide the transcript as to all of the damages at the time of the 998
including the payoff. Without providing a transcript of those arguments.” It is
not clear what Slater is attempting to argue here. To the extent Slater is
suggesting Ford needed to provide a transcript showing the amount Slater
owed on a loan at the time of the section 998 offer, as discussed above, Ford
did not need to do so to prevail on this appeal.
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all other respects, the order as to Ford’s motion to tax costs is affirmed. The
court also erred for the same reason in granting Slater’s motion to tax Ford’s
costs, but the court did not reach what specific costs Ford was entitled to
under section 998, subdivision (c)(1), and whether any of Ford’s claimed costs
15
should be taxed on a different ground. We therefore reverse the court’s
order granting Slater’s motion to tax Ford’s costs and remand the matter to
the court to make those determinations.
DISPOSITION
The postjudgment order is affirmed in part and reversed in part,
and the matter is remanded to the trial court for further proceedings
consistent with this opinion. Appellant shall recover its costs on appeal.
GOODING, ACTING P. J.
WE CONCUR:
SCOTT, J.
SCHWARM, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
15
Slater asserts, without citation to the record, the trial court
“found Ford’s costs unreasonable.” As discussed above, the court’s order made
no such finding.
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