The California 998 offer: 10 days before trial, 30 days to accept, and expert fees on the table

A CCP 998 offer is the most consequential piece of paper most California litigants will send. It costs nothing to serve, it expires quietly if ignored, and if the other side turns it down and then does worse at trial, it shifts costs — and potentially expert witness fees, which are usually the largest single line in a trial budget.

Making the offer

CCP 998(b):

Not less than 10 days prior to commencement of trial or arbitration … any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time.

What the offer must contain — the rest of subdivision (b):

• 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.

That acceptance provision is a formal requirement, not a courtesy. An offer without it is defective, and the cost-shifting consequences it was written to produce do not follow.

How acceptance works: any acceptance, "whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party."

Note who signs — counsel, not the client. That is the reverse of CCP 664.6(b), where the 2025 amendment made an attorney's signature sufficient to bind a party to a settlement. Here counsel's signature is the default from the start.

Accepting it

CCP 998(b)(1): if the offer is accepted, "the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly." In an arbitration, it is filed with the arbitrator, who "shall promptly render an award accordingly."

There is no motion and no hearing. A filed 998 acceptance produces a judgment.

The 30-day fuse

CCP 998(b)(2):

If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration.

Two deadlines running at once, and the shorter one governs. An offer served 40 days out expires at day 30. An offer served 12 days out expires when trial starts.

"Commenced" has the same definition as in CCP 581. Subdivision (b)(3): a trial or arbitration is deemed actually commenced "at the beginning of the opening statement of the plaintiff or counsel, or, if there is no opening statement, at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence."

So jury selection does not close the window. Opening statement does.

And an unaccepted offer is inadmissible. It cannot be shown to the jury. It surfaces only afterwards, in the costs fight.

What happens when a defendant's offer is beaten

CCP 998(c)(1):

If 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.

That much is mandatory — "shall." Then the discretionary part, which is where the money is:

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 in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.

Expert fees are ordinarily not recoverable in California. CCP 1033.5(b)(1) excludes "fees of experts not ordered by the court" from allowable costs outright. CCP 998 is the exception, and it is the reason a rejected 998 can turn a defense verdict into a six-figure award against the plaintiff.

Netting — CCP 998(e): where a defendant's offer is beaten, the section's costs "shall be deducted from any damages awarded in favor of the plaintiff." And if those costs exceed the damages, "the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly."

A plaintiff who wins at trial can therefore end up owing money. That is the whole point of the device.

What happens when a plaintiff's offer is beaten

CCP 998(d): if an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment, the court or arbitrator "in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses … in addition to plaintiff's costs."

The structure is deliberately asymmetric. A defendant who beats its own offer gets a mandatory cost shift plus discretionary expert fees; a plaintiff who beats its own offer gets its ordinary costs as prevailing party under CCP 1032, plus discretionary expert fees on top.

Measuring "more favorable"

CCP 998(c)(2)(A): "In determining whether the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the postoffer costs."

Subdivision (c)(2)(B) states the Legislature's purpose — to supersede an appellate holding that attorney's fees awarded to the prevailing party were part of the judgment rather than costs for purposes of this section.

The practical consequence: the comparison is offer against judgment, with post-offer costs stripped out of the judgment side before the two are compared. A plaintiff cannot inflate its way past a 998 by adding post-offer costs to the verdict.

Who and what is covered

Cross-parties — CCP 998(f): "For purposes of this section, 'plaintiff' includes a cross-complainant and 'defendant' includes a cross-defendant."

Police officers "shall be deemed to be expert witnesses for the purposes of this section" — a small provision with real weight in cases turning on officer testimony.

Settlement status: any judgment or award entered under the section "shall be deemed to be a compromise settlement."

A cap on the expert figure — CCP 998(h): expert witness costs under subdivisions (c) and (d) "shall not exceed those specified in Section 68092.5 of the Government Code."

Where the section does not apply — CCP 998(g):

(1) An offer that is made by a plaintiff in an eminent domain action. (2) Any enforcement action brought in the name of the people of the State of California by the Attorney General, the Insurance Commissioner, a district attorney, or a city attorney, acting as a public prosecutor.

And CCP 998(i) excludes labor arbitrations filed under memoranda of understanding governed by the Ralph C. Dills Act.

How it interacts with the rest of the cost rules

CCP 998(a) frames the whole section: "The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section."

So 998 does not create a separate cost regime — it adjusts the ordinary one. CCP 1032(b) gives the prevailing party its costs as a matter of right, CCP 1033.5 lists what those costs are, and CCP 998 moves the line depending on who offered what and when.

The guide on dismissing a California case covers CCP 1032 and 1033.5 in detail. Two points matter here:

Expert fees sit outside the ordinary list. CCP 1033.5(a)(8) allows "fees of expert witnesses ordered by the court"; subdivision (b)(1) excludes experts not so ordered. A 998 is how a party reaches the second category.

Everything else in the list still applies. Filing fees, deposition costs, service of process, court reporter fees and the rest are recoverable by the prevailing party regardless, and a 998 changes only who bears the post-offer share.

How California compares

Alaska's Rule 68 shifts a percentage of actual attorney's fees and scales it by how early the offer came. California shifts expert fees instead, at the court's discretion, and imposes no percentage margin — any worse result at all triggers it.

A short checklist

Making one

1. Serve it at least 10 days before trial, and remember trial commences at opening statement.
2. Include the acceptance provision. A statement the other side can sign is a required term, not a formality.
3. Make it clear enough to compare against a judgment. The whole mechanism turns on whether the result was more favorable than the offer.
4. Serve early if you want the expert-fee exposure to be real. Only post-offer expert costs are recoverable, so an offer made a fortnight before trial captures very little.
5. Diary 30 days. The offer dies then, and can be replaced.

Receiving one

1. Calendar the earlier of 30 days and the start of trial.
2. Value it against your realistic verdict range, not your best case. Any shortfall triggers the section.
3. Cost out the other side's experts. That is the number at risk, and it is capped only by Government Code section 68092.5.
4. If you are the plaintiff, model the netting. Under CCP 998(e) costs come out of your damages, and a large enough cost award reverses the judgment.
5. Accept in writing, signed by counsel — and file it with proof of acceptance, which is what produces the judgment.

Where these sections live

• CCP 998 — Offer to compromise
• CCP 1005 — Notice periods for motions
• CCP 1032 — Prevailing party costs
• CCP 1033.5 — Items allowable as costs
• CCP 2034.410 — Deposition of a listed expert
• CCP 2034.420 — Place of an expert deposition
• CCP 664.6 — Judgment on a settlement; retained jurisdiction
• CCP 581 — Dismissal of actions

This page explains what the Code says. It isn't legal advice, and Government Code section 68092.5, which caps recoverable expert fees, is outside what this site reproduces.