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Los Angeles Lawyer
The Magazine of the Los Angeles County Bar Association

MCLE Test and Answer Sheet
Test No. 131: Bad Compromises
(November 2004)


Instructions for Obtaining MCLE Credits


The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of 1 hour. To apply for credit, please follow the instructions.

1. Study the CLE article.


2. Answer the test questions by marking the appropriate boxes. Each question has only one answer.

3. Photocopies of this answer sheet may be submitted; however, this form should not be enlarged or reduced. Mail the answer sheet and the $15 testing fee ($20 for non-LACBA members) to:
Los Angeles Lawyer
MCLE Test
P.O. Box 55020
Los Angeles, CA 90055 
Make checks payable to Los Angeles Lawyer.

4. You can also fill in the test form and submit it directly to LACBA by clicking "Submit." To submit your test answers online you will need to pay by credit card. After submitting your answers you will be presented with a screen requesting payment information. This information will be submitted in a secure mode which will allow you to safely transmit your credit card number over the Internet. If you prefer not to pay by credit card, please print this answer sheet and submit your responses by regular mail.

5. Within six weeks, Los Angeles Lawyer will return your test with the correct answers, a rationale for the correct answers, and a certificate verifying the CLE credit you earned through this self-assessment activity.

6. For future reference, please retain the CLE test materials returned to you.
Test Sheet 

Mark your answers to the test by clicking next to your choice.  All questions must be answered.  Each question has only one answer. This test is worth 1 hour of credit.*

1. For a settlement to be enforceable under Code of Civil Procedure Section 998, it must be approved by the court.
 True.
False.

2. If a defendant serves a proper Section 998 offer that the plaintiff rejects and at trial the plaintiff is awarded less than the amount of the offer, the plaintiff does not recover the costs that it otherwise would have recovered as the prevailing party, and the defendant instead is awarded all its costs.
 True.
False.

3. A defendant in a civil case whose Section 998 offer was rejected may be awarded its expert witness fees, which are ordinarily not recoverable, if the plaintiff recovers less than the amount offered.
 True.
False.

4. Pursuant to the language of Section 998, a party making an offer is offering to allow judgment to be entered and is not offering to compromise.
 True.
False.

5. A defendant making a Section 998 offer must offer to allow judgment to be entered against it and is not permitted to offer to accept a dismissal.
 True.
False.

6. A defendant making an offer for a judgment in a stated amount to be entered against it under Section 998 is offering to be the losing party.
 True.
False.

7. If counsel makes an error in a Section 998 offer that omits any limitation on a settling party's liability for costs or attorney's fees, and the error was due to counsel's lack of awareness of the case law addressing this issue, courts generally will not grant relief under Code of Civil Procedure Section 473.
 True.
False.

8. Section 473 ordinarily does not provide relief for clerical errors made by attorneys or their staffs in preparing Section 998 offers.
 True.
False.

9. The standard applied by a court hearing a motion for relief under Section 473 for a drafting error in a Section 998 offer is whether an attorney skilled in litigation would have made that same error.
 True.
False.

10. In making a motion for relief under Section 473 for an error in a Section 998 offer, attorneys can and should check published case law for well-established and well-defined standards to determine if the error for which they are seeking relief is the type of error for which relief may be granted.
 True.
False.

11. The California Supreme Court in Zamora v. Clayborn Contracting Group, Inc. stated that two court of appeal decisions--Premium Commercial Services Corporation v. National Bank of California and Pazderka v. Caballeros Dimas Alang, Inc.--were wrongfully decided.
 True.
False.

12. Under Zamora, the supreme court established that an attorney can never obtain relief under Section 473 if the attorney delegates the drafting of a Section 998 offer to a nonattorney staff member and does not review the work before it is served.
 True.
False.

13. In Zamora, evidence was admitted to show that the offeree knew that the Section 998 offer was a mistake.
 True.
False.

14. One way for a defendant to avoid making an error in a Section 998 offer that renders the defendant liable for costs or attorney's fees is to frame the Section 998 offer as an offer to accept a dismissal.
 True.
False.

15. If a case is dismissed, no attorney's fees may be awarded under Civil Code Section 1717.
 True.
False.

16. Courts have discretion to determine if a Section 998 offer was made in good faith when awarding any costs under Code of Civil Procedure Section 1033.5 to a party whose Section 998 offer was rejected.
 True.
False.

17. The court of appeal in Elrod v. Oregon Cummins Diesel, Inc. established a two-part test to determine the good faith of a Section 998 settlement offer.
 True.
False.

18. It is well-established that a defendant who makes a very low Section 998 offer early in the case has made the offer in bad faith and is not entitled to the benefits of Section 998.
 True.
False.

19. A defendant who seeks to make an early and low Section 998 offer can show good faith by providing a letter to plaintiff's counsel explaining how the facts of the case--including facts previously unknown to the plaintiff--and applicable law support a conclusion that the case against the defendant has no merit.
 True.
False.

20. The two-part test for determining the good faith of a Section 998 offer is 1) whether the offer is a reasonable prediction of the results at trial (reduced to the present value) and 2) whether the party receiving the offer reasonably knew or should have known the underlying facts.
 True.
False.

Address and Billing 
After submitting your answers you will be asked to enter your name, address, and payment information on the next screen. Once you have submitted the current form, you will be switched to a secure mode which will allow you to safely transmit your credit card number over the Internet.

If you do not wish to complete this transaction over the Internet you should print this page and send it to the address listed in Step 3 of the instructions at the top of this page.

  
Before clicking the Submit button, please verify that all questions have been answered. An error message will appear if not all questions are answered.

*The Los Angeles County Bar Association has been approved as a continuing legal education provider of Minimum Continuing Legal Education credit by the State Bar of California. This self-assessment activity will qualify for Minimum Continuing Legal Education credit by the State Bar of California in the amount of one hour.

   
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