Gorobets v. Jaguar Land Rover North America, LLC CA2/2 ( 2024 )

Filed 10/10/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
VADIM GOROBETS, B327745
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCV11540)
JAGUAR LAND ROVER
NORTH AMERICA, LLC,
Defendant and
Respondent.
APPEAL from an amended judgment of the Superior Court
of Los Angeles County, Monica Bachner, Judge. Affirmed.
Greines Martin Stein & Richland, Cynthia E. Tobisman,
Joseph V. Bui, Laura G. Lim; Knight Law Group and Radomir
Roger Kirnos; Wirtz Law Group and Richard M. Wirtz for
Plaintiff and Appellant.
1
Bowman and Brooke, Brian Takahashi and Bryan A.
Renyolds for Defendant and Respondent.
******
Code of Civil Procedure section 998 is designed to
“encourage both the making and the acceptance of reasonable
settlement offers” prior to trial. (Scott Co. of Cal. v. Blount, Inc.
(1999) 20 Cal.4th 1103, 1114 (Scott).)1 Section 998 accomplishes
its design by creating both a financial incentive to make
reasonable settlement offers (chiefly, by allowing the offeror to
obtain a greater share of its costs and attorney fees than it would
otherwise be entitled to seek) and a financial disincentive against
rejecting reasonable settlement offers (chiefly, by forfeiting the
offeree’s entitlement to costs and attorney fees to which it would
otherwise be entitled). (§ 998, subds. (c)(1) & (d).) The
disincentive function is achieved, however, only if the offer under
section 998 is, among other things, “sufficiently certain” or
“specific” or “definite” in its terms and conditions. (Fassberg
Construction Co. v. Housing Authority of City of Los Angeles
(2007) 152 Cal.App.4th 720, 764-765 (Fassberg); Elite Show
Services, Inc. v. Staffpro, Inc. (2004) 119 Cal.App.4th 263, 268
(Elite Show).) This appeal presents two questions: (1) Is a 998
offer sufficiently certain if it consists of two offers made at the
same time to the same party and leaves it to the offeree which
offer to accept; and (2) Is a 998 offer sufficiently certain if it
promises to pay the offeree for the categories of damages to which
the offeree is statutorily entitled (plus some categories to which it
is not), agrees to immediately pay any undisputed amounts for
1 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2
those categories, and shunts any disputed amounts to a third-
party mechanism for resolution? We conclude that the answer to
both questions is “No.” Although the offeror in this case made
two simultaneous offers (which would render both of them
ineffective), only one of those two offers was itself invalid; as a
result, the offeror’s 998 offer in the end consisted of a single valid
offer such that the trial court’s orders and resulting amended
judgment were correct in limiting the offeree to pre-offer costs
and attorney fees and awarding the offeror post-offer costs based
on the offeree’s failure to obtain a more favorable award at trial
than the single, valid offer. We accordingly affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
On October 2, 2015, Vadim Gorobets (plaintiff) entered into
an agreement with Jaguar Land Rover North America, LLC
(Land Rover) to lease a new 2016 Land Rover LR4. The vehicle
was valued at $59,474 and plaintiff was required under the lease
to pay $32,502.54 over the course of 42 monthly payments. He
had the option to purchase the vehicle at the end of the lease
term for $37,300.14.
Plaintiff experienced “defects and nonconformities” with
the vehicle’s “steering, suspension, engine, exterior, electrical,
structural, HVAC, interior and brakes.” The defects persisted
after plaintiff brought the vehicle into a Land Rover dealership
for repairs.
II. Procedural Background
A. Complaint
Plaintiff filed suit against Land Rover on April 4, 2019 for
violations of California’s “lemon law,” the Song-Beverly
3
Consumer Warranty Act (Civ. Code, § 1790 et seq.) (the Act).2 He
asserted three claims under the Act—namely, (1) breach of
express warranty, (2) breach of implied warranty, and (3) breach
of the duty to return the vehicle from service without defects
within 30 days. As relief, plaintiff prayed for, among other
things, replacement of the vehicle or restitution, incidental and
consequential damages, civil penalties, prejudgment interest, and
attorney fees and costs.
B. Land Rover’s 998 offer
Eighteen months after plaintiff filed suit, Land Rover
served plaintiff with a purported 998 offer on October 15, 2020.
The 998 offer was really two simultaneous offers, albeit phrased
as “alternative[s]”; Land Rover invited plaintiff to choose which
offer to accept:
● A lump sum offer. Land Rover offered to “pay
$85,000.00 to [p]laintiff to return” the vehicle to Land Rover
“with free and clear title.”
● A category-based offer with a dispute resolution
mechanism. Land Rover also offered to “reimburse” plaintiff for
several subcategories of restitution available under the Act
(namely, (1) the “past amounts” he paid for the vehicle, including
“transportation” charges, “manufacturer-installed options,” “loan
interest,” “rental charges” and “collateral charges such as sales
tax, license fees, registration fees, and other official fees,” and (2)
any “incidental or consequential damages”) as well as a category
to which plaintiff was not entitled (namely, a waiver of the Act’s
2 Plaintiff also named the dealership where he leased the
vehicle and brought it in for repairs (Terry York Motor Cars, Ltd.,
dba Land Rover of Encino), but subsequently dismissed that
defendant.
4
mileage offset for use of the vehicle prior to bringing the defects
to Land Rover’s attention). Under this offer, plaintiff was
required to provide Land Rover an “itemization” with “proof” of
the amounts in each category: Any “undisputed” amounts would
be paid immediately after plaintiff surrendered the vehicle to
Land Rover, while any “disputed” amounts would be resolved by
plaintiff’s choice of one of several “dispute resolution
process[es]”—that is, “by motion, bench trial, jury trial, expedited
jury trial . . ., or by referee.” Plaintiff was required to return the
vehicle “with free and clear title,” and Land Rover would pay off
any outstanding loan balance.
As to either offer, Land Rover offered to pay plaintiff’s
attorney fees and costs in either (1) a flat amount of $7,500 or (2)
an amount to be determined by the court. Plaintiff could “elect[]”
which of these options he preferred.
Land Rover’s offer ended with a box where plaintiff’s
counsel could “[c]hoose [o]ne” offer to accept.3
Plaintiff did not respond, and the offer expired.4
C. Trial
The parties proceeded to trial in March 2022 solely on
plaintiff’s claim for breach of express warranty under the Act.
The jury found Land Rover liable, and awarded plaintiff
$76,155.27 in damages comprised of the amount plaintiff paid for
3 The offer also included various other provisions not at issue
here regarding dismissal of the action and logistical steps for
plaintiff to return the vehicle and for Land Rover to transmit
payment.
4 This was Land Rover’s second 998 offer. Plaintiff did not
accept Land Rover’s first, prior offer. Its terms are therefore not
germane to this appeal.
5
the vehicle ($69,576.65), finance charges ($1,947.82), taxes and
fees ($3,681.12), and incidental damages ($4,828), less the value
of plaintiff’s use of the vehicle during the preceding six years
($3,878.32). Because the jury found that Land Rover had not
“willfully” violated the Act, the jury did not award plaintiff civil
penalties.
The trial court entered judgment on the verdict and left for
future litigation any award of attorney fees and costs.
D. Dueling motions for costs
The parties both filed memoranda of costs and then cross-
motions to strike or tax the other’s recovery.
Plaintiff sought $76,118.32 in costs on the ground that he
was the “undisputed ‘prevailing party’” in the case.
Land Rover sought $14,612.17 in costs on the ground that
plaintiff did not achieve a more favorable outcome at trial than
Land Rover’s 998 offer and, as a result, Land Rover was entitled
to the costs it incurred after that offer and plaintiff was limited to
the costs he incurred prior to that offer.
Following rounds of briefing on the cross-motions, and a
hearing, the trial court ruled on November 3, 2022 that the cost-
shifting provisions of section 998 applied.
The court ruled that Land Rover’s 998 offer was “valid,”
reasoning that “[a]t the time th[at] offer was made, [p]laintiff was
provided with a sufficiently specific and unconditional offer of
$85,000.00, which he chose not to accept,” and he subsequently
failed to obtain a more favorable award. Thus, the trial court
granted Land Rover’s motion to tax plaintiff’s costs such that
plaintiff was awarded only the costs he incurred prior to the 998
offer—that is, $5,238.22. The court awarded Land Rover the
6
amount of costs it incurred after the 998 offer (less $20.40 in
taxed witness fees)—that is, $14,591.77.
E. Motion for attorney fees
Plaintiff also moved for $543,413.34 in attorney fees
pursuant to the Act for prevailing at trial.5 Following briefing
and a hearing, the trial court ruled on February 3, 2023 that,
based on the analysis in its costs ruling, section 998 barred
plaintiff from recovering attorney fees he incurred after Land
Rover’s offer. The court denied as “inappropriate” plaintiff’s
requests for a multiplier of his attorneys’ fees and awarded
plaintiff $22,492 in pre-offer fees.
F. Appeal
Following the entry of an amended judgment interlineating
the costs and fees awards,6 plaintiff timely filed this appeal.
DISCUSSION
Plaintiff argues that the trial court erred in shifting the
awards of costs and reducing his attorney fees on the basis of
Land Rover’s 998 offer because (1) that offer was, in fact, two
simultaneous offers that presented a “choose-your-own
adventure,” “moving target” rather than a valid offer, and (2) one
of those offers—namely, the offer that proposed paying damages
5 Plaintiff’s lead counsel billed $280,882.50 in fees and
requested a multiplier of 1.5, for a total of $421,323.75 in fees.
Plaintiff’s trial counsel billed $81,393 in fees and requested a
multiplier of 1.5, for a total of $122,089.50 in fees.
6 In the amended judgment, the trial court inverted two of
the numbers in plaintiff’s costs award—such that he was
awarded $5,283.22 in costs rather than the $5,238.22 figure set
forth in the court’s costs ruling—but the parties do not challenge
this $45 windfall.
7
in accord with various statutory categories and shunting any
disputes regarding recovery of specific amounts to a third party
for resolution—was itself invalid. These arguments require us to
assess whether section 998 permits (1) simultaneous offers and
(2) offers to pay unspecified amounts keyed to categories of
statutorily authorized damages with any disputes regarding
those amounts to be resolved through a dispute resolution
mechanism. When helpful in assessing what section 998 permits,
courts can look to (1) the statutory text (T.M. Cobb Co. v.
Superior Court (1984) 36 Cal.3d 273, 277 (T.M. Cobb), (2) the
public policy underlying section 998 (Martinez v. Brownco
Construction Co. (2013) 56 Cal.4th 1014, 1021, 1026 (Martinez);
Valentino v. Elliott Sav-On Gas, Inc. (1988) 201 Cal.App.3d 692,
694 (Valentino); see generally Ardon v. City of Los Angeles (2016)
62 Cal.4th 1176, 1184 [where text of statute does not speak to
questions of interpretation, courts turn to “‘other aids, such as
the statute’s purpose . . . and public policy’”]), and (3) analogous
doctrines of generally applicable contract law, bearing in mind
that those doctrines must yield to the specific policies underlying
section 998 (T.M. Cobb, at pp. 279-280; Martinez, at p. 1020;
Arriagarazo v. BMW of North America, LLC (2021) 64
Cal.App.5th 742, 748).
These are questions of statutory interpretation and
questions involving application of the law to undisputed facts;
although we ordinarily review a trial court’s costs and fees
awards under the Act for an abuse of discretion (Hanna v.
Mercedes-Benz USA, LLC (2019) 36 Cal.App.5th 493, 507), we
review these subsidiary legal questions de novo (Martinez, supra,56 Cal.4th at p. 1018; One Star, Inc. v. STAAR Surgical Co.
(2009) 179 Cal.App.4th 1082, 1089 (One Star)).
8
I. Pertinent Law Governing Section 998
Section 998 is meant “to encourage the settlement of
lawsuits prior to trial.” (T.M. Cobb, supra, 36 Cal.3d at p. 280;
Scott, supra, 20 Cal.4th at p. 1114; Poster v. Southern Cal. Rapid
Transit Dist. (1990) 52 Cal.3d 266, 270.) Section 998 operates by
creating an exception to the general rule that the prevailing
party in civil litigation is entitled to its costs. (Covert v. FCA
USA, LLC (2022) 73 Cal.App.5th 821, 832 (Covert) [“[s]ection 998
. . . modifies the general cost recovery provisions”]; §§ 998, subd.
(a), 1032, subd. (b).) Section 998 achieves its purpose by acting as
both a “carrot” and a “stick.” (Bank of San Pedro v. Superior
Court (1992) 3 Cal.4th 797, 804.) Section 998 functions as a
“carrot”—and thereby creates a financial incentive to make
reasonable offers to settle—by entitling the party making an offer
to have its post-offer costs paid by the party receiving the offer if
the party making the offer obtains the same or a more favorable
result at trial or upon settlement. (§ 998, subds. (c)(1) & (d);
Bank of San Pedro, at p. 804 [section 998 “provides a financial
incentive to make reasonable settlement offers” “by awarding
costs to the putative settler”]; Martinez, supra, 56 Cal.4th at p.
1019 [same]; Madrigal v. Hyundai Motor America (2023) 90
Cal.App.5th 385, 390 (Madrigal) [applying section 998 when the
parties settle], review granted, Aug. 30, 2023, S280598.) Section
998 functions as a “stick”—and thereby creates a financial
disincentive to reject reasonable offers to settle—by requiring the
party who rejects an offer and does not obtain a better result at
trial or upon settlement to forfeit its post-offer costs and instead
pay those of the party making the offer. (§ 998, subd. (c)(1) & (d);
Bank of San Pedro, at p. 804 [section 998 creates a “strong
financial disincentive to a party . . . who fails to achieve a better
9
result than that party could have achieved by accepting his or her
opponent’s settlement offer”]; Martinez, at p. 1019 [same]; Taing
v. Johnson Scaffolding Co. (1992) 9 Cal.App.4th 579, 583 (Taing)
[section 998 “penalize[es] a party who fails to accept a reasonable
offer from the other party”].) The shifting of costs contemplated
by section 998 can be significant, as “costs” can include attorney
fees. (§§ 998, subd. (c)(2)(B), 1033.5, subd. (a)(10)(B); e.g., Hersey
v. Vopava (2019) 38 Cal.App.5th 792, 798-799 [“Costs include
attorney fees for purposes of section 998.”]; see Civ. Code, § 1794,
subd. (d) [costs include attorney fees under the Act].)
In light of these significant consequences, not every offer
qualifies as a valid 998 offer. To be valid under section 998, the
offer (1) must be “sufficiently” “certain,” “specific,” or “definite” in
its terms and conditions (Fassberg, supra, 152 Cal.App.4th at pp.
764-766 [sufficient certainty and sufficient specificity]; Markow v.
Rosner (2016) 3 Cal.App.5th 1027, 1053 (Markow) [sufficient
specificity]; Berg v. Darden (2004) 120 Cal.App.4th 721, 727
(Berg); Taing, supra, 9 Cal.App.4th at p. 585 [same]; Duff v.
Jaguar Land Rover North America, LLC (2022) 74 Cal.App.5th
491, 499 (Duff) [same]; MacQuiddy v. Mercedes-Benz USA, LLC
(2015) 233 Cal.App.4th 1036, 1050 (MacQuiddy) [same]; Elite
Show, supra, 119 Cal.App.4th at pp. 268-269 [sufficient certainty
and definiteness]), (2) must be unconditional (Barella v. Exchange
Bank (2000) 84 Cal.App.4th 793, 799 (Barella); Sanford v.
Rasnick (2016) 246 Cal.App.4th 1121, 1129-1130 (Sanford)), and
(3) must be made in “good faith,” which means “the offer is
‘“realistically reasonable under the circumstances”’” because (a)
the offer was “within the ‘range of reasonably possible results’ at
trial, considering all of the information the offeror knew or
reasonably should have known,” and (b) the offeror knew “the
10
offeree had sufficient information . . . to assess whether the ‘offer
[was] a reasonable one’” (Licudine v. Cedar-Sinai Medical Center
(2019) 30 Cal.App.5th 918, 924-925 (Licudine)).
Section 998’s requirement of sufficient certainty is really
two certainty requirements. First, an offer is certain under
section 998 only if its terms and conditions are sufficiently
certain that the offeree—at the time the offer is made—can
“evaluate the worth of the offer and make a reasoned decision
whether to accept th[at] offer.” (Fassberg, supra, 152 Cal.App.4th
at p. 764; Taing, supra, 9 Cal.App.4th at p. 585; Markow, supra, 3
Cal.App.5th at p. 1053; Berg, supra, 120 Cal.App.4th at p. 727.)
Second, an offer is certain under section 998 only if its terms and
conditions are sufficiently certain that the trial court—at the
time the case is resolved—can “determine whether the judgment
is more favorable than the offer.” (Fassberg, at p. 764; Valentino,
supra, 201 Cal.App.3d at p. 698; Berg, at p. 727; see Palmer v.
Schindler Elevator Corp. (2003) 108 Cal.App.4th 154, 158
(Palmer) [“the validity of an offer” from the court’s perspective
“will often be determined only in hindsight”], italics added.) An
offer that obligates a trial court to “undertake extraordinary
efforts to attempt to determine whether the judgment is more
favorable” than the offer runs afoul of section 998’s second
certainty requirement. (Fassberg, at p. 766; Valentino, at p. 698;
Barella, supra, 84 Cal.App.4th at pp. 800-801; cf. Berg, at p. 727
[“Neither the clerk nor the court is authorized to adjudicate a
dispute over the terms of section 998 agreements before entering
judgment.”].)
The party making the 998 offer bears the burden of
demonstrating that its offer was sufficiently certain and
unconditional (Taing, supra, 9 Cal.App.4th at p. 585; Covert,
11
supra, 73 Cal.App.5th at p. 832); as to these requirements, any
ambiguity in the offer is to be “strictly construed” against the
offeror (Barella, supra, 84 Cal.App.4th at p. 799; Berg, supra, 120
Cal.App.4th at p. 727). The party receiving the offer bears the
burden of demonstrating that the offer was not made in good
faith. (Licudine, supra, 30 Cal.App.5th at p. 926.) We review de
novo whether an offer is sufficiently certain to qualify as a valid
998 offer. (Fassberg, supra, 152 Cal.App.4th at p. 765; Chen v.
Interinsurance Exchange of the Automobile Club (2008) 164
Cal.App.4th 117, 122 (Chen); MacQuiddy, supra, 233 Cal.App.4th
at p. 1049.)
Contrary to what plaintiff suggests, section 998 applies in
full force even in cases brought under the Act. (Murillo v.
Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 1000,
superseded on other grounds by section 998; Duale v. Mercedes-
Benz USA, LLC (2007) 148 Cal.App.4th 718, 726; Madrigal,
supra, 90 Cal.App.5th at p. 397, fn. 8; Covert, supra, 73
Cal.App.5th at pp. 836-837.)
II. Are Simultaneous Offers Effective Under Section
998?
Our Supreme Court has observed that “[n]othing in the
wording of section 998 prevents a [party] from making more than
one compromise offer” to the same opposing party.7 (Martinez,
7 The validity of one plaintiff’s simultaneous offers to
multiple defendants or the validity of one defendant’s
simultaneous offers to multiple plaintiffs presents different
questions of certainty than the scenario at issue here. (See, e.g.,
Taing, supra, 5 Cal.App.4th at pp. 583-584 [documenting
relevant rules in this multiple-party scenario]; Palmer, supra,108 Cal.App.4th at p. 157 [same]; see also Peterson v. John
Crane, Inc. (2007) 154 Cal.App.4th 498, 506-507 [one person
12
supra, 56 Cal.4th at p. 1020.) Typically, litigants make multiple
offers seriatim—that is, one at a time; when they do, the most
recent offer is usually the operative offer that controls for
purposes of evaluating whether the subsequent judgment is more
or less favorable.8 (Wilson v. Wal-Mart Stores, Inc. (1999) 72
Cal.App.4th 382, 391 (Wilson); One Star, supra, 179 Cal.App.4th
at pp. 1091-1093; Varney Entertainment Group, Inc. v. Avon
Plastics, Inc. (2021) 61 Cal.App.5th 222, 234; Palmer, supra, 108
Cal.App.4th at p. 157.) But does section 998 allow a party to
make multiple offers to the same party at the same time?
We hold, as a threshold matter, that Land Rover made two
simultaneous offers because, as Land Rover acknowledged during
oral argument, the two “options” it proposed to plaintiff were
“mutually exclusive” and because characterizing them as a single
offer with two “options” does not alter their operation as
independent offers. We further hold, more importantly, that
simultaneous offers to the same party are not effective under
prosecuting action in several legal capacities constitutes one
plaintiff for purposes of section 998].)
8 But the last-in-time offer is not always the operative offer.
If the later of two offers is withdrawn by the offeror, the prior
offer becomes operative for purposes of determining whether the
cost-shifting mechanism of section 998 applies. (One Star, supra,
179 Cal.App.4th at pp. 1093-1094.) And if a judgment is more
favorable to the offeror than the multiple offers the offeree
rejected, the operative offer for purposes of calculating the point
at which costs shift is the first-in-time offer. (Martinez, supra, 56
Cal.4th at p. 1026.)
13
section 998 because such offers satisfy only one of section 998’s
two certainty requirements.9
Simultaneous offers do satisfy the first, offeree-focused
requirement of sufficient certainty because they do not interfere
with the offeree’s ability to “evaluate the worth of the offer[s] and
make a reasoned decision” about which of the simultaneous offers
to accept. (Fassberg, supra, 152 Cal.App.4th at p. 764.) An
offeree simultaneously presented with multiple valid offers is not
automatically deprived of the ability to evaluate the worth of
each offer just because the offers are served at the same time.
(Accord, Anderson v. Hilton Hotels Corp. (Fla. 2016) 202 So.3d
846, 855 [holding that “simultaneous offers” are “‘sufficiently
clear and definite’” to enable offeree to decide which to accept].)
This truth is illustrated by the following example. Assume an
offeror makes two simultaneous offers to settle a case—one to pay
a lump sum of $100,000 and another to pay a lump sum of
$200,000. The offeree is certainly able at the time it receives the
two offers to assess their value individually ($100,000 and
$200,000, respectively) against what the offeree estimates to be
9 The logic of our holding applies with equal force to all 998
offers except, perhaps, in situations where a statute explicitly
authorizes simultaneous offers. For instance, the Act specifically
grants a consumer the right to elect whether to accept a new
vehicle manufacturer’s offers either to (1) receive a “replacement”
vehicle or (2) receive “restitution” upon returning the vehicle.
(Civ. Code, § 1793.2, subd. (d)(2).) Whether this provision
implicitly authorizes a new vehicle manufacturer to make such
simultaneous offers in the first place—notwithstanding our rule
barring simultaneous 998 offers—is not an issue we need to
confront, as this case involves post-complaint simultaneous offers
for restitution under the Act.
14
their potential recovery at trial. The fact that both offers are
served at the same time and that the offeree has to check a box
next to the offer they accept does not appreciably diminish the
offeree’s ability to evaluate either offer.
However, simultaneous offers do not satisfy the second,
trial court-focused requirement of sufficient certainty because
they interfere with the trial court’s ability, at the time the case is
resolved, to determine “whether the judgment is more favorable
than the offer.” (Fassberg, 152 Cal.App.4th at p. 764.) Although
the text of section 998 does not address simultaneous offers
beyond referring to “offer” in the singular rather than the plural
(see generally, § 17, subd. (a) [“[w]ords” in statutes “us[ing]” a
“singular number include[] the plural”]; cf. Pratt & Whitney
Cananda, Inc. v. Sheehan (Alaska 1993) 852 P.2d 1173, 1182
[allowing simultaneous offers under plain language of similar
rule, but not addressing court’s duty to assess results]), the
policies underlying section 998 counsel strongly against allowing
such offers and those policies override the rules generally
applicable to other contracts.
Section 998 serves several public policies. Specifically,
section 998 aims to—and hence favors constructions that tend
to—(1) encourage parties to make more offers that will result in
settlements that compensate the injured party (Martinez, supra,
56 Cal.4th at pp. 1019, 1021; Palmer, supra, 108 Cal.App.4th at
pp. 158-159; T.M. Cobb, supra, 36 Cal.3d at p. 281), (2)
discourage offers aimed at gaming the system (Martinez, at p.,
1021; One Star, supra, 179 Cal.App.4th at p. 1095), (3) increase
predictability by providing litigants with “‘bright line rules’”
giving “clear direction” rather than rules that “spawn disputes
over the operation of section 998” (Sanford, supra, 246
15
Cal.App.4th at pp. 1129-1130; Palmer, at p. 158; Barella, supra,84 Cal.App.4th at p. 799; Wilson, supra, 72 Cal.App.4th at p. 391;
Martinez, at p. 1021), and (4) ensure “flexibility” so parties can
make new offers “when [they] discover new evidence” (Martinez,
at p. 1021).
Recognizing simultaneous offers as being effective under
section 998 would empower litigants to game the system (the
second policy) through the practice of making multiple offers that
cover all possible outcomes and, when all of the offers are
rejected, arguing to the trial court that cost shifting under section
998 applies because the ultimate outcome of the case is better for
the offeror than at least one of those offers. The remaining
policies underlying section 998 do not dictate a different
interpretation. A rule prohibiting simultaneous offers does not
appreciably discourage offers (the first policy) or diminish
flexibility (the fourth policy); all it does is obligate litigants to
make their offers one-at-a-time instead of all at once, which they
can easily do because a 998 offer can be revoked at any time
before it expires (T.M. Cobb, supra, 36 Cal.3d at p. 281). A rule
prohibiting simultaneous offers is also just as bright line as a rule
permitting simultaneous offers (the third policy). What is more,
these section-998-specific policies render any general principles of
contract law largely irrelevant because courts evaluating
contracts—unlike courts evaluating 998 offers—are generally not
called upon to evaluate whether a rejected offer to form a contract
is better or worse than the outcome of a case.
The uncertainty to the trial court engendered by
simultaneous offers is illustrated by the example discussed
above. If the offeree rejects the simultaneous offers to settle for a
lump sum of $100,000 and a lump sum of $200,000, and if the
16
jury returns a verdict for the offeree of $150,000, how is the court
to assess whether the offeror did better or worse than the verdict?
The verdict is between the $100,000 and $200,000 offers, and is
accordingly worse for the offeror than one offer but better than
the other. Because the offers were made at the same time, a
court cannot rely on the timing of the offers to dictate which is
the operative one. Further, particularly Machiavellian litigants
will be sure to cover the waterfront by making simultaneous
offers for all possible outcomes in an attempt to ensure that at
least one of those offers will trigger cost shifting under section
998.
Although simultaneous offers are not practically
unprecedented (e.g., Madrigal, supra, 90 Cal.App.5th at pp. 391,
404-406 [detailing simultaneous offers made in that case, but not
passing on their validity]; see generally, People v. Fontenot (2019)
8 Cal.5th 57, 73 (Fontenot) [“we do not treat cases as ‘authority
for propositions not considered’”]), we now hold that they are
legally unprecedented and, more to the point, legally ineffective
under section 998.10
10 At oral argument, Land Rover cited Ramos v. Mercedes
Benz USA, LLC (2020) 55 Cal.App.5th 220 as support for the
notion that manufacturers sued under the Act sometimes need to
make simultaneous offers to address the different claims asserted
under the Act which have different remedies. Although Ramos
holds that the different remedies for different violations of the
Act are not interchangeable, Ramos is irrelevant here. Ramos
does not deal with simultaneous offers, or for that matter, section
998. Moreover, the implicit premise of Land Rover’s argument is
that offerors should be permitted to make simultaneous offers on
a claim-by-claim basis rather than a single offer that
encompasses the settlement of an entire lawsuit; tellingly, Land
Rover offers no authority in support of this sweeping proposition.
17
In light of our conclusion that simultaneous offers are
invalid only because such offers are too uncertain for the trial
court to evaluate under section 998 on the back end, we must
proceed to examine whether each of the offers is independently
valid: If each simultaneous offer is valid, then the trial court is
unable to apply section 998 at the back end and, as concluded
above, the offers are all ineffective; but if only one offer is
independently valid, then the trial court can apply section 998 at
the back end as to that offer and the prohibition against
simultaneous offers is not implicated.11
III. Is a 998 Offer Valid If It Lists Categories of Remedies
Without Monetary Values and Refers Disputes Over Those
Values to an Unknown Arbiter?
California courts uniformly hold that a 998 offer is not
invalid merely because it contains nonmonetary terms and
conditions; a 998 offer with such terms is valid as long as those
terms and conditions satisfy the usual certainty requirement—
namely, that they are “sufficiently certain and capable of
valuation” (1) by the offeree when the offer is made (in order to
assess the offer’s worth), and (2) by the trial court after the case
is resolved (in order to compare the offer’s worth to the
judgment). (Fassberg, supra, 152 Cal.App.4th at p. 764; Markow,
supra, 3 Cal.App.5th at p. 1053; Duff, supra, 74 Cal.App.5th at p.
499; Elite Show, supra, 119 Cal.App.4th at p. 268; Covert, supra,
73 Cal.App.5th at pp. 833, 841; Menges v. Dept. of Transportation
(2020) 59 Cal.App.5th 13, 26; MacQuiddy, supra, 233 Cal.App.4th
at p. 1050.) The question here is whether a 998 offer that
11 Because we view this further analysis as necessary, we
disagree with the dissent that it is an “extra step.” (Dis. Opn., at
p. 2.)
18
promises to pay the offeree unspecified amounts corresponding to
statutorily enumerated categories of damages (plus a little extra)
and that kicks to a third-party arbiter any legal or factual
disputes over those amounts satisfies the certainty requirements.
We hold that an offer to pay amounts to which an offeree is
statutorily entitled and to shunt any disputes over entitlement to
those amounts to a third-party arbiter is not sufficiently certain
to be valid under section 998.
Such an offer does satisfy the first, offeree-focused
requirement of sufficient certainty because it does not interfere
with an offeree’s ability to “evaluate the worth of the offer and
make a reasoned decision” about whether to accept it. (Fassberg,
supra, 152 Cal.App.4th at p. 764.) The terms and conditions of
such an offer are not insufficiently certain merely because they
call upon the offeree to estimate how both legal and factual
disputes over damages might be resolved at trial. This is why
offers promising to pay an unspecified amount of attorney fees
(Elite Show, supra, 119 Cal.App.4th at pp. 266, 269), offers
promising to pay an unspecified amount of costs (id. at p. 270),
and offers requiring a release to be negotiated later (Fassberg, at
p. 766; Sanford, supra, 246 Cal.App.4th at p. 1130; Covert, supra,
73 Cal.App.5th at p. 839 [collecting cases]) have all been upheld
as valid even though each of them requires the offeree to
prognosticate how various disputes will be resolved. Put simply,
an offer is not uncertain merely because it calls upon the offeree
to fill in the blanks and do the math.12 Because an offer that
12 However, if the offeree does not have access to the
information necessary to do that math, the offer may not be in
good faith. (Cf. Licudine, supra, 30 Cal.App.5th at p. 920 [offer
not valid if offeror knew offeree lacked “reasonable access to the
19
promises to pay unspecified amounts corresponding to various
statutory categories of damages merely calls upon the offeree to
do the math, such an offer is sufficiently certain to the offeree
deciding whether to accept that offer.
Plaintiff resists this conclusion with three arguments.
First, he suggests that only offers for a monetary sum
certain are valid under section 998. As noted above, that is not
the law.
Second, plaintiff urges that an offer that requires the
offeree to predict how a third-party arbiter might resolve factual
or legal disputes is invalid because it requires more than “simply
crunch[ing] a few numbers.” We reject this assertion. To begin
and as discussed above, not knowing how a dispute will be
resolved until subsequent litigation or negotiation occurs does not
itself render the offer uncertain from the offeree’s perspective.
Time and again, courts have found 998 offers valid where certain
values or terms of the offer’s components are kicked to a later
determination. (See, e.g., Berg, supra, 120 Cal.App.4th at p. 731
[offer presumes negotiations after acceptance; valid].) What is
more and also as discussed above, in comparing a 998 offer to the
potential recovery at trial, offerees are always tasked with
conducting a risk assessment about how legal and factual
disputes might be resolved; plaintiff cannot shirk this traditional
responsibility just because an offer is stated in a nontraditional
fashion or just because the responsibility turns out to be
“difficult.” (Covert, supra, 73 Cal.App.5th at p. 839 [dispute over
prejudgment interest makes it “difficult” for offeree to “estimate”
facts necessary to ‘intelligently evaluate the offer’”].) No such
allegations were—or could be—made in this case, where plaintiff
possessed all the information pertinent to the damages he sought.
20
trial recovery, “but no more so than” estimating damages likely to
be recovered at trial; 998 offer with this term still valid].)
Third and lastly, plaintiff argues that this case is
indistinguishable from Duff, supra, 74 Cal.App.5th 491. Plaintiff
is wrong. In Duff, a car manufacturer (indeed, Land Rover) made
an offer promising to pay the offeree a sum certain of $28,430.80
plus additional amounts if the offeree “provide[d] documentation
[to the offeror] to show the amount [owed] is more than
$28,430.80.” (Id. at p. 496.) Duff ruled that this single offer was
too uncertain to be valid chiefly under the first, offeree-focused
certainty requirement because it presented a “moving target”—
was the offer for $28,430.80 or for a greater amount?—that made
it impossible for the offeree to value the offer at the time the offer
was made. (Id. at p. 500.) The offer in this case is different
because, unlike Duff’s single offer that combined a sum certain
with a potential for greater recovery based on documentation,
here we have two alternate offers—one for a sum certain and a
second for statutorily enumerated amounts supported by
documentation with any disputes shunted to an alternate dispute
mechanism. As explained above, the offeree in this situation is
able to evaluate each offer’s worth independently; neither offer,
by itself, is too uncertain to the offeree at the time of the offer.
However, an offer to pay statutorily enumerated categories
of damages subject to proof and that shunts any legal or factual
disagreements to a third-party arbiter does not satisfy the
second, trial court-focused requirement of sufficient certainty
because such an offer precludes a trial court, at the time the case
is resolved, from determining “whether the judgment is more
favorable than the offer.” (Fassberg, supra, 152 Cal.App.4th at p.
764.) That is because this type of offer obligates the trial court to
21
compare (1) the amount of the judgment to (2) the total amount of
(a) what the parties might have agreed was undisputed, (b) what
the selected third-party arbiter might have determined as to any
disputed issues, or (c) a combination of both. Because this second
amount is wholly hypothetical, the only way a trial court could
conduct the comparison required by section 998 would be “‘to
engage in wild speculation bordering on psychic prediction.’”
(Khosravan v. Chevron Corp. (2021) 66 Cal.App.5th 288, 297
(Khosravan); Valentino, supra, 201 Cal.App.3d at p. 699; see, e.g.,
MacQuiddy, supra, 233 Cal.App.4th at p. 1050 [trial court cannot
compare judgment to nonmonetary term in offer that is
“subjective”].) This is too uncertain to create a valid 998 offer.
What is more, a rule allowing such offers would be sure to “spawn
disputes over the operation of section 998,” a result at odds with
its underlying public policy. (Martinez, supra, 56 Cal.4th at p.
1021.)
Land Rover resists this conclusion with what boils down to
three arguments.
First, Land Rover argues that an offer to pay unspecified
amounts that track the categories of statutorily enumerated
damages is sufficiently certain because all the trial court needs to
do is compare which categories the jury actually awarded to the
categories that were offered. This argument ignores the terms of
Land Rover’s 998 offer at issue here. The terms of that offer do
not authorize the court to compare the amounts the jury awarded
for categories it found applicable to the amounts the jury
awarded for categories Land Rover offered. (Cf., e.g.,
MacQuiddy, supra, 233 Cal.App.4th at p. 1050 [suggesting that
an offer with terms that are “minimally determined by” statute
may be sufficiently certain].) Rather, the terms of Land Rover’s
22
998 offer only authorize the court to compare the amount of the
jury’s award to the amount of what the parties might have agreed
upon plus what a third-party arbiter might have decided as to
whatever the parties could not agree upon. Land Rover would
have us equate the two, but doing so ignores that the amount the
jury awarded for each category may be entirely different than
what the parties might have agreed to or what a third-party
arbiter might have awarded for the same category at some earlier
point in the case. (Accord, Wilson, supra, 72 Cal.App.4th at p.
390 [“there is an evolutionarily aspect to lawsuits”].)
Second, Land Rover argues that its category-focused 998
offer is valid because, as we noted above, courts have upheld
section 998 offers that provide for third-party arbiters to decide
disputes regarding attorney fees (Elite Show, supra, 119
Cal.App.4th at pp. 266, 269) and costs (id., at p. 270), and have
upheld 998 offers that contemplate the future negotiation of
releases that reach no further than the claims at issue in a case
(Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899, 907;
Covert, supra, 73 Cal.App.5th at p. 839; cf. Chen, supra, 164
Cal.App.4th at p. 122 [invalidating release that reaches beyond
claims at issue in case]; Valentino, supra, 201 Cal.App.3d at pp.
694-697 [same]; Khosravan, supra, 66 Cal.App.5th at pp. 298-299
[same, as to invalidating release that also requires
indemnification]). What these components to an offer all have in
common is that they are “incidental” to the lawsuit’s core. (Elite
Show, at p. 269.) No case has held that a section 998 offer is
valid if it leaves resolution of core components of damages to a
third-party arbiter.13 To illustrate, if an offer in a personal injury
13 Although the offer discussed in Kirzhner v. Mercedes-Benz
USA, LLC (2020) 9 Cal.5th 966, 970, offered to pay categories of
23
case promised to pay damages for the categories of medical
expenses and pain and suffering and shunted any disagreements
over the amounts for those categories to a third-party arbiter, a
trial court would have no way to know what the arbiter would
have awarded for the amorphous but critical category of pain and
suffering damages and hence no way to compare that amount to
what a jury eventually awarded. (See People v. Gomez (2023) 97
Cal.App.5th 111, 118-119 [noting “difficult[y]” in quantifying
subjective pain and suffering damages].) Such an offer is, like
the one at issue here, too uncertain to be valid under section 998.
(Accord, Sanford, supra, 246 Cal.App.4th at pp. 1130-1132 [offer
requiring parties to enter into a “settlement agreement” with
unspecified terms is too uncertain and invalid under section
998].)
Third and lastly, Land Rover argues that this case is
distinguishable from Duff, supra, 74 Cal.App.5th 491. This is
true but irrelevant. Duff invalidated the 998 offer in that case
chiefly due to its uncertainty to the offeree; here, we address the
uncertainty of the 998 offer to the trial court. The two analyses
are not the same.
IV. Applying These Rules
Applying our analysis, one of Land Rover’s two offers—
namely, the offer to pay an unspecified amount corresponding to
various categories of damages under the Act—is invalid.
However, no one disputes that the other of Land Rover’s two
offers—namely, the offer to pay a sum certain of $85,000—is
damages that tracked the statutorily enumerated categories
under the Act, Kirzhner at no point addresses the validity of that
offer. Kirzhner is accordingly not authority for the proposition
that such offers are valid. (Fontenot, supra, 8 Cal.5th at p. 73.)
24
valid. So we are faced with the following question: When an
offeree makes two simultaneous offers, one of which is invalid
and the other valid, is that really simultaneous offers that render
the independently valid offer ineffective?
We conclude that the answer is no.14
To begin, what makes simultaneous offers ineffective is
that they are too uncertain for the trial court, at the back end, to
determine whether the judgment was better or worse than the
multiple valid offers. Where, as here, we know at the back end
that one of the two simultaneous offers is invalid, there remains
a single valid offer against which the judgment can be
compared.15 The uncertainty defect is gone.
Even if we deem the making of simultaneous offers to
render both offers ineffective at the time they are made, a court’s
subsequent recognition of the invalidity of one of the two offers
revives the sole valid offer. Precedent confirms this analysis. In
One Star, supra, 179 Cal.App.4th 1082, the court concluded that
when an offeror makes two separate offers but later withdraws
the second offer, the first offer—which had been superseded (and
hence rendered ineffective) by the second—is deemed to be
14 This holding is necessarily limited to the facts of this case,
where it is the offeree who is successful in challenging the validity
of one of the simultaneous offers. We accordingly do not address
the situation where the offeror challenges the validity of one of its
own offers in order to sidestep the bar against simultaneous
offers.
15 The answer would be different, however, if more than one
offer remains valid, for the offeror would still have the tactical
opportunity to pick which still-valid offer to use as a comparison
point to the judgment.
25
“revived” and operative for purposes of section 998’s cost-shifting
mechanism. (One Star, at pp. 1085, 1093-1094.) Although One
Star does not deal with simultaneous offers, the principle of
revival it espouses applies with equal force here.
In the supplemental briefing we invited from the parties on
this issue and at oral argument, plaintiff urges that the
ineffectiveness of simultaneous offers at the time they were made
renders them both ineffective forever because (1) an
independently valid 998 offer cannot be saved by severing it from
the invalid offer (cf. MacQuiddy, supra, 233 Cal.App.4th at p.
1050 [invalidity of certain terms of 998 offer invalidates entire
offer]), (2) a rule declaring any sole remaining, valid offer
effective would “reward” the offeror, and (3) a rule preserving the
last valid offer standing will be unduly burdensome on trial
courts applying section 998 because those courts will be routinely
called upon to assess whether one or more offers made
simultaneously are invalid.16 We reject these arguments.
As we have explained (and as plaintiff seems to
acknowledge elsewhere in his supplemental brief), an offer with
two options is ineffective because it operates as two simultaneous
offers. Thus, recognizing the effectiveness of the sole remaining
valid offer when the other simultaneously made offer is later
declared invalid does not entail any impermissible severance of
the still-valid offer.
16 At oral argument, plaintiff also argued that we cannot
uphold the lone-remaining, valid 998 offer because doing so
would run afoul of the maxim that the terms of an offer are to be
construed against the offer’s drafter. But we are not construing
the terms of any offer; we are deciding the effect of the invalidity
of one offer on the validity of another.
26
We also do not see how our analysis “reward[s]” offerors
because the making of simultaneous offers renders all of them
ineffective except in the happenstance, present here, where all
but one of them are later declared invalid. An offeror in this
situation is in the same position as an offeror who made a single,
valid offer in the first place. We see no advantage, and hence no
reward.
We disagree that our decision to enforce the only 998 offer
that remains valid will lead to an avalanche of work for trial
courts by obligating them to routinely decide whether one or
more simultaneous offers are invalid. The issue arose here
because this is the first case to squarely confront the validity of
simultaneous offers and category-based offers. Given that
litigants now know that simultaneous offers are generally invalid
and that category-based offers are invalid, and given that we
have no reason to believe that offerors are on the cusp of
inventing a whole new slew of creatively phrased offers of
questionable validity under section 998, we conclude that
plaintiff’s concern is unwarranted.
Finally, we do not agree with the dissent that the result we
reach is an inequitable one. Plaintiff elected to attack Land
Rover’s offers on two grounds—that simultaneous offers are
invalid and that offers keyed to statutory categories of damages
are invalid. All we have done is evaluated the merit of those
attacks and applied them to the facts of this case. That is how
litigation unfurls. Although plaintiff may not have anticipated
that the repercussion of succeeding on both of its arguments
would lead to a result not in its favor, that does not render that
result inequitable or unfair.
* * *
27
Thus, although Land Rover’s simultaneous offers were not
permitted by section 998, only the category-based offer fails the
requirement of sufficient certainty from the perspective of the
trial court and, therefore, only that offer is independently invalid.
Taking that invalid offer off the table, there are no longer
simultaneous offers and, accordingly, Land Rover’s valid, lump
sum offer to repurchase plaintiff’s vehicle for $85,000 is the
operative offer. Because plaintiff failed to obtain a more
favorable judgment than that offer at trial, the trial court was
correct in ruling, pursuant to section 998, that plaintiff is limited
to recovering his pre-offer costs and attorney fees and is required
to pay Land Rover’s post-offer costs.
DISPOSITION
The amended judgment is affirmed. The parties are to bear
their own costs on appeal.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
I concur:
_________________________, J.
CHAVEZ
28
Vadim Gorobets v. Jaguar Land Rover North America, LLC,
B327745
ASHMANN-GERST, Acting P. J., Dissenting
I agree with my colleagues that a Code of Civil Procedure
section 9981 offer is not “sufficiently certain if it consists of two
offers made at the same time to the same party and leaves it to
the offeree which offer to accept.” (Maj. Opn., at p. 2; see also
Maj. Opn., at pp. 13–14 [“simultaneous offers to the same party
are not effective under section 998 because such offers” are
uncertain], 17 [simultaneous offers are “legally ineffective under
section 998”].) However, I respectfully disagree with my
colleagues’ conclusions that (1) “[s]imultaneous offers . . . satisfy
the first, offeree-focused requirement of sufficient certainty
because they do not interfere with the offeree’s ability to ‘evaluate
the worth of the offer[s] and make a reasoned decision’ about
which of the simultaneous offers to accept” (Maj. Opn., at p. 14);
and (2) when an offeror “makes two simultaneous offers, one of
which [later turns out to be] invalid and the other valid,” the
offeror has not “really [made] simultaneous offers that render the
independently valid offer ineffective” (Maj. Opn., at p. 25). In my
opinion, defendant Jaguar Land Rover North America, LLC’s
(Land Rover) simultaneous offers to plaintiff Vadim Gorobets
were ineffective under section 998. (Maj. Opn., at p. 14.) My
analysis would end there, and I would reverse the trial court
order awarding postoffer costs to Land Rover.
1 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
1
I see no need to take the extra step to address whether one
of the simultaneous offers was ineffective. Rather, in my opinion,
the simultaneous offers by Land Rover (one offeror) to plaintiff
(one offeree) were inherently ineffective under section 998. When
viewed together, which is how they were presented to plaintiff,
Land Rover’s simultaneous offers were not sufficiently certain for
plaintiff to evaluate. (Maj. Opn., at p. 16.) (Fassberg
Construction Co. v. Housing Authority of City of Los Angeles
(2007) 152 Cal.App.4th 720, 764 [“An offer to compromise under
Code of Civil Procedure section 998 must be sufficiently specific
to allow the recipient to evaluate the worth of the offer and make
a reasoned decision whether to accept the offer. [Citations.]”].)
I do not find One Star, Inc. v. STAAR Surgical Co. (2009)
179 Cal.App.4th 1082 (STAAR) instructive. In that case, the
court held that when an offeror makes serial settlement offers,
the offeror’s withdrawal of the second settlement offer revives its
first settlement offer; such a holding was consistent with the
policies underlying section 998. (STAAR, supra, at pp. 1094–
1095.)
But serial offers are far different than simultaneous offers
by one offeror to one offeree (Anderson v. Hilton Hotels Corp. (Fla.
2016) 202 So.3d 846, 854 [“an offer by a single named offeror to a
single offeree was considered sufficiently clear and enforceable,
although it did not address separate pending claims of other
parties to the litigation”], 855 [holding that “[i]f a party receives
two simultaneous offers from two separate parties, common sense
dictates that the offeree should possess all the information
necessary to determine whether to settle with one or both of the
offerors,” but not considering simultaneous offers by one party to
one party]), and the policies highlighted in STAAR are not
2
achieved when a valid offer, which is part and parcel of a
prohibited simultaneous offer, is resuscitated after judgment,
when a court determines that one of the simultaneous offers was
actually invalid. (See STAAR, supra, 179 Cal.App.4th at p. 1095
[“While an offer’s validity may be clear only in hindsight, the
status of a withdrawn offer is known to both parties as soon as
the offer is withdrawn”].) Unlike the offeree in STAAR, plaintiff
here did not know the status of the two simultaneous offers until
after judgment. Even with the benefit of now knowing that
simultaneous offers are banned, plaintiff could not have known
that the majority would not employ the general prohibition
against simultaneous offers in this case.
Furthermore, as the majority recognizes, enforcing the
bright line ban on simultaneous offers would “obligate litigants to
make their offers one-at-a-time instead of all at once.” (Maj.
Opn., at p. 16.) Allowing Land Rover to benefit here defeats this
purpose.
Finally, I find the result inequitable; plaintiff should not be
forced to absorb Land Rover’s postoffer costs as a repercussion of
our determination over four years after the offers were made that
one of those offers was invalid. (See, e.g., Palmer v. Schindler
Elevator Corp. (2003) 108 Cal.App.4th 154, 158 [consequences of
an invalid, or arguably invalid, offer should be placed on the
offeror who caused the invalidity, not the offeree]; Spray, Gould
& Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th
1260, 1270 [“[E]quitable estoppel is not a punitive notion, but
rather a remedial judicial doctrine employed to insure fairness,
prevent injustice, and do equity. It stems from the venerable
judicial prerogative to redress unfairness in the application of
3
otherwise inflexible legal dogma, based on sound public policy
and equity”].)
I would reverse the trial court’s order.
__________________________, Acting P. J.
ASHMANN-GERST
4