Moffett v. Barclay

In Moffett v. Barclay (1995) 32 Cal.App.4th 980, 17 days prior to service of summons, plaintiff served a section 998 offer to compromise on defendant's insurance company. Plaintiff bettered her offer by way of a damage award after trial and moved to recover expert costs and prejudgment interest. ( Moffett, supra, at pp. 981-982.) The First District Court of Appeal affirmed the trial court's denial of plaintiff's motion. The court gave two reasons why the offer was not valid: (1) service on defendant's insurance carrier was not effective service on defendant, and (2) defendant "was not a party at the time the offer was made because she had not yet been served with summons and complaint." (Moffett, supra, 32 Cal.App.4th at p. 982.) To support the latter ruling, the Moffett court relied on the Restatement definition of "party" discussed earlier in this opinion (pp. 7-8, ante). It also reasoned that the provision by which the offeree may allow judgment to be taken could not be effectuated, since a "judgment may be taken only as to parties over whom the court has acquired jurisdiction." ( Moffett, supra, at p. 983.)