Martinez v. Eatlite One, Inc., 27 Cal. App. 5th 1181 (2018)

Samantha Martinez, a sandwich maker and cashier, sued Eatlite (the owner of a Subway store) for employment discrimination in violation of public policy, gender and pregnancy discrimination, failure to provide reasonable accommodations in the workplace, violation of the California Constitution and negligent supervision and retention. A jury found in favor of Martinez on all grounds and awarded her $11,490 in damages. Prior to trial, Eatlite made a Cal. Code Civ. Proc. § 998 offer of settlement in the amount of $12,001 to which Martinez never responded. Following the judgment, the trial court granted Martinez’s motion for attorney’s fees and costs because the 998 amount offered by Eatlite was silent as to whether it did or did not include fees and costs. The Court of Appeal reversed, holding that the trial court should have compared the jury’s award plus Martinez’s pre-offer costs and fees with the amount of the 998 offer plus Martinez’s pre-offer costs and fees; the Court also reversed the portions of the post-judgment orders awarding post-offer costs and fees to Martinez and denying post-offer costs to Eatlite. The Court concluded: “Having reached this disposition, we nonetheless believe the bench and bar would be well served if the Legislature amended section 998 to clarify how costs and fees should be addressed in a 998 offer.”