I respectfully dissent.
The majority concludes that the single Code of Civil Procedure section 9981 offer made by respondent John Crane, Inc. (John Crane), to “GLORIA PETERSON, Individually, and as Successor-in-interest to JOHN PETERSON, Decedent, and GLORIA PETERSON, as Legal Heir of JOHN PETERSON, Deceased, Plaintiffs” was valid because it was made to but a single “party” to the litigation. I disagree. In my view, the offer was made to two *516parties because Gloria Peterson (Peterson) was asserting two different legal claims: (1) those she held individually for wrongful death and the associated loss of consortium, and (2) the survivor claims she was asserting as the successor in interest to her deceased husband John. I find no basis in the statute or case law to adopt a rule that a single human being who pleads multiple claims in different legal capacities must be deemed a single “party” for purposes of section 998.2
To begin, I agree with the majority’s statement of the controlling law. As a general rule, a section 998 offer that is made to multiple parties is valid only if it is expressly apportioned among them and not conditioned on acceptance by all of them. (Burch v. Children’s Hospital of Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 544 [135 Cal.Rptr.2d 404].) However, a single joint offer to multiple parties that is conditioned on acceptance by all can be valid if the parties have a “unity of interest such that there is a single, indivisible injury.” (Weinberg v. Safeco Ins. Co. of America (2004) 114 Cal.App.4th 1075, 1087 [8 Cal.Rptr.3d 224] (Weinberg).) Like the majority, I agree it is appropriate to apply those rules here using a three-part analysis: (1) was the section 998 offer at issue made to multiple parties? (2) if so, was it apportioned among the offerees and not conditioned on acceptance by all of them? and if not, (3) was the offer nonetheless valid because the offerees had a unity of interest? I will address each point in turn.
A. Was the Section 998 Offer Made to Multiple Parties?
I believe the answer to the first question plainly is yes. The offer was made to “GLORIA PETERSON, Individually, and as Successor-in-interest to JOHN PETERSON, Decedent, and GLORIA PETERSON, as Legal Heir of JOHN PETERSON, Deceased, Plaintiffs.” (Italics added.) The use of the conjunctive “and” demonstrates clearly that John Crane made its offer to more than one party.
The majority implicitly concedes that the offer itself was made to more than one party, but concludes that the number of parties to whom the offer was made is a legal question that is not dependent upon the parties’ characterization. (Maj. opn., ante, at p. 506.) Even if I were to assume the *517majority is correct on this point, I disagree with the majority’s conclusion that the offer was directed to only one “party.”
I turn to the statute at issue. As is relevant, section 998 states “any party may serve an offer . . . upon any other party to the action” to allow judgment in accord with the statute. (§ 998, subd. (b), italics added.) The common legal definition of the word “party” is “One by or against whom a lawsuit is brought. . . .” (Black’s Law Dict. (8th ed. 2004) p. 1154; see also Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 570 [21 Cal.Rptr.3d 331, 101 P.3d 140].)
When Peterson filed her second amended complaint, she did so in two different legal capacities. As an individual, she filed a wrongful death claim. (See § 377.60, subd. (a).)3 As part of that claim, Peterson was entitled to recover damages for the loss of her husband’s society and companionship, i.e., loss of consortium. (See 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, §§ 1690-1691, pp. 1220-1223.)
However, Peterson also brought suit against John Crane as a successor in interest to the claims that her deceased husband John had previously asserted. (See § 377.31.)4 As a successor in interest, Peterson “succeeded] to [the] cause of action” of her deceased husband. (§ 377.11.) Since Peterson brought claims against John Crane in two different legal capacities, I believe it is reasonable to conclude she was a different “party” in each capacity for purposes of section 998.
This conclusion is consistent with the long-established rule of Anglo-American jurisprudence that a husband and wife are entirely separate legal entities. (See, e.g., Follansbee v. Benzenberg (1954) 122 Cal.App.2d 466, 476 [265 P.2d 183]; see also 11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband and Wife, § 18, pp. 55-57.) Prior to John’s death, he and Peterson indisputably constituted two separate plaintiffs. Any section 998 offer extended to both of them would have constituted an offer to multiple offerees. (Menees v. Andrews (2004) 122 Cal.App.4th 1540, 1543-1544 [19 Cal.Rptr.3d 664].) Since Peterson merely stepped into John’s shoes as plaintiff for purposes of prosecuting his claims, there remained, in effect, two plaintiffs in *518the case. The section 998 offer to Peterson, individually, and Peterson, as successor in interest to her deceased husband’s claims, constituted an offer to multiple offerees as well.
My conclusion on this point is also supported by a long line of cases that hold a person who sues in more than one legal capacity is viewed as more than one plaintiff. In Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1278 [45 Cal.Rptr.3d 222] (Quiroz), the mother of a decedent filed a wrongful death action seeking compensation for her own damages. After the statute of limitations had run, the mother filed an amended complaint alleging a survivor cause of action that sought damages for her son’s predeath injuries. The pivotal issue in the case was whether the filing of the survivor action related back to the filing of the wrongful death claim in the original complaint, thereby avoiding the bar of the statute of limitations. (Id. at pp. 1262, 1278.) The Quiroz court observed that the relation-back doctrine required that the amended complaint must involve the same injury, and a new plaintiff could not be joined after the limitations period has run if he or she seeks to enforce an independent right or greater liability. (Id. at p. 1278.) The court further held that the amended complaint did not relate back, because “the survivor cause of action pleaded a different injury than the wrongful death cause of action.” (Id. at p. 1262, italics added.) The Quiroz court also concluded that the two claims were asserted by “different plaintiffs, [the decedent’s mother] acting in two separate capacities with respect to each . . . .” (Id. at p. 1278, italics added.) The court held that, “[a]s a matter of law, these distinct claims are technically asserted by different plaintiffs and they seek compensation for different injuries.” (Ibid.)
In First Security Bank of Cal. v. Paquet (2002) 98 Cal.App.4th 468 [119 Cal.Rptr.2d 787] (Paquet), plaintiff minority shareholders sued the defendant bank and others in a shareholder derivative action. The defendant bank filed a cross-complaint, which was dismissed as to the plaintiffs in their individual capacities. (Id. at pp. 471-475.) The plaintiffs then sought and obtained an order awarding them attorney fees. Because claims brought by the plaintiffs in the shareholder derivative complaint had not been resolved, the question on appeal was whether the order awarding them fees was appealable. The Paquet court ruled that the pendency of a complaint raising solely derivative causes of action does not prevent the appeal of a judgment on a cross-complaint that resolves all causes of action against the plaintiffs and cross-defendants in their individual capacities. (Id. at p. 473.) The court analogized to a case holding that claims brought in individual capacities, as executor of an estate, and as guardian ad litem, were considered to be asserted by different parties for purposes of determining appealability. (Id. at pp. 474-475.) Similarly, the Paquet court held, claims brought in shareholder derivative actions are asserted in a representative capacity rather than an individual capacity, and are thus filed by different parties. (Ibid.)
*519In Dominguez v. City of Alhambra (1981) 118 Cal.App.3d 237 [173 Cal.Rptr. 345], the decedent’s widow sued for wrongful death on her own behalf and as guardian ad litem for the decedent’s minor children. The decedent’s widow, in her capacity as administratrix of the decedent’s estate, later sought to amend her complaint to assert a claim for damages suffered by the decedent before his death. The trial court denied the motion on the ground that the claim was time-barred. The Court of Appeal affirmed reasoning that the amended complaint did not relate back because it was filed on behalf of the estate for injuries before the decedent’s death, while the wrongful death claim was brought by heirs for their losses due to the death. (Id. at p. 243.) Furthermore, the denial of the motion for leave to amend the complaint was appealable as a final determination of the appellant’s rights, because the appellant’s capacity as administratrix made her a separate party. (Id. at p. 241, see also Bartalo v. Superior Court (1975) 51 Cal.App.3d 526 [124 Cal.Rptr. 370] [husband’s cause of action for loss of consortium did not relate back to wife’s claim for personal injuries].)
While none of these cases addressed the issue of multiple parties for purposes of a section 998 offer, the essential point in each is the same. When a plaintiff sues in more than one legal capacity, each capacity is treated as a separate plaintiff. I believe the same rule should apply to offers that are made pursuant to section 998.
The majority adopts a different analysis on many of these points. I respectfully disagree.
The majority interprets the word “party” in section 998 to mean “person” and then reasons that the multiple capacities under which Peterson sued were irrelevant because she was simply a single person who was asserting different types of claims. (Maj. opn., ante, at pp. 506-507.) While Peterson was a single person who was asserting different types of legal claims, she also was asserting those claims under different legal capacities. As Quiroz, Paquet, and Dominguez illustrate, when a plaintiff asserts different legal claims under different legal capacities, each capacity is treated as a separate plaintiff. In my view, the fact that Peterson was alleging claims under multiple legal capacities is not irrelevant, it is controlling.
Next the majority notes that the reason why offers to multiple plaintiffs are subject to special rules is the “concern that the multiple parties will not be able to agree whether to accept the offer and, as a result, the chance for the settlement of at least some of the claims in a case will be lost.” (Maj. opn., ante, at p. 510.) According to the majority, “[t]hat concern does not arise where the offeree is a single individual, prosecuting claims on her own behalf . . . who is faced with no greater internal mental debate than any *520individual plaintiff who must decide whether to settle all of her causes of action.” (Maj. opn., ante, at p. 510.) However, this argument assumes that all of the claims Peterson was asserting, both individually and in her representative capacity, were necessarily aligned. That assumption is faulty. The interests Peterson was asserting on her own behalf may well have been different from the interests she was asserting as the successor in interest to her late husband’s claim. As to the latter claim, many factors may have come into play in assessing John Crane’s offer, including the details of her late husband’s estate plan, the identity of any possible residual beneficiaries, and the existence of other individuals or entities who might have some interest in the decedent’s estate.
The majority also faults Peterson because she “never complained that she in one capacity had an insurmountable conflict with herself in another capacity. Nor is there any indication in the record that Peterson declined the offer because she believed it was invalid, was confused by its form, or was unable to agree with herself . . . .” (Maj. opn., ante, at p. 513.) In my view, these arguments fail to take into account the applicable standard of review. John Crane, as the offeror, had the burden of proving that the offer was valid under section 998. (Weinberg, supra, 114 Cal.App.4th at p. 1086.) Any ambiguity in that offer must be resolved in favor of the offeree. (Ibid.) Furthermore, nothing in the statute imposes on the offeree a burden to rebut proof of validity of the offer of compromise before the offeree may be subject to an adverse award of the specified fees and costs.
In a related argument, the majority observes that it would have been “easy for Peterson’s attorney to make some effort to clarify or negotiate the matter with the attorney for John Crane, or to send out a counteroffer to her liking.” (Maj. opn., ante, at p. 512.) Of course, communication between opposing counsel on the subject of settlement should be encouraged, and counsel should realistically evaluate the risk of further proceeding to trial in the face of a reasonable section 998 offer. But I conclude a burden may not be shifted to, or placed on the offeree to prove a conflict between or among an individual person’s multiple capacities in which he or she brings an action. Whether silence is the proper response to what the offerees’ counsel concludes is an invalid single offer to multiple offerees, is a professional judgment counsel must make.
Next, the majority argues that accepting Peterson’s argument that an individual who sues in more than one legal capacity constitutes multiple plaintiffs “would open a Pandora’s box of procedural anomalies” such as whether each plaintiff would be entitled to voir dire, to cross-examine witnesses, or to participate in final argument. (Maj. opn., ante, at p. 510, fn. 10.) Of course, the parties to this appeal have not raised any issues regarding voir dire, the right to cross-examination, or the right to participate in final *521argument so those questions are not before us. Furthermore, as the Quiroz, Paquet, and Dominguez cases illustrate, the Pandora’s box about which the majority is concerned, has been open for some time with no discemable ill effect. I am not convinced that recognizing that a person who sues in more than one legal capacity is more than one party as that term is used in section 998, subdivision (b) would lead to the problems the majority suggests.
Finally, the majority relies on People ex rel. Lockyer v. Fremont General Corp. (2001) 89 Cal.App.4th 1260 [108 Cal.Rptr.2d 127] (Fremont) to support its position. In that case, the People of the State of California represented by the Attorney General and several district and city attorneys filed suit against a corporation seeking civil penalties, restitution, and injunctive relief. (Id. at p. 1262.) The corporation served a single section 998 offer proposing judgment in the People’s favor for $2 million. (89 Cal.App.4th at p. 1268.) The People rejected the offer, and then lost at trial. (Id. at p. 1263.) Subsequently, the trial court awarded the corporation over $500,000 under section 998. On appeal, the People challenged the award arguing the corporation’s offer was uncertain because it did not allocate the sum indicated to the alleged “victims” and did not designate the manner in which any civil penalties were to be allocated among the various prosecuting agencies. (89 Cal.App.4th at p. 1268.) The appellate court rejected that argument explaining that the “problems of uncertainty presented by lump-sum or conditional settlement offers to multiple parties are not presented here. Defendant agreed unconditionally to allow judgment to be taken against it for a specific amount in favor of the single plaintiff.” (Id. at p. 1269, italics added.) Thus Fremont simply stands for the proposition that an offer made to a single plaintiff need not be allocated. Stated differently, the fact that the plaintiff in Fremont appeared in a representative capacity did not change the fact that the representative, the People, was but one plaintiff. Similarly, Peterson, appearing in her representative capacity as successor in interest, was also a single plaintiff—one of the two plaintiffs in the action before us.
I conclude John Crane’s section 998 offer was made to multiple parties.
B. Apportionment and Conditionality
A section 998 offer to multiple parties must apportion its demand among the offerees and must not be conditioned on all of the offerees accepting the offer. I consider each concept in turn.
The purpose behind the apportionment requirement is that, by making it clear what deal is being proposed to each plaintiff, it can later be determined *522whether a plaintiff who did not accept the offer obtained a better result at trial. (Taing v. Johnson Scaffolding Co. (1992) 9 Cal.App.4th 579, 583-584 [11 Cal.Rptr.2d 820].)
Here, John Crane’s section 998 offer required a dismissal of the action in exchange for a waiver of costs. No plaintiff was to receive any sum from John Crane. It is impossible to apportion “zero” or, at least, unnecessary to do so. There was no apportionment problem in the section 998 offer.
The requirement that the offer not be conditioned on the acceptance of all the offerees is based on the view that it is unfair to the plaintiff who believes the offer is reasonable as to him or her, and wants to accept it, but is precluded from doing so because another plaintiff refuses. From this perspective, conditionality frustrates the chances of settlement. (Menees v. Andrews, supra, 122 Cal.App.4th at p. 1544.)
Here, John Crane’s section 998 offer required “o dismissal with prejudice, and plaintiffs’ agreement to bear their own costs.” (Italics added.) The offer was not expressly conditioned on acceptance by all of the plaintiffs, but such a condition may be implied where the offer is made in a single document that refers to plaintiffs in the conjunctive. (Menees v. Andrews, supra, 122 Cal.App.4th at pp. 1543, 1544, 1546 [offer “to settle and dismiss the above-entitled action in its entirety for a waiver of costs, each party to bear its own costs and attorney’s fees” “made in a single document, which referred to appellants in the conjunctive” and “quite tellingly, provided only one signature line—for the attorney who represented both of them” was implicitly conditioned on acceptance by all plaintiffs]; Wickware v. Tanner (1997) 53 Cal.App.4th 570, 577 [61 Cal.Rptr.2d 790] [offer contained in “a single document addressed to all defendants,” which offers to take judgment against all defendants and not against one or more of them, and requires that “defendants in the plural, and not any one defendant in the singular, accept the offer” was implicitly conditional].) John Crane’s offer was in a single document, referred to plaintiffs in the conjunctive, and stated that the case would be settled only if the plaintiffs agreed to bear their own costs and together effect a singular “dismissal.” Accordingly, the offer was improperly conditioned on the acceptance of all of the multiple offerees.
John Crane’s arguments to the contrary are unpersuasive. It relies on Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102 [30 Cal.Rptr.2d 486], in which the court rejected the appellant’s argument that a section 998 offer was impliedly conditioned on the acceptance of all three offerees. (25 Cal.App.4th at p. 113.) The court reached this conclusion, however, because the issue had not been raised in the trial court and because *523the offer was not rejected due to the plaintiffs’ belief that it had to be accepted by all plaintiffs. (Id. at pp. 113-114.) Santantonio is not helpful to my analysis.
John Crane also argues that the point of the conditionality rule is to avoid conflicts between two or more plaintiffs who hold different views on whether to proceed with a case, which does not occur when a single individual constitutes all of the plaintiffs. I disagree. The point of the rule is to avoid a situation where some claims in the case, held by one offeree, could have been settled but for the condition that all claims must be settled. John Crane’s offer was conditioned on all offerees dismissing all of their claims.
C. Unity of Interest
As mentioned, as an exception to the general rule, a defendant may extend a single, joint offer, conditioned on acceptance by all plaintiffs, “where the plaintiffs have a unity of interest such that there is a single, indivisible injury.” (Weinberg, supra, 114 Cal.App.4th at p. 1087.) In Vick v. DaCorsi (2003) 110 Cal.App.4th 206 [1 Cal.Rptr.3d 626], the court held that a section 998 offer was valid under this exception, because the two plaintiffs, husband and wife, each had an equal undivided half-interest in the settlement proceeds. (Vick, at p. 212.) In Weinberg, by contrast, the court ruled that a section 998 offer did not fall within the exception, because the wife’s claim was separate from (i.e., not derivative of) the husband’s. (Weinberg, supra, 114 Cal.App.4th at p. 1087.)
To fall within the unity of interest exception, John Crane had to prove that Peterson, as an individual wrongful death plaintiff and as successor in interest suffered a “single, indivisible injury.” (Weinberg, supra, 114 Cal.App.4th at p. 1087.) However, the survivor cause of action and the wrongful death claim seek different damages for very different injuries based on different legal rights and liabilities. (See, e.g., Quiroz, supra, 140 Cal.App.4th at p. 1279 [survivor cause of action pleads different injury than action for wrongful death].) The unity of interest exception does not apply.
D. Conclusion
In sum, I conclude John Crane’s section 998 offer was made to multiple parties, was not apportioned, but was conditioned on acceptance by all the offerees. I further conclude the unity of interests exception does not apply. Under these circumstances, the offer was fatally uncertain.
*524I would hold that John Crane’s offer does not provide the foundation for a valid award of costs under section 998, subdivision (c). Because the majority concludes otherwise, I respectfully dissent.
Appellant’s petition for review by the Supreme Court was denied October 31, 2007, S156654.
Unless otherwise indicated, all further section references will be to the Code of Civil Procedure.
Before addressing the merits of the majority’s analysis, I must address two preliminary arguments John Crane has made. First, John Crane contends Peterson is barred by the doctrine of judicial estoppel from arguing there were multiple plaintiffs. I reject that argument because Peterson’s position in her motion to tax costs is consistent with the position she takes here. Also unpersuasive is John Crane’s argument that, by failing to object to the section 998 offer, Peterson waived her right to contend it was invalid due to ambiguity. Peterson’s argument here and at the motion hearing, was that the section 998 offer was invalid because it was not apportioned and was conditioned on acceptance by all offerees.
Section 377.60 states in part, “A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf: [$] (a) The decedent’s surviving spouse . . . .”
Section 377.31 states: “On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.”