NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

Appellant Beth Robbins appeals from a judgment in favor of respondent Essex Management Corporation. The issue on appeal concerns the grant of costs to prevailing party under Code of Civil Procedure section 998.1 Appellant argues that the section 998 offer in this case was not made in good faith, and that the jury should have been instructed about the financial consequences to appellant of rejection of the offer. We find no error and affirm.

FACTUAL AND PROCEDURAL SUMMARY

Appellant leased a three-bedroom apartment from respondent in August 2006. Her suit against respondent alleged eight causes of action, including property damage and personal injury based on a claim of mold growth in the apartment. Respondent made a section 998 pretrial settlement offer of $20,000, which appellant rejected.

The case was tried by jury, which returned a verdict in favor of respondent, finding no liability. Respondent filed a memorandum of costs seeking a total of $108,106.09. This included prevailing party costs under sections 1032 and 1033.5, and expert witness costs under section 998. The trial court found that the $20,000 offer was made in good faith. Appellant filed a motion to tax costs, but was only successful in taxing $697.76. Respondent was awarded all remaining prevailing party costs, including costs for expert witness fees.

This timely appeal followed.

DISCUSSION

Appellant argues the trial court erred in its ruling that the section 998 offer was made in good faith, and in failing to instruct the jury on the potential adverse financial consequences to her of the offer. She argues that the recoverable costs to respondent under this offer are excessive, especially since respondent enjoys a stronger financial position than she. We find no merit in any of these arguments.

I

Whether a section 998 offer was made in good faith, "`is a matter left to the sound discretion of the trial court.' [Citation.]" (Arno v. Helinet Corp. (2005) 130 Cal.App.4th 1019, 1025.) "An appellate court reviewing a section 998 offer may not substitute its opinion for that of the trial court unless there has been a clear abuse of discretion, resulting in a miscarriage of justice. [Citation.]" (Ibid.) To meet its burden, the complaining party must show that the trial court exercised its discretion in an "arbitrary, capricious or patently absurd manner." (Najera v. Huerta (2011) 191 Cal.App.4th 872, 877.)

Section 998, subdivision (c)(1) requires the plaintiff to pay defendant's trial costs if the plaintiff rejects defendants section 998 offer and fails to obtain a more favorable judgment at trial. The purpose of the statute is to encourage the settlement of litigation without trial. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262.) Each party risks a potential financial detriment if it fails to achieve a more favorable result in court. (Ibid.) The good faith requirement must be read into section 998 "in order to accomplish the legislative purpose of encouraging settlement of litigation without trial." (Wear v. Calderon (1981) 121 Cal.App.3d 818, 821.) The requirement is satisfied only if the offer carries with it "some reasonable prospect of acceptance." (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 698.) A verdict in favor of the offeror in the trial court "constitutes prima facie evidence showing the offer was reasonable and the offeror is eligible for costs as specified in section 998." (Id. at p. 700.) We may not reverse the trial court's ruling unless we find that, viewing the evidence most favorably in support of the trial court's decision, no court could reasonably have reached the same decision. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 304.)

Appellant's argument focuses on her claim that at the time the offer was made, her legal fees already exceeded $20,000, and hence, the offer was not made in good faith. But the amount of fees charged by appellant's attorney is not germane to the reasonableness of the offer, unless the offeree is entitled to recover attorney fees if she succeeds with litigation. Appellant makes no argument to that effect.

This case is analogous to People ex rel. Lockyer v. Fremont General Corp. (2001) 89 Cal.App.4th 1260, where plaintiff rejected defendant's $2 million settlement offer and the court ruled in favor of defendant, finding no liability. When analyzing the good faith aspect of the section 998 offer on appeal, the court stated: `"We are not obliged to ignore the reality that respondent prevailed at trial. In fact, the trial result itself constitutes prima facie evidence that the offer was reasonable, and the burden of proving an abuse of discretion is on appellants, as offerees, to prove otherwise. [Citation.]' [Citation.]" (Id. at p. 1271.) Thus, appellant must prove that an abuse of discretion has occurred but has failed to do so.

Appellant argues that Wear v. Calderon, supra, 121 Cal.App.3d 818 (Wear), supports a finding of bad faith in this case. In Wear, plaintiff rejected the defendant's $1 settlement offer and the jury found in favor of the defendant. On appeal, the court held the section 998 offer was ineffective and not made in good faith since a $1 offer placed the offeror at no measurable risk. The same can hardly be said of a $20,000 offer. Appellant's reliance on Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d 692 is also unavailing. In that case, the court found that defendant's $15,001 offer was not made in good faith, especially since the jury held defendant liable for $335,386 of plaintiff's damages.

II

A judgment may not be reversed for instructional error in a civil case "unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, §13.) An appeal based on improper jury instructions presents a question of law and is reviewed de novo. (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.)

Aside from the section 998 argument, appellant offers nothing to challenge the correctness of the jury's verdict of no liability. When an appellant argues instructional error, appellant "must ensure that the appellate record includes the instructions given and refused and the court's rulings on proposed instructions." (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 678.) In this case, we have no order to review since appellant's appendix does not include any proposed instruction by appellant that was rejected or a ruling rejecting any jury instructions she proposed. Since she has failed to preserve the issue below, appellant "has waived the right to assert error on appeal. [Citation.]" (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 312.) Even were the issue not forfeited, appellant must prove a miscarriage of justice due to omission of the instruction. She has not established prejudice.

In any event, had such an instruction been requested, it should have been denied. As we have discussed, the merit of a section 998 offer is for the trial judge, not a jury, to decide. It would be potentially prejudicial for the jury to have learned of respondent's pretrial settlement offer, since it would have presented an obvious risk of prejudice to respondent: the jury could have reasoned that since respondent had offered something, appellant was entitled to something. More importantly, the amount of the offer does not go to the merits of any issue before the jury. Appellant is not entitled to instructions that are irrelevant to a jury verdict or likely to mislead the jury. (See Bullock v. Philip Morris USA, Inc.,supra, 159 Cal.App.4th at pp. 684-685.)

III

Respondent has requested sanctions against appellant and her counsel for violating court rules on appeal with respect to citation to the record, and for bringing a frivolous appeal. We issued an order to show cause re sanctions and ordered supplemental briefing on the issue. Appellant's counsel, David R. Schwarcz, responded with respect to the court rule violations, stating that he had thought previous counsel had ordered a clerk's transcript only to discover later as the deadline to submit the opening brief was approaching, that the previous attorney had elected to proceed by an appendix, but had failed to prepare it. Appellant replies that much of the information needed could have been obtained directly from the clerk or online. Appellant's counsel also argues that his claims on the merits were at least "colorable."

We have no hesitation in rejecting monetary sanctions against the appellant, Beth Robbins. The situation of her appellate counsel presents a closer question. Giving him the benefit of the doubt with respect to citations to the record, we conclude that sanctions are not required with respect to his omissions. We observe, however, that he could have attempted to correct these omissions by a supplemental brief. With respect to the merits of his arguments, the argument that the trial court should have instructed the jury sua sponte to consider appellant's financial situation and the amount she had spent on attorney fees in the litigation is without legal merit. The other claim that the section 998 offer was not in good faith, also lacks merit, and is barely colorable. In balance, we conclude that monetary sanctions are not necessary in this case, but that counsel should consider himself admonished.

DISPOSITION

The judgment is affirmed and the request for monetary sanctions is denied. Respondents are to have their costs on appeal.

WILLHITE, J. and SUZUKAWA, J., concurs.