Both Went Away Unhappy, We Assume.
In Russo v. Bank of America, Case No. D067623 (4th Dist., Div. 1 May 17, 2016) (unpublished), borrower and lender won some sides of claims in an impound dispute, although plaintiff borrower eventually won $523.14 based on a contract with a fees clause after seeking $795,000 plus punitive damages. Lender had made two CCP § 998 offers for $100,000 and later $250,000 plus potential $115,000 in attorney’s fees, offers rejected by plaintiff. The lower court denied dueling attorney’s fees requests by both sides. Both sides appealed to no avail.
The appellate court affirmed.
As to borrower’s claims to fees under Civil Code section 1717 and Code of Civil Procedure section 1021.5, the trial judge did not err in concluding that borrower had very limited success so as to not prevail under section 1717 and that borrower was furthering his own interest rather than a broader public interest under section 1021.5.
The lower court’s conclusion that the section 998 offers were not made in good faith somewhat bothered the appellate court, which acknowledged that there is a split in thinking but adopted the view there is a good faith requirement to section 998 and that the trial judge must put itself in the shoes of both parties when evaluating the 998 offer. With this in mind, plaintiff rightfully rejected the offers as not being in good faith because plaintiff had a stroke at the time and impound account was eventually cancelled. Although the opinion did not discuss what lender had sought, borrowers’ request for $175,635 in fees was rejected at both judicial levels.