Judgment Modification Terms Were Too Speculative in Nature.
Katz v. El Paseo Collection Elegante, Case No. G049807 (4th Dist., Div. 3 July 7, 2014) (unpublished) is a nice follow-on to our July 2, 2014 post in which we explored case law on what type of nonmonetary provisions in a CCP § 998 offer were valid or not—with the issue being whether the provisions were reasonably capable of valuation without conjectural brain surgery in a probate proceeding.
What happened is that an estate executor was denied attorney’s fees after a special probate court proceeding where executor got some of his relief, which he felt was better than the conditional 998 offer made earlier to the other side. The problem here was the nature of some of the conditions, speculative in nature such that “better” was somewhat of a metaphysical concept at best and incapable of valuation.
The first suspect condition was that the executor or a residuary beneficiary could move to modify the judgment under three conditions, including if a business was sold or certain parties contended another entity had unreasonably withheld its consent to a sale of the business. The extent of this condition and its valuation were highly speculative. The second condition would allow a motion to modify the judgment to withdraw funds from a blocked account if circumstances indicated a reduction in the amount is “appropriate.” No definition of appropriate was provided in the 998 offer, so totally guesswork on how much money was appropriate so as to justify withdrawal was at play in evaluating the offer. Denial of attorney’s fees affirmed, in a 3-0 opinion authored by Justice Thompson.
BLOG UNDERVIEW—The probate court also denied fees under Probate Code section 1002, which it interpreted as allowing a “trump” of fees normally awarded under CCP § 998. Our local appellate court did not have to confront this issue based on the uncertainty ground. However, we will comment that this conflict will have to be confronted at some stage, given some unpublished decisions suggesting section 1002 does preempt in the probate (versus civil) context. (See Blanchard v. Blanchard, Case No. A137777 (1st Dist., Div. 2 Feb. 25, 2014) (unpublished) [reviewed in our Feb. 26, 2014 post].)