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« ABUSE OF DISCRETION STANDARD OF REVIEW—A “DAUNTING TASK” TO OVERCOME | Main | WORLDS IN COLLISION—CCP SECTION 998 AND OFFSETTING SETTLEMENTS: WHAT SETTLEMENTS GET TAKEN INTO ACCOUNT TO DETERMINE WHO IS A PREVAILING PARTY FOR 998 PURPOSES? »

June 16, 2008

Comments

Michael P

Is the fees/costs available with a sec. 998 offer applicable to estate litigation-spcifically possible violations of "no-contest" clauses? It would seem that there may be competing public policy arguments that say it would not apply? Thoughts? thx

Marc & Mike

Sorry, we comment on legal issues, but cannot answer requests for legal advice on our website.

ANA

I AM A HEARING REPRESENTATIVE FOR PHYSICIANS LIENS, AND LITIGATE THESE LIENS WITHIN THE WORKERS COMP BOARD. I DO EVERYTHING THAT AN ATTORNEY DOES , EXCEPTGET REIMBURSED FOR MY COSTS AND TIME, recently AN ATTORNEY SERVED ME A DEFECTIVE NOTICE OF DEPO AND IS TRYING TO OBTAIN PRIVET PATIENT RECORDS THAT ARE NOT IN CONJUNCTION WITH THIS CASE.

MY QUESTION IS CAN I PETITION FOR ATTORNEYS FEES EVEN THOUGH i AM THE AUTHORIZED REPRESENTATIVE , ALSO I REPRESENT SOME PATIENTS INDEPENDENTLY WITH THE BOARD AND HAVE BEEN FOUND THAT i CAN DO THIS BECAUSE IT IS ADMINISTRATIVE, CAN i PETITION FOR COSTS. i HAVE 60 CASES THAT I WORK, NO HELP AND I AM THE ONE DOING ALL THE PLEADINGS AND GOING TO THE BOARD.

IF THIS IS POSSIBLE I WOULD LIKE TO KNOW WHERE I CAN FIND A SAMPLE MOTION, SO THAT i MAY OBTAIN THE PROPER WORDING FOR SUBMISSION OF A MOTION FOR COSTS.

Bruce Nye

Good post. But you can't understate the potential fee-shifting aspect of Code of Civil Procedure section 998 when there is otherwise a right to fees under contract, statute, etc. Essentially, the scenario is this: at the onset of the litigation (or early on, in any event) where the successful plaintiff has a right to fees, defendant offers the amount in controversy to the plaintiff, plus fees and costs to be determined by the court. Plaintiff rejects the offer. In the trial of the non-fees part of the case, gets a judgment in his favor, but not for as much as the defendant offered him. The rule is, no post-offer fees to the plaintiff. And if it's a scenario (tort, statute, contract, whatever) where the prevailing defendant can recover fees, then the defendant gets post-offer fees. That, of course, is Scott Co. of California v. Blount, Inc. (1999) 20 Cal. 4th 1103, and more recently, Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718.

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