Section 998: No Attorney’s Fees Recoverable By CCP § 998 Prevailing Party In California Disabled Persons Act/Unruh Act Case Because No Liability Finding That Plaintiff’s Rights Under These Statutes Were Violated In Case Seeking Monetary Damages

If You Want Fees As A Plaintiff, Make Sure You Have A Liability Determination.         

            Linton v. County of Contra Costa, Case No. A153188 (1^st Dist., Div. 1 Jan. 23, 2019) (partially published; section 998 discussion published) is a stark reminder for plaintiff disability attorneys: if you want fee recovery under an accepted CCP § 998 offer in a case seeking monetary damages under the California Disabled Persons Act (DPA) or the Unruh Act, you need to have a liability determination—namely, that plaintiff’s rights were violated under the two statutes—in order to recover fees following acceptance of the section 998 offer.

            The facts here were that three defendants jointly accepted plaintiff’s section 998 offer in a monetary DPA/Unruh Act case for $250,001 “plus costs under CCP § 1032 and attorney’s fees allowed by law as determined by the court.” Plaintiff moved for recovery of fees, but the lower court determined there was no fee entitlement because both the DPA and Unruh Act required a liability determination that plaintiff’s disability rights were violated as a predicate to fee recovery, something missing in the 998 offer language. This result was affirmed on appeal.

            Just because a plaintiff prevails does not automatically cede fee entitlement, which must be based on a contract, statute, or law. In this instance, the two disability schemes, where monetary damages are sought, only allow for fee recovery if there is a liability determination. (See Dorn v. North State Grocery, Inc., 137 Cal.App.4^th 484, 489-491 (2006) [same result in Unruh Act case, with 1/1 DCA in Linton finding same reasoning applicable under the DPA].)

            Plaintiff still went down fighting, contending that the section 998 language created a contractual right to fee recovery. No way, said the Court of Appeal panel. That language only established the plaintiff as the prevailing party, but that designation lacked the additional specification that the defense was admitting plaintiff’s disability rights were violated. The 1/1 DCA also discussed the Judicial Council Form CIV-090 for 998 offers, cautioning practitioners to proceed with the caution because none of the five option boxes really covered a liability determination—although noting that plaintiff could have checked box 2.b and added supplemental language had she wanted to gain fee recovery. No competent parol evidence was introduced to explain the 998 language, given no contemporaneous emails or communications with defense counsel. Reliance on plaintiff’s counsel’s subjective intent was not the equivalent of competent parol evidence.

            FURTHER BLOG COMMENT—The appellate court also “struck” portions of appellant’s appendix for including documents not presented before the trial court, although allowing appellant some leniency in some technical violations of AA requirements. Also, the appellate court noted that, in injunction situations under the Unruh Act, attorney’s fees are mandatory such that no liability determination is necessary, but was necessary in the monetary damages case before it.