Consumer Statutes: Plaintiff In Lemon Law Case Did Not Beat 998 Offer Such That Most Post-Offer Fees And Costs Were Properly Disallowed

$53,509.51 In Pre-Offer Fees Were Allowed, Not Plaintiff’s Almost $470,000 Fees/Costs Request.

            Under recent posts, we have shown how a good defense offer under CCP § 998 will not pay dividends for a plaintiff who does not properly assess it and does not accept the offer.  That lesson again resonated in Chen v. BMW of North America, Case Nos. H048257/H048444 (6^th Dist. Dec. 29, 2022) (unpublished).

            A year into the case, BMW made a 998 offer for $160,000, exclusive of pre-offer costs and fees to be determined by the court, plus any other fees and costs to be determined by the court through a noticed motion.  Plaintiff did not accept the 998 offer, but two years later he settled on just about the same terms as the prior 998 offer.  Plaintiff moved for $436,071.82 in fees and costs under the lemon law statute, but the trial court awarded just $53,509.51 (mainly pre-offer fees/costs, augmented by 45 days of post-offer fees/costs).

            Plaintiff’s appeal was unsuccessful.  The appellate court decided that the 998 offer was specific enough and was made in good faith—plaintiff could evaluate the worth of the offer.  With respect to lemon law expenses recoverable separate from attorney’s fees and costs, nothing in the offer prevented plaintiff from moving for them.  Even though the court awarded 45 days of post-offer expenses (which technically was improper), BMW did not cross-appeal such that plaintiff got a little bit of a boondoggle.