Legal News and Appellate Tips

In “lemon law” cases under the Song-Beverly Act, the “prevailing party” is entitled to attorney fees. But what is a “prevailing party”? Is a plaintiff who recovered $1 in nominal damages a prevailing party entitled to attorney fees (and over $680,000 in fees at that)? In a published opinion, the Court of Appeal in *[Duff v. Jaguar Land Rover North America, LLC](https://bit.ly/3Gspq1B)* (D4d1 Jan. 27, 2022 no. D078100) 2022 WL 246853 (___ Cal.Rptr.3d ___), said *no*.

But the Court of Appeal held that the CCP 1032 “net monetary recovery” standard does not apply in all cases, and does not apply to Song-Beverly cases. Instead, a “pragmatic” approach applies, including asking who achieved their litigation objectives.

What is a little awkward about the opinion is that the Fourth District Court of Appeal disapproved its own earlier decision where it held the mechanical standard under section 1032 did apply. Which is fine. But then why fault the trial court for following what was, until now, perfectly good law?

The fee order was reversed with instructions to evaluate the “prevailing party” determination based on the correct “pragmatic” standard.

Another recent case instructs plaintiffs not to think they can reverse a defense judgment by arguing that "substantial evidence" supported a verdict in the plaintiff's favor. Instead, to overcome a defense verdict, a plaintiff must establish on appeal that the evidence was so overwhelming and uncontroverted that findings for the plaintiff were "compelled as a matter of law." Plaintiffs can almost never meet this burden, and the plaintiff in *Snoeck v. ExakTime Innovations, Inc.* (D2d3 Nov. 29, 2021) 2021 WL 5563958 (no. B302178) (nonpub. opn.) could not meet it, either.

Also of note: The plaintiff did prevail on one claim, but did not beat the employer's 998 offer. But when the employer moved to tax costs, it did not attach the 998 offer to the moving papers. It attached it instead to the reply papers. Held: it was an abuse of discretion to consider the 998 offer if not attached to the motion itself.

In a hyper-formalistic holding in Mostafavi Law Group, APC v. Larry Rabineau, APC (D2d4 Mar. 3, 2021) No. B302344 (published), a judgment entered on an agreement under Code of Civil Procedure section 998 was vacated because the defendant's 998 offer did not include a signature line for the plaintiff to sign, even though the plaintiff signed it anyway. In a case of first impression, the Second District affirmed, holding a judgment may not be entered on a section 998 agreement in which the offer does not provide an acceptance provision.

I find this a very bizarre case. I would not be surprised if other District Courts of Appeal declined to follow it.

It is something I did not know, anyway: Plaintiff can still recover post-offer fees even if Plaintiff does not beat the 998 offer.  In Regueiro v. FCA US, LLC (2d Dist., Div. […]

If you are making or considering a CCP 998 offer in an employment case, note the current split of authority. In some cases, an employee making an unsuccessful overtime claim […]

Should you include attorney fees in your 998 offer? Or stay silent on them? That question came up this week, and this recent case suggests it is probably coming up […]

If you've been involved in litigation, you likely are aware of the "CCP 998 offer." CCP § 998 is a statutory carrot-and-stick...