Fourth District, Division One Affirms Trial Court’s “Wash” Decision on Issues.
The next case involves a melange of fee and costs issues arising from a contract and civil rights case in which plaintiff recovered nothing on her claims but beat school district’s contract cross-claim. That gave rise to all sort of prevailing party claims for both fees and costs. The trial court basically found it all came to a close “wash,”
with plaintiff getting some fees and defendant getting some costs by which it was about $1,250 ahead when the ultimate math calculus is done.
Both sides appealed in Manoogian v. San Diego Unified School Dist., Case No. D053953 (4th Dist., Div. 1 Dec. 2, 2010) (unpublished). Care to guess the result? Well, our post headings give it away–affirmance across the board.
Boiling down the procedural background, plaintiff sued for civil right discrimination/retaliation and concealment, while school district cross-complained for breach of contract. School district sent a 998 offer offering to “compromise this matter in exchange for a waiver of fees and costs,” an offer never accepted. After demurrers and summary adjudications narrowed the case, plaintiff’s retaliation claim and school district’s contract cross-claim proceeded to trial, with the jury finding against plaintiff on her retaliation claim and against school district on its contract cross-claim. Both sides moved for recovery of fees and costs, with the lower court awarding plaintiff $40,000 in fees (out of a requested $500,000) for prevailing on the contract cross-claim due to a fees clause and awarding school district $41,251.26 in costs for prevailing on the retaliation claim based on the 998 offer. Both sides challenged the fee/costs rulings in this appeal.
Plaintiff first challenged the lower court’s ruling that she was only entitled to fees for winning the contract cross-claim, apportioning work out on the tort claims. Given that apportionment is discretionary with the lower court, there was no reason to upset its exclusion of certain tort incurred time–after all, the contract claim was a very minor part of the overall fact pattern and case. (El Escorial Owners’ Assn. v. DLC Plastering, Inc., 154 Cal.App.4th 1337, 1365-1366 (2007).) School district’s challenge to the fee award was rebuffed because plaintiff did have an unqualified win on the contract cross-claim.
The lower court’s determination that defendant was the prevailing party for costs was supported by the fact school district was the real winner, having only filed the defensive cross-claim carrying minimal damages. However, plaintiff did make a nuanced argument that the lower court could not award costs to school district for defeating the civil rights claim unless her claim was frivolous, unreasonable or without foundation, relying on Cummings v. Benco Building Services, 11 Cal.App.4th 1383, 1387 (1992). The Court of Appeal here disagreed with Cummings, finding that routine costs were different than attorney’s fees and could be awarded to a winning civil rights defendant even if the suit was nonfrivolous in nature. Instead, it agreed with the contrary analysis on the issue as set forth in Perez v. County of Santa Clara, 111 Cal.App.4th 671, 680-681 (2003). [BLOG OBSERVATION–It appears that there is a split of intermediate appellate opinion on this routine costs issue, which will likely lead some day to higher court review.] Further, the appellate court rejected the proposition that routine costs “prevailing party” status had to be construed in accordance with section 1717 “prevailing party” status. (Goodman v. Lozano, 47 Cal.4th 1327, 1335 n. 3 (2010).)
That brought the appellate court to the 998 issue. Plaintiff argued that the 998 offer was not beaten because her preoffer costs were not factored in, but the problem here was that this argument had been waived by the failure to make an adequate argument or submission of proof in support of the argument. With respect to the argument that the offer was too vague or unclear (by failing to specify if the defendant wanted judgment, a with prejudice dismissal, or without prejudice dismissal), the appellate court found the offer–when reasonably construed–was contemplating entry of judgment and that some imprecise wording did not vitiate the 998 offer like the one involved in this case (which had further language such as “by signing below, Plaintiff hereby accepts the terms and conditions indicated above pursuant to CCP § 998”). (Berg v. Darden, 120 Cal.App.4th 721, 730-731 (2004).)
Not only was the matter affirmed, but the appellate court, in line with the trial court, ordered that each party bear her/its own costs on appeal.