Appellate Court
Sustains Fee Award Based on Unruh Act and CCP section 998; CCP section 1026(b)
Did Not Bar Imposition of Fees
Civil cases are very interesting affairs, with attorney’s
fees awards based many times on variant statutory provisions. Justice Moore, of our local Fourth District,
Division 3, was the author for a 3-0 panel of an interesting attorney’s fees
award that was sustained on appeal.
In Robins v. Regal Entertainment Group, Case
No. G039205 (4th Dist., Div. 3 Oct. 6, 2008) (unpublished), three
brothers brought a wrongful death, survival, and Unruh Act action against Regal
after their 83-year-old father died after falling on a movie theater
escalator. Two of the three brothers
settled their claims against Regal for $50,000 apiece before trial. Regal made a CCP section 998 offer of $50,001
to Jeffrey, the remaining brother, in both his individual and decedent
successor capacities. Jeffrey did not
accept the offer, and Jeffrey lost to Regal after a jury trial. The trial court granted Regal $250,666.89 in
attorney’s fees and costs to be paid by Jeffrey, consisting of $164,649.50 in
fees, $70,712.87 in expert witness fees, and the remainder in miscellaneous
costs.
Jeffrey
appealed, but lost all his challenges on appeal. Regal was also awarded in costs on appeal
(meaning more attorney’s fees for prevailing in the appellate court).
Before
addressing the specific issues, Justice Moore did review many pleadings and
testimony indicating that Jeffrey was only representing himself, not his other
two brothers or another beneficiary under decedent father’s will. The appellate panel appeared to view his last
minute claims to represent others as a desperate tactic to avoid fee exposure
under some of the fee entitlement statutes that are discussed below.
Our local Santa Ana appellate court
found several independent bases to affirm the fee award against Jeffrey and in
favor of Regal:
-
Civil Code section 55 and Code of Civil
Procedure section 1026(b): A
prevailing party in an Unruh Act action is entitled to an award of
reasonable attorney’s fees. (Civ.
Code, sec. 55.) The issue then
focused upon whether Jeffrey, as deceased father’s successor in interest,
was subject to exposure under Code of Civil Procedure section 1026. Because Jeffrey clearly was pursuing all
causes of action except wrongful death as a person expressly authorized by
statute as a surviving successor in interest, the pivotal concern was
whether costs could be charged against him under section 1026(b) as a
“party represented.” The appellate
panel found that Exarhos v. Exarhos,
159 Cal.App.4th 898, 908 (2008) was dispositive in holding
that a surviving grandson was a “party represented” where he was not
acting in a representative capacity, other than to represent himself. This meant that costs were chargeable
against Jeffrey under section 1026(b).
-
Code of Civil Procedure section
998: Jeffrey first argued that
the 998 offer was invalid because it failed to apportion the offer between
his two capacities. The appellate
court made short shift of this argument, relying on several cases that
held 998 offers were valid where addressed to one party, albeit one that wore several “hats.” (See, e.g., Peterson v. John Crane, Inc., 154 Cal.App.4th 498,
506-507 (2007); Johnson v. Pratt
& Whitney Canada, Inc., 28 Cal.App.4th 613, 630
(1994).) Jeffrey next argued that
the 998 offer was unreasonably low.
However, given that there were decedent medical liens of $32,045.69
such that the 998 offer was in excess by the amount of $17,955.31, Regal
had made a prima facie showing of reasonableness that was not rebutted by
Jeffrey. (Elrod v. Oregon Cummins Diesel, Inc., 195 Cal.App.3d 692, 700
(1987).) Finally, Jeffrey argued
that the court erred in failing to hold a hearing under Seever v. Copley Press, Inc., 141
Cal.App.4th 1550, 1561-1562 (2006) to determine whether he was
financially able to bear the 998 costs award. The problem with this argument is that
Jeffrey failed to request a Seever hearing
before the trial court, resulting in a waiver.
Regal also asked for an award of
attorney’s fees on appeal. This was
granted, although our local appellate court—consistent with the prevailing
practice among most intermediate state courts of appeal—remanded to have the
trial court fix the attorney’s fees on appeal.
(Black Hills Investments, Inc. v.
Albertson’s, Inc., 146 Cal.App.4th 883, 896 (2007).)