Second District, Division Seven Also Finds That Defendant’s 998 Offer Was Too Uncertain to Enforce.
The next case involves a personal injury case, involving an interesting discussion of Code of Civil Procedure section 1021.4’s fee-shifting provision and the uncertain nature of the defendant’s Code of Civil Procedure section 998 offer involving other litigation lurking in the background.
The facts in Armstrong v. Bergin, Case No. B200985 (2d Dist., Div. 7 Jan. 12, 2009) (unpublished) go like this:
plaintiff pedestrian skater recovered a personal injury jury award of $91,262.02 (net amount following some court deductions) after being struck by defendant’s motor vehicle in a West Hollywood intersection. Earlier, defendant had entered a no contest plea to a felony count with great bodily injury enhancing allegations arising from driving under the influence charges, which carried with it a possible future restitution order as a probationary condition. A judge different than the trial judge presiding over the jury awarded plaintiff $90,000 in attorney’s fees under Code of Civil Procedure section 1021.4 and found that defendant’s prior 998 offer was uncertain.
Defendant primarily appealed the adverse fee award, losing in a 3-0 opinion authored by Acting Presiding Justice Woods of the Second District, Division 7.
First, the panel found that the fee award was justified under section 1021.4, which provides for an award of attorney’s fees when the plaintiff prevails in a civil action against a defendant who has caused injuries to the plaintiff stemming from the commission of a felony. Because the law treats a no contest plea as tantamount to a plea of guilty (with all elements of the charged crime being admitted), it made no difference that this was a no lo situation, that the crime in question could be punished either as a felony or a misdemeanor, or that defendant was not sentenced to state prison.
Next, the appellate court found that the new trial judge did not abuse his discretion by awarding full fees, even though the judge did not preside over the trial. The new judge did have portions of the trial court proceedings before him, with the Court of Appeal assuming he performed his judicial function properly.
Lastly, the 998 offer was found to be uncertain under the reasoning of Valentino v. Elliott Sav-On Gas, Inc., 201 Cal.App.3d 692, 699 (1988). Defendant offered to settle for $150,000, but also included a dismissal of an independent fraudulent conveyance action (based on defendant conveying his house and certain investments to an entity called “Jesala Reds, LLC” some months after the accident, actions challenged by plaintiff in the independent action) and included resolution of any future complaint-in-intervention based on enforcement of the probationary restitution condition. Justice Woods decided that Valentino’s rationale governed, which found a 998 offer uncertain “when a court is cast in the role of having to chase down every eventuality that could occur in litigation between the parties.” Because the appellate panel could not anticipate the results in the fraudulent conveyance action or the amount of any future restitution order in the criminal case, it refused to enforce the offer to settle made by defendant.