Section 998 Offer By The Defense Was Too Uncertain—A “Moving Target.”
In Duff v. Jaguar Land Rover North America, LLC, Case No. D078100 (4th Dist., Div. 1 Jan. 27, 2022) (published), the 4/1 DCA departed company from its prior approach as far as awarding lemon law fees to a prevailing plaintiff under Civil Code section 1794(d). It earlier, in Reveles v. Toyota by the Bay, 57 Cal.App.4th 1139, 1158 (1997), had applied a “net monetary award” test borrowed from CCP § 1032 to determine the prevailing party, even though a majority of subsequent cases had eschewed this approach and determined that a more rigorous “pragmatic, litigation objectives” test should be adopted. The Duff court decided that the majority approach should now be followed, reversing a $684,250 attorney’s fees award where the lemon law plaintiff only obtained nominal damages of $1.00 after a determination that no actual damages were proven. So, a remand was necessary in light of the adoption of the more rigorous pragmatic test. The appellate court also determined that the defense CCP § 998 offer was too uncertain—a “moving target”—in offering to settle for a set repurchase amount or higher amount as could be subject to future substantiation by plaintiff.