Defense Agreed To Pay $7,500 For Plaintiff’s Fees And Costs Or, Alternatively, An Amount To Be Determined On Noticed Motion.
A valid CCP § 998 offer to compromise is a valid cost-shifting mechanism under the Song-Beverly Consumer Warranty Act (commonly known as California’s “lemon law”). Kia Motors America, Inc. offered to pay plaintiff $30,000.01 plus $7,500 in attorney’s fees and costs or, alternatively, statutory damages plus attorney’s fees and costs to settle the case before trial. Plaintiff obtained a lesser $28,100.02 jury verdict, with the trial court awarding Kia postoffer costs. Plaintiff contended the 998 offer was invalid and claims the trial judge erred in not awarding her postoffer attorney’s fees in the $331,817 range, plus a 1.5 lodestar multiplier for an additional fee award of $165,908.50. The trial judge did award plaintiff $6,247.50 in preoffer attorney’s fees.
The 2/6 DCA in O’Green v. Kia Motors America, Inc., Case No. B282366 (2d Dist., Div. 6 May 21, 2018) (unpublished) affirmed the trial judge’s conclusion that preoffer fees were not due.
One of the main problems for plaintiff was that she refused to provide her car loan payment history or itemize incidental/consequential damages, with Kia serving the alternatively-structured offer to try and resolve the suit. The 998 offer invited plaintiff to submit an itemization, and her failure to do so was telling. The 998 offer tracked the language of the lemon law and provided that the parties will have the trial court determine the disputed damage amount if the parties could not agree on a number. Excluding non-manufacturer items from the offer did not render it infirm because these accessories added to the vehicle are not recoverable and it would have been unfair for plaintiff to agree to a buy-back but then strip the car of valuable accessories which are not recoverable. Kia also waived the mileage offset to even give the offer more value to plaintiff. The fact that Kia’s trial counsel signed the 998 offer rather than Kia, did not invalidate it because the 998 Judicial Council approved form CIV-090 is customarily signed by the attorney for the party making the offer.