However, Fee Award On A Withdrawn Claim Was Not Challenged On Appeal And Not Impacted By The Directed Verdict Reversal.
In Pennypacker v. Yuen, Case Nos. A157680/A157985 (1st Dist., Div. 2 June 15, 2022) (unpublished), tenant asserted tort, inhabitability, San Francisco administrative code claims, and a UCL claim against landlord. Landlord made a pretrial CCP § 998 offer for $15,000, which tenant did not accept. Tenant withdrew an administrative code claim bearing fee exposure on the first day of trial. The lower court directed a verdict on the other administrative code claim, but the tenant won an award of $13,000 from the jury based on tort/inhabitability claims. Given that the jury verdict was less than the $15,000 § 998 offer, the lower court awarded landlord costs of $51,507.09 and attorney’s fees of $9,495.72 as the prevailing party.
Tenant’s appeal produced a reversal of the directed verdict order, which meant that the $51,507.09 costs award had to be vacated to see what happens on remand. However, the fee award stood up for two reasons: (1) tenant never challenged it on appeal; and (2) it was not impacted by the reversal of the directed verdict because it dealt with a voluntarily withdrawal of a claim not involved in the directed verdict ruling.