Plaintiff’s Voluntary Dismissal Without Effect; Offset for Prior Settlements Meant No Change in Result Due to Her Prior 998 Offer.
A trifecta of issues was considered by the appellate court in Goldstein v. Williams, Case No. D057826 (Mar. 24, 2011) (unpublished).
In this one, plaintiff sued for breach of contract and in tort for claimed residential condominium nondisclosures. Eventually, she prevailed on a negligent misrepresentation theory, but the appellate court in an earlier opinion reversed her win on the contractual breach claim in a way that found no retrial was necessary given that no new evidence could be introduced to get around the absence of a contract claim as a matter of law. Defendant moved for fee recovery under Civil Code section 1717 (given the presence of a fees clause in the purchase agreement), with the lower court awarding her $34,375 in fees. Plaintiff appealed.
None of her three arguments for reversal hit the persuasiveness target.
Given that the prior reversal was one in which no retrial occurred, defendant did prevail on the merits. Plaintiff’s subsequent dismissal of the contract claim without prejudice, on remand, had no effect given that the appellate court had legally ruled on the merits of the case as a matter of law. Finally, when prior settlements with other defendants were considered, plaintiff had a zero verdict that did not exceed her prior CCP § 998 offer, which meant the lower court had discretion to determine she did not prevail under Goodman v. Lozano, 47 Cal.4th 1327, 1333 (2010). No discretion was abused in finding that plaintiff was not entitled to fees based on her 998 offer. Fee award to defendant affirmed.