Result Was Preoffer Fees/Costs To Plaintiff And Postoffer Fees/Costs To The Defense.
In a right of publicity case brought by plaintiff professional model under Civil Code section 3344(a) (which has a companion fee-shifting statutory provision) against defendant restaurant/bar, plaintiff was awarded $4,483.30 “exclusive of any costs or attorney’s fees that may be set by noticed motion.” That was the good news for plaintiff. The bad news was that, earlier, the defense had served a rejected 998 offer by which it offered to pay plaintiff $12,500
“exclusive of reasonable costs and attorney fees, if any.” Finding the 998 offer enforceable, the trial judge awarded preoffer fees/costs to plaintiff and postoffer fees/costs to the defense such that defendant obtained a net positive result of $17,252.63, showing the dramatic impact 998 fee-shifting can have in litigation. Plaintiff challenged the trial judge’s interpretation of the 998 offer to allow a subsequent award of fees and costs.
The appellate court found the 998 offer clear in Timed Out LLC v. 13359 Corp., Case No. B280301 (2d Dist., Div. 1 Mar. 27, 2018 published, earlier filed as unpublished on Feb. 27, 2018). Using contract interpretation principles, the reviewing court found no ambiguity in the “exclusive of” and “if any” language in the offer, further rejecting the notion that an offeree has to use the language found in the 998 Judicial Council Form CIV-090.