Language Justified Awarding Plaintiff Only Preoffer Fees And Costs By The Trial Judge.
In Timed Out LLC v. 13359 Corp., Case No. B280301 (2d Dist., Div. 1 Feb. 27, 2018) (unpublished), the defense offered to pay through a CCP § 998 offer a “total sum” of $12,500 “exclusive of reasonable costs and attorney fees, if any” to plaintiff in a statutory/common law misappropriation of likeness dispute where plaintiffs sought an award of fees and costs to the prevailing party under Civil Code section 3344(a). Plaintiff did not accept the 998 offer. Plaintiff did win, but the trial court awarded plaintiff $4,483.30 in damages exclusive of costs or fees as determined via a noticed motion. Both sides moved for costs/fee, with the trial judge ultimately awarding plaintiff $29,820 in preoffer fees (out of a total request of $77,385, inclusive of postoffer fees) and awarding defendant $31,395 in postoffer fees (out of $44,047.50 in requested postoffer fees). Plaintiff appealed.
Plantiff believed that the “exclusive” and “if any” language in the defense offer was too ambiguous such that postoffer fees should have been awarded as well. The appellate court disagreed. The language was clear enough, and the defense did not need to use the language in Judicial Council Form CIV-090 with respect to 998 offers. The trial court order respecting plaintiff’s fees and costs was affirmed.
BLOG OBSERVATION—This 3-0 panel decision was authored by Los Angeles County Superior Court Judge Helen I. Bendix, who was sitting by assignment. We can now report that she has been appointed by Governor Jerry Brown to the Second District, Division One, subject to confirmation, on February 27, 2018.