Costs And Fees After The Time-Cut Off Were To Be Stricken On Remand.
Where an unambiguous CCP § 998 offer has a time cut-off with respect to awarding fees and costs, that will be legally honored. That is what occurred in Olbert v. Mercedes-Benz USA, LLC, Case No. B327402 (2d Dist., Div. 4 Sept. 5, 2024) (unpublished).
There, plaintiff accepted a defense 998 offer for a monetary payment, with the offer also containing this language: “Plaintiff may elect to have the Court determine, in a noticed motion and/or by Plaintiff’s filing of a memorandum of costs, the attorney’s fees, costs, and expenses that have been reasonably incurred on or before September 3, 2021, under Civil Code Section 1794(d) [California’s lemon law fee/costs provision], No fees and costs incurred after September 3, 2021 are recoverable. If this Offer is accepted, [Defendant] will stipulate that Plaintiff is the prevailing party for purposes of any motion for attorney’s fees, expenses and costs and/or memorandum of costs to determine reasonable fees, costs, and expenses up to and including September 3, 2021.” The lower court found the 998 offer “somewhat ambiguous” and awarded fees/costs—with some reductions—for time periods after September 3, 2021.
The 2/4 DCA reversed, finding the 998 offer was unambiguous and honoring the time-cut off. The matter was remanded to the lower court to determine which portion of the award must be stricken as incurred after September 3, 2021.