Shaffer II Finds That Its Prior Appellate Decision Did Not Find Plaintiffs Failed to Attempt Mediation Under CAR Purchase Agreement.
This is a sequel to our December 30, 2009 post on Shaffer v. Sassoon (Shaffer I), which found plaintiffs beat a defense CCP § 998 offer once pre-offer costs were included in the calculus and remanded for a determination of fees/costs owed to the plaintiffs.
On remand, the trial court refused to award any attorney’s fees to plaintiffs, because it interpreted Shaffer I to indicate that plaintiffs had failed to attempt to mediate, a contractual precondition under the operative CAR purchase agreement. (In many past posts, we have explored the impact of this contractual clause on an award of fees under Civil Code section 1717. See, e.g. our July 14, 2009 post on Carradine v. Cowell and May 30, 2008 post on Lange v. Schilling.) That resulted in a denial of plaintiffs’ request to recover $236,354.50 in fees ($30,987 pre-offer fees and $236,354.40 post-offer fees/costs).
Well, the Second District, Division 1, in a 3-0 decision authored by Justice Johnson, reversed and remanded for a determination of plaintiffs’ fees in the case. The decision is Shaffer v. Sassoon (Shaffer II), Case No. B227080 (2d Dist., Div. 1 Sept. 23, 2011) (unpublished).
Although acknowledging that Shaffer I found no evidence that the defendants refused to mediate, the appellate panel implicitly had determined that the plaintiffs did attempt to mediate even though it sent the letters so offering to defendants’ real estate brokers in a way that maybe did not reach defendants. Judge Johnson recognized that a failure to comply with the mediation precondition would have ended plaintiffs’ claim to say they obtained a more favorable result, but the record did show an attempt to mediate. The panel also decided that “costs” for 998 purposes encompasses both fees and routine costs (as well as expert witness fees).
BLOG UNDERVIEW–We noticed that Scott L. Gilmore was the losing attorney on appeal (and we all have lost appeals, unless one has been extremely fortunate or lucky, or both). Co-contributor Mike has had the pleasure to mediate before Mr. Gilmore, who is an accomplished mediator with a good track record based out of Los Angeles.