998 Accepted Offer Was $40,000, Chagrined Plaintiff Denied Requested $225,750 In Fees.
Care of Justice Yegan and his colleagues in the Second District, Division 6, we have an interesting CCP § 998/Civil Code § 1717 decision in The DuPuis Group v. Atticus Information Systems, Inc., Case No. B242722 (2d Dist., Div. 6 Sept. 24, 2013) (unpublished).
There, the parties entered into an engagement letter with a fees clause. However, later, the parties entered into a Statement of Work without a fees clause–which plaintiff admitted in discovery responses was the operative contract for purposes of the rest of the fees dispute. Plaintiff accepted a $40,000 998 offer, inclusive of fees and taxable costs “if appropriate.” (HINT, HINT: drafting suggestion for you 998 offerors.) Plaintiff accepted the offer but then brought an attorney’s fees motion seeking fees of $225,750. The trial court denied the fees motion altogether, prompting an appeal.
Fee denial affirmed.
Why, you ask? Simple: CCP § 998 cannot provide greater rights to fee entitlement than the underlying contract or statute sued upon. So, given the concession that the Statement of Work did not have a fees clause, there was no contractual fee entitlement “anchor” for a fee award. Plus, although not really necessary, the 998 offer was worded carefully and only allowed fees “if appropriate”–again invoking the fee entitlement ghost already found to be dispositive.