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Rejection of CCP §998 Offer, Later Settlement for Less, Only Affects Prejudgment Fees, Costs—C.A.
Justices Say Statute Has No Applicability to Efforts to Enforce Judgment
By a MetNews Staff Writer
A plaintiff who spurned a Code of Civil Procedure §998 offer to compromise and later settled the case for an amount that was $2 less, though limited by operation of the statute to prejudgment attorney fees and costs that were incurred prior to the defendant’s offer, is not precluding from receiving an award of fees and costs in connection with efforts to enforce the judgment, Div. Three of the Fourth District Court of Appeal has held.
The opinion by Justice Thomas M. Goethals was filed Jan. 8 and certified for publication on Thursday. The jurist wrote:
“Code of Civil Procedure section 998 specifically governs ‘costs allowed under Sections 1031 and 1032’ which ‘shall be withheld or augmented as provided in this section.’…Those statutes govern prejudgment costs, including attorney fees, that can be recovered as part of the judgment.”
He went on to explain:
“It is section 685.040, rather than sections 1031 or 1032, which authorizes an award of fees and costs to a judgment creditor: ‘The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment....Attorney’s fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney’s fees to the judgment creditor….”
The opinion reverses an order by Orange Superior Court Judge Linda S. Marks denying attorney fees and costs to plaintiff Caesar Elmi who was forced to expend efforts in prying settlement funds from Related Management Company, L.P. Marks ruled:
“Plaintiff is not entitled to any fees or costs after April 28, 2021, when Defendant served it’s 998 offer.”
There was a remand “to the trial court with instructions to decide whether and to what extent Elmi is entitled to recover the fees and costs requested in the motion.”
The case is Elmi v. Related Management Company, L.P., G062788.
Goethals also authored the Sept. 25, 2023 opinion which affirms the order awarding Elmi prejudgment attorney fees in the amount of $19,440 when he had sought $302,000. The justice rejected the contention that although his settlement offer was for an amount that was $2 less than Related’s offer, it had features that rendered it more favorable to him.
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