Judge: Cynthia A Freeland, Case: 37-2021-00043456-CU-OE-NC, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 05, 2023

10/06/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Other employment Motion Hearing (Civil) 37-2021-00043456-CU-OE-NC WANNER VS HERNANDEZ [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 06/01/2023

Plaintiff/Cross-Defendant Braxton Wanner ('Plaintiff')'s motion for attorney's fees is denied.

California follows the 'American rule,' under which 'each party to a lawsuit must ordinarily pay his own attorney fees.' Trope v. Katz (1995) 11 Cal. 4th 274, 278 (citing Gray v. Don Miller & Associates, Inc.

(1984) 35 Cal. 3d 498, 504; United Services Auto. Assn. v. Dalrymple (1991) 232 Cal. App. 3d 182, 187).

The Legislature codified the American rule when it enacted California Code of Civil Procedure ('CCP') § 1021, which provides that '[e]xcept as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.' See Cal. Code Civ. P. § 1021; Cargill, Inc. v. Souza (2011) 201 Cal. App. 4th 962, 966. CCP § 1033.5(a)(10) likewise allows attorneys' fees as costs under CCP § 1032 when contractually, statutorily, or legally authorized. See Cal. Code Civ. P. § 1033.5(a)(10).

On October 8, 2021, Plaintiff commenced this action by filing a Complaint against Defendants/Cross-Complainants Hernandez Roofing, Inc., Nestor Javier Hernandez, Evan Angel Hernandez, and Angel Javier Hernandez (collectively, 'Defendants') for various wage-related claims.

See ROA No. 1. On January 7, 2022, Defendants filed: (1) an Answer to the Complaint (see ROA No.

15), and (2) a Cross-Complaint against Plaintiff for fraudulent misrepresentation, promise without intent to perform, and negligence (see ROA No. 16). On January 25, 2023, Defendants submitted to Plaintiff an Offer to Compromise under California Code of Civil Procedure ('CCP') § 998 (the 'Offer to Compromise'). See Ness Decl., Ex. A; Bradford Decl., Ex. B. The Offer to Compromise offers to settle this litigation in favor of Plaintiff and against Defendants in the amount of $9,999.00. The Offer to Compromise is silent on the issue of attorney's fees and costs. On February 14, 2023, Plaintiff 'accepted' the Offer to Compromise and filed same with the court (the 'Acceptance'). See ROA No. 42; Ness Decl., Ex. B. However, the Acceptance includes a term not included in the Offer to Compromise, namely that Judgment shall be entered in Plaintiff's favor and against Defendants in the amount of $9,999.00 'plus attorneys' fees and costs to be determined by the Court.' Ibid. On April 7, 2023, Defendants filed objections to the Acceptance. See ROA Nos. 47, 50. On April 24, 2023, the court entered Judgment in Plaintiff's favor and against Defendant's in the amount of $9,999.00 but left blank the amount of attorney's fees and costs to be awarded in this matter. See ROA No. 56. On April 28, 2023, Defendants objected to the entry of Judgment. See ROA No. 57. Plaintiff now seeks $7,982.50 in attorney's fees pursuant to the Acceptance and as the prevailing party under California Labor Code ('CLC') §§ 218.5 and 226.

The court finds that Plaintiff has failed to demonstrate entitlement to the requested relief. Plaintiff is Calendar No.: Event ID:  TENTATIVE RULINGS

2979137 CASE NUMBER: CASE TITLE:  WANNER VS HERNANDEZ [IMAGED]  37-2021-00043456-CU-OE-NC correct that, as a general rule, 'a section 998 offer that is silent as to attorney fees cannot reasonably be interpreted as excluding such recovery to the prevailing party, provided attorney fees are authorized by statute or contract.' Linton v. County of Contra Costa (2019) 31 Cal. App. 5th 628, 632. Put differently, a CCP § 998 offer that does not explicitly provide for attorney's fees and costs does not foreclose the possibility that such fees and costs are recoverable – it simply means that the prevailing party must demonstrate a contractual, statutory, or other legal basis for such an award by way of a noticed motion.

In this case, however, the court is not convinced, on the current record, that there was a valid acceptance of the Offer to Compromise. To that point, '[i]n interpreting a section 998 offer, general contract principles apply when they neither conflict with nor defeat the statute's purpose of encouraging the settlement of lawsuits prior to trial.' Timed Out LLC v. 13359 Corp. (2018) 21 Cal. App. 5th 933, 942.

Under California law, the essential elements of a contract are: '1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration.' Cal. Civ. Code § 1550. In relevant part, 'consent' must be: '1. Free; 2. Mutual; and, 3. Communicated by each to the other.' Cal. Civ. Code § 1565. Mutual consent requires that 'the parties all agree upon the same thing in the same sense.' Cal. Civ. Code § 1580. 'An acceptance must be absolute and unqualified, or must include in itself an acceptance of that character which the proposer can separate from the rest, and which will conclude the person acceptance. A qualified acceptance is a new proposal.' Cal. Civ. Code § 1585. The foregoing principles apply in the context of CCP § 998 offers. See, e.g., Bias v. Wright (2002) 103 Cal. App. 4th 811, 820.

In this case, the court finds that the Acceptance was not, in fact, a valid acceptance of the Offer to Compromise; rather, it was a counteroffer because it added additional or different terms from those offered, viz., the attorney's fees and costs provision. See Guzman v. Visalia Community Bank (1999) 71 Cal. App. 4th 1370, 1376. It is clear from the record that there was not mutual assent as to this term because there is no evidence establishing the parties' objective manifestation of assent to 'the same thing in the same sense.' Weddington Productions, Inc. v. Flick (1998) 60 Cal. App. 4th 793. This conclusion is buttressed by the evidence Defendants have submitted in support of their opposition as well as the various objections they filed after Plaintiff filed the Acceptance with the court. More specifically, the evidence shows that on March 1, 2023, Defendants' counsel e-mailed Plaintiff's counsel indicating that Defendants did not deem the Acceptance to be an acceptance of the Offer to Compromise because the provision for attorney's fees and costs was unilaterally added. See Ness Decl., Ex. C. Defendants have also filed objections to the Acceptance and Judgment on those same grounds. Based on the foregoing, the court finds that there was not a valid acceptance of the Offer to Compromise and thus Plaintiff has not demonstrated entitlement to an award of attorney's fees pursuant to that contract.

Plaintiff is correct that the CLC mandates an award of attorney's fees and costs to the prevailing party in a wage-related action. See Cal. Lab. Code § 218.5(a), 226(e)(1). However, to be entitled to such an award, Plaintiff must demonstrate that he was, in fact, the prevailing party in this action. He has not done so given that: (1) there is no evidence of a valid acceptance of the Offer to Compromise, and (2) there has not been an adjudication on the merits of any of Plaintiff's or Defendants' causes of action or defenses. Notably, the court's analysis would have been different had Plaintiff accepted the Offer to Compromise as presented, i.e., without adding additional terms, and then moved for attorney's fees. He did not do so.

In light of the foregoing, the court denies Plaintiff's motion for attorney's fees. Counsel should attend the hearing prepared to discuss the status of the Judgment in this case.

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