Judge: Ronald F. Frank, Case: 22TRCV00079, Date: 2023-08-11 Tentative Ruling
Case Number: 22TRCV00079 Hearing Date: August 18, 2023 Dept: 8
Tentative
Ruling¿
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HEARING DATE: August 18, 2022¿¿
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CASE NUMBER: 22TRCV00079
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CASE NAME: Kirby Larson
and Sarah Susan Larson v. Clark Hsu, et al.
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MOVING PARTY: Defendants, Clark Hsu and Sherry Hsu ¿
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RESPONDING PARTY: Plaintiffs, Kirby Larson and Sarah Susan Larson ¿¿
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MOTION:¿ (1) Motion for Attorneys’ Fees
(2)
Motion to Strike or Tax Costs
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Tentative Rulings: (1) Defendant, Clark Hsu’s
Motion for Attorneys’ Fees is GRANTED. The Code Enforcement letter from the City does
not change the Court’s previous tentative ruling.
(2)
The Plaintiffs’ Motion to tax the
expert witness “costs” is GRANTED as the Court finds the Section 998 Offer to
be unreasonable in the global view of the context of this litigation at the time
the offer was made.
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I. BACKGROUND¿¿
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A. Factual¿¿
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On June 27, 2023, this Court entered Judgment in Defendant, Clark
Hsu’s favor. Defendant Hsu now files a motion for attorneys’ fees and
Plaintiffs have filed a motion to tax Defendants’ claimed costs, including
Defendants’ expert witness fees.
B. Procedural¿¿
¿
On June 9, 2023, Defendant Hsu
filed a Motion for Attorneys’ Fees. On June 22, 2023, Plaintiffs filed an
opposition. On June 28, 2023, Defendant Hsu filed a reply brief.
On July 13, 2023, Plaintiffs
filed a supplemental brief in opposition to Defendant’s Motion for Attorney’s
Fees. On July 14, 2023, Defendant Hsu filed a Supplemental Brief RE: June 29,
2023 Letter from City of Polos Verdes Estates.
On July 5, 2023, Plaintiff filed
a Motion to Strike or Tax Costs. On July 31, 2023, Defendant Hsu filed an
opposition to Plaintiff’s Motion to Strike or Tax Costs. On August 4, 2023,
Plaintiffs filed a reply in support of Motion to Strike or Tax Costs
¿II. ANALYSIS¿
A.
Defendant
Hsu’s Motion for Attorneys Fees
Legal Standard
Attorney’s fees are recoverable when authorized by
contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).)
Pursuant to Code of Civil Procedure section 1033.5,
subdivision (a)(10), attorney fees when authorized by contract, statute or law
are allowable as costs and may be awarded upon a noticed motion pursuant to
Code of Civil Procedure section 1033.5, subdivision (c)(5).
Where a contract specifically provides for attorney’s fees
and costs incurred to enforce the contract, attorney’s fees and costs must be
awarded to the party who is determined to be the prevailing party on the
contract. (Civ. Code., § 1717, subd. (a).) “Reasonable attorney’s fees shall be
fixed by the court and shall be an element of the costs of suit.” (Ibid.)
A prevailing party is defined as follows:
(4) “Prevailing
party” includes the party with a net monetary recovery, a defendant in whose
favor a dismissal is entered, a defendant where neither plaintiff nor defendant
obtains any relief, and a defendant as against those plaintiffs who do not
recover any relief against that defendant. If any party recovers other than
monetary relief and in situations other than as specified, the “prevailing
party” shall be as determined by the court, and under those circumstances, the
court, in its discretion, may allow costs or not and, if allowed, may apportion
costs between the parties on the same or adverse sides pursuant to rules
adopted under Section 1034.
(Code Civ. Proc., § 1032, subd. (a)(4).)
In determining what fees are reasonable, California courts
apply the “lodestar” approach. (See, e.g., Holguin v. DISH Network LLC
(2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’
i.e., the number of hours reasonably expended multiplied by the reasonable
hourly rate.” (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.)
From there, the “[t]he lodestar figure may then be adjusted, based on
consideration of factors specific to the case, in order to fix the fee at the
fair market value for the legal services provided.” (Ibid.) Relevant
factors include: “(1) the novelty and difficulty of the questions involved, (2)
the skill displayed in presenting them, (3) the extent to which the nature of
the litigation precluded other employment by the attorneys, [and] (4) the
contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th
1122, 1132.)
The party seeking fees has the burden of documenting the
appropriate hours expended and hourly rates. (City of Colton v. Singletary
(2012) 206 Cal.App.4th 751, 784.) This burden requires competent evidence as to
the nature and value of the services rendered. (Martino v. Denevi (1986)
182 Cal.App.3d 553, 559.) A plaintiff’s verified billing invoices are
prima facie evidence that the costs, expenses, and services listed were
necessarily incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)
Discussion
On July 14, 2023, Plaintiffs filed a
supplemental brief in opposition to Defendant Hsu’s Motion for Attorneys’ Fees.
In their supplemental brief, Plaintiffs note that they primarily filed their
lawsuit to enforce the landscaping plans for Defendant Clark Hsu’s adjoining
property as approved by the City of Palos Verdes Estates, the LA County Fire
Department, and the Art Jury of the also Palos Verdes Home Association.
Plaintiffs point out that their initial complaint asserts causes of action
based on all three separate violations: Nuisance, two counts of Breach of
Contract, and Breach of Oral Contract. However, Plaintiffs argue that Defendant
Hsu’s primary litigation goal was to avoid having to comply with the
City/County/Association – approved landscaping plans. In response to this Court
agreeing to accepting supplemental briefing on the impact of the June 29, 2023,
letter by the City of Palos Verdes Estates to Hsu. (Exhibit 1.) Plaintiffs note
that City’s June 29, 2023, letter states that Hsu is in violation of the
City-approved landscaping plans: the existing vegetation is the wrong species
(Ficus rather than Carolina Cherry) and excessively high. Plaintiffs contend
that the City also observed that the hedge had grown in the City’s right of way
in violation of a City ordinance that such hedges do not exceed 30 inches.
(Mun. Code, § 10.080.050.) Further, Plaintiffs note that the City’s letter
concludes with a demand that Hsu immediately comply with the conditions of
approval for the construction of his home: “Failure to comply may subject you
to further legal action by the City.” (Exhibit 1.) Lastly, Plaintiffs note that
City reserved all rights to institute civil, criminal, and administrative
proceedings against Defendant Hsu. (Exhibit 1.)
Plaintiffs contend that the City’s
June 29, 2023, letter contradicts Defendant Hsu’s litigation objective in every
respect and the Plaintiffs have not achieved their litigation objectives
through the City’s issuance of its June 29, 2023 demand letter. The Plaintiffs
concede that they did not prevail in the motion for summary judgment brought by
Hsu, but on the other hand, Plaintiffs still assert that they won the war over
their views. Plaintiffs opine that had Defendant Hsu complied with the
City-approved litigation plans, this litigation would have been unnecessary.
Based on all of this, Plaintiffs contend that this Court sits in equity and
exercises its discretion, and ought to, in fairness, assess the following
factors: (1) Whether Hsu violated the Palos Verdes Estates Municipal Code by
planting a hedge species that was not approved and, thereafter, allowing it to
grow to a height that was not approved; and (2) Whether Hsu’s violation, as
found by the City, should be deemed unclean hands barring Hsu from recovering
attorney’s fees. Plaintiffs contend that Plaintiffs would never have been
required to file this action if Defendant Hsu had simply followed the approved
plans. Based on this, Plaintiffs request this Court to consider the practical
victory obtained by the Plaintiffs and Hsu’s violation of approved plans and
deny Hsu’s fee motions.
Defendant Hsu filed a supplemental
brief about the City’s letter as well. Hsu contends that the letter is
irrelevant to the instant dispute and has no bearing on the Court’s tentative
ruling to award attorneys’ fees to Defendant Hsu. Hsu contends that the letter
does not relate to, or even mention, the CC&Rs, the PVHA Resolution 191, or
even anything related to a “view” over the Hsus’ property – all of which
Defendant argues formed the gravamen of this action and then, ultimately, the
basis of the Court’s summary adjudication ruling from last fall. Defendant Hsu
also contends that City does not have any view ordinance or hedge height
restrictions (unlike other nearby jurisdictions such as Torrance.) Further, Hsu
contends the City has no authority to enforce the PVHA’s, C&Rs or PVHA’s
resolution, which were the subject of this litigation. In fact, Defendant Hsu
even linked the City’s website, which makes clear, that “vegetation on a
private property blocking views” does “NOT fall under code
enforcement” and instead the appropriate contact is the PVHA.
Further, Defendant Hsu with respect
to landscaping, the Letter erroneously cites a provision in PVE’s Municipal
Code (“PVEMC”) claiming that hedges in a public right of way supposedly cannot
exceed 30 inches in height. However, Defendant Hus argues that the referenced
City Code section does not require anything of the sort, noting PVEMC §
10.08.050 states:
“Whenever the city traffic engineer
finds, in his or her discretion, that any hedge, shrubbery or tree growing in a
parkway obstructs the view of any intersection, or any traffic upon the streets
approaching such intersection, the traffic engineer shall cause the hedge,
shrubbery or tree to be removed or reduced in height.”
Defendant Hsu argues that there is
nothing in the ordinance limiting the height of hedges to 30 inches. Defendant
Hsu argues that the code section concerns vegetation that creates a vehicular
traffic hazard, which has nothing to do with the vegetation in question which
is not located where any vehicular traffic occurs, nor does the Letter indicate
the City’s traffic engineer made the required finding. Hsu notes he addressed
similar claims by City Code Enforcement in February 2023, when at the time, the
City had informed him that a neighbor complained about the vegetation in
question. Hsu notes his counsel reached out to City Code Enforcement about the
complaint and explained how there was no Code violation. In response, Hsu notes
Ms. Pickens, who authored the Letter, stated:
I do not have a case at this address
and I spoke to Mr. Hsu only to obtain information to note if an inspection was
necessary from a code enforcement standpoint. After doing some research and
speaking with Mr. Hsu I decided not to move forward with a case. It seems there
are no code enforcement violations at this time.
(Exhibit C.)
Hsu argues that throughout the
lawsuit and while the Motion for Attorneys’ Fees was pending, the City did not
raise any issues regarding Hsu’s property generally or Hsu’s vegetation in
particular. Further, Defendant Hsu contends that in February the City expressly
stated that there were “no code vegetation violations” with respect to the
Plaintiffs’ same complaints. Hsu opines that it is unclear what, if anything,
changed to prompt this new letter from the City, but that he will respond and
again demonstrate that there is no code enforcement violations. Hsu argues that
there is no “equitable” reason to reduce attorneys’ fees based on this letter
as Plaintiffs claim, because the letter is irrelevant, and any action by the
City is unrelated to views, the CC&Rs, or the PVHA’s resolution that are
the subject of this lawsuit.
The Court agrees with Defendant Hsu.
Although the Court understands that the height of Defendant Hsu’s hedge was an
issue in this suit, the Plaintiffs’ Complaint was not based on 10.08.050 PVEMC,
nor was it based on 8.16.090 PVEMC. Instead, this Court was asked to analyze
the CC&Rs, PVHA Resolution 191, and the spite fence statutes. Because the
litigation was based on these, and not the basis for the City’s Letter, the letter
is not relevant to the Fee Motion. Defendant Hsu was the prevailing party in
private party litigation, not a threatened Code Enforcement action. As
such, the Court’s previous tentative ruling on the attorneys’ fees will become
the final order. The Court reduces Mr. Lamport’s hours by 4 at $960 per hour
for a reduction of $3,840, Mr. Begland by 14 at $855 for a reduction of $11,970,
and Mr. Laes by 20 at $655 for a reduction of $13,100. The total reduction is
$28,910. $351,808 minus the reductions yields a net of $322,898. Both sides
employed outstanding lawyers with outstanding reputations and correspondingly
sizeable hourly rates. The Court thus GRANTS Attorneys’ Fees is the amount of
$322,898.75.
B.
Plaintiffs’ Motion to Strike or Tax Costs
Legal Standard
Defendants
filed a Motion to Tax Costs. “Any
notice of motion to strike or to tax costs must be served and filed 15 days
after service of the costs memorandum. If the cost memorandum was served
by mail, the period is extended as provided in Code of Civil Procedure section
1013.” (Cal. Rules of Court, rule 3.1700(b)(1).) The failure to
timely file a motion to tax or strike costs constitutes a waiver of the right
to object to costs, unless the Court in its discretion grants relief under Code
of Civil Procedure Section 473, such as based upon a finding of excusable
neglect. (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289; see
also Cal. Rules of Court, rule 3.1700(b)(3) [“The party claiming costs and the
party contesting costs may agree to extend the time for serving and filing the
cost memorandum and a motion to strike or tax costs. This agreement must
be confirmed in writing, specify the extended date for service, and be filed
with the clerk. In the absence of an agreement, the court may extend the
times for serving and filing the cost memorandum or the notice of motion to
strike or tax costs for a period not to exceed 30 days.”].)
A prevailing party claiming costs
must file and serve a memorandum of costs either (1) within 15 days after the
date of service of a notice of entry of judgment or dismissal by the clerk
under Code of Civil Procedure section 664.5, (2) 15 days after the service of
written notice of entry of judgment or dismissal, or (3) within 180 days after
entry of judgment, whichever is first. (Cal. Rules of Court, rule 3.1700, subd. (a).) Any motion to strike
or tax costs must be served and filed 15 days after service of the
memorandum, plus an additional 5 days if served by mail or 2 days if served
electronically. (Cal. Rules of Court, rule 3.1700, subd. (b)(1).) “Unless objection is
made to the entire cost memorandum, the motion to strike or tax costs must
refer to each item objected to by the same number and appear in the same order
as the corresponding cost item claimed on the memorandum of costs and must
state why the item is objectionable.” (Cal. Rules of Court, rule 3.1700, subd. (b)(2).)
California Code of Civil Procedure section 1033.5,
subdivision (a), sets forth items allowable as costs. And section 1033.5,
subdivision (b) lists the items that are not allowable as costs. The
court has discretion to allow costs that are not barred by subdivision (b), but
are not listed under subdivision (a). (Science Applications
International Corporation v. Superior Court (1995) 39 Cal.App.4th 1095,
1103.) If an item of costs is expressly allowed by statute and if items
appear on their face to be proper, the verified memorandum of costs is prima
facie evidence of their propriety, shifting the burden of proof to the
objecting party to show that the items are not “reasonably necessary to the
conduct of the litigation” or “reasonable in amount.” (Benach v.
County of L. A. (2007) 149 Cal.App.4th 836, 855; (Nelson v. Anderson
(1999) 72 Cal.App.4th 111, 131-32 [“trial court erred in requiring additional
proof from” the party claiming costs, where the party attacking costs had the
burden]; Santantonio v. Westinghouse Broad. Co. (1994) 25 Cal.App.4th
102, 116, 121 [after a prima facie showing based on verified cost memorandum,
objecting party has the burden to prove costs should be disallowed]; Ladas
v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th 761, 773.) But if an
item of cost does not appear proper on its face, the burden of showing that it
is reasonable and necessary shifts to the party claiming the cost. (Nelson
v. Anderson (1999) 72 Cal.App.4th 111, 131; Jones v. Dumrichob
(1998) 63 Cal.App.4th 1258, 1267; but see Bach v. County of Butte (1989)
215 Cal.App.3d 294, 308 ["Only after such costs are challenged by a motion
to tax do the parties need to justify their claims by submitting documentation
of the costs they have incurred."].)
Accordingly, the court must determine whether section 1033.5 expressly
allows the particular item and whether it appears proper on its face.
(See Nelson, supra, 72 Cal.App.4th at 131.)
Discussion
Timeliness
Here,
Plaintiffs argue that Defendant Hsu’s memorandum of costs was untimely, and
that he was required to file his memorandum within fifteen (15) days of the
Larsons’ served notice of entry of dismissal. (Cal. Rules of Court, Rule
3.1700(a)(1).) Plaintiffs note that they served the notice of entry of
dismissal by electronic service on May 23, 2023. (Lewis Decl., ¶ 3, Ex. 1.)
Hsu’s fifteen-day period to claim costs was extended by two additional court
days from June 7 to June 9, 2023. (Code Civ. Proc., § 1010.6, subd.(a)(3)(B)
[extending time to do any act by two court days following service by email].)
However, Plaintiffs assert that Hsu filed his memorandum on June 15, 2023.
(Lewis Decl., ¶ 4, Ex. 2.) Plaintiffs argue that Hsu’s memorandum needed to be
filed on or before June 9, 2023, to be timely. Plaintiffs contend that because
the “time provisions relating to the filing of a memorandum of costs … are
mandatory,” failure to comply with the above time limit may result in a waiver
of costs. (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co.
(1990) Cal.App.3d 924, 929.) As such, Plaintiffs argue that Defendant Hsu’s
memorandum of costs was untimely and the Motion to Strike Costs should be
granted.
Alternatively, Plaintiffs contend
that the Court should grant the Motion to Tax Costs because expert fees are
normally not recoverable as a “cost”. Here, Defendant Hsu’s memorandum includes
$16,472.50 in claimed expert fees. (Lewis Decl., ¶ 5, Ex. 2.) Expert fees are
not recoverable. Pursuant to Code of Civil Procedure section 1033.5,
subd.(a)(7)–(8), Plaintiffs argue that there are only two types of recoverable
witness fees: ordinary witness fees and/or fees of expert witnesses ordered by
the court. Moreover, section 1033.5, subd.(b)(1) explicitly states: “The
following items are not allowable as costs, except when expressly authorized by
law: (1) Fees of experts not ordered by the court.” Plaintiffs contend that
because Defendant Hsu seeks to recover costs for their expert witness, and the
expert witness was not court ordered, the fees are not recoverable as a cost.
In opposition, Defendant Hsu argues
that the memorandum of costs was timely filed because pursuant to California
Rules of Court 3.1700(a)(1), a prevailing party must serve and file a memorandum
of costs no later than 15 days after the date of service of the notice of entry
of judgment or dismissal by the clerk. Here, Defendant Hsu argues it was timely
because it was filed prior to the fifteenth day following notice of entry of
judgment. Defendant Hsu argues that the time did not run because the dismissal
did not dispose of the lawsuit and no judgment of dismissal was ever entered.
In fact, Plaintiffs only dismissed their spite fence cause of action, and not
their entire case. However, Hsu argues that even if the memorandum of costs was
not timely, the Court has discretion to, and should award costs to Hsu as the
prevailing party. (citing Jones v. John Crane, Inc., 132 Cal. App. 4th
990, 1012 (2005) (holding that “court had discretion to excuse the
untimeliness” of a memorandum of costs under CCP § 473, where memorandum was
not filed within 15 days after notice of entry of judgment); Russell v.
Trans Pacific Group, 19 Cal. App. 4th 1717, 1725-26 (1993) (procedures for
claiming costs are mandatory, although not jurisdictional, so that court may
relieve party under CCP § 473 for filing untimely cost bill). Douglas v.
Willis, 27 Cal. App. 4th 287, 290 (1994) (same, citing text); LeDeit v.
Ehlert, 205 Cal. App. 2d 154, 169-70 (1962) (trial court may grant CCP §
473 relief from noncompliance with time limitations for filing cost bill, which
are not jurisdictional).)
The
Court’s clarification of the time line is that on December 22, 2022, the Court
granted the MSA as to 2nd and 3rd causes of action for
breach of contract, but denied full MSJ, and DENIED MSA as to 1st
cause of action for private nuisance. On May 22, 2023, Plaintiffs filed a dismissal
of the private nuisance cause of action as to any spite fence claim, but the
Court did not enter judgment as to then-pending balance of the suit until June
27, 2023. The Court thus finds that the
cost bill was not filed late; if anything it was early, but the Court exercises
its discretion to consider and rule on the Cost Bill regardless.
Reasonability
of the 998 Offer
Further, Plaintiffs argue there is
no basis for Section 998 Shifting of Expert Fees because Defendant Hsu’s
section 998 offer was not made in good faith. Plaintiffs argue that California
courts have held that Code of Civil Procedure section 998 penalties may be
refused where the nature of defendant’s offer was one for which there was no
reasonable prospect of acceptance. (See Wear v. Calderon (1981) 121
Cal.App.3d 818, 821 [expert witness fees denied despite defense verdict because
defendant’s $1 offer was not reasonable]; Pineda v. Los Angeles Turf Club,
Inc. (1980) 112 Cal.App.3d 53, 62-63, [defendant’s offer of $2,500 was so
disproportionate to plaintiff’s $10 million demand as to be “unreasonable”].)
Plaintiffs note that on April 12, 2023, Hsu made a section 998 offer, which if
accepted, would have required the Plaintiffs to dismiss their claims with
prejudice without any improvement of their view and would require the
Plaintiffs to pay him the claimed amount of over $350,000 in attorney’s fees
for the earlier portion of the case based on the CC&Rs that this Court
dismissed via summary judgment. Plaintiffs argue that Hsus’ offer requiring
them to dismiss their claims with prejudice – without any improvement of their
view – and requiring the Plaintiffs to pay Hsus’ attorney’s fees of $351,808.75
and offset by the proposed one-time payment by Hsu of $1,001 would only be
realistic, and therefore reasonable, if there was absolutely no possibility of
the Plaintiffs prevailing in their lawsuit. However, Plaintiffs argue that it
was not the case here, and a finding of Hsu’s liability was reasonably probable
because Hsu was required to keep his hedges at or below 6 feet high, yet
refused to trim them below 20 feet. As such, Plaintiffs contend that a finding
of liability against Hsu was reasonably probable there was no real prospect
that Hsu’s token offer would settle the case. As such, Hsu should not be
allowed to benefit from a no-risk offer which was extended for the sole purpose
of making himself eligible for recovery of costs. Based on this, Plaintiffs
argue that Hsu’s expert witness fees should be denied.
Next, Plaintiffs argue the 998 offer
was invalid because it was jointly made. Plaintiffs contend that because Hsu’s
pretrial offer was directed jointly to both Kirby and Sarah Susan Larson, the
offer was impliedly conditioned upon acceptance by both Plaintiffs even through
the offer was only for waiver of costs. Plaintiffs argue that Code of Civil
Procedure § 998 states that where an offer directed to multiple offerees is not
apportioned between individual offerees, the inference that the offer must be
accepted jointly is inherent. Plaintiffs contend that the April 12, 2023 offer
was a single document, which referred to Plaintiffs in the conjunctive, and
attached at the bottom of the offer as a notice of acceptance, which provided
only one signature line. Plaintiffs argue that because Hsu’s offer was jointly
made and di not allow each individual Plaintiff the opportunity to accept or
decline the offer individually, it was impliedly conditioned, and therefore
Plaintiffs argue this Court should find this offer invalid for the purpose of
making Plaintiffs or either of them liable for expert witness fees.
In opposition, Hsu argues his offer
was made in good faith and he should be awarded his expert costs incurred after
the offer was rejected. Hsu relies on the Second District’s recent decision in Licudine
v. Cedars-Sinai Med. Ctr. (2019) 30 Cal. App. 5th 918, 924-25, to evaluate
whether a 998 offer was reasonable:
Whether a section 998 offer has a
reasonable prospect of acceptance is a function of two considerations, both to
be evaluated in light of the circumstances “‘at the time of the offer’” and
“‘not by virtue of hindsight.’” [Citations.] First, was the 998 offer within
the “range of reasonably possible results” at trial, considering all of the
information the offeror knew or reasonably should have known? [Citation.]
Second, did the offeror know that the offeree had sufficient information, based
on what the offeree knew or reasonably should have known, to assess whether the
“offer [was] a reasonable one,” such that the offeree had a “fair opportunity
to intelligently evaluate the offer”? [Citations.] These two considerations
assess whether the offeror knew that the 998 offer was reasonable, first, from
the offeror's perspective and, second, from the offeree’s perspective. In light
of this focus on the reasonableness of the offeror’s conduct in making the 998
offer (which makes sense because the issue is the validity of the offer in the
first place), whether the offeree acted reasonably in rejecting that offer is
irrelevant.
(Ibid.)
Defendant Hsu notes that when he
made the 998 offer, the Court had already ruled on Hsu’s MSJ and adjudicated
all CC&R-based claims in favor of Hsu and against Plaintiff, and all that
remained was the spite fence cause of action. Further, Hsu argues that the fact
that the offer contained a carve out of Hsu’s right to seek attorneys’ fees for
the previously adjudicated claims is irrelevant and does not show that he offer
was unreasonable. Hsu notes he offered to pay $1,001 as a compromise of the
spite fence claim, and that the offer was highly reasonable under the
circumstances that existed at the time, noting Plaintiffs’ voluntarily
dismissed their spite fence claim. The Court agrees and finds that the offer
was reasonable in spite of the circumstances involved in the case at the time
the offer was made. The reasonable probability Plaintiffs refer to in
succeeding on their spite fence claim is negated by the fact that this claim
was voluntarily dismissed by them.
Further, Hsu notes that Plaintiffs
had a complete unity of interest and have at all times proceeded jointly in
this matter, to the 998 offer made to both Plaintiffs at the same time was
proper. Defendant Hsu argues that because Plaintiffs are married, the general
rule requiring apportionment does not apply to a joint offer made to married
plaintiffs suing on a claim for damages that arose during marriage. (citing
Wegner & Fairbank, Cal. Prac. Guide: Civ. Trials & Ev. (The Rutter
Group, 2022) ¶ 17:388 (“The general rule does not apply to an unallocated
(joint) offer made to married plaintiffs suing on a damages cause of action
that arose during marriage.”). The Court agrees and does not find Plaintiffs’
argument on this issue to be particularly persuasive.
However,
with respect to the offer itself, this Court finds that the 998 offer was not
reasonable as it would have required Plaintiffs to relinquish their right to
appeal. It is possible that the Second District may determine that the Court
erred on the MSA or on the determination of the Fee Motion, making the right to
appeal worth a significant amount more than $1,001. Based on this, the Court rules
that Defendant Hsu is not entitled to his expert fees in the amount of
$16,472.50. Thus, the Motion to tax the
expert witness “costs” is GRANTED to that extent.