Opinion
B327402
09-05-2024
SARAH OLBERT, Plaintiff and Respondent, v. MERCEDES-BENZ USA, LLC, Defendant and Appellant.
Theta Law Firm, Soheyl Tahsildoost, Kainoa Aliviado, Donna Hooper for Defendant and Appellant. Knight Law Group, Roger Kirnos, Jacob Cutler; Greines, Martin, Stein &Richland, Cynthia E. Tobisman, Joseph V. Bui, Anne F. Guidroz for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No.19STCV11486 Kevin C. Brazile, David J. Cowan, Judges. Reversed in part and remanded with instructions.
Theta Law Firm, Soheyl Tahsildoost, Kainoa Aliviado, Donna Hooper for Defendant and Appellant.
Knight Law Group, Roger Kirnos, Jacob Cutler; Greines, Martin, Stein &Richland, Cynthia E. Tobisman, Joseph V. Bui, Anne F. Guidroz for Plaintiff and Respondent.
COLLINS, J.
INTRODUCTION
Appellant Mercedes-Benz, USA, LLC (MBUSA) appeals from an order awarding attorney fees and costs to respondent Sarah Olbert. MBUSA contends that Olbert accepted a settlement offer under Code of Civil Procedure section 998 [ which excluded recovery of fees and costs incurred after September 3, 2021. As such, MBUSA argues that the trial court's order awarding attorney fees incurred after the cut-off date violated the plain language of the parties' agreement. Olbert did not file a substantive brief on appeal. We find that MBUSA has demonstrated error and therefore reverse the trial court's order.
All further undesignated statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL HISTORY
Olbert filed a lawsuit in April 2019 against MBUSA, among others, alleging violations of the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790, et seq.) in connection with her lease of a Mercedes-Benz vehicle. MBUSA served a section 998 offer on August 2, 2021, offering to settle the action for a payment of $35,000 to Olbert, plus $28,500 in full satisfaction of Olbert's attorney fees, expenses, and costs or an amount to be determined by the court. Olbert did not accept the offer and it expired.
In May 2022, Olbert's counsel asked MBUSA's counsel whether MBUSA would be willing "to reopen" the prior section 998 offer if Olbert agreed "to have [her] fees cut" as of September 3, 2021, the expiration date of the prior section 998 offer. MBUSA then served a new section 998 offer on June 27, 2022. Under the terms of the offer, the parties agreed to settle the action upon payment by MBUSA of $35,000 to Olbert. The offer also contained the following provision regarding fees: "Plaintiff may elect to have the Court determine, in a noticed motion and/or by Plaintiff's filing of a memorandum of costs, the attorney's fees, costs, and expenses that have been reasonably incurred on or before September 3, 2021, under Civil Code Section 1794(d). No fees and costs incurred after September 3, 2021 are recoverable. . . . [I]f this Offer is accepted, MBUSA will stipulate that Plaintiff is the prevailing party for purposes of any motion for attorney's fees, expenses and costs and/or memorandum of costs to determine reasonable fees, costs, and expenses up to and including September 3, 2021." Olbert accepted the offer.
After negotiations failed regarding the amount of fees and costs recoverable by Olbert, she filed a motion seeking $38,288.27 in attorney fees and costs (the fee motion).[ Olbert acknowledged the agreed-upon cut-off date of September 3, 2021, but sought to recover approximately $5,800 incurred after that date as time spent by her counsel preparing the fee motion.
This amount included $21,341 in fees, plus a lodestar enhancement of $10,670.50, plus costs and expenses of $6,276.77.
MBUSA opposed, arguing that the parties had agreed that fees and costs after September 3, 2021 were not recoverable, which would bar recovery of any amounts spent on the fee motion. MBUSA also contended that the amount of fees claimed by Olbert was unreasonable and that the case did not warrant application of a lodestar multiplier.
At the January 9, 2023 hearing on the fee motion, MBUSA's counsel argued that the language in the section 998 agreement was not ambiguous, as it clearly stated that no fees and costs incurred after September 3, 2021 would be recoverable. In its written ruling, the court disagreed, finding that the "subject 998 offer is somewhat ambiguous," and that the agreement was "silent on whether fees could be obtained" in connection with a fee motion. The court concluded that MBUSA "should have negotiated for explicit language on this issue," and therefore that Olbert could recover for fees and expenses incurred in bringing the fee motion. However, the court found no multiplier was warranted and that the total number of hours billed was "somewhat excessive," deducting $2,400 for "excessive time spent on the instant Motion and on discovery." The court therefore granted the fee motion in part, awarding Olbert $18,941 in fees and the full amount of $6,276.77 in costs.
MBUSA timely appealed.
DISCUSSION
We review interpretation of a section 998 offer de novo where the underlying facts are undisputed. (See TimedOut LLC v. 13359 Corp. (2018) 21 Cal.App.5th 933, 942, citing Barella v. Exchange Bank (2000) 84 Cal.App.4th 793, 797.) MBUSA contends that the section 998 offer "unambiguously and explicitly" excluded recovery of any fees or costs incurred after September 3, 2021, citing the language of the offer. Olbert does not dispute this assertion on appeal. Instead, her appellate brief states only that "[g]iven the small amount at stake, and the significant cost of briefing an appeal on the merits, it is not economical for Ms. Olbert to defend the trial court's order." As such, Olbert "does not oppose partial summary reversal" of the attorney fee award related to fees incurred after September 3, 2021.
Because Olbert provided no opposing argument, we may decide this appeal on the record and MBUSA's opening brief. (Cal. Rules of Court, rule 8.220(a)(2).) We agree with MBUSA that the plain language of the section 998 offer barred recovery of attorney fees or costs incurred after September 3, 2021. As such, the court erred in awarding any amounts incurred after that date. Accordingly, we reverse in part the order granting Olbert's fee motion. Because the court did not clearly identify what amounts it was awarding for which time period, we remand to the trial court to determine which portions of the fee award must be stricken.
DISPOSITION
The order granting Olbert's motion for attorney fees is reversed in part. The matter is remanded to the trial court to determine which portion of the award must be stricken as incurred after September 3, 2021. MBUSA is entitled to its costs on appeal.
We concur: CURREY, P.J. ZUKIN, J.