CCP 998 Does Not Confer an Independent Right to Attorneys’ Fees

By: Tony Carucci

A so-called “offer to compromise” under California Code of Civil Procedure section 998 can reverse the parties’ entitlement to costs after the date of the offer, depending on the outcome of the litigation. Cal. Code Civ. Proc. § 998. When making a 998 offer, parties may designate the plaintiff as the prevailing party and provide that the plaintiff may seek attorneys’ fees allowed by law, or expressly include the plaintiff’s attorneys’ fees within the amount of the offer. But does an offer that simply provides that the plaintiff may seek attorneys’ fees “allowed by law” provide the plaintiff with an independent right to attorneys’ fees? According to the court of appeal in Linton v. County of Contra Costa (2019) 31 Cal.App.5th 628, 631, the answer is no.

In Linton, plaintiff sued defendants for various injuries she sustained when she fell from her wheelchair while being transported in a County paratransit van, alleging claims under California’s Disabled Persons Act (Cal. Civ. Code § 54 et seq.) and the Unruh Civil Rights Act (Cal. Civ. Code § 51 et seq.). Id. After multiple failed attempts to settle the litigation, plaintiff made an “offer to compromise” under section 998 that provided for judgment in the amount of $250,001, plus costs and “attorney’s fees allowed by law as determined by the court.” Id. Defendants accepted the offer, and after the trial court entered judgment on the accepted 998 offer, plaintiff filed a motion for attorneys’ fees, which defendants opposed on, among other grounds, the fact that both statutes sued upon require a finding of liability prior to an entitlement to attorneys’ fees, and the 998 offer did not include such a finding. Id. The trial court agreed, and denied plaintiff’s motion for attorneys’ fees on the grounds that the 998 offer’s reference to attorneys’ fees did not constitute the requisite finding of liability and the court could not make such a finding after the offer had been accepted. Id. at 631–32. Affirming the trial court’s decision, the court of appeal held that section 998 does not independently create a statutory right to attorneys’ fees, and that neither plaintiff’s designation as the prevailing party or her settlement amounted to the requisite finding of liability under the statutes. Id. at 632–35.

A key takeaway from Linton is that a plaintiff that brings a statutory claim requiring a finding of liability prior to an entitlement to attorneys’ fees should consider specifying in the 998 offer that he or she is entitled to attorneys’ fees without a judicial determination of liability. As the court of appeal in Linton suggests, one way to do so would be to provide for attorneys’ fees “as determined by the court.” See id. at 638.

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