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Date: 01-23-2019
Case Style: Janet Linton v. County of Contra Costa
Case Number: A153188
Judge: Marguiles
Court: California Court of Appeals First Appellate District, Division One on appeal from the Superior Court, County of Contra Costa
Plaintiff's Attorney: Peter Kagel
Defendant's Attorney: Thomas Beach, Lann G. Mcintyre, Melissa Tara Daugherty and Edwin Forrest Shryock
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Plaintiff Janet Linton appeals from an order denying her request for attorney fees.
Linton contends defendants County of Contra Costa (County), Greater Richmond InterFaith
Program, and Dennis Jauregui’s (jointly, defendants) acceptance of her offer to
compromise under Code of Civil Procedure section 998 (section 998) entitled her to fees
because it expressly provided for “attorney’s fees allowed by law as determined by the
court.” While Linton’s section 998 offer provided her the right to seek attorney fees as
“allowed by law,” we conclude no such fees were in fact “allowed by law.” Accordingly,
we affirm the judgment.
I. BACKGROUND
Linton fell from her wheelchair while being transported in a County paratransit
van. The transporter had anchored Linton’s wheelchair to the floor but had not provided
Linton with a seatbelt. Linton sustained various injuries as a result of the incident.
Linton’s second amended complaint alleged violations of the California Disabled
Persons Act (Civ. Code, § 54 et seq.; DPA) and the Unruh Civil Rights Act (Civ. Code,
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II.A.
2
§ 51 et seq.; Unruh Act). Linton sought general damages, medical and related expenses,
interest, costs of suit, and statutory attorney fees. She did not seek injunctive relief. The
parties made multiple attempts to settle the litigation and exchanged various settlement
offers. However, those settlement attempts failed because defendants insisted on a global
settlement amount whereas Linton’s counsel demanded a settlement amount for damages
and a separate right to seek attorney fees. After multiple years of litigation, Linton made
a section 998 offer, which provided for judgment in the amount of $250,001, “Plus costs
under Code of Civil Procedure section 1032 and attorney’s fees allowed by law as
determined by the court.” Defendants subsequently accepted Linton’s offer.
The trial court entered judgment pursuant to the accepted section 998 offer, and
Linton filed a motion for attorney fees. Defendants opposed the fee motion. In their
opposition, defendants argued, in part, Linton was not entitled to attorney fees because
both the DPA and Unruh Act require a finding of liability, and the section 998 offer did
not include such a finding.
Following a hearing on the motion, the trial court denied Linton’s request for
attorney fees. The trial court concluded Linton was only entitled to recover fees under
the Unruh Act or DPA if “there has been a ‘finding that the defendant has denied the
plaintiff rights guaranteed by [those provisions].’ ” The court held the provision for
attorney fees in the section 998 offer “d[id] not constitute the requisite finding of
liability,” and it could not make such a finding “ ‘because a compromise settlement
operates as a bar to reopening the controversy.’ ” It also rejected Linton’s argument she
was entitled to attorney fees under a private attorney general theory. Linton timely
appealed.
II. DISCUSSION
A. Failure to Provide Adequate Record of Appropriate Citations
Defendants argue the judgment should be affirmed because Linton failed to
provide an adequate record or citations in support of her brief. Specifically, they contend
(1) the appendix is neither chronological nor alphabetical; (2) the appendix omits various
documents necessary for proper consideration of the issues; and (3) the appendix includes
3
irrelevant material, material not filed with the superior court, and a reporter’s transcript.1
They also assert Linton’s failure to provide adequate citations throughout her brief should
waive any claimed error on appeal.
While the appendix is not properly formatted, it appears there is no actual dispute
regarding the underlying facts and the size of the appendix makes its erroneous
formatting annoying rather than prejudicial. Likewise, Linton filed a second appendix
with her reply brief, which included in part a register of actions, the notice of appeal, and
the notice designating record on appeal. While Linton should have included these
materials in her initial appendix, defendants do not identify any resulting harm as a result
of their belated submission. Likewise, defendants do not identify any resulting harm
from the inclusion of irrelevant material and a transcript (which was also transmitted as a
reporter’s transcript to this court).2
The inclusion of material beyond the scope of the trial court’s file, however, is
problematic. “An appellant’s appendix may only include copies of documents that are
contained in the superior court file.” (The Termo Co. v. Luther (2008) 169 Cal.App.4th
394, 404 [striking noncompliant exhibits]; Reserve Insurance Co. v. Pisciotta (1982)
30 Cal.3d 800, 813 [“an appellate court will consider only matters which were part of the
record at the time the judgment was entered”]; C.J.A. Corp. v. Trans-Action Financial
Corp. (2001) 86 Cal.App.4th 664, 673 [granting motion to strike portions of brief that
referred to evidence that was not part of the record].) Linton argues defendants’
section 998 offer, for example, was included at the suggestion of the trial court. But if
that section 998 offer was relevant to Linton’s position, she should have presented such
evidence to the trial court as part of her briefing. Then those materials could properly be
included in the appendix. As explained by our Supreme Court in In re Zeth S. (2003)
1 Defendants also contend (1) the appendix is not Bates-stamped or numbered
consecutively, and (2) the appendix cover does not state the inclusive page numbers of
the volume. We note, however, the appendices received by this court do contain
consecutively numbered Bates-stamped pages.
2 To the extent such materials are included in the appellant’s appendix, we
disregard them.
4
31 Cal.4th 396, 405: “It has long been the general rule and understanding that ‘an appeal
reviews the correctness of a judgment as of the time of its rendition, upon a record of
matters which were before the trial court for its consideration.’ [Citation.] This rule
reflects an ‘essential distinction between the trial and the appellate court . . . that it is the
province of the trial court to decide questions of fact and of the appellate court to decide
questions of law . . . .’ [Citation.] The rule promotes the orderly settling of factual
questions and disputes in the trial court, provides a meaningful record for review, and
serves to avoid prolonged delays on appeal. ‘Although appellate courts are authorized to
make findings of fact on appeal by Code of Civil Procedure section 909 and rule 23 of
the California Rules of Court, the authority should be exercised sparingly.’ ” Linton
offers no justification for why this court should consider new evidence at this stage.
Accordingly, we strike (1) appellant’s appendix, volume 1, pages 29 to 34 and 181 to
194; and (2) appellant’s appendix, volume 2, pages 3 to 5.
Finally, we decline to summarily reject the appeal because of inadequate citations
to the record. The trial court’s judgment is presumed to be correct, and Linton has the
burden to prove otherwise by presenting legal authority on each point made and factual
analysis, supported by appropriate citations to the material facts in the record. (Keyes v.
Bowen (2010) 189 Cal.App.4th 647, 655–656.) Any deficiency in her evidentiary
showing will be addressed in connection with the merits. (See Randall v. Mousseau
(2016) 2 Cal.App.5th 929, 935 [“Failure to provide an adequate record on an issue
requires that the issue be resolved against appellant.”].)
B. Entitlement to Attorney Fees
Linton raises two arguments for why she is entitled to recover attorney fees. First,
Linton contends she was the prevailing party, which entitled her to recover attorney fees
under Code of Civil Procedure section 1032. Second, Linton asserts extrinsic evidence
demonstrates she believed the section 998 offer would entitle her to recover attorney fees.
She claims the section 998 offer should be interpreted accordingly based on principles of
contract interpretation. We address each argument in turn.
5
1. Whether the Section 998 Offer Provided a Statutory Right to Attorney
Fees
Linton contends section 998, and its incorporation of Code of Civil Procedure
section 1032, provides her with a statutory right to attorney fees because she was the
prevailing party. She argues the trial court erroneously relied on Doran v. North State
Grocery, Inc. (2006) 137 Cal.App.4th 484 (Doran) to conclude otherwise. She asserts
Doran was factually inapposite and applied an erroneous statement of the law. We
disagree.
Indisputably, 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. (Wohlgemuth v. Caterpillar, Inc. (2012)
207 Cal.App.4th 1252, 1259.) Linton cites and discusses a number of cases articulating
this position.3
Linton argues these cases demonstrate a prevailing party is entitled to
costs unless explicitly excluded. But costs do not always equate to attorney fees. Under
3
(See DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th
1140, 1154 [“The cases make clear that if a settlement agreement, compromise offer
pursuant to section 998, or stipulated judgment is silent on the matter of costs, the
plaintiff is not barred from seeking costs.”]; Engle v. Copenbarger & Copenbarger
(2007) 157 Cal.App.4th 165, 170 [“If [defendant] wanted a fee waiver, it should have put
one in the offer. Since the offer was silent on fees, it did not bar a later fee motion.”];
Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 679 [“absent
affirmative agreement of the parties to the contrary, the trial court retains jurisdiction
after the filing of a compromise agreement to entertain a cost bill”]; Ritzenthaler v.
Fireside Thrift Co. (2001) 93 Cal.App.4th 986, 991 [“A compromise agreement that
expressly settles ‘all damages and injunctive claims,’ but nothing more, cannot
reasonably be interpreted as including a settlement of the plaintiffs’ right to recover
attorney fees under Civil Code section 1717.”]; Lanyi v. Goldblum (1986)
177 Cal.App.3d 181, 187 [“attorney fees authorized by [Civil Code] section 1717 are
available to a party who prevails by a section 998 compromise settlement that is silent as
to costs and fees”]; On-Line Power, Inc. v. Mazur (2007) 149 Cal.App.4th 1079, 1084
[“when a section 998 offer is silent about attorney’s fees and costs, it cannot reasonably
be interpreted to exclude their recovery and the prevailing party may seek them”];
Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 264 [“By its failure to
draft with precision its compromise offer, defendant cannot now be heard to claim that its
language precludes the award of costs.”].)
6
the Code of Civil Procedure, general entitlement to attorney fees is governed by
section 1032, which provides in part, “Except as otherwise expressly provided by statute,
a prevailing party is entitled as a matter of right to recover costs in any action or
proceeding.” (Code Civ. Proc., § 1032, subd. (b), italics added.) The litigation costs a
prevailing party may recover include attorney fees when recovery of such fees is
authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).)
Accordingly, a prevailing party is not automatically entitled to attorney fees merely by
virtue of prevailing, but must demonstrate such an entitlement via contract, statute, or
law.
In Doran, supra, 137 Cal.App.4th 484, the plaintiff sued the defendant
supermarket for illegal “architectural barriers” preventing wheelchair accessibility. (Id.
at p. 487.) The defendant made an offer to compromise pursuant to section 998, which
was accepted by the plaintiff. (Ibid.) The section 998 offer agreed to a judgment in the
plaintiff’s favor in the amount of $10,000, but was silent as to the apportionment of
attorney fees and any admission of liability by the defendant. (Doran, at p. 487.) The
plaintiff subsequently argued he was entitled to attorney fees as the prevailing party, and
the trial court awarded him fees. (Id. at pp. 487–488.) On appeal, the court analyzed the
statutory language of the Unruh Act and its legislative history. (Doran, at pp. 490–491.)
It noted Civil Code section 52, which sets forth the attorney fees provision for the Unruh
Act, only “authorizes an award of attorney fees to a person ‘denied the rights provided in
Section 51, 51.5, or 51.6.’ ” (Doran, at p. 490.) The court thus concluded “the plain
language makes clear that only those who deny rights guaranteed by section 51, 51.5, or
51.6 are liable for attorney fees.” (Id. at p. 489.) In doing so, the court expressly rejected
the plaintiff’s argument that the general entitlement to attorney fees by the prevailing
party under Code of Civil Procedure sections 1032 and 1033.5 should trump the language
of Civil Code section 52. (Doran, at pp. 490–491.) Because the accepted offer to
compromise was silent on whether the defendant had violated the Unruh Act, the award
of attorney fees in favor of the plaintiff was reversed. (Doran, at pp. 491–493.)
7
Similar to the Unruh Act, the DPA states: “Any person or persons, firm or
corporation who denies or interferes with admittance to or enjoyment of the public
facilities as specified in Sections 54 and 54.1 or otherwise interferes with the rights of an
individual with a disability under Sections 54, 54.1 and 54.2 is liable for . . . attorney’s
fees as may be determined by the court in addition thereto, suffered by any person denied
any of the rights provided in Sections 54, 54.1, and 54.2.” (Civ. Code, § 54.3, subd. (a).)
Accordingly, the DPA also requires a finding of liability before the statute allows for an
attorney fee recovery.4
Linton acknowledged as much before the trial court. Had the
Legislature wished to impose attorney fees more broadly for DPA violations, they
certainly knew how to do so. (See, e.g., Gov. Code, § 12965, subd. (b) [awarding
attorney fees to prevailing party at the discretion of the trial court].)
Neither Doran nor the trial court here prohibited the prevailing party from seeking
attorney fees following a section 998 settlement. In Doran, the prevailing party was
entitled to file a fee motion because the section 998 offer was silent as to fees. Here,
Linton was entitled to file a fee motion because the section 998 offer stated she was
entitled to recover attorney fees “as allowed by law.” In both instances, however, the
courts correctly determined attorney fees were not recoverable under Code of Civil
Procedure section 1033.5 because they were not authorized by the relevant statutory
provision at issue. (Accord Mangano v. Verity, Inc. (2008) 167 Cal.App.4th 944, 951 [in
denying prevailing defendant attorney fees under the California Fair Employment and
Housing Act (Gov. Code., § 12900 et seq.), court concluded “section 998 does not grant
greater rights to attorney’s fees than those provided by the underlying statute”]; Ford
Motor Credit Co. v. Hunsberger (2008) 163 Cal.App.4th 1526, 1532 [“Section 998 is a
cost-shifting statute that allows for the recovery of costs, including attorney fees as costs
if there is a contractual or other statutory basis for them. Stated differently, section 998
does not independently create a statutory right to attorney fees . . . .”].)
4 An action that includes a claim for injunctive relief is treated differently. “The
prevailing party [in such an action] shall be entitled to recover reasonable attorney’s
fees.” (Civ. Code, § 55, italics added.)
8
Linton has not cited any authority to the contrary. Nor has she cited authority
suggesting either a settlement or a “prevailing party” designation gives rise to a
presumption of liability. In fact, assuming liability merely due to Linton’s designation as
“prevailing party” or defendants’ acceptance of her offer to compromise would
undermine the purpose of section 998, which is to encourage pretrial settlements. (See
One Star, Inc. v. STAAR Surgical Co. (2009) 179 Cal.App.4th 1082, 1090; accord Evid.
Code, § 1152, subd. (a) [evidence of settlement offers or related conduct or statements “is
inadmissible to prove his or her liability for the loss or damage or any part of it”]; White
v. Western Title Ins. Co. (1985) 40 Cal.3d 870, 888–889 [Evid. Code, § 1152 and § 998,
subd. (b) operate to “bar the introduction into evidence of an offer to compromise a claim
for the purpose of proving liability for that claim . . . .”].) Offers to compromise may
“have little or nothing to do with the underlying lawsuit.” (Hasler v. Howard (2004)
120 Cal.App.4th 1023, 1026.) In the absence of a valid contractual or statutory basis for
awarding Linton attorney fees, such fees are not “allowed by law.” The trial court
properly denied Linton’s fee motion on that basis.
2. Whether the Section 998 Offer Provided a Contractual Right to Attorney
Fees
Although the DPA does not authorize attorney fees without a finding of liability,
attorney fees also may be authorized by contract. (Code of Civ. Proc., § 1033.5,
subd. (a)(10); accord One Star, Inc. v. STAAR Surgical Co., supra, 179 Cal.App.4th at
p. 1089 [§ 998 offer and acceptance process “ ‘ “is a contractual one” ’ ”].) Here, the
offer to compromise stated: “The judgment is to be . . . [¶] . . . in the amount of
$250,001.00 [¶] . . . [¶] . . . Plus costs under Code of Civil Procedure section 1032 and
attorney’s fees allowed by law as determined by the court.” Linton does not contend the
phrase “allowed by law” is ambiguous on its face. Rather, she contends the section 998
offer must be interpreted based on Linton’s intent and the surrounding circumstances.
Linton claims extrinsic evidence demonstrates all parties understood the section 998 offer
to include an attorney fee award.
9
Defendants initially argue Linton waived this argument because she only raised it
in her reply brief in the trial court. When an appeal raises only questions of law, “ ‘ “an
appellate court can affirm or reverse the ruling on new grounds. [Citations.] After all,
we review the validity of the ruling and not the reasons given.” ’ ” (Harris v. Wachovia
Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1022.) Where contract interpretation does
not involve credibility determinations regarding extrinsic evidence, we apply de novo
review on appeal. (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th
1257, 1266–1267.) Accordingly, we will address the merits of Linton’s contract
argument because the extrinsic evidence is undisputed.
“ ‘In 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.’ [Citation.] ‘. . . [O]ur Supreme Court has held that the legislative
purpose of section 998 is generally better served by “bright line rules” that can be applied
to these statutory settlement offers—at least with respect to the application of contractual
principles in determining the validity and enforceability of a settlement agreement.’ ”
(Timed Out LLC v. 13359 Corp. (2018) 21 Cal.App.5th 933, 942–943.)
Courts first look to the plain meaning of the agreement’s language. (Civ. Code,
§§ 1638, 1644.) “An ambiguity may appear on the face of a contract, or extrinsic
evidence may reveal a latent ambiguity.” (Fremont Indemnity Co. v. Fremont General
Corp. (2007) 148 Cal.App.4th 97, 114.) If the language in the contract is ambiguous, “it
must be interpreted in the sense in which the promisor believed, at the time of making it,
that the promisee understood it.” (Civ. Code, § 1649.) This inquiry does not consider the
subjective belief of the promisor but, rather, the “objectively reasonable” expectation of
the promisee. (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1265; Badie v.
Bank of America (1998) 67 Cal.App.4th 779, 802, fn. 9 [“ ‘Although the intent of the
parties determines the meaning of the contract [citations], the relevant intent is
‘objective’—that is, the objective intent as evidenced by the words of the instrument, not
a party’s subjective intent.’ ”].) If, after this second inquiry, the ambiguity remains, “the
10
language of a contract should be interpreted most strongly against the party who caused
the uncertainty to exist.” (Civ. Code, § 1654.)
Linton alleges the phrase “attorney’s fees allowed by law” is ambiguous because
she believed her designation as the prevailing party would constitute a legal entitlement
to attorney fees. This is not an ambiguity. “Ambiguity is defined as ‘an unclear,
indefinite, or equivocal word, expression, meaning, etc.’ [Citation.] A word or
expression is said to be ambiguous when it is ‘open to having several possible meanings
or interpretations.’ ” (Rancho Pauma Mutual Water Co. v. Yuima Municipal Water Dist.
(2015) 239 Cal.App.4th 109, 117.) Linton does not claim the phrase “allowed by law”
has alternative meanings. Rather, she asserts she mistakenly believed her attorney fees
were “allowed by law” because she thought her designation as the prevailing party would
equate to a finding of liability against defendants. For the reasons discussed in
part II.B.1., ante, neither the settlement nor her designation as prevailing party amounts
to a finding of liability. A mistaken understanding of the law does not support
reformation of the agreement. (See Pazderka v. Caballeros Dimas Alang, Inc. (1998)
62 Cal.App.4th 658, 672 [“the clear purpose of section 998 . . . is to encourage the
settlement of lawsuits prior to trial [citation]. If courts could set aside compromise
agreements on the grounds of mistake, section 998 judgments would spawn separate,
time-consuming litigation.”].)
Even assuming the attorney fee provision is ambiguous, we cannot construe it in
Linton’s favor. The only admissible evidence Linton cites is a declaration from a defense
attorney and the hearing transcript.5 And neither of these clarifies the ambiguity. The
declaration states Linton’s counsel repeatedly demanded attorney fees separate and apart
from a settlement amount for Linton. But Linton’s counsel also made settlement
demands of $1 million, a “final offer” of $450,000, and stated “ ‘this case can only be
settled for $375,000 and not a penny less.’ ” Obviously, statements made during
5 Linton also references her mandatory settlement conference statement and
defendant’s prior section 998 offer, neither of which are properly before this court. (See
part II.A., ante.)
11
settlement negotiations are not reliable indicia of what terms would ultimately be
acceptable, as evidenced by Linton’s subsequent offer of $250,001. The declaration also
indicates defense counsel repeatedly insisted on a global settlement, and stated the parties
appeared to have been “close to resolution on a global number on several occasions.”
Nothing in the declaration indicates defense counsel knew the accepted section 998 offer
was intended to award Linton her attorney fees, with merely the amount left uncertain.
Likewise, Linton fails to produce any contemporaneous evidence regarding the
section 998 offer, such as a transmittal e-mail or communications with opposing counsel
describing its terms. And the lack of such evidence is fatal to Linton’s position. The
applicable standard is not Linton’s intent, but what defendants objectively understood
Linton’s intent to have been. (See Badie v. Bank of America, supra, 67 Cal.App.4th at
p. 802, fn. 9; Brant v. California Dairies, Inc. (1935) 4 Cal.2d 128, 133 [as a matter of
contract law, “the undisclosed intentions of the parties are, in the absence of mistake,
fraud, etc., immaterial”].) And Linton offers no evidence on this point.
Nor does the hearing transcript convince us otherwise. Defense counsel stated in
argument they “had no reason to believe that this wasn’t intended to be a global
settlement, because that’s what we had been communicating to him all along.” While
defense counsel acknowledged he “saw a weakness in the case” if Linton’s counsel
wanted to subsequently argue over an attorney fee award, he emphasized recent
mediation discussions involved a global settlement offer by defendants, and defendants
“had no reason to believe one way or the other.”
The evidence proffered by Linton does not clarify the objectively reasonable
expectations of defendants upon receipt of her section 998 offer. Accordingly, we must
interpret the section 998 offer against “the party who caused the uncertainty to exist”—
i.e., Linton. (See Civ. Code, § 1654.)
Finally, we note the section 998 offer was presented on a form approved by the
Judicial Council, Judicial Council form CIV-090. At oral argument, counsel for Linton
contested for the first time the adequacy of form CIV-090. He noted the form omitted
any box providing for a judgment to include attorney fees in an amount to be determined
12
by the court.6
Form CIV-090 allows an offer of judgment to be made in a specific
monetary amount, and it provides five options regarding costs and attorney fees that the
offering party can select by checking a box. The first option allows the offering party to
indicate the parties are to bear their own costs and fees. The second option indicates the
designated monetary amount of the judgment includes costs and attorney fees. The third
option only provides for costs in addition to the designated monetary amount of the
judgment. The fourth option allows the offering party to indicate the offer is for the
designated monetary amount of the judgment plus a specific amount of costs and attorney
fees. And the fifth option—the one selected by Linton here—provides the offer is for the
designated amount of the judgment plus costs and attorney fees “allowed by law as
determined by the court.” (Italics added.)
No box explicitly provides for costs and attorney fees in an amount to be
determined by the court. In other words, the form includes no option that would have
effectuated Linton’s purported goal of offering a $250,001 judgment plus reasonable
attorney fees, irrespective of a judicial determination of liability, without supplementing
the form language. A party bringing an action under a statute—such as the DPA or the
Unruh Act—that requires a judicial determination of liability before that party may
recover attorney fees should proceed with caution when using Judicial Council
form CIV-090 to make a section 998 offer.
However, Linton could have supplemented the language of the form by checking
box 2.b., which allows a party to insert whatever terms for the judgment he or she desires.
She also had the option of checking box 2.a.(4), and inserting “as determined by the
court” in lieu of a specific fee amount. Linton did not take advantage of either option, to
her ultimate detriment.
It is not our role to rewrite Judicial Council forms. We provide these comments
for the Judicial Council’s consideration when it next assesses the utility of Judicial
Council form CIV-090.
Outcome: The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(5).)
Plaintiff's Experts:
Defendant's Experts:
Comments: