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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.

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§ 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.

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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.”].)

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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.

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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.)

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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

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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.

The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal.

Rules of Court, rule 8.278(a)(5).)