Filed 11/27/23 Conrado v. CLS Landscaping Management CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DIEGO CONRADO, D081551
Plaintiff and Respondent,
v. (Super. Ct. No. CIVDS1723453)
CLS LANDSCAPING MANAGEMENT,
INC. et al.,
Defendants and Appellants.
APPEAL from an order and judgment of the Superior Court of San
Bernardino County, Brian McCarville, Judge. Reversed and remanded with
instructions.
Law Offices of Ostin & Kothary, Sandra K. Brislin; Greines, Martin,
Stein & Richland, Robert Olson, Cynthia E. Tobisman and Laura G. Lim for
Defendants and Appellants.
The Dolan Law Firm, Christopher B. Dolan, Aimee E. Kirby and
Cristina Garcia for Plaintiff and Respondent.
INTRODUCTION
The present appeal concerns two posttrial actions taken by the trial
court after a jury awarded Diego Conrado damages of $181,605.61 in a motor
vehicle negligence lawsuit against Jose Juan Espinoza Gonzalez and his
employer, CLS Landscaping Management, Inc. (CLS) (collectively,
defendants). First, in response to a motion filed by Conrado under Code of
Civil Procedure1 section 2033.420, which authorizes an award of reasonable
attorney fees incurred by a party to prove the truth of matters the other party
unreasonably fails to admit in response to requests for admission, the trial
court granted the motion and awarded $500,000 in attorney fees. Defendants
contend the evidence submitted by Conrado was insufficient to support the
amount awarded. We agree, reverse the order awarding fees, and remand for
a redetermination of fees.
Second, after defendants filed a motion under section 998 seeking
recovery of their postoffer costs on the ground their offer to compromise was
not accepted and Conrado failed to obtain a more favorable judgment than
the offer, the trial court entered a final judgment without ruling on the
motion. We conclude the court erred and entered judgment prematurely,
because the provisions of section 998 must be applied before entering
judgment. We thus reverse the judgment for a determination of defendants’
section 998 motion.
1 Further undesignated statutory references are to the Code of Civil
Procedure.
2
FACTUAL AND PROCEDURAL BACKGROUND
I.
Pre-Trial Proceedings
A. The Collision and the Complaint for Motor Vehicle Negligence
This case arises from a 2016 vehicle collision. Espinoza Gonzalez drove
his employer’s van into an intersection controlled by a four-way traffic signal
and struck the passenger side of a car. Conrado was a passenger in the car.
In November 2017, Conrado sued Espinoza Gonzalez and his employer,
CLS, alleging a single cause of action for motor vehicle negligence.
Defendants filed answers to the complaint asserting various affirmative
defenses.
B. Relevant Discovery
In January 2018, Conrado served a first set of requests for admission
on defendants asking them to admit that Espinoza Gonzalez’s negligence was
the cause of the accident (request no. 4); Espinoza Gonzalez was negligent in
the operation of the vehicle he was driving (request no. 9); and Espinoza
Gonzalez’s negligence caused harm to Conrado (request no. 10). In February
2018, CLS responded that it had insufficient information to admit or deny the
requests. Espinoza Gonzalez’s responses to these requests for admission are
not in the appellate record, but it is undisputed he did not admit them,
either.
In June 2019, Conrado served a second set of requests for admission on
Espinoza Gonzalez asking him to admit he was negligent and that he
accepted liability “for some damage” sustained by Conrado in the collision
(request no. 20); that his negligence caused the collision (request no. 25); that
Conrado was not comparatively at fault for the collision (request no. 27); and
3
that Espinoza Gonzalez was 100 percent at fault for the collision (request no.
29).2 In August 2019, Espinoza Gonzalez denied these requests.
Meanwhile, in July 2019, a court reporter entered a certificate of
nonappearance after Espinoza Gonzalez failed to appear for a deposition
arranged by counsel for Conrado.
C. Defendants’ Section 998 Offer to Compromise
In February 2020, defendants served Conrado with an offer to
compromise pursuant to section 998. Defendants offered $250,001, with each
party to bear their own costs and attorney fees. The offer was conditioned on
Conrado signing a release of claims, a copy of which was attached to the offer.
Conrado did not accept the offer, and the case went to trial.
II.
Trial
The trial lasted 20 days. The first three days were spent on
administrative issues (e.g., trial protocol and scheduling), motion in limine
arguments, and jury selection.
Both sides brought multiple motions in limine. Defendants’ motions
sought exclusion of improper expert testimony, as well as limitations on
improper attorney argument and certain damages evidence.
Twenty-seven motions in limine were filed by Conrado, of which 13
addressed issues relating to proof of damages. Another 13 dealt with jury
selection, use of Google Earth images, evidence of Conrado’s immigration
status and prior felony conviction, and ownership of the car involved in the
2 Conrado also asked Espinoza Gonzalez to admit that his negligence
was the proximate cause “for all injuries [Conrado] sustained as a result of
the incident” (request no. 26). (Italics added, capitalization omitted.) On
appeal, Conrado omits this request from his summary of the relevant
procedural background. We discuss this request further in footnote 11, post.
4
collision. One sought an order striking certain affirmative defenses based on
defendants’ service of factually devoid form interrogatory responses.
A. Evidentiary Phase of Trial
On the fourth day of trial, the parties gave their opening statements,
and Conrado’s counsel started presenting evidence. He called two witnesses:
an eyewitness to the accident and the driver of the car in which Conrado was
a passenger. Both witnesses testified the car pulled into the intersection on a
green light before it was hit by the other vehicle. Conrado then took the
stand. He testified that after the collision, he felt pain in his right hand,
neck, and back, and he could no longer engage in many of his usual activities.
At the start of trial day five, Conrado’s counsel called Espinoza
Gonzalez as a witness. Espinoza Gonzalez admitted seeing the traffic light
turn red before he entered the intersection. Following this testimony,
Conrado’s counsel told the trial court he would not seek to introduce a police
report “given the witness’s response and admission that he ran a red light.”
Over the rest of the fifth day of trial through the 17th day of trial, all
remaining trial witnesses, expert and otherwise, testified about Conrado’s
injuries and damages. On the fifth day of trial, after Espinoza Gonzalez
testified, Conrado called Jennifer Hertz, M.D., an orthopedic hand surgeon
who treated Conrado. She testified Conrado suffered hand and wrist injuries
that in her opinion were related to the collision.
From the sixth through 10th days of trial, Conrado brought another
eight medical experts (including two pain management specialists, a
chiropractor, a radiologist, and a life care planner) to testify about his
injuries and treatment, as well as an economist who testified as to his
damages. Conrado and his romantic partner testified about his physical
limitations after the collision. From the 10th through 14th days of trial, the
5
defense called three medical experts who testified about Conrado’s injuries
and treatment, as well as a life care planner who testified about his future
damages. The defense recalled Conrado to the stand and questioned him
about his injuries and loss of earnings. Conrado’s employer testified that
Conrado, a tow truck driver, had not worked since the accident due to his
injured hand.3
Over the 15th through 17th days of trial, the defense called three
experts who testified about components of Conrado’s claimed damages.
B. Conrado’s Motions for Directed Verdict
After the close of evidence, Conrado orally moved for a directed verdict
as to certain affirmative defenses alleged in defendants’ answers to the
complaint. The defense argued the affirmative defenses had not been
pursued at trial, and were only pled “years ago . . . just to preserve [them] in
case there was evidence developed.” The trial court granted Conrado’s
motion and entered a directed verdict as to 12 affirmative defenses, including
comparative fault and lack of proximate causation.
Conrado also moved for a directed verdict on the issue of negligence,
based on Espinoza Gonzalez’s testimony that he entered the intersection on a
red light, which Conrado argued was an admission of negligence per se. In
response, the defense stipulated that Espinoza Gonzalez was negligent. The
trial court granted the motion.
3 Certain trial formalities were not closely adhered to in this case.
Defense witnesses were called out of order for scheduling reasons. Conrado’s
case-in-chief appeared to conclude with his last appearance on the witness
stand, but he did not formally rest his case until after his employer testified.
The defense rested after completing its evidentiary presentation, and
Conrado did not offer rebuttal testimony.
6
Lastly, Conrado moved for a directed verdict on the issue of causation,
arguing it was uncontroverted he was injured in the collision and was
therefore caused “some harm.” The trial court granted the motion. It
reasoned that causation as defined in CACI4 No. 430 requires only a
substantial factor that contributed to the plaintiff’s harm, and the trial
evidence established “this [wa]s not an issue of contested causation.”
The trial court instructed the jury that duty, breach, and causation
were no longer at issue, leaving damages as the only matter for the jury to
decide.
C. The Jury’s Special Verdict
In closing, Conrado’s counsel asked the jury to award Conrado
$10 million in damages for his physical injuries, including to his hand,
reduced ability to engage in his usual activities, and pain and mental
suffering. Counsel told the jury it was a “big dollar case” and “[s]erious
injuries are why there are big jury awards.”
The jury returned a special verdict awarding Conrado $151,105.61 in
past economic damages, $30,500 in past noneconomic damages, and zero
future economic and noneconomic damages.
III.
Posttrial Motions
A. Conrado’s Posttrial Motions
On December 22, 2021, Conrado filed a memorandum of costs
requesting total costs of $255,642.38. He also filed the following motions: (1)
a motion seeking the same $255,642.38 in prevailing-party costs under
sections 630 and 1032; (2) a motion for additur or for new trial seeking an
4 Judicial Council of California Civil Jury Instructions.
7
additional $4 million in future damages; and (3) a motion for cost-of-proof
sanctions under section 2033.420.5 The motions were scheduled to be heard
on January 27, 2022.
Defendants did not file a motion to tax the $255,642.38 in costs claimed
by Conrado, nor did they oppose his motion under sections 630 and 1032 for
an order awarding those same costs. However, they did oppose Conrado’s
motion for additur or new trial and for cost-of-proof sanctions under section
2033.420.
In his section 2033.420 motion, Conrado argued defendants
unreasonably refused to admit in response to his requests for admission that
(1) Espinoza Gonzalez was negligent and (2) his negligence harmed Conrado.
He sought $1,056,250.00 in attorney fees, representing a total of 1,325.00
hours accrued by four different attorneys.6 Each attorney provided a
declaration in support of the fee request. According to the declarations, none
of the attorneys was charging by the hour for working on Conrado’s case. The
attorney declarants did not provide contemporaneous records of their time.
Instead, they sought to support the fee request by describing, in very general
terms, the types of tasks they had performed over the course of the entire
litigation (e.g., “prepared four motions in limine” or “assisted in trying the
case”); by estimating the total number of hours to be compensated, without
breaking the hours down into discrete tasks to show how they arrived at the
5 Section 2033.420 provides for an award of costs of proof (including
attorney fees) where a party responding to such a request fails to admit the
truth of a matter that is later proved to be true through the efforts of the
requesting party. (See § 2033.420, subds. (a), (b).)
6 Conrado also sought $255,642.38 in costs (the same amount of costs
requested in his cost memorandum and cost motion under sections 630 and
1032).
8
total; and by proposing an hourly rate based on their respective personal
beliefs about the rate they deserved, without providing evidence of the
reasonable rates charged in the local community for comparable work.
More specifically, the first attorney estimated he “reasonably expended
400 hours to prepare for and try this matter” and “reasonably expended 25
hours” assisting with an unspecified post-trial motion. He averred that based
on his experience and background, he would charge $1,250 per hour “if [he]
was to charge an hourly fee in California.”
The second attorney averred she had worked on Conrado’s case from
service of the complaint through trial. The litigation tasks she performed
assertedly included preparing and responding to unspecified written
discovery; selecting and designating unnamed experts and preparing them
for their depositions; attending a mandatory settlement conference and a
private mediation; overseeing “all pleadings . . . and [75] appearances,” with
no indication what the pleadings or 75 appearances addressed; taking 13
unidentified expert depositions; preparing “all the initial pre-trial
documents”; and exchanging 200 emails “regarding this case.” She averred
she had been awarded $750 per hour “in a similar[ly] complex[ ] matter” and
estimated she spent a total of “over four hundred (400) hours” in Conrado’s
case “helping to establish both negligence and causation.”
The third attorney averred she prepared four unidentified motions in
limine and two unspecified trial briefs and was “present and assisted in
trying the case during the entire trial.” She averred, based on personal
belief, that “a reasonable hourly fee for [her] time is $450.00” and estimated
she spent “approximately 250 hours assisting in proving negligence and
causation in this case.”
9
The fourth attorney averred she had prepared six motions in limine as
well as unspecified trial briefs and posttrial briefs, and was “present and
assisted in trying the case during the entire trial.” Like the third attorney,
the fourth attorney also averred, exclusively on personal belief, that “a
reasonably hourly fee for [her] time is $450.00” and estimated she had spent
“approximately 250 hours assisting in proving negligence and causation in
this case.”
In opposition, Defendants argued the supporting declarations for
attorney fees under section 2033.420 were deficient because the attorneys
failed to differentiate time spent proving the denied requests from time spent
on other litigation tasks. Defendants claimed Conrado was, in effect,
impermissibly seeking attorney fees for the entire six-week trial when at
most one trial day (in hours) was spent proving liability. Defendants also
contended the hourly rates requested were not in line with local hourly rates.
B. The Hearing on Conrado’s Posttrial Motions
At the January 27 hearing, the trial court granted in full Conrado’s
request for $255,642.38 in prevailing-party costs pursuant to sections 630
and 1032. It denied Conrado’s motion for additur or new trial. The court
observed that the jury’s verdict showed it did not accept the testimony of
Conrado’s experts on the scope of his claimed injuries. The court stated
Conrado himself had “serious credibility issues,” even as to “the quality and
nature of his injuries,” and that the jury “made an independent assessment,
which they could do based upon the testimony.”
Turning to Conrado’s section 2033.420 motion, the trial court granted
the motion and awarded $500,000 in attorney fees (1,000 hours at $500 per
10
hour).7 The court found “the billings . . . provided” by the attorneys were not
“discre[te]” and failed to “divide [time] up between every issue in the case.”
The court nevertheless proceeded to award fees based on its own sense of
overall reasonableness, without attempting to determine the time actually
spent proving the denied matters. As for the number of hours to be
compensated, the court expressed the view that Conrado was entitled to
recover “the hours from the day the case was filed until, in essence, the jury
returned its verdict” because during this period, “the plaintiff was under an
obligation to adequately prepare on each and every element of the cause of
action pled in the complaint.” The court found that 1,000 hours was a
reasonable amount of time to spend fulfilling this obligation. With respect to
hourly rates, the court agreed with the defense the rates requested were too
high, saying “[t]his ain’t San Francisco with respect to fees.” The court
selected $500 per hour as a reasonable hourly rate based on its familiarity
with rates charged in other cases, although it did not tell the parties what
those rates were.
C. The January 27, 2022 Minute Order Granting Conrado’s Attorney Fees,
from which Defendants Appeal
On January 27, 2022, the trial court issued a minute order granting
Conrado attorney fees of $500 per hour for 1,000 hours under section
2033.420 (January 2022 minute order).
On February 1, 2022, Conrado served a proposed order reflecting the
rulings made during the hearing (i.e., denying the motion for additur or new
trial, granting costs under sections 630 and 1032, and granting attorney fees
7 The court denied Conrado’s request for $255,642.38 in costs under
section 2033.420 on the ground it was duplicative of the $255,642.38 in
prevailing party costs it had already awarded him.
11
under section 2033.420), as well as a proposed judgment. Defendants
objected to both documents on the ground they failed to acknowledge
defendants’ potential entitlement to costs and expert witness fees under
section 998.
On March 25, 2022, defendants filed a notice of appeal from the
January 2022 minute order.
D. Defendants’ Motion Under Section 998
On January 20, 2022, before the hearing on Conrado’s posttrial
motions, defendants filed a motion seeking a total of $297,360.27 in costs and
expert fees under section 998. Defendants argued their $250,001 offer to
compromise exceeded the sum of the jury’s special verdict ($181,605.61) plus
Conrado’s pre-offer costs ($27,146.29, according to defendants’ calculations).
Defendants sought to recover their own post-offer costs and expert fees under
the cost-shifting provisions of section 998.
Conrado opposed defendants’ motion on two grounds. First, he argued
defendants’ offer to compromise was not enforceable because it included an
overly broad general release. Second, although he conceded his pre-offer
costs were only $27,146.29, he argued his pre-offer section 2033.420 attorney
fees should be considered as well. He argued the special verdict
($181,605.61) plus his pre-offer costs ($27,146.29) and pre-offer section
2033.420 attorney fees ($75,435)8 equaled $284,186.90, which was more than
defendants’ $250,001 offer.
8 Conrado derived this dollar amount by adding up the hours assertedly
worked by six attorneys before the offer was made and claimed the total,
when multiplied by $500 per hour, came to $75,435. His section 2033.420
motion only covered the work of four attorneys.
12
Defendants responded that the proposed release did not invalidate
their section 998 offer, and that Conrado’s pre-offer section 2033.420 attorney
fees could not be considered in determining whether the judgment he
obtained was more favorable than their offer.
In April 2022, at the hearing on defendants’ section 998 motion, the
trial court ruled that it would hold the section 998 motion in abeyance
pending resolution of the appeal of the court’s January 2022 minute order
granting Conrado’s attorney fees under section 2033.420.
E. The May 10, 2022 Order and Entry of Judgment
On May 10, 2022, the trial court entered the order originally proposed
by Conrado three months earlier, on February 1 (May 2022 order). The May
2022 order (1) denied Conrado’s motion for new trial or additur, (2) granted
his motion for prevailing-party costs in the amount of $255,642.38, and
(3) granted his motion for section 2033.420 cost-of-proof attorney fees in the
amount of $500,000.
The same day, the trial court also entered the judgment originally
proposed by Conrado in February 2022. The judgment encompassed the
$181,605.61 special jury verdict and $255,642.38 cost award, as well as the
$500,000 in section 2033.420 attorney fees.
F. Defendants’ Motion to Vacate Judgment and for New Trial
Defendants filed a motion to vacate judgment and for new trial
challenging the May 2022 order and judgment on two grounds. First,
defendants argued the order and judgment should be vacated to the extent
they included the $500,000 fee award that was the subject of the pending
appeal. Second, defendants argued it was improper for the trial court to
enter any judgment, because it had not yet ruled on their section 998 motion.
13
At the hearing on defendants’ motion to vacate or for new trial, the trial
court ruled it would partially grant the motion as to the $500,000 attorney
fee award, which was on appeal. The court directed defense counsel to
prepare a proposed order reflecting its ruling. On July 12, 2022, the court
entered defendants’ proposed order granting their motion to the extent it
sought vacatur of the portions of the judgment and of the order that awarded
Conrado $500,000 in section 2033.420 attorney fees, and denying the
remainder of their motion (July 2022 order).
On July 21, 2022, defendants filed a notice of appeal from the judgment
and May 2022 order, to the extent not vacated by the July 2022 order.9 The
second appeal was docketed under the same case number as the appeal of the
January 2022 minute order. Thus, both appeals are presently before this
court.
9 Defendants’ notice of appeal also stated they were appealing from an
anticipated amended judgment and anticipated amended fees and costs
order, as well as the July 2022 order to the extent it partially denied
defendants’ motion to vacate the judgment and May 2022 order. However, no
amended order or amended judgment was ever entered, and defendants have
not raised claims of error in the July 2022 order in their appellate briefing.
14
DISCUSSION
I.
We Will Reverse the January 2022 Minute Order Granting Conrado’s Motion
Under Section 2033.420 and Awarding Cost of Proof Attorney Fees
We first consider defendants’ challenge to the trial court’s January
2022 order granting Conrado’s section 2033.420 motion for cost-of-proof
sanctions and awarding him $500,000 in attorney fees.10
A. Relevant Legal Principles
“ ‘A party to a civil action may propound a written request that another
party “admit the genuineness of specified documents, or the truth of specified
matters of fact, opinion relating to fact, or application of law to fact.” ’
[Citation.] Section 2033.420, subdivision (a) provides for an award of costs of
proof where a party responding to such a request fails to admit the truth of a
matter that is later proved[.]” (Orange County Water Dist. v. The Arnold
Engineering Co. (2018) 31 Cal.App.5th 96, 114–115 (Arnold Engineering).)
Under subdivision (a) of section 2033.420, “If a party fails to admit the
genuineness of any document or the truth of any matter when requested to do
so . . . , and if the party requesting that admission thereafter proves the
genuineness of that document or the truth of that matter, the party
requesting the admission may move the court for an order requiring the party
to whom the request was directed to pay the reasonable expenses incurred in
making that proof, including reasonable attorney’s fees.” Under subdivision
(b) of section 2033.420, “[t]he court shall make this order” unless, among
other things, “[t]he party failing to make the admission had reasonable
10 Defendants contend, and we agree, that the order granting Conrado’s
motion for section 2033.420 cost-of-proof fees is appealable as a collateral
order. (See Apex LLC v. Korusfood.com (2013) 222 Cal.App.4th 1010, 1015.)
15
ground to believe that that party would prevail on the matter” or “[t]here was
other good reason for the failure to admit.” (§ 2033.420, subd. (b)(3)–(4).)
“ ‘The primary purpose of requests for admissions is to set at rest
triable issues so that they will not have to be tried; they are aimed at
expediting trial. [Citation.] The basis for imposing sanctions under [the
statute] is directly related to that purpose. Unlike other discovery sanctions,
an award of expenses pursuant to [the statute] is not a penalty. Instead, it is
designed to reimburse reasonable expenses incurred by a party in proving the
truth of a requested admission where the admission sought was “of
substantial importance” [citations] such that trial would have been expedited
or shortened if the request had been admitted.’ ” (Arnold Engineering, supra,
31 Cal.App.5th at p. 115.)
Two limits on the scope of a costs-of-proof award under section
2033.420 are relevant here. The first is temporal: section 2033.420 only
permits recovery of costs or fees incurred after a request for admission has
been denied. (See § 2033.420, subd. (a) [requesting party may recover
expenses incurred “thereafter” following denial of request for admission].)
The second is topical: the requesting party cannot recover costs or fees under
section 2033.420 for proving matters other than the matters covered by the
improperly denied requests. (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724,
736–737 (Garcia).) Therefore, when a party seeks to recover costs and fees
under section 2033.420, “[t]he requested amounts must be segregated from
costs and fees expended to prove other issues.” (Grace v. Mansourian (2015)
240 Cal.App.4th 523, 529 (Grace).)
A trial court order granting a motion under section 2033.420 and
awarding expenses is reviewed for an abuse of discretion. (Arnold
Engineering, supra, 31 Cal.App.5th at p. 118.) “ ‘ “[T]he abuse of discretion
16
standard measures whether, given the established evidence, the lower court’s
action ‘falls within the permissible range of options set by the legal criteria.’
[Citation.]” ’ [Citations.] We do not defer to the trial court’s ruling when
there is no evidence to support it. In addition, ‘discretion may not be
exercised whimsically, and reversal is required where there is no reasonable
basis for the ruling or when the trial court has applied the wrong test to
determine if the statutory requirements were satisfied.’ ” (Robbins v.
Alibrandi (2005) 127 Cal.App.4th 438, 452.)
B. Analysis
On appeal, defendants do not challenge the trial court’s implied
determination that they unreasonably denied Conrado’s requests for
admission asking them to admit negligence and causation of some harm.11
Rather, they challenge the court’s calculation of the attorney fees they owed
to Conrado as a result. They argue the fee award was overly broad in the
scope of tasks compensated, and that the hourly rate the court selected was
insufficiently substantiated.
We agree and conclude the court abused its discretion, in four respects:
(1) it awarded fees incurred before the requests for admission were denied;
(2) it awarded fees incurred throughout the trial on the theory the attorneys
11 As we have already noted, at the January 27, 2022 hearing, the trial
court ruled the jury properly rejected Conrado’s claims with respect to the
scope of injuries he sustained in the collision. Although the court made this
ruling in denying additur, it is apparent from this ruling that the court did
not believe Conrado succeeded in proving “all injuries [he] sustained as a
result of the [incident],” i.e., the issue that was the subject of his request for
admission number 26. (See § 2033.420, subd. (a) [requesting party may not
recover cost-of-proof expenses under § 2033.420 incurred in proving the truth
of a denied request for admission unless it “thereafter proves . . . the truth of
that matter”].)
17
remained obligated to “prepare” to prove the matters denied; (3) it awarded
fees without considering whether they were incurred for proving the matters
denied—negligence and causation of some harm to Conrado (in other words,
liability [see CACI No. 400 (Negligence - Essential Factual Elements)]); and
(4) its selection of the hourly rate used to calculate the award was not
adequately supported.
1. The Trial Court Improperly Awarded Fees Incurred Before the
Requests for Admission Were Denied
The parties agree the trial court abused its discretion in at least one
respect: it awarded fees incurred before the requests for admission were
denied. They are correct. When explaining the basis for its fee award, the
court expressly stated they covered the period “from the day the case was filed
until . . . the jury returned its verdict[.]” (Italics added.) This was error,
because section 2033.420 only permits recovery of fees incurred after a
request for admission has been denied. (See § 2033.420, subd. (a); Garcia,
supra, 28 Cal.App.4th at pp. 736–737 [error to award fees incurred before
denying party served its responses to requests for admission].) The court
acted outside its statutory authority and abused its discretion by requiring
defendants to pay for tasks Conrado’s attorneys performed before defendants
served their responses to the requests for admission.
2. The Trial Court Abused Its Discretion by Awarding Fees Based on
a Duty to Prepare, Without Evidence of Actual Preparation or of
Subsequent Proof
The trial court’s decision to award fees throughout the trial
“until . . . the jury returned its verdict” was also not justified. (Italics added.)
The court reasoned that fees throughout this period were warranted because
the attorneys remained “under an obligation to adequately prepare on each
and every element of [negligence] . . . to get ready to prove that by a
18
preponderance of the evidence[.]” This was not an appropriate basis upon
which to award fees under section 2033.420.
The authority to grant attorney fees under section 2033.420 is
circumscribed. “[T]he statute authorizes only those expenses ‘incurred in
making that proof,’ i.e., proving the matters denied by the opposing party.”
(Garcia, supra, 28 Cal.App.4th at pp. 736–737.) “ ‘Expenses are recoverable
only where the party requesting the admission “proves . . . the truth of that
matter,” not where that party merely prepares to do so.’ ” (Grace, supra, 240
Cal.App.4th at p. 530.)
Despite these bright line rules, the trial court awarded fees assertedly
incurred throughout the trial on the theory that Conrado’s attorneys
remained obligated to “prepare” to address each and every element of his
complaint until the jury returned its verdict. Preparation alone, without
subsequent proof, is not compensable under section 2033.420. (Grace, supra,
240 Cal.App.4th at p. 530.) Moreover, as we discuss in more detail below, the
court had no evidence of tasks Conrado’s attorneys actually performed during
the trial to prove the specific liability matters defendants denied. On
remand, the trial court must determine the work actually performed by the
attorneys to prove the specific liability matters denied, and its award must
compensate only those tasks.
3. The Trial Court Abused Its Discretion by Awarding Fees Without
Adequate Evidence They Were Incurred for Proving the Specific
Matters Denied
Defendants further contend the declarations submitted in support of
Conrado’s request for cost-of-proof attorney fees was inadequate, and that the
trial court erred by basing its award on such evidence. We agree.
Section 2033.420 is not a general fee-shifting statute. “One need not be
a prevailing party to be entitled to sanctions under this statute.” (Smith v.
19
Circle P Ranch Co. (1978) 87 Cal.App.3d 267, 275 (Smith).) Rather, section
2033.420 permits a propounding party to recover those costs or fees incurred
for a specific, limited purpose: to prove those issues or facts a responding
party unreasonably fails to admit. (§ 2033.420, subd. (a).) “[T]he statute
authorizes only those expenses ‘incurred in making that proof,’ i.e., proving
the matters denied by the opposing party.” (Garcia, supra, 28 Cal.App.4th at
pp. 736–737, italics added; see Evid. Code, § 190 [“ ‘Proof’ is the
establishment by evidence of a requisite degree of belief concerning a fact in
the mind of the trier of fact or the court.”].) Further, “ ‘[e]xpenses are
recoverable only where the party requesting the admission “proves . . . the
truth of that matter,” not where that party merely prepares to do so.’ ”
(Grace, supra, 240 Cal.App.4th at p. 530.)
An award issued under section 2033.420 must be supported by
evidence. (Garcia, supra, 28 Cal.App.4th at p. 737.) “Plaintiffs must show
they spent the amounts claimed to prove the issues defendants should have
admitted. [Citations.] The requested amounts must be segregated from costs
and fees expended to prove other issues.” (Grace, supra, 240 Cal.App.4th at
p. 529.) Similarly, given the limited scope of fees available under section
2033.420, any award issued pursuant to the statute must not include fees
incurred for litigation tasks other than proving the matters denied.
In Garcia, the court reversed a costs-of-proof award because it was
based solely on an attorney’s conclusory declaration. In the declaration,
counsel “claimed some $18,245.73 in ‘attorney[ ] fees, costs and other
expenses associated with the trial of this case and proving those [r]equests
for [a]dmissions numbered 1 through 15,’ all incurred after . . . the date [the
requesting party] propounded its request for admissions.” (Garcia, supra, 28
Cal.App.4th at p. 736, italics omitted.) In addition to covering an overly
20
broad time frame that included the period before the requests for admission
were served, the declaration “failed to set out either [the attorney’s] hourly
fee or any accounting of time spent on the case” and “include[d] matters not
properly the subject of a [statutory] sanction.” (Id. at p. 737.) The court held
it was error to issue a costs-of-proof award on the basis of such a conclusory
and overly broad declaration. (Ibid.)
The declarations submitted in support of the section 2033.420 fee
request in this case are materially indistinguishable from the declaration
found insufficient in Garcia. Like the declaration in Garcia, the declarations
of Conrado’s attorneys were overly broad in temporal scope, covering the
period from the inception of the case through the conclusion of trial. They
were also impermissibly generalized in describing the tasks for which
compensation was sought, failing to differentiate time spent proving the
liability matters denied from time spent on other litigation tasks. Indeed, the
declarations purported to encompass every task performed by each of the
attorneys throughout the entire case, without regard for whether those tasks
bore any relationship to proving the truth of the matters defendants failed to
admit (e.g., attending mediation, reading over 200 unspecified emails,
working on “all pleadings” and making over 75 court appearances, regardless
of purpose or subject matter). As in Garcia, the declarations of Conrado’s
counsel provided inadequate information to enable the trial court to calculate
the amount of fees recoverable under section 2033.420. (See Garcia, supra,
28 Cal.App.4th at p. 737.)
Conrado, relying on Doe v. Los Angeles County Department of Children
& Family Services (2019) 37 Cal.App.5th 675, argues fees requested pursuant
to section 2033.420 need not be separately allocated to each specific request
for admission where the requests all relate to a single issue (here, liability).
21
This misses the point. Conrado’s attorneys’ declarations were deficient not
because they were insufficiently granular in their allocation of fees to the
denied requests for admission, but because they were devoid of any such
allocation at all.
Although the trial court awarded less than the total fees requested by
Conrado’s attorneys, the reduction did not cure its error in granting fees on
the basis of inadequate declarations. The court simply reduced Conrado’s
requested lump sum of 1,325 attorney hours to 1,000 hours. It did so not
because it determined 1,000 hours was the number of hours actually spent
proving the matters defendants denied, but because it concluded Conrado’s
attorneys deserved to be compensated for litigating the entire case, and
because it believed after “looking at the time in this case . . . a thousand
hours is reasonable.”
But section 2033.420 does not authorize courts to grant fees for all time
reasonably spent litigating a civil case; it authorizes only those fees incurred
proving the truth of the specific matters not admitted. The trial court
exceeded its authority under section 2033.420 by awarding fees based on
conclusory declarations that included “matters not properly the subject of a
section [2033.420] sanction” (Garcia, supra, 28 Cal.App.4th at p. 737) and by
compensating attorney hours without regard for whether they were spent
proving the truth of the specific liability matters defendants failed to admit
(§ 2033.420, subd. (a)).
In their appellate briefing, the parties dispute which specific litigation
tasks were and were not compensable under section 2033.420. Defendants
contend the liability issues that were the subject of Conrado’s requests for
admission were proven on the fifth day of trial, when Espinoza Gonzalez
testified to running a red light; they argue Conrado was not entitled to
22
recover fees past this point. Defendants also dispute whether Conrado was
entitled to fees incurred for certain pre-trial and trial motions. Conrado, on
the other hand, maintains he was entitled to fees throughout the duration of
the trial, or at least until the point when the trial court granted his motions
for directed verdict. We need not decide these issues. As we will be
remanding this matter for a redetermination of fees, the trial court will be in
a position to decide them in the first instance.
4. The Hourly Rate Selected by the Trial Court Was Not Adequately
Supported
Defendants contend the trial court’s selection of $500 per hour as the
reasonable hourly rate at which to compensate Conrado’s counsel lacked
adequate record support. We agree.
Section 2033.420 authorizes trial courts to award “reasonable
attorney’s fees.” (§ 2033.420, subd. (a).) Under a lodestar approach, which is
the approach the trial court appeared to use here, reasonable fees are
calculated by multiplying the number of hours reasonably expended by the
reasonable hourly rate. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084,
1095 (PLCM).) “The reasonable hourly rate is that prevailing in the
community for similar work.” (Ibid.) The lodestar approach “anchors the
trial court’s analysis to an objective determination of the value of the
attorney’s services, ensuring that the amount awarded is not arbitrary.”
(Ibid.)
As we have discussed, Conrado’s attorneys asked to be compensated at
hourly rates ranging from $450 to $1,250 per hour. They made no showing
that these were the prevailing hourly rates in the community for similar
work.
In adjusting counsel’s requested hourly rates to a blended rate of $500
per hour, the trial court stated it was relying on its own experience “in 32
23
years of practice as a bench officer.” The court appeared to also consider its
“L.A. time” and “my Orange County time as a civil attorney” and resulting
knowledge of “what those firms are getting” as well as “what the prevailing
dollars are in this neck of the woods.” It observed that “[a] high dollar law
firm in Los Angeles in [the late 1970s] for a partner was 350 to 500”; stated it
had “seen settlements on lemon law cases for $16,000 and $120,000 in
attorney’s fees”; and noted that “any number of firms that appear before [the
court] regularly . . . charge[ ] 750, 800 bucks an hour.” The court also told the
parties it was considering fees charged by “big firms in the Inland Empire,”
although it did not state what those fees were.
We acknowledge “ ‘[t]he “experienced trial judge is the best judge of the
value of professional services rendered in his court[.]” ’ ” (PLCM, supra, 22
Cal.4th at p. 1095.) And it is true, as Conrado contends, “ ‘ “[t]he trial court
may make its own determination of the value of the services contrary to, or
without the necessity for, expert testimony.” ’ ” (Hoffman v. Superior Ready
Mix Concrete, L.P. (2018) 30 Cal.App.5th 474, 488.) Here, the difficulty we
have with the trial court’s selection of a $500 hourly rate is that the basis for
the selection was not disclosed, which precludes our ability to conclude the
court’s methodology was not arbitrary.
At least some of the data points the trial court identified during the
discussion that preceded its ruling were clearly not relevant, such as
prevailing Los Angeles rates in the late 1970s. And yet in arriving at its
decision, the court did not specify it was ignoring the irrelevant factors it had
mentioned and was relying only on relevant ones. It simply stated it was
“taking into account what I would need to think is reasonable here and in my
experience[.]” The court provided no indication on what, specifically, it was
basing its ruling. And because the court never identified a prevailing local
24
rate for similar work, we cannot independently confirm the ruling was based
on relevant considerations. The record thus creates the inescapable
impression the method by which the court arrived at a $500 hourly rate was
arbitrary. (Cf. PLCM, supra, 22 Cal.4th at p. 1095 [lodestar approach is
meant to ensure “the trial court’s analysis [relies on] an objective
determination of the value of the attorney’s services, ensuring that the
amount awarded is not arbitrary”]; Platypus Wear, Inc. v. Goldberg (2008)
166 Cal.App.4th 772, 782 [abuse of discretion shown where a trial court’s
ruling was arbitrary].) As a result, we will reverse this aspect of the court’s
order as well.
C. We Will Remand for a Redetermination of Fees
Defendants contend that Conrado “failed to meet . . . his threshold
burden of proof under section 2033.420,” and as a result we must not only
vacate the $500,000 attorney fee award, we must do so with directions to
deny any costs-of-proof attorney fees under section 2033.420. On this point,
we disagree with defendants.
It is not the case that Conrado entirely failed to meet his threshold
burden of proof under section 2033.420. Under subdivision (a) of section
2033.420, “[i]f a party fails to admit . . . the truth of any matter when
requested to do so . . . , and if the party requesting that admission thereafter
proves . . . the truth of that matter, the party requesting the admission may
move the court for an order requiring the party to whom the request was
directed to pay the reasonable expenses incurred in making that proof,
including reasonable attorney’s fees.” Upon a sufficient showing under
subdivision (a) by the party requesting the admission, subdivision (b)
requires the trial court to make such an order against the responding party,
“unless [the court] finds any of the following: [¶] (1) An objection to the
25
request was sustained or a response to it was waived . . . . [¶] (2) The
admission sought was of no substantial importance. [¶] (3) The party failing
to make the admission had reasonable ground to believe that that party
would prevail on the matter. [¶] (4) There was other good reason for the
failure to admit.” (§ 2033.420, subd. (b).)
Conrado met his threshold burden under subdivision (a) of section
2033.420 by establishing that defendants failed to admit the truth of the
liability matters that were the subjects of request numbers 4, 9, 10, 20, 25,
27, and 29, and that he thereafter proved the truth of those matters.
Defendants did not seek to establish any of the exceptions in subdivision (b).
Accordingly, the trial court was required to make an order requiring
defendants to pay Conrado’s reasonable attorney fees “incurred in making
that proof.” (§ 2033.420, subd. (a).)
The defect in Conrado’s showing was that he submitted declarations
that were insufficient to establish the fees he sought were recoverable under
section 2033.420 because they were overly broad and failed to differentiate
time spent proving the matters denied from time spent on other tasks of
litigation. This overbreadth carried over into the trial court’s order and
resulted in an award that encompassed tasks not compensable under section
2033.420. In this scenario, appellate courts have remanded for a
redetermination of fees. (Garcia, supra, 28 Cal.App.4th at pp. 737‒738
[remanding for redetermination of costs and fees after reversing costs of proof
award that was based on counsel’s conclusionary and overly broad
declaration]; Smith, supra, 87 Cal.App.3d at pp. 279‒280 [remanding with
instructions to trial court “to reconsider the evidence or take further evidence
on the issue of the expenses and attorney’s fees necessarily incurred . . . and
reasonably related to proving matters wrongfully denied” in a case where
26
there was “no sufficient [evidentiary] showing . . . of that proportion of the
amount of expenses and attorney’s fees requested which was attributable to
the various matters of proof or whether the sum requested represented the
reasonable costs of making proofs”].) We will do the same.
In claiming we should put an end to the matter and direct the trial
court to enter an order denying fees, defendants rely on Kelly v. Haag (2006)
145 Cal.App.4th 910, 919 (Kelly) and Bank of America v. Superior Court
(1990) 220 Cal.App.3d 613, 626‒627 (Bank of America).
But Kelly and Bank of America are distinguishable. Neither involved a
fee request under section 2033.420. Bank of America held “the unqualified
reversal rule [which permits retrial following an unqualified reversal] has no
application in a case where a motion for judgment notwithstanding the
verdict was made and denied by the trial court, and the appellate court
reverses the judgment for insufficiency of the evidence.” (Bank of America,
supra, 220 Cal.App.3d at p. 626.) In Kelly, this court reversed a punitive
damages award based on the insufficiency of the trial evidence. (Kelly, supra,
145 Cal.App.4th at pp. 916‒918.) Citing Bank of America, among other cases,
we declined to remand for a retrial of punitive damages. (Kelly, at pp.
919‒920.) We explained the plaintiff presented no evidence at trial of the
defendant’s net worth even though the trial court expressly offered to
interrupt the trial so the plaintiff could obtain the necessary testimony.
(Ibid.) After reviewing cases in which appellate courts had denied retrial
under similar circumstances, we decided denial of retrial was “the proper
resolution here as well.” (Id. at p. 920.)
Bank of America and Kelly do not persuade us to deny further
proceedings on the amount of reasonable attorney fees to which Conrado is
entitled under section 2033.420. They are procedurally inapt, as they
27
involved reversal of trial verdicts rather than motions for cost-of-proof
expenses. Substantively, they are also distinguishable. In both cases, the
parties with the burden of proof failed to meet their threshold burden. Here,
as we have discussed, Conrado did meet his threshold burden for an order
granting attorney fees under section 2033.420, subdivision (a), with respect to
the foregoing requests. As a result, he established he is entitled to recover
reasonable fees incurred to prove the matters in those requests.
Accordingly, we will not foreclose the trial court from conducting such
further proceedings as it deems necessary to enable it to determine the
attorney fees reasonably related to proving the matters defendants denied.
II.
We Will Reverse the Judgment Because the Trial Court Committed Reversible
Error by Entering It Before Resolving Defendants’ Section 998 Motion
A. Appealability
As stated above, defendants’ second notice of appeal was taken from the
May 2022 order and judgment, to the extent not vacated by the July 2022
order vacating the $500,000 section 2033.420 fee award from both documents.
It was also taken from, among other things (see fn. 9, ante), the July 2022
order to the extent it partially denied defendants’ motion to vacate the
judgment and May 2022 order.
Conrado challenges the appealability of the May 2022 order, the
judgment, and the July 2022 order. First, he argues the May 2022 order is
“moot” because it was vacated and “superseded” by the July 2022 order. This
is not correct. The May 2022 order set forth three rulings in which the trial
court: (1) denied Conrado’s motion for new trial or additur, (2) granted
Conrado’s motion for costs under sections 630 and 1032, and (3) granted
Conrado’s motion for attorney fees under section 2033.420. The July 2022
28
order vacated only the portion of the May 2022 order that granted section
2033.420 attorney fees, leaving the remainder of the May 2022 order intact.
Thus the May 2022 order was not fully vacated, or “moot[ed],” by the July
2022 order.
Next, Conrado appears to contend the judgment was not a final
judgment, and is therefore nonappealable, because “the trial court . . . made
it abundantly clear” during the April 18, 2022 hearing on the section 998
motion “that it retained jurisdiction to determine the impact, if any, of
[defendants’] pending motion for offset [of the verdict pursuant to section 998]
after resolution of this appeal[.]”
This argument does not withstand scrutiny. True, the trial court orally
stated during the hearing on the section 998 motion that it would hold the
motion in abeyance until the appeal of its attorney fee order was decided.
After making this statement, however, the court entered the May 2022
judgment. “The meaning and effect of a judgment is determined according to
the rules governing the interpretation of writings generally. [Citations.]
‘ “[T]he entire document is to be taken by its four corners and construed as a
whole to effectuate the obvious intention.” ’ ” (People v. Landon White Bail
Bonds (1991) 234 Cal.App.3d 66, 76; accord, Hulbert v. Cross (2021) 65
Cal.App.5th 405, 418.) The substance and effect of the judgment, not its
label, is determinative. (Griset v. Fair Political Practices Com. (2001) 25
Cal.4th 688, 698.)
Here, nothing about the contents of the judgment reflects that it is
tentative or nonfinal. It recites the jury’s special verdict in its entirety and
then summarizes the trial court’s posttrial ruling granting Conrado’s motions
for costs of $255,642.38 under sections 630 and 1032. It concludes with the
following sentence: “THEREFORE, IT IS ORDERED, ADJUDGED AND
29
DECREED that plaintiff Diego Conrado have and recover from defendants
CLS Landscaping Management, Inc., and Jose Juan Espinoza Gonzalez the
sum of $181,605.61, [and] the Plaintiffs costs in the amount of
$255,642.38[.]”12 (Boldface omitted.) The quoted language unambiguously
conveys that the sums owed by defendants are certain and final. It is written
in the present tense and provides that Conrado is to “have and recover” the
sums stated in the present, without qualification. Nothing in the judgment
reflects an intent to alter these amounts in the future or conveys that the
judgment is to be considered nonfinal pending future determination of
defendants’ section 998 motion. In fact, the judgment does not mention the
section 998 motion at all.
The text of the judgment unambiguously conveys that it is a final
judgment, not an interim or interlocutory judgment. “Judgments that leave
nothing to be decided between one or more parties and their adversaries, or
that can be amended to encompass all controverted issues, have the finality
required by section 904.1, subdivision (a).” (Morehart v. County of Santa
Barbara (1994) 7 Cal.4th 725, 741.) Therefore, the judgment is appealable.
Finally, Conrado contends defendants cannot appeal the July 2022
order. He argues any error in the order is invited error, because defendants
prepared the order and submitted it for the trial court’s signature. Conrado
overlooks that the trial court instructed defendants to prepare and submit an
12 As originally entered, the judgment also summarized the trial court’s
ruling granting Conrado’s motion for $500,000 in section 2033.420 attorney
fees, and stated in its concluding sentence that Conrado was to recover from
defendants “attorneys’ fees in the amount of $500,000.00.” We omit this
language because it was vacated from the judgment pursuant to the court’s
July 2022 order, and defendants’ appeal is taken from the judgment as
partially vacated.
30
order conforming to its decision; in submitting the order, defendants were
simply carrying out this directive. The doctrine of invited error does not
apply to this scenario. (Cf. Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403
[doctrine of invited error applies “ ‘[w]here a party by his conduct induces the
commission of error’ ”].) In any event, although defendants stated in their
notice of appeal they were appealing the July 2022 order, they have raised no
arguments in their appellate briefs challenging it. Thus, no error in the July
2022 order has been identified, making the doctrine of invited error doubly
inapplicable here.
B. The Trial Court Erred by Entering Judgment Before Ruling on
Defendants’ Section 998 Motion
1. Contentions on Appeal
Defendants seek reversal of the judgment on the ground that section
998, by its own terms, requires trial courts to apply its provisions before any
judgment is entered. They contend their offer to compromise was valid,
contrary to Conrado’s trial court opposition briefs in which he argued the
attached release was overly broad and invalidated the offer; their $250,001
offer exceeded the $181,605.61 jury verdict plus Conrado’s $27,146.29 in pre-
offer costs; and, for various reasons, the $500,000 section 2033.420 award
does not affect the section 998 calculus (including because it “necessarily will
be reversed”). In essence, defendants would have us determine the merits of
their section 998 motion as a precursor to determining whether to reverse
and remand to the trial court for (in their words) “a determination of
defendants’ section 998 motion.”
In response, Conrado objects that defendants are asking this court “to
determine, as a matter of first impression, that [defendants] are the
prevailing party.” (Fn. omitted.) He contends defendants’ section 998 motion
has not been ruled upon by the trial court and cannot be decided by this court
31
in the first instance. He claims defendants are being deceptive and are
seeking reversal of the May 2022 order and judgment as a ploy to “get the
award of costs, pursuant to [sections] 630 and 1032, which [defendants] did
not object to, and which they didn’t appeal from, reversed by this Court.”
In reply, defendants clarify they are not asking this court to determine
the outcome of their section 998 motion. The reason they have argued the
merits of the motion to this court, they explain, is simply to show they were
prejudiced by the trial court’s failure to decide the motion before entering
judgment. In response to Conrado’s complaint that they are improperly
trying to have his award of prevailing party costs (which defendants call
“normal costs”) reversed, defendants state they are not seeking to vacate the
$181,605.61 jury verdict amount or Conrado’s $255,642.38 cost award.
Rather, they are merely seeking to vacate entry of judgment on the ground
that “no judgment can be entered until the trial court first determines the
section 998 issue.” Thus, they state, “[t]he $255,642.38 normal costs award is
irrelevant to this appeal.”
2. Analysis
As noted, defendants contend section 998 requires courts to apply its
provisions before entering judgment. We agree. We further conclude the
trial court’s error in prematurely entering judgment was reversible, and we
do so without determining the merits of defendants’ section 998 motion.
“ ‘[S]ection 998 establishes a procedure to shift costs if a party fails to
accept a reasonable settlement offer before trial. The purpose of the statute
is to encourage pretrial settlements.’ [Citation.] If the party who prevails at
trial obtains a judgment less favorable than a pretrial settlement offer
submitted by the other party, then the prevailing party cannot recover its
own postoffer costs but must pay its opponent’s postoffer costs, including,
32
potentially, expert witness fees.” (Oakes v. Progressive Transportation
Services, Inc. (2021) 71 Cal.App.5th 486, 497 (Oakes).)
Section 998 states in relevant part:
“(c)(1) If an offer made by a defendant is not accepted and the plaintiff
fails to obtain a more favorable judgment or award, the plaintiff shall not
recover his or her postoffer costs and shall pay the defendant’s costs from the
time of the offer. In addition, in any action or proceeding other than an
eminent domain action, the court or arbitrator, in its discretion, may require
the plaintiff to pay a reasonable sum to cover postoffer costs of the services of
expert witnesses, who are not regular employees of any party, actually
incurred and reasonably necessary in either, or both, preparation for trial or
arbitration, or during trial or arbitration, of the case by the defendant.
[¶] . . . [¶]
“(e) If an offer made by a defendant is not accepted and the plaintiff
fails to obtain a more favorable judgment or award, the costs under this
section, from the time of the offer, shall be deducted from any damages
awarded in favor of the plaintiff. If the costs awarded under this section
exceed the amount of the damages awarded to the plaintiff the net amount
shall be awarded to the defendant and judgment or award shall be entered
accordingly.” (§ 998, subds. (c)(1), (e).)
In Oakes, the Court of Appeal held the plain language of section 998
dictates that its provisions must be applied before entry of a final judgment
between the parties. The court observed “[s]ection 998, subdivision (e) states
that when a plaintiff fails to obtain a more favorable judgment or award than
a defendant’s section 998 offer, the costs awarded to the defendant ‘shall be
deducted from any damages awarded in favor of the plaintiff. If the costs
awarded under this section exceed the amount of the damages awarded to the
33
plaintiff the net amount shall be awarded to the defendant and judgment or
award shall be entered accordingly.’ ” (Oakes, supra, 71 Cal.App.5th at
pp. 503–504.) Section 998 thus “requires deduction of the defendant’s
postoffer costs from the plaintiff’s damages award; then if the costs exceed
the amount of the award, . . . a judgment must be entered in the defendant’s
favor.” (Id. at p. 504.) The court then observed that “judgment” is defined in
section 577 as “ ‘the final determination of the rights of the parties in an
action or proceeding.’ ” (Oakes, at p. 504.) “Section 998 thus contemplates
entry of a final judgment between the parties after its cost-shifting provisions
have been applied.” (Ibid., italics added.) “[U]nder section 577 a judgment is
the final determination of the parties’ rights and therefore must reflect any
cost shifting under section 998.” (Ibid.)
We agree with the reasoning and conclusion of Oakes. And because
section 998 must be applied before entry of final judgment, it follows that the
trial court erred by doing the reverse of what the statute requires and
entering a final judgment before ruling on defendants’ section 998 motion.
Further, we do not need to determine the merits of defendants’ section
998 motion in order to conclude that the error is reversible. “In some
circumstances where a statute requires that the trial court act in a certain
way or otherwise limits the trial court’s discretion, rulings ignoring the
statutory mandates or exceeding the statutory restrictions have been held
reversible per se.” (Eisenberg, California Practice Guide: Civil Appeals and
Writs (Rutter Group, 2022) § 8:318, p. 8–227, italics omitted.) “[O]ur courts
have consistently applied the rule of automatic reversal where a party is
prevented from having his or her full day in court.” (In re Marriage of
Carlsson (2008) 163 Cal.App.4th 281, 293 [trial judge ended case midtrial
and left courtroom; held, the error was reversible per se]; Moore v. California
34
Minerals Products Corp. (1953) 115 Cal.App.2d 834, 836–837 [trial judge
granted judgment on the pleadings sua sponte, without hearing evidence or
argument; reversal was automatic].)
Such is the case here. Defendants brought a motion seeking postoffer
costs under section 998. The motion, if meritorious, stood to affect the
amounts recorded in any judgment entered in this case, since section 998
“requires deduction of the defendant’s postoffer costs from the plaintiff’s
damages award.” (Oakes, supra, 71 Cal.App.5th at p. 504.) The trial court,
without resolving the motion, entered a final judgment providing that
defendants owed the full amount of the jury’s damages award to Conrado,
with no deduction of defendants’ postoffer costs. In doing so, the court
effectively denied defendants the rights they invoked under section 998
without first determining whether they were entitled to them. The court’s
error in prematurely entering judgment cannot stand, because section 998
requires its calculations to be performed before entry of judgment.
Consequently, we will reverse the judgment (as partially vacated by the
July 2022 order) and remand for a determination of defendants’ section 998
motion.
III.
Defendants Provide No Grounds Upon Which to Reverse the May 2022 Order;
Accordingly, We Decline Their Request to Do So
The May 2022 order, as partially vacated by the July 2022 order,
contains two rulings: (1) the denial of Conrado’s motion for new trial or
additur, and (2) the grant of his motion for prevailing-party costs under
sections 630 and 1032 in the amount of $255,642.38.
In the concluding paragraphs of their opening brief and reply brief on
appeal, defendants ask us to reverse this order. However, the arguments
35
within their briefs provide no basis for reversal. Defendants have not
challenged the denial of Conrado’s motion for new trial or additur. As for the
prevailing-party costs award, defendants state in their reply brief that “[t]he
$255,642.38 normal costs award is irrelevant to this appeal.” The May 2022
order, as partially vacated, contains no other rulings. As we have been
provided no reason to reverse the rulings embraced by this order, we decline
to do so.
DISPOSITION
The trial court’s January 27, 2022 minute order granting Conrado
attorney fees under section 2033.420 is reversed, and the judgment entered
on May 10, 2022 is reversed. The matter is remanded for a redetermination
of attorney fees under section 2033.420 in accord with this opinion, and for a
determination of defendants’ motion pursuant to section 998. Defendants are
entitled to their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
DO, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.
36