Adam

An attorney fee clause in an agreement provides that in any action arising out of the agreement, the prevailing party shall be entitled to reasonable attorney fees. Plaintiff brings an action for breach of contract and for tort violations arising out of the contract. A jury finds for defendant on the breach of contract action, but finds for the plaintiff on the tort cause of action and awards damages.

Here we hold that plaintiff is the prevailing party for the purpose of determining attorney fees and such fees must be included in assessing whether the judgment was more or less than a statutory offer to compromise made by defendant pursuant to Code of Civil Procedure section 998.

Peter and Amy Adam appeal from a posttrial order denying their request for attorney fees and costs. The trial court ruled that defendant Linda DeCharon was the “prevailing party” under Civil Code section 1717. The court awarded DeCharon fees and costs because the verdict was less than her statutory offer to compromise. (Code Civ. Proc., § 998, subd. (c).) We reverse.

Facts

The Adams purchased a house in Santa Maria from DeCharon. After escrow closed the house had drainage problems and it…

I respectfully dissent.

Our Supreme Court has held that Code of Civil Procedure section 998 reflects California’s policy of encouraging settlements. (Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 270 [ 276 Cal.Rptr. 321 , 801 P.2d 1072 ].) “In order to encourage parties to accept reasonable settlement offers made pursuant to the section, subdivisions (c) and (d) of section 998 afford the offeror a remedy against a party who has failed to accept a statutory settlement offer that proves to be reasonable.” (Ibid.) Today, the majority thwart that policy.

DeCharon made a $15,000 statutory offer which included costs on March 19, 1992, seven months before the action was tried. The Adams rejected the offer and obtained a verdict for $9,900. Judgment was entered November 18, 1992.

A month later, counsel for Adams moved for attorney fees. The motion failed to apportion fees or set forth what fees were incurred before the statutory offer was made. Instead, counsel declared that Adams’ fees were “$44,600 to date.” The trial court denied the motion.

The Adams have not provided a reporter’s transcript of the hearing. Because this is a judgment roll appeal, every…

An attorney fee clause in an agreement provides that in any action arising out of the agreement, the prevailing party shall be entitled to reasonable attorney fees. Plaintiff brings an action for breach of contract and for tort violations arising out of the contract. A jury finds for defendant on the breach of contract action, but finds for the plaintiff on the tort cause of action and awards damages.

Here we hold that plaintiff is the prevailing party for the purpose of determining attorney fees and such fees must be included in assessing whether the judgment was more or less than a statutory offer to compromise made by defendant pursuant to Code of Civil Procedure section 998.

Peter and Amy Adam appeal from a posttrial order denying their request for attorney fees and costs. The trial court ruled that defendant Linda DeCharon was the "prevailing party" under Civil Code section 1717. The court awarded DeCharon fees and costs because the verdict was less than her statutory offer to compromise. (Code Civ. Proc., § 998, subd. (c).) We reverse.

The Adams purchased a house in Santa Maria from DeCharon. After escrow closed the house had drainage problems and it…