Elton

The prevailing plaintiffs in an action for damages to real property appeal (1) the trial court’s order taxing their costs by denying their request for attorney’s fees pursuant to Code of Civil Procedure section 1021.9 and (2) the resulting judgment which offsets the defendant’s costs against the plaintiffs’ damage award, pursuant to Code of Civil Procedure section 998, subdivision (e). We affirm in part, reverse in part, and remand for further proceedings regarding attorney’s fees and other costs.

Factual and Procedural Background

To reduce the risk of fire to its structures, the defendant tried to conduct a controlled bum of piles of grass and sagebmsh on its land. The fire escaped onto the plaintiffs’ adjacent property, damaging it. The plaintiffs sued, asserting negligence and trespass theories.

In February and March of 1994, the defendant offered to compromise the case pursuant to section 998 for the sums of $40,000 and $55,000, respectively. The plaintiffs did not accept either offer. After trial, the jury returned a verdict of $25,000. The plaintiffs thereafter submitted a memorandum of costs seeking an award of $73,327.15, including attorney’s fees of…