Monday, November 26, 2007

Engle v. Copenbarger & Copenbarger (Cal. Ct. App. - Nov. 26, 2007)

Two points. One on style, and one on the merits.

First, even before I looked at either the rendering court or author, I totally knew who penned this opinion. Which begins as follows:

"Cautionary tales rarely have happy endings. From the 19th Century German classic, “The Dreadful Story of Pauline and the Matches,” in which the fate of the child heroine can be deduced from the title, to the more familiar Thirties cult film, “Reefer Madness,” the protagonist almost never does well in them. This case is no exception."

Yes, him. Who else is going to start out the opinion so (seemingly) randomly? Or with such flourish. Plus the reference to Reefer Madness. Nice. (Though I gotta say that a person more, uh, "knowledgeable" about the subject matter might know that the actual -- i.e., original -- title of that movie by Louis Gasnier is "Tell Your Children". But I can see why a California jurist might admit only familiarity with the reissued title. At best. And might proclaim utter lack of knowledge whatsoever about the subject area. Notwithstanding being at, say, Boalt during the late 60s and early 70s.)

Mind you, to me, this introduction seemed a tiny bit forced. I've liked other flourishes a lot more. But, hey, you ain't gonna hit every time.

That said, the actual opinion (apart from the introduction) was incredibly tight. And I very much liked that style. There aren't many appellate opinions that I think can do a totally persuasive job in six double-spaced pages. At least without sounding superficial and somewhat lacking. This one, however, is the exception. So as to the style articulated in the section on the merits, I'm on board.

As for the substance itself, quite frankly, I think that the author gets it totally right. Almost. The opinion holds that when a Section 998 offer is (essentially) silent on costs and fees, you can still get 'em if you're the prevailing party on the offer. Yep. Totally true.

Which is why you gotta take the time out to write these things carefully. And, FYI, an incredibly broad "release" provision, without reference to costs or fees, isn't going to cut it. If you want to exclude costs and fees, you gotta say so expressly in the offer. Which, by the way, is not hard. And if you're not experienced or knowledgeable in this area; well, I hope you've paid your malpractice premiums. Your bad.

So I pretty much agree -- 100% -- with every single word in the opinion. Except for the last page or so. The Court of Appeal gets it right, in my view, that there's probably an entitlement to costs given the silence of the CCP offer on the point. Since, under CCP 1032(b), you're entitled to costs as a matter of right when you're the prevailing party. Which, after the acceptance of the offer, plaintiff was. (There's a contrary argument on this point, but I'll overlook it for now.)

But, as to fees, we're not talking about an entitlement under CCP 1032. The only basis for an award there is (in this sex discrimination and harassment case) Government Code 12965(b). Which makes an award of fees not an entitlement of the prevailing party, but rather something that the court "in its discretion, may award to the prevailing party." The Court of Appeal expressly holds in the last page of the opinion that plaintiff is entitled to fees since she clearly "prevailed" on these causes of action through acceptance of the $35,000 offer. The latter is true, but the former isn't. Yes, she prevailed. But even totally prevailing parties are not entitled to fees; even for discrimination/harassment that's proven at trial, much less for causes of action that are settled. It's still subject to the court's discretion under 12965(b). You can get $1 at trial and be denied fees. You can get $1,000,000 and trial and still be denied fees. There's lots of (deliberate) discretion there. And so for the Court of Appeal to conclude by holding that "[s]ince Engle accepted a section 998 offer to compromise that was silent on costs and fees, and she prevailed on statutory causes of action for which fees may be recovered, she was entitled to costs and fees" (emphasis added), and to state that it was (as a matter of law) an abuse of discretion to deny fees, is wrong.

As well as bad law. Courts can -- and should -- have discretion to deny a fee award even to prevailing parties. So, for example, a plaintiff who has unclean hands might be denied fees. Or a plaintiff who was awarded only nominal damages for unextraordinary conduct. Or -- perhaps as here -- a plaintiff who obtained only a "cost of defense" settlement (e.g., $35,000) which, entirely by accident, omitted a reference to costs and fees. The trial court might well conclude that this was, in actuality, a meritless case, and that the settlement was purely one of extortion or the like. If that was the Court's conclusion -- and I'm not saying (at all) that it was -- I have no doubt that the court should have discretion to deny fees. But under the holding of the last page of this opinion, the court would be obliged to award fees upon acceptance of a 998 offer in such settings. Which I am pretty heartily convinced both misapplies the relevant statutes as well as makes for a darn bad result as a matter of policy.

So I'd take out that part. As well as the last sentence, which instructs the trial court to award fees on remand. I think the trial court should have the discretion to decide, on the facts, whether a fee award is appropriate in this setting. I agree that it can't deny fees on the basis relied upon below; namely, that the offer excluded fees or the like. But it still gets to exercise discretion.

So that's my beef for the evening. Smart opinion. Interesting. And only the tiniest bit -- albeit an important part -- wrong. IMHO.