Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. SC 081696, Cesar C. Sarmiento, Judge.
Natasha Roit and Edward J. Horowitz for Plaintiffs and Appellants.
Law Offices of Ehsan Afaghi, Ehsan Afaghi and Firouzeh Simab; Law Offices of Saul Reiss and Saul Reiss for Defendant and Respondent Shahriar Yazdani.
Procter, McCarthy & Slaughter, James N. Procter II and Lisa N. Shyer for Defendant and Respondent Marvin Goodfriend.
WOODS, J.
Plaintiffs Rebecca A. Rickley and Natasha Roit own a home in Malibu. Defendant Marvin Goodfriend owns the house on one side of plaintiffs’ property, and defendant Shariar Yazdani owns the property on the other side. Plaintiffs appeal from the portion of the order denying their motion for attorney fees from Yazdani pursuant to Code of Civil Procedure section 1021.5 and the portion of the order granting Goodfriend’s motion to strike from plaintiffs’ costs memorandum the expert witness fees they sought under section 998. Plaintiffs contend the court erred in denying their requests for attorney fees and expert witness fees. We affirm the portion of the order denying attorneys fees, but reverse and remand the portion of the order striking the expert witness fees.
All statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL SYNOPSIS
I. Procedural Background
A. Pretrial
Appellants filed their original complaint on May 17, 2004. The first amended complaint (FAC) became the operative complaint. The first through fifth causes of action were against Goodfriend for: nuisance, violation of CC&Rs, trespass, negligence per se and injunctive relief/abatement. The sixth through ninth causes of action were against Yazdani for: nuisance, violation of CC&Rs, negligence per se, and injunctive relief/abatement.
The FAC prayed for general and consequential damages according to proof, abatement of nuisance and injunctive relief, and costs of suit, as to the first to fourth and the sixth to eighth causes of action. The first, third, sixth and seventh causes of action also sought punitive damages. The fifth and ninth causes of action sought preliminary and permanent injunctions and costs of suit.
The gravamen of the causes of actions against Yazdani was that his actions and omissions in maintaining his property created a nuisance injurious to appellants and their property. The FAC describes the nuisance as:
a) un-permitted construction activities on the YAZDANI PROPERTY, including without limitation, removing every single wall in the interior of the residence, as well as the foundation and roof structural support, causing the failure of the chimney, the roof line, and various floor to ceiling windows; hand digging a basement on a known landslide area; attempted removal of an in-ground pool by day laborers with jack hammers, and other demolition activities; attempted remodel without the use of licensed contractors; continuing the aforementioned work after Building & Safety citations throughout the night to avoid detection; storing construction debris in the partially removed pool, allowing the pool to become a breeding ground for mosquitos with its concomitant danger; violating fire code clearance requirements on an annual basis, all of which caused damage to [APPELLANTS’] PROPERTY, including without limitation collapse of the property wall and other damages herein alleged and according to proof;
b) overgrowth of poisonous and dangerous oleander foliage, in places over 10 feet tall, creating a dangerous condition to humans and animals, and approximately 10 pine and other variety of trees, which blocks and/or interfere with [appellants’] ocean view.
The causes of action for violation of CC&Rs and negligence per se were based on the same allegations of unpermitted construction and blockage of appellants’ ocean view. There were no allegations that any of the conditions constituted a public nuisance.
Appellants served Yazdani with a statement of damages demanding $1.5 million consisting of $500,000 each for general, special and punitive damages.
According to appellants, they filed the statement as a precaution because Yazdani had not timely answered the complaint and “was subject to possible entry of a default judgment.”
On June 29, 2004, appellants served Goodfriend with an offer to compromise pursuant to section 998. The offer listed several specific items for inclusion in a permanent injunction and additional related acts to be undertaken by Goodfriend. The offer was not accepted.
On July 7, 2004, appellant obtained a preliminary injunction against Yazdani restraining him from:
“a) any and all construction and related activities at [the Subject Property];
“b) habitation or occupying of the Subject Property; and
“c) use of electrical and gas utilities on the Subject Property.”
On December 4, Yazdani obtained all the necessary permits for his remodeling. On March 18, 2005, the court modified the preliminary injunction to permit Yazdani to continue with his remodeling. When appellants filed a motion for additional restrictions, the court ruled the motion was premature as appellants had offered no evidence of any violation.
In August 2005, Yazdani proposed a settlement consisting in part of “entry of a permanent injunction enjoining them from undertaking any further construction-related activities on their property except in compliance with the provisions of the currently operative CC&Rs and applicable governmental requirements” and payment of $25,000 to appellants. Appellants rejected the offer in part because “any Stipulation on behalf of your clients without the commensurate liquidated damages and recordation of the Stipulation” would not be acceptable and because “the monetary portion of your settlement offer is missing a zero.”
B. Trial and Judgment
The bench trial began on September 6, 2005, and lasted 17 court days until September 29. The judge personally conducted an on-sight inspection of the properties.
After issuing a tentative decision and a modification to the tentative decision, the court issued a statement of decision on January 17, 2006.
As to Goodfriend, the court found:
1. Goodfriend was ordered to comply with all laws “that apply to height restrictions on fences, walls, trees, shrubs, flowers and plants.”
2. Goodfriend committed a private nuisance by dumping construction debris in his backyard. “Judgment is granted for [appellants] as to their first [nuisance], second [violation of CC&Rs], and fourth [negligence per se] causes of action.”
3. The fill on Goodfriend’s property was a continuing, but not permanent, nuisance that can be abated.
4. Goodfriend placed construction debris and part of a railroad tie on appellants’ property. “Judgment is granted in favor of [appellants] as to the third cause of action [trespass].”
5. Goodfriend was ordered “to abate the nuisance in accordance with [appellants’ expert witness] Steven Viani’s remediation plan,” consistent with specified guidelines.
6. Appellants were not entitled to monetary damages for diminution in value of their property “as this is a continuing nuisance,” or to damages “based on reduction in fair market value,” or punitive damages.
As to Goodfriend’s cross-complaint for violation of CC&Rs, the court ruled: “The evidence in this case has demonstrated that all parties completely disregarded adherence to the CC&Rs and county building permit requirements when performing construction on their homes. The parties invoked the CC&Rs only when it suited their needs in the disputes against one another.”
As to Yazdani, the statement of decision provided:
1. “The condition of the Yazdani property is a public and private continuing nuisance and is negligence per se.” The court ordered Yazdani to abate the nuisance by complying with all fire codes, obtaining all necessary permits for construction of the house and completing construction in compliance with the Slide Waiver and any and all government agency permits.
According to appellants, a “Slide Waiver” is a covenant and agreement which is part of the county’s permit process. In the Slide Waiver, Yazdani acknowledged his property was located “in an area subject to physical hazards of a geological nature” and in consideration for the issuance of a grading permit, he agreed to relieve the county of liability for any damage or loss resulting from the issuance of the permit.
2. Yazdani did not act with malice, oppression or fraud, and although one of his employee’s conduct towards appellants “was vile and offensive,” there was no evidence Yazdani was involved so the court denied punitive damages.
3. The court awarded appellants $2,500 “for the annoyance, discomfort and inconvenience caused by the condition of the Yazdani property,” but no damages for diminished rental value.
4. The court found Yazdani to be in contempt of court and fined him $1,000.
5. The court found the equitable defenses of unclean hands and acquiescence applied to the seventh cause of action for violation of CC&Rs and entered judgment in favor of Yazdani on that cause of action. The court found the evidence was clear appellants had “performed construction on their property in violation of the CC&Rs and knew about the Goodfriend illegal construction and failed to report it to the homeowners association.”
Judgment was entered on February 23, 2006. The judgment found in favor of appellants on their causes of action for public and private nuisance and negligence per se, awarded monetary damages of $2,500 and the following injunctive relief: “1. Yazdani is ordered to abate the nuisance as follows: [¶] a. Comply with all fire codes. [¶] b. Obtain all necessary permits and pay all fees as required by any governmental agency for construction of the home. [¶] c. Complete construction of the home in compliance with the Slide Waiver and any and all governmental agency permits.”
As to Goodfriend, the judgment included no monetary damages, but provided injunctive relief that included requiring him to abate the continuing nuisance he had created in accordance with specific portions of a remediation plan provided by appellants’ expert witness within the budget set forth in those portions of the plan. No party appealed the judgment.
C. Post Judgment Order
Appellants filed a memorandum of costs which included $30,726.54 for expert witness fees against Goodfriend.
Goodfriend moved to strike the costs memorandum.
Appellants filed a motion for attorneys fees under section 1021.5 against Yazdani.
After a hearing on the motions, the court issued a minute order (1) finding appellants were the prevailing parties against Goodfriend and Yazdani for the purpose of awarding ordinary costs; (2) denying Goodfriend’s motion to strike the costs memorandum insofar as it included ordinary costs as appellants were the prevailing parties who “obtained the primary goal of their litigation when the court granted the injunctive relief ordering the defendants to remediate the hillside”; (3) but granted the motion insofar as it included expert witness fees because appellants “did not obtain a more favorable judgment than was contained in their 998 offer”; and (4) denied appellants’ motion for attorneys fees.
Appellants sought and obtained contempt orders against Yazdani for his continuing violations of the judgment’s injunctive provisions. For example, on April 11, the court found Yazdani in contempt and ordered him to pay sanctions of $1,000 to the court and to pay Roit $2,400 for attorney fees and $481.30 for costs. On August 15, the court again found Yazdani in contempt and ordered him to pay $2,000 in contempt fees to the court and $2,890 to Roit for attorneys fees and costs.
Appellants filed a timely notice of appeal from the order denying their motions for attorneys fees and expert witness fees.
II. Factual Background
Appellants’ home in Malibu lies between properties owned by Goodfriend and Yazdani. Each property overlooks the Pacific Ocean and the Pacific Coast Highway. The county fire department attempts to secure compliance with fire prevention regulations applicable to the area. The homeowners’ association in the area seeks to enforce applicable CC&Rs for the benefit of the entire neighborhood.
Appellants claim the record contains evidence of Goodfriend’s illegal grading, dumping and construction work and of Yazdani’s illegal construction and creation of fire hazards. As support for their factual assertions, at times, both appellants and Yazdani improperly cite briefs and/or charts summarizing evidence. It is axiomatic that statements of attorneys are not evidence. (Cf. BAJI No. 1.02; CACI No. 5002.) While such summaries might prove useful to the court which heard the evidence, they are not useful to this court.
DISCUSSION
I. Appellants are not entitled to attorneys fees.
We find it necessary to remind the parties of some basic principles of appellate review. “This court is not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record.” (MST Farms v. C. G. 1464 (1988) 204 Cal.App.3d 304, 306.) “A ruling by a trial court is presumed correct, and ambiguities are resolved in favor of affirmance. The burden of demonstrating error rests on the appellant.” (Citations omitted.) (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631-632.) “It is the burden of the party challenging the fee award on appeal to provide an adequate record to assess error.” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.)
Appellants contend the court abused its discretion when it denied their request for attorney fees pursuant to section 1021.5. “‘Attorney fees are recoverable under section 1021.5 (1) by a successful party, (2) in an action that has resulted in the enforcement of an important right affecting the public interest, (3) if a significant benefit has been conferred on the general public or a large class of persons, and (4) the necessity and financial burden of private enforcement are such as to make the award appropriate. The statute’s purpose is to encourage public interest litigation that might otherwise be too costly to pursue.’” (Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1343.)
Citing Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553 and Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, Yazdani argues appellants cannot meet the three-prong test set out in those cases. Those cases address the catalyst theory, which is applicable when there is not a judicially recognized change in the legal relationship between the parties. That theory was not applicable to this case.
“‘“The trial court is to assess the litigation realistically and determine from a practical perspective whether [the statutory] criteria have been met.” Rulings under section 1021.5 are reviewed for abuse of discretion. The questions are whether the court applied the proper legal standards under section 1021.5 and, if so, whether the result was within the range of the court’s discretion, i.e., whether there was a reasonable basis for the decision.’” (Citations omitted.) (Lyons v. Chinese Hospital Assn., supra, 136 Cal.App.4th at p. 1344.)
“‘Although [section] 1021.5 is phrased in permissive terms (the court “may” award), the discretion to deny fees to a party that meets its terms is quite limited. The [S]upreme [C]ourt . . . noted that the private attorney general theory, from which [section] 1021.5 derives, requires a full fee award “unless special circumstances would render such an award unjust.”’” (Citation omitted.) (Lyons v. Chinese Hospital Assn., supra, 136 Cal.App.4th at p. 1344.) The issue here is whether appellants met the criteria of section 1021.5.
Whether a party has met the requirements under section 1021.5 is a question “best decided by the trial court in the first instance.” (Bouvia v. County of Los Angeles (1987) 195 Cal.App.3d 1075, 1081.) To determine whether the trial court abused its discretion, “we must review the entire record, paying particular attention to the trial court’s stated reasons in denying or awarding fees.” (Ibid.) Moreover, “we must infer all findings necessary to support the judgment.” (San Bernardino Valley Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738, 754-755.) Appellants have “the burden of establishing that [their] litigation costs transcend [their] personal interest.” (Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 113.)
Without any citation to legal authority, Yazdani contends appellants are barred from seeking attorney fees because they did not seek fees in the FAC. “The intent to seek attorneys’ fees under the statute need not be pleaded in the underlying action; the fees are incidents to the cause.” (7 Witkin, Cal Procedure (4th ed. 1997) Judgment, § 225, p. 763.)
In the instant case, in denying appellants’ request for attorney fees, the court stated: “The estimated value to [appellants] of the litigation against Yazdani was in the mid to upper hundreds of thousands of dollars. They sought diminished rental value alone in the amount of $360,000, monthly damages of $7,500 until the nuisance was abated, punitive damages and damages for annoyance and discomfort. This estimate of the value of the case exceeds by a substantial margin the litigation costs. Thus, [appellants’] financial burden was not out of proportion to their personal stake in the lawsuit and any public benefit to the pursuit of this litigation was coincidental.”
Appellants posit the court applied the wrong legal standard in its ruling and thus abused the limited discretion it had because it computed the value of the case as to whether appellants’ financial burden exceeded their personal stake by looking at the value of the case at the outset rather than at the time of vital litigation decisions, by failing to discount that estimate by appellants’ probability of success and by failing to consider the adequacy of public enforcement. (See Lyons v. Chinese Hospital Assn., supra, 136 Cal.App.4th at pp. 1348, 1352-1355.) As the necessity of private enforcement is a separate element from the financial burden of that enforcement (id., at pp. 1348-1351), there was no need for the court to also consider that element.
Vital litigation decisions include decisions to file, prosecute and appeal an action. (Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1, 9.)
In Lyons, after noting a pecuniary interest in the outcome of the litigation was not disqualifying, the court addressed the issue of whether the financial burden on a party was out of proportion to its personal stake. (Lyons v. Chinese Hospital Assn., supra, 136 Cal.App.4th at p. 1352.) The court reasoned:
“‘[I]n comparing the cost of litigation to the plaintiffs’ stake in the matter, we do not look at the plaintiffs actual recovery after trial, but instead we consider “the estimated value of the case at the time the vital litigation decisions were being made . . . .” In other words, the inquiry looks forward from the outset of counsel’s vital litigation decisions, rather than backward after judgment. This is because the purpose of section 1021.5 is to encourage public interest litigation by offering the “bounty” of a court-ordered fee. [A]nd the focus of that incentive is on the point in time when vital litigation decisions are being considered.’” (Original italics; citations omitted.) (Lyons v. Chinese Hospital Assn., supra, 136 Cal.App.4th at p. 1352.)
The facts do not support appellants’ arguments concerning their own valuation of the case as it developed. Whatever their belief as to their potential recovery at the time of filing, the record demonstrates that their primary interest throughout the litigation was in preserving the value of their home. Indeed, as late as one month before trial began, they contended that the cash value of the recovery in this matter was a minimum of $250,000, as demonstrated by their response to the settlement offer of August 2005. While the court’s award ultimately fell well short of these expectations, it remains the fact that these expectations guided their critical litigation decisions, resulting in their explicit rejection of the settlement as too low.
As against this record, in their motion for attorney fees, appellants attached declarations from government officials and a couple of neighbors attesting to the need for enforcement of fire codes and permits. There was no declaration attesting to any difficulty in obtaining counsel for the case as there was in Lyons. (Lyons v. Chinese Hospital Assn., supra, 136 Cal.App.4th at p. 1354.) Even though appellants cited Lyons in their motion for attorneys fees, they did not raise the issue of how to compute their financial burden or present argument/evidence about vital litigation decisions or the probability of success. Even more critically, the motion also did not state what costs appellants incurred in pursuit of the litigation; their costs memorandum lists costs of just over $70,000 ($30,000 of which was for expert witness fees against Goodfriend). Appellants’ motion did not request a certain amount of attorney fees or state what fees were incurred, much less provide an authenticated statement of what fees were incurred for what purpose. In appellants’ reply to Yazdani’s opposition to attorney fees, appellants claim they expended “thousands of dollars” in pursuing Yazdani’s compliance with laws, not tens of thousand of dollars or hundreds of thousands of dollars. The court’s finding that the estimated value of appellants’ litigation exceeded litigation costs was supported by appellants’ statement of damages, their rejection of the settlement offer shortly before trial, and the damages they sought at trial as well as the court’s own expertise in determining reasonable litigation costs.
In Lyons v. Chinese Hospital Assn., supra 136 Cal.App.4th at page 1354, the court noted the individual stake in the action may be nonpecuniary. Appellants presented no evidence that the instant litigation transcended appellants’ financial and aesthetic interests and imposed a financial burden disproportionate to their individual stake in the matter. (See Planned Parenthood v. City of Santa Maria (1993) 16 Cal.App.4th 685, 691.)
However, assuming arguendo the court did not properly calculate the burden to appellants, the court also found any public benefit was coincidental, which is basically a finding there was no significant benefit. (See Lyons v. Chinese Hospital Assn., supra, 136 Cal.App.4th at p. 1351 [If the enforcement of the public interest is merely coincidental to the attainment of personal goals or is self serving, then the financial burden requirement is not meet.].) Appellants assert that conclusion is inconsistent with finding Yazdani’s property was a public nuisance and irrelevant to the abuse of discretion issue. A finding there was no significant benefit was very relevant as that is one of the elements necessary for an award of attorney fees pursuant to section 1021.5.
Yazdani asks this court to reverse that finding. That request is improper as Yazdani did not appeal from the judgment.
Even though Yazdani’s property was a public nuisance, abating that nuisance did not necessarily confer a significant benefit on a large class. In Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 635, the court discussed the element of a significant benefit:
“Because the public always has a significant interest in seeing that laws are enforced, it always derives some benefit when illegal private or public conduct is rectified. Nevertheless, the Legislature did not intend to authorize an award of fees under section 1021.5 in every lawsuit enforcing a constitutional or statutory right. The statute specifically provides for an award only when the lawsuit has conferred ‘a significant benefit’ on ‘the general public or a large class of persons.’ The trial court must determine the significance of the benefit and the size of the class receiving that benefit by realistically assessing the gains that have resulted in a particular case.
“When the record indicates that the primary effect of a lawsuit was to advance or vindicate a plaintiff’s personal economic interests, an award of fees under section 1021.5 is improper. ‘Section 1021.5 was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest.’ ‘Instead, its purpose is to provide some incentive for the plaintiff who acts as a true private attorney general, prosecuting a lawsuit that enforces an important public right and confers a significant benefit, despite the fact that his or her own financial stake in the outcome would not by itself constitute an adequate incentive to litigate.’” (Citations omitted.)
Appellants claim the thrust of their litigation was to obtain the enforcement of fire codes and the important public benefit they obtained was the injunction requiring Yazdani to comply with all fire codes. The nuisance allegations of the FAC do not support that claim. The alleged violation of fire codes was but one of the many detailed examples of unpermitted construction on Yazdani’s property along with the blockage of appellants’ ocean view. Moreover, this court does not have the record of the trial proceedings and must assume the trial court was in the best position to determine the gravamen of appellants’ action and whether or not it was personal or for a public benefit.
In Flannery, the court rejected the trial court’s finding that the plaintiff’s lawsuit, for harassment and wrongful termination in violation of the Fair Employment and Housing Act (FEHA) conferred a significant benefit on a large class because it sent a message to the CHP and other government agencies that sexual discrimination, sexual harassment and retaliation in violation of FEHA would not be tolerated as the primary effect of her action was the vindication of her own personal rights and economic interests. (Flannery v. California Highway Patrol, supra, 61 Cal.App.4th at pp. 636-637.)
In Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547, the plaintiff sought to enjoin construction of a cogeneration electrical plant adjacent to his residence. The trial court enjoined construction pending an environmental assessment under the California Environmental Quality Act, but denied the plaintiff’s request for attorney fees under section 1021.5 on the basis he had not satisfied the financial burden factor. The court looked at plaintiff’s estimated damages of $100,000 if the plant was built versus his fee claim of $22,000. The Court of Appeal held the trial court did not abuse its discretion in finding any public benefit was merely incidental to plaintiff’s personal interest in having the plant moved farther away from his property. (Id., at pp. 558-560.)
In Williams v. San Francisco Bd. of Permit Appeals (1999) 74 Cal.App.4th 961, the court granted plaintiff property owner’s petition for a stay to prevent the demolition of a single-story building and construction of a multi-story building next to his residence, but denied his request for section 1021.5 attorney fees. The trial court found requiring the defendant city to comply with its own planning code was incidental to plaintiff’s desire not to have an unsightly structure in his view. On appeal, the court held the trial court did not abuse its discretion in concluding that a property owner’s interest in maintaining the aesthetic integrity of his neighborhood and protecting his property’s privacy and access to light, air, and views constituted an individual stake equally as significant as a purely pecuniary one. (Id,. at pp. 965-971.)
Similarly, although Yazdani’s violation of fire codes might constitute a public nuisance (City and County of San Francisco v. City Investment Corp. (1971) 15 Cal.App.3d 1031, 1041-1042), abating that nuisance was not a principal motivation for appellants’ action; they are looking back from what they achieved not forward from what they hoped to achieve. The record before this court indicates any public benefit was indirect and speculative. Though the permanent injunction ordered Yazdani to abate the nuisance by complying with all fire codes, it also ordered him to obtain all necessary permits and pay all fees as required by any government agency and to complete the home in compliance with the Slide Waiver and all government permits. The judgment also awarded appellants nominal monetary damages of $2,500.
Because appellants did not meet the criteria of the statute, the court’s discretion was not limited. Based on information it was provided, the court made a reasoned decision and did not abuse its discretion in denying the motion for attorney fees. It would be unfair to give appellants a second bite of the apple after having failed to provide the court with even the most rudimentary information.
II. The portion of the order striking the expert witness fees is reversed and remanded.
A. The offer
Appellants’ section 998 offer, made by themselves acting in propria persona, consisted of ten items relating to nuisances Goodfriend had created. Appellants group those items into four categories:
1. Removal of the construction debris Goodfriend had buried on appellants’ property and on his own property, at his expense and under the supervision and with the approval of appellants and relevant government agencies, including obtaining any necessary permission for access from other adjoining property owners.
2. A permanent injunction against maintenance of foliage on Goodfriend’s property that interfered with appellants’ ocean view or protruded onto appellants’ property or that was over six feet in height.
3. A permanent injunction concerning fences and walls separating the two properties.
4. A permanent injunction against blowing or directing noxious or offensive fumes onto appellants’ property.
Appellants did not seek monetary payment other than “all costs of suit herein, including attorneys’ fees, if any.”
B. The Judgment
Judgment was in favor of appellants and against Goodfriend. The court granted injunctive relief:
1. Ordering Goodfriend to abate the continuing nuisance in accordance with the remediation plan of Steven Viani, appellant’s expert witness, within certain guidelines. The court eliminated about $43,000 worth of work from the budget proposed by Viani and ordered the cost of the remediation was not to exceed that budget. Viani was appointed to supervise the completion of the remediation plan, and the work was to be performed in compliance with any and all local, state and federal regulations, and Goodfriend was ordered to obtain and pay for all necessary permits and fees required by government agencies in connection with the remediation work.
2. The remediation was to include the removal of the construction debris and part of a railroad tie wall that Goodfriend had placed on appellants’ property.
3. Goodfriend was ordered to comply with all laws applying to height restrictions on fences, wall, trees, shrubs, flowers and plants.
C. The Law
“In construing section 998, we review the trial court’s decision de novo. With respect to the validity, or reasonableness, of a section 998 offer, we review the trial court’s determination for an abuse of discretion.” (Mesa Forest Products, Inc. v. St. Paul Mercury Ins. Co. (1999) 73 Cal.App.4th 324, 329.) Applying an incorrect legal standard is an abuse of discretion. (Cf. Lyons v. Chinese Hospital Assn., supra, 136 Cal.App.4th at p. 1344.)
“The purpose of section 998 is to encourage the settlement of litigation without trial. To effectuate the purpose of the statute, a section 998 offer must be made in good faith to be valid. Good faith requires that the pretrial offer of settlement be ‘realistically reasonable under the circumstances of the particular case.’” (Citations omitted.) (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262.) Furthermore, a section 998 offer must be clear and specific. (Berg v. Darden (2004) 120 Cal.App.4th 721, 727.)
Goodfriend moved to strike the expert witness fees from appellants’ cost memorandum on the grounds appellants were not the prevailing party, their offer was vague, and the judgment did not appoint appellants to supervise the debris removal or contain provisions relating to certain other items set forth in the offer.
In relevant part, section 998, subdivision (d) provides: “If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment . . . the court . . . in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, . . .”
In the instant case, the court found appellants were the prevailing parties for ordinary costs because they obtained the primary goal of their litigation in the injunction ordering Goodfriend to remediate the hillside, but it struck the expert fees on the grounds appellants “did not obtain a more favorable judgment than was contained in their 998 offer” because it had crafted the judgment to preclude any party from supervising the remediation work on Goodfriend’s property. The court made no findings as to whether or not appellants’ section 998 offer was in good faith, reasonable or clear and specific.
Appellants contend the court abused its discretion because it applied an incorrect legal ruling, i.e., it denied expert witness fees on the basis appellants (the plaintiffs) did not obtain a more favorable judgment while the statute provides that when plaintiffs make an offer, it is the defendant (Goodfriend) who must obtain the more favorable judgment. We agree that because the court used an incorrect standard, it abused its discretion. We will remand for the court to determine if Goodfriend obtained a more favorable judgment than the section 998 offer. (See Arias v. Katella Townhouse Homeowners Assn., Inc. (2005) 127 Cal.App.4th 847, 853-857.)
Whether or not Goodfriend obtained a more favorable judgment involves knowledge of the particulars of case and whether the injunctive relief granted by the court was more favorable to Goodfriend than the actions and injunctions contained in the offer. Any issues as to whether appellants’ offer was in good faith, reasonable, or too vague are for the trial court to decide in the first instance. (See Jones v. Dumrichob, supra, 63 Cal.App.4th at p. 1264; Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 700.)
Several times appellants state that a tie goes to the offeror; but they provide no legal authority to support that proposition. Moreover, even if Goodfriend did not obtain a more favorable judgment, the court could still decide to exercise its discretion not to award expert fees based on the circumstances of the case such as the ongoing hostilities between the parties. (See Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 315.)
Accordingly, we will reverse that part of the order striking the expert witness fees and remand for the trial court to determine whether Goodfriend obtained a more favorable judgment. If the trial court determines Goodfriend did not obtain a more favorable judgment, then the trial court is to determine whether appellants are otherwise entitled to expert witness fees and whether in its discretion the court will award those fees.
DISPOSITION
The portion of the order denying the request for attorneys fees is affirmed. The portion of the order striking the expert witness fees is reversed and remanded with directions for the trial court to determine whether Goodfriend obtained a more favorable judgment and, if he did not, whether appellants are otherwise entitled to expert witness fees and whether in its discretion the court will award those fees. Each party to bear their own costs on appeal.
We concur: PERLUSS, P.J. ZELON, J.