978-1285770178 Case Printout Case CPC-04-04 Part 3

during **357 the June 1999 negotiations between him and Persson, he

was clearly acting for Smart Inventions by the time the agreement was

executed, as his signature on behalf of Smart Inventions demonstrates.

Accordingly, his continued concealment of the Tap Light was an “act or

omission” of an officer of Smart Inventions within the scope of his

employment and, as a matter of law, the act or omission of Smart

Inventions. The trial court properly granted Persson’s motion for

judgment notwithstanding the verdict.

by

because the amount exceeded the amount of fees Persson actually

owed Rosen for services under the contingency fee agreement between

Persson and Rosen;

judgment was entered and post-trial motions were resolved, Smart

and consequently “there was no potential joint and several liability of the

Procedure section 998. They offered “to allow judgment to be taken

against them in this action, jointly and severally, in the total amount of

when the offer was made, Persson’s claims against Nokes and Smart

Inventions were not identical. At the time of the offer, the court had

already ruled that Smart Inventions owed no fiduciary duty to Persson,

Copr. © Bancroft-Whitney and West Group 1998

not be liable after trial for breach *1171 of fiduciary duty, the offer

encompasses all causes of action and all liability of both defendants.

The evaluation is straightforward, as is the ability to determine after trial

whether the offer was more favorable than the judgment. Persson

argues he is placed in an untenable position because he must either take

the unapportioned offer “or perhaps risk paying enormous post-offer

attorneys’ fees to only one of the Defendants.” There is no such risk.

The offer was joint, and Persson could not accept the offer as against

proposition that a section 998 offer made by multiple defendants is valid

only if the defendants are jointly and severally liable. Burch, however,

involved a plaintiff’s unapportioned offer to multiple defendants, an offer

Persson also cites several cases which affirmatively state that joint offers

by more than one defendant are valid when the defendants are sued on

a theory of joint and several liability. (E.g., Brown v. Nolan (1979) 98

not consider. None of the cases cited by the parties has expressly

addressed the question presented: whether a joint offer by two

defendants, in which the defendants offer to have judgment taken against

contain

ed no

uncerta

inty,

and did

not

require

Persso

require

d of a

plaintiff

easily

assess

his

defend

ants

totaling

and overhead of in-house counsel, and could instead use market value to

determine reasonable attorney fees. (Id. at pp. 1096-1097, 95

Cal.Rptr.2d 198, 997 P.2d 511.) This conclusion was reached even

means only fees a litigant actually pays or becomes liable to pay from his

own assets; court could award fees to employee who could not afford

counsel and was represented by Labor Commissioner].) [FN22]

therein.” (PLCM, supra, 22 Cal.4th at p. 1097, fn. 5, 95 Cal.Rptr.2d 198,

997 P.2d 511.) Trope held that an attorney who represents himself

cannot recover attorney fees under Civil Code section 1717; “otherwise,

apply in this case. [FN23] The varying *1175 reasons for these

decisions, however, do not assist Smart Inventions’ argument, which

asks us to construe a costs statute, Code of Civil Procedure section

In

short,

section

have

any

bearing

d as

costs in

a

FN23.

Civil

Code

costs and $614.05 in service of process costs, resulting in an excessive

*1178 DISPOSITION

The judgment against Jon Nokes is reversed to the extent it awards

damages for breach of fiduciary duty, and is otherwise affirmed. The

judgment against Smart Inventions on the cause of action for fraud by

concealment is affirmed. The order awarding attorney fees is reversed

and the cause is remanded to the trial court for further proceedings

consistent with this opinion. The parties are to bear their own costs on

appeal.