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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.
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.
