Filed 1/4/22; Modified and certified for publication 1/11/22 (order attached) 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ERIC ALVIN COVERT,

Plaintiff and Respondent,

v.

FCA USA, LLC,

Defendant and Appellant.

 B303663

 (Los Angeles County

 Super. Ct. No. BC629240)

APPEAL from orders of the Superior Court of Los Angeles 

County, Michelle Williams Court, Judge. Reversed and 

remanded with directions.

Horvitz & Levy, Lisa Perrochet, John A. Taylor, Jr.; 

Hawkins Parnell & Young, Barry R. Schirm and Ryan K. Marden 

for Defendant and Appellant.

Knight Law Group, Steve Mikhov, Roger Kirnos, Amy 

Morse; Century Law Group, Edward O. Lear, Rizza Gonzales; 

Greines, Martin, Stein & Richland and Cynthia E. Tobisman for 

Plaintiff and Respondent.

___________________________
2

A jury held automaker FCA US, LLC (FCA) liable to 

Eric Alvin Covert for breach of warranty under the Song-Beverly 

Consumer Warranty Act (Civ. Code, § 1790 et seq.; the 

Song-Beverly Act) and awarded Covert $48,416 in damages and 

penalties. About two months after Covert filed the lawsuit, FCA 

served Covert with a settlement offer pursuant to Code of Civil 

Procedure1 section 998 for $51,000, plus reasonable attorneys’ 

fees and costs, in exchange for dismissal of the action with 

prejudice. Covert filed objections to the section 998 offer. Fifteen 

months later FCA served Covert with a second section 998 offer 

for $145,000 with otherwise identical terms. FCA appeals from 

postjudgment orders denying its motion to tax costs incurred by 

Covert, including expert witness fees; granting Covert’s motion to 

tax costs incurred by FCA; and granting Covert’s motion for 

attorneys’ fees pursuant to Civil Code section 1794, 

subdivision (d).

On appeal, FCA contends both of its section 998 offers were 

valid, and because the jury awarded Covert less than the amount 

of either offer, the trial court erred in awarding Covert attorneys’ 

fees and costs and denying FCA its costs. Covert responds that 

both offers were invalid for the reasons set forth in his objections,

and the first offer was not in good faith because it was

premature. We agree with FCA that both offers were valid. 

However, the trial court abused its discretion in failing to 

consider whether the first offer was made in good faith. As to the 

second offer, Covert did not meet his burden to show it was not 

made in good faith. 

1 Further undesignated statutory references are to the Code 

of Civil Procedure.
3

Accordingly, we reverse the trial court’s orders and remand 

for the court to consider whether FCA’s first offer was made in 

good faith. If the trial court finds the first offer was made in good 

faith, the court shall award FCA its costs reasonably incurred 

after the first offer was served and deny Covert his attorneys’ 

fees and costs. If the court finds the first offer was not made in 

good faith, it shall award Covert his attorneys’ fees and costs 

reasonably incurred prior to the date the second offer was served 

and award FCA its costs, including expert witness fees, 

reasonably incurred thereafter.

BACKGROUND AND PROCEDURAL HISTORY

A. The Complaint 

On August 3, 2016 Covert filed this action against FCA and 

H.W. Hunter, Inc.,

2 asserting causes of action for breach of 

express warranty and breach of implied warranty in violation of 

the Song-Beverly Act, and a cause of action for fraudulent 

concealment. As alleged in the complaint, Covert purchased a 

2011 Dodge Ram 2500 pickup truck (the vehicle) from FCA 

through a Hunter dealership in Lancaster. The vehicle suffered 

from numerous defects, and between April 2011 and October 

2015, Covert brought the vehicle to a licensed repair facility on 

15 occasions for warranty repairs. Covert’s complaints included 

problems with the vehicle’s oxygen sensor, loss of power, engine 

noise, difficulty starting the engine, and multiple recalls, and on 

2 Hunter joined in both of FCA’s section 998 offers to Covert, 

but it did not participate in the trial and is not a party to the 

appeal.
4

at least six occasions the check engine light was illuminated. The 

complaint further alleged FCA knew and failed to disclose to 

Covert that the vehicle’s integrated power module suffered from 

defects that had led to irregular transmission activity and 

frequent illuminations of the check engine light in dozens of FCA 

vehicle models, and these defects were the subject of multiple 

regulatory investigations, recalls, technical service bulletins, 

consumer complaints, and a federal class action lawsuit filed in 

2013. 

On his causes of action under the Song-Beverly Act, Covert 

sought rescission of the vehicle contract and reimbursement of 

his purchase money, consequential damages, prejudgment 

interest, attorneys’ fees and costs, and a civil penalty of up to two 

times his actual damages due to FCA’s willful misconduct. 

Covert also sought punitive damages and prejudgment interest.3

B. FCA’s Section 998 Offers

On October 5, 2016—63 days after Covert filed the 

complaint—FCA served an offer to compromise pursuant to 

section 998 (first section 998 offer). The offer stated in 

3 The Song-Beverly Act provides in relevant part, “If the 

manufacturer or its representative in this state is unable to 

service or repair a new motor vehicle . . . to conform to the 

applicable express warranties after a reasonable number of 

attempts, the manufacturer shall either promptly replace the 

new motor vehicle . . . or promptly make restitution to the buyer.” 

(Civ. Code, § 1793.2, subd. (d)(2).) Although not specified in the 

complaint, we assume Covert’s prayer for punitive damages was 

based on his cause of action for fraudulent concealment because 

the Song-Beverly Act provides for civil penalties, but not punitive 

damages.
5

substantial part: “Pursuant to [section] 998, defendants [FCA] 

and [Hunter], jointly, without admitting liability, offers [sic] to 

pay in exchange for dismissal of this action with prejudice in its 

entirety and return of the vehicle that is the subject of this 

lawsuit, the sum of $51,000.00. In addition, [FCA and Hunter], 

jointly offer to pay reasonable costs, expenses and attorneys’ fees 

based on actual time expended pursuant to . . . section 1794(d) as 

stipulated by the parties or, if the parties cannot agree, upon 

motion to the Court having jurisdiction over this action. [¶]

Except as set forth herein, above, each party shall bear its own 

attorneys’ fees and costs of suit.” The offer provided that it was 

made pursuant to Goodstein v. Bank of San Pedro (1994) 

27 Cal.App.4th 899 (Goodstein) “in that a judgment will not be 

entered. Rather the Complaint will be dismissed.”

4 The offer

described the mechanism for acceptance of the offer, but it did not 

provide any details about the mechanics of payment, return of 

the vehicle, or dismissal of the action.

On November 7, 2016 Covert served objections to the first 

section 998 offer, contending the offer was vague, ambiguous, and 

4 In Goodstein, supra, 27 Cal.App.4th at pages 905-906 and 

footnote 4, this court concluded a defense settlement offer 

providing for dismissal of the action with prejudice was subject to 

former section 998, subdivision (b), which at the time applied to

offers “to allow judgment to be taken in accordance with the 

terms and conditions stated at that time.” This court reasoned, 

“[A]s between the parties thereto and for purposes of enforcement 

of settlement agreements, a compromise agreement 

contemplating payment by defendant and dismissal of the action 

by plaintiff is the legal equivalent of a judgment in plaintiff's 

favor.” (Id. at p. 907.)
6

uncertain because it failed to: (1) specify whether it included 

post-acceptance attorneys’ fees and costs; (2) address entitlement 

to prejudgment or postjudgment interest; (3) specify whether 

Covert was required to sign a separate release agreement; 

(4) contain a “good faith and reasonable offer component”; 

(5) specify the date on which Covert would receive payment; and 

(6) specify the date by which Covert would be required to 

surrender the vehicle. Covert also objected that the offer was 

unreasonable given the early stage of the litigation: “[Covert] is 

unable to fully analyze the value of [Covert’s] claims against 

Defendants, such as the willfulness and maliciousness of 

Defendants’ actions, as the complaint was filed less than three (3) 

months ago, and adequate discovery has not taken place.” 

On January 5, 2018, three weeks before the date then set 

for trial, FCA served a second section 998 offer. The offer was 

identical in all material respects to the first section 998 offer, 

except the settlement payment was raised to $145,000. Covert 

did not serve objections to the second offer and did not accept it 

before it lapsed. 

C. Jury Verdict and Judgment

After an eight-day jury trial, starting on May 6, 2019, the 

jury returned a special verdict finding FCA liable for breach of 

express written warranty and not liable for breach of implied 

warranty and fraudulent concealment. The jury awarded Covert 

$42,416 in damages based on its finding that Covert paid $49,726 

for the vehicle and incurred $5,500 in incidental and 

consequential damages, less $12,810 for the value of Covert’s use 

of the vehicle based on the 27,836 miles driven. The jury also 

imposed a penalty of $6,000, for a total award of $48,416. On 
7

June 12, 2019 the trial court entered judgment on the jury’s 

verdict, leaving open the determination of prejudgment and 

postjudgment interest, attorneys’ fees, and costs, which would be 

included in an amended judgment. 

D. Postjudgment Motions for Attorneys’ Fees and Costs

Following entry of judgment, Covert filed a memorandum 

of costs seeking $55,015 in costs, including $27,630 in expert 

witness fees, and a motion for $294,433 in attorneys’ fees (using a 

lodestar of $196,289 with a 50 percent enhancement). Covert 

also filed a motion for prejudgment interest of at least $14,206.

5

FCA filed its own memorandum of costs, seeking $69,178 in costs, 

including $66,951 in expert witness fees. 

FCA filed a motion to tax Covert’s costs, arguing

section 998, subdivision (c)(1), precluded Covert’s recovery of 

costs, including expert witness fees, incurred after the first 

section 998 offer because FCA’s offer of $51,000 exceeded Covert’s

total award of $48,416.6 FCA likewise opposed Covert’s motion 

for attorneys’ fees, arguing Covert’s recovery was less than either 

5 Covert sought prejudgment interest calculated either from 

the date of the purchase of the vehicle ($37,414) or from the filing 

of the complaint ($14,206).

6 FCA also objected to many of the costs claimed by Covert as 

nonrecoverable under section 1033.5, subdivision (b). In its 

opposition to Covert’s motion for attorneys’ fees, FCA also 

challenged the reasonableness of the attorneys’ bills, the 

severability of fees billed to the unsuccessful fraud cause of 

action, the lodestar, and the application of a multiplier. FCA 

does not raise these challenges on appeal.
8

of FCA’s section 998 offers, and therefore the subsequent 

attorneys’ fees were not reasonably incurred. 

FCA argued that both its offers were valid and Covert’s 

attorneys had executed almost identical section 998 offers made 

by FCA in prior lawsuits, which showed that Covert’s attorneys 

were capable of evaluating these offers but instead “determined 

to risk it all at trial, rather than earnestly contemplate the true 

value of their clients’ case.” 

Covert opposed FCA’s motion to tax costs and moved to tax 

FCA’s costs on the basis both section 998 offers were invalid on 

the grounds set forth in his objections to the first offer, and the 

first section 998 offer was premature and not ascertainable.

7 In 

his reply brief in support of his motion for attorneys’ fees, Covert 

highlighted that the failure of the offers to specify when FCA 

would pay and when Covert would need to surrender the vehicle 

were problematic because in similar lawsuits FCA had often 

delayed this process for months, forcing plaintiffs’ attorneys 

regularly to file motions to enforce the settlements and to seek 

sanctions.

8 

7 Covert also argued in his motion to tax FCA’s costs that 

even if FCA’s first section 998 offer was valid, his recovery would 

ultimately exceed the offered $51,000 because it would include at 

least $14,206 in prejudgment interest. However, the trial court 

denied prejudgment interest. 

8 Covert requests we take judicial notice of a writ of 

execution, declaration of accrued interest, and declaration in 

support of calculation on interest accrued on unpaid judgment

that Covert filed in the trial court after this appeal was taken,

which he contends is evidence he was reasonably concerned FCA 

would fail to perform its payment obligations under the 
9

After a hearing, on November 26, 2019 the trial court 

issued a three-page order ruling on the parties’ respective 

motions to tax costs and Covert’s motions for attorneys’ fees and

prejudgment interest. The court denied FCA’s motion to tax 

costs, finding Covert was the prevailing plaintiff on his

Song-Beverly Act claim, and thus, entitled under Civil Code 

section 1794, subdivision (d), to recover all reasonable costs and 

expenses, and further, Covert’s claimed costs were reasonable. 

The court granted Covert’s motion for attorneys’ fees in part, 

finding the bills and rates were reasonable and Covert was 

entitled to recover $196,289 in fees billed, but without a 

multiplier. The court granted Covert’s motion to tax FCA’s costs, 

sustaining Covert’s objections to the first section 998 offer on the 

grounds it “was vague, ambiguous and uncertain, did not address 

[Covert’s] entitlement to prejudgment or postjudgment interest, 

did not specify whether it would require [Covert] to sign a 

separate release, did not include a provision concerning good 

faith settlement, and was unreasonable.” The court did not 

address FCA’s second section 998 offer. Finally, the court denied 

Covert’s motion for prejudgment interest, finding the vehicle’s 

defects and the mileage at which the defects presented were 

contested issues not ascertainable before trial. 

section 998 offers absent a term specifying the time for payment. 

We deny Covert’s request because the documents were not before 

the trial court and are not relevant on appeal. (See Vons 

Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, 

fn. 3 [“Reviewing courts generally do not take judicial notice of 

evidence not presented to the trial court.”]; Coyne v. City and 

County of San Francisco (2017) 9 Cal.App.5th 1215, 1223, fn. 3 

[denying judicial notice as to documents that were not relevant to 

court’s analysis].)
10

FCA timely appealed from the November 26, 2019 orders.

9 

DISCUSSION

A. Recovery of Costs Under Section 998 

“‘“[C]osts” of a civil action consist of the expenses of 

litigation . . . . The right to recover any such costs is determined 

entirely by statute.”’ (Olson v. Automobile Club of Southern 

California (2008) 42 Cal.4th 1142, 1148; accord, Khosravan v. 

Chevron Corp. (2021) 66 Cal.App.5th 288, 294 (Khosravan).) 

Section 998, subdivision (b), provides, “Not less than 10 days 

prior to commencement of trial or arbitration . . . , any party may 

serve an offer in writing upon any other party to the action to 

allow judgment to be taken or an award to be entered in 

accordance with the terms and conditions stated at that time. 

The written offer shall include a statement of the offer, 

containing the terms and conditions of the judgment or award, 

and a provision that allows the accepting party to indicate 

9 Although FCA’s notice of appeal listed only Covert’s motion 

for attorneys’ fees and Covert’s motion to tax costs, we construe 

the notice to include FCA’s appeal from the trial court’s denial of 

FCA’s motion to tax costs because the notice stated FCA was 

appealing from the orders entered on November 26, 2019. (See 

Cal. Rules of Court, rule 8.100(a)(2) [“The notice of appeal must 

be liberally construed.”]; K.J. v. Los Angeles Unified School Dist.

(2020) 8 Cal.5th 875, 882 [“Rule 8.100(a)(2)’s liberal construction 

requirement reflects the long-standing ‘“law of this state that 

notices of appeal are to be liberally construed so as to protect the 

right of appeal if it is reasonably clear what [the] appellant was 

trying to appeal from, and where the respondent could not 

possibly have been misled or prejudiced.”’”])
11

acceptance of the offer by signing a statement that the offer is 

accepted.” Section 998, subdivision (c)(1), provides, “If an offer 

made by a defendant is not accepted and the plaintiff fails to 

obtain a more favorable judgment or award, the plaintiff . . . shall 

pay the defendant’s costs from the time of the offer. In 

addition, . . . the court . . . , in its discretion, may require the 

plaintiff to pay a reasonable sum to cover postoffer costs of the 

services of expert witnesses, who are not regular employees of 

any party, actually incurred and reasonably necessary in either, 

or both, preparation for trial . . . , or during trial . . . , of the case 

by the defendant.” Section 998 thus modifies the general cost 

recovery provisions of sections 1031 and 1032. (§ 998, subd. (a) 

[“The costs allowed under Sections 1031 and 1032 shall be 

withheld or augmented as provided in this section.”].) 

On a motion to strike or tax costs, “[t]he burden is on the 

offering party to demonstrate that the offer is valid under 

section 998.” (Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, 86; 

accord, Khosravan, supra, 66 Cal.App.5th at p. 294.) “The offer 

must be strictly construed in favor of the party sought to be 

bound by it.” (Ignacio, at p. 86; accord, Khosravan, at p. 295.) 

“‘We independently review whether a section 998 settlement offer 

was valid. In our review, we interpret any ambiguity in the offer 

against its proponent.’” (Prince v. Invensure Ins. Brokers, Inc.

(2018) 23 Cal.App.5th 614, 622; accord, Menges v. Department of 

Transportation (2020) 59 Cal.App.5th 13, 20 (Menges) [the 

validity of an offer to compromise under section 998 “is subject to 

de novo review”].)

“‘An offer to compromise under . . . section 998 must be 

sufficiently specific to allow the recipient to evaluate the worth of 

the offer and make a reasoned decision whether to accept the 
12

offer.”’ (Menges, supra, 59 Cal.App.5th at p. 26; accord, 

Khosravan, supra, 66 Cal.App.5th at p. 295.) “The inclusion of 

nonmonetary terms and conditions does not render a section 998 

offer invalid; but those terms or conditions must be sufficiently 

certain and capable of valuation to allow the court to determine 

whether the judgment is more favorable than the offer.” (Menges, 

at p. 26; accord, Khosravan, at p. 295; Valentino v. Elliott Sav-On 

Gas, Inc. (1988) 201 Cal.App.3d 692, 697 (Valentino) [“[A]n ‘offer’

includes all its terms and conditions and must be evaluated in 

the light of all those terms and conditions.”].)

“‘To further the purposes of promoting reasonable 

settlement under section 998, we must consider the validity of 

section 998 offers as of the date the offers are served.’” 

(Khosravan, supra, 66 Cal.App.5th at p. 295; accord, Valentino, 

supra, 201 Cal.App.3d at p. 698 [the value of terms and 

conditions of a section 998 offer must be evaluated “as of the 

time” the offer was made “without the benefit of hindsight”].) 

“Where a defendant’s settlement offer contains terms that make 

it ‘exceedingly difficult or impossible to determine the value of 

the offer to the plaintiff[,] . . . a court should not undertake 

extraordinary efforts to attempt to determine whether the 

judgment is more favorable to the plaintiff. Instead, the court 

should conclude that the offer is not sufficiently specific or certain 

to determine its value and deny cost shifting under Code of Civil 

Procedure section 998.’” (Khosravan, supra, 66 Cal.App.5th at 

p. 295; accord, Fassberg Construction Co. v. Housing Authority of 

City of Los Angeles (2007) 152 Cal.App.4th 720, 766 (Fassberg); 

see Valentino, at p. 700 [courts should not “engage[] in pure 

guesswork”].) 
13

Once the offeror shows the section 998 offer is valid, the 

burden shifts to the offeree to show the offer was not made in 

good faith. (Licudine v. Cedars-Sinai Medical Center (2019) 

30 Cal.App.5th 918, 926 (Licudine); Adams v. Ford Motor Co. 

(2011) 199 Cal.App.4th 1475, 1484 (Adams).) Only settlement 

offers made in good faith are effective under section 998. 

(Licudine, at p. 924; Elrod v. Oregon Cummins Diesel, Inc. (1987) 

195 Cal.App.3d 692, 698 (Elrod) [“[w]e therefore conclude the 

Legislature intends that only good faith settlement offers qualify 

as valid offers under section 998”].) “‘“Where . . . the offeror 

obtains a judgment more favorable than its offer, the judgment 

constitutes prima facie evidence showing the offer was reasonable 

and the offeror is eligible for costs as specified in section 998.”’” 

(Adams, at p. 1484; accord, Khosravan supra, 66 Cal.App.5th at

p. 295.) 

However, an offer is only made in good faith if the offer 

“‘“carr[ies] with it some reasonable prospect of acceptance.”’” 

(Licudine, supra, 30 Cal.App.5th at p. 924; accord, Adams, 

supra,199 Cal.App.4th at p. 1483.) “Whether a section 998 offer 

has a reasonable prospect of acceptance is a function of two 

considerations, both to be evaluated in light of the circumstances 

‘“at the time of the offer’” and ‘“not by virtue of hindsight.’” 

[Citations.] First, was the 998 offer within the ‘range of 

reasonably possible results’ at trial, considering all of the 

information the offeror knew or reasonably should have known? 

[Citation.] Second, did the offeror know that the offeree had 

sufficient information, based on what the offeree knew or 

reasonably should have known, to assess whether the ‘offer [was] 

a reasonable one,’ such that the offeree had a ‘fair opportunity to 
14

intelligently evaluate the offer’?” (Licudine, at pp. 924-925; 

accord, Adams, at p. 1485.)

“Although the party making a 998 offer generally has the 

burden of showing that [the] offer is valid [citations], it is the 998 

offeree who bears the burden of showing that an otherwise valid 

998 offer was not made in good faith.” (Licudine, supra, 

30 Cal.App.5th at p. 926; accord, Elrod, supra, 195 Cal.App.3d at 

p. 700.) “Whether a section 998 offer was reasonable and made in 

good faith is a matter left to the sound discretion of the trial 

court, and will not be reversed on appeal except for a clear abuse 

of discretion.” (Najera v. Huerta (2011) 191 Cal.App.4th 872, 877; 

accord, Licudine, at p. 923.) 

B. The Interplay Between Code of Civil Procedure Section 998 

and Civil Code Section 1794

Civil Code section 1794, subdivision (d), provides that a 

prevailing buyer in an action under the Song-Beverly Act “shall 

be allowed by the court to recover as part of the judgment a sum 

equal to the aggregate amount of costs and expenses, including 

attorney’s fees based on actual time expended, determined by the 

court to have been reasonably incurred by the buyer in 

connection with the commencement and prosecution of such 

action.” (Accord, Hanna v. Mercedes-Benz USA, LLC (2019) 

36 Cal.App.5th 493, 506.)

FCA contends the cost-shifting provisions of section 998 

supersede a buyer’s entitlement to attorneys’ fees under Civil 

Code section 1794, subdivision (d), citing Duale v. Mercedes-Benz

USA, LLC (2007) 148 Cal.App.4th 718 (Duale). In Duale, the 

Court of Appeal analyzed the interplay between Code of Civil 

Procedure section 998 and Civil Code section 1794 and concluded 
15

the trial court erred in declining to apply section 998 to limit the 

prevailing Song-Beverly Act plaintiffs’ recovery of attorneys’ fees 

where the defendants’ section 998 offer exceeded the verdict for 

the plaintiffs. The court based its analysis on Murillo v. 

Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 1000 (Murillo), 

in which the Supreme Court held with respect to prevailing 

defendants that Civil Code section 1794 “provides no exception to 

the provisions of section 998.” 

In Murillo, the defendant sellers of mobile homes prevailed 

at trial on the plaintiff buyer’s Song-Beverly Act claims. 

(Murillo, supra, 17 Cal.4th at pp. 988-989.) The trial court 

denied the buyer’s motion to strike or tax costs and awarded the 

sellers their prevailing party costs under Code of Civil Procedure 

section 1032, subdivision (b), and, because the buyer rejected the 

sellers’ settlement offer, the court awarded the sellers their

expert witness fees under Code of Civil Procedure section 998. 

The Supreme Court upheld the trial court’s ruling, rejecting the 

buyer’s contention that Civil Code section 1794 provided the 

exclusive mechanism for cost recovery in a Song-Beverly Act case 

and precluded recovery of costs under Code of Civil Procedure 

sections 998 and 1032. (Murillo, at pp. 988, 990.) Applying 

principles of statutory construction, the Supreme Court explained 

that Code of Civil Procedure section 1032, subdivision (b), grants 

a prevailing party the right to recover costs “‘[e]xcept as 

otherwise expressly provided by statute,’” and Civil Code 

section 1794, subdivision (d), did not expressly prohibit prevailing 

sellers from recovering their costs. (Murillo, at pp. 990-991, 

italics omitted.)

In response to the buyer’s contention the three costrecovery provisions were inconsistent, the Murillo court reasoned 
16

the sections could be reconciled: “On the one hand, if a buyer 

should prevail in an action under the [Song-Beverly] Act, he or 

she is entitled to costs, expenses, and attorney fees as set forth in 

Civil Code section 1794(d). On the other hand, if a seller should 

prevail in an action brought under the Act, it is entitled to costs 

under section 1032(b). We thus perceive no conflict or 

inconsistency . . . .” (Murillo, supra, 17 Cal.4th at p. 992.) 

Further, “[h]aving concluded Civil Code section 1794(d) fails to 

set forth an express exception to the general cost-recovery rule 

set forth section 1032(b), we likewise conclude it provides no 

exception to the provisions of section 998. Section 998 explicitly 

states that it ‘augment[s]’ section 1032(b). Thus, the 

requirements for recovery of costs and fees under section 998 

must be read in conjunction with section 1032(b), including the 

requirement that section 998 costs and fees are available to the 

prevailing party ‘[e]xcept as otherwise expressly provided by 

statute.’” (Murillo, at p. 1000.) 

In Duale, the Court of Appeal acknowledged that “Murillo

did not consider the situation posed here, i.e., when a seller who 

does not prevail at trial claims entitlement to section 998 costs 

and fees.” (Duale, supra, 148 Cal.App.4th at p. 727.) The court 

nonetheless concluded, “We see no reason not to extend the 

Supreme Court’s reasoning in Murillo to include the 

circumstances posed here. Nothing in the relevant statutes or 

applicable case law suggests the Legislature intended to exempt 

lemon law plaintiffs from the ‘carrot and stick’ of section 998’s 

provisions encouraging settlement of pending cases. [Citation.] 

Nor is the Song-Beverly Act’s purpose inconsistent with the 

application of the section 998 provision restricting the ability of 

prevailing plaintiffs to recover attorney fees and costs if they fail 
17

to recover more at trial than a rejected pretrial settlement offer. 

The [A]ct allows prevailing injured car buyers to recover attorney 

fees and costs in order to render such lawsuits ‘economically 

feasible’ [citing Murillo, supra, 17 Cal.4th at p. 994]; but 

declining to award such a buyer postoffer attorney fees and costs 

if he has refused a reasonable pretrial settlement offer does not 

defeat that purpose. An injured plaintiff may be encouraged to 

sue by the prospect of recovering his costs if successful, but no 

articulated public policy is served by allowing him to maintain a 

lawsuit that loses its economic viability by virtue of the seller’s 

willingness to settle on terms better than those a jury will 

award.” (Duale, at p. 728.)

In his respondent’s brief, Covert contends we should reject 

Duale’s “unsound expansion of Murillo” because the Supreme 

Court’s holding in Murillo was based on the court’s reconciliation 

of the cost-recovery statutes in the context of a prevailing seller, 

but where the buyer prevails, there is a conflict between Civil 

Code section 1794 and the cost-recovery provisions of Code of 

Civil Procedure sections 998 and 1032. We agree with Covert 

that Murillo’s finding that there is no conflict between Civil Code 

section 1794 and Code of Civil Procedure sections 998 and 1032 

does not hold true in the context of a prevailing buyer who rejects 

a section 998 offer. In that situation, the prevailing buyer would 

be entitled to attorneys’ fees and costs under Civil Code 

section 1794, but the seller would be entitled to its costs, 

including expert witness fees, under Code of Civil Procedure 

sections 998 and 1032, as long as it made a valid good faith offer 

that exceeded the buyer’s recovery. 

However, Covert’s argument still fails because, as the 

Court of Appeal explained in Duale, supra, 148 Cal.App.4th at 
18

page 728, the Supreme Court’s holding in Murillo was also 

premised on the Legislature’s expressed intent in section 998 to 

encourage settlement. (Murillo, supra, 17 Cal.4th at p. 1001.) 

“‘If we find the statutory language ambiguous or subject to more 

than one interpretation, we may look to extrinsic aids, including 

legislative history or purpose to inform our views.’” (In re A.N. 

(2020) 9 Cal.5th 343, 351-352; accord, ZB, N.A. v. Superior Court 

(2019) 8 Cal.5th 175, 189.) As the Murillo court explained with 

respect to the legislative intent of the Song-Beverly Act and Code 

of Civil Procedure section 998, “Although the Legislature’s 

purpose in enacting the Song-Beverly Act was admittedly to 

encourage consumers to enforce their rights under the Act, 

nothing in Civil Code section 1794(d) suggests this legislative 

purpose should override the Legislature’s desire—expressed in 

section 998—to encourage the settlement of lawsuits.” (Murillo, 

at p. 1001.)

Regardless of which party prevails at trial, there is no 

conflict between the Song-Beverly Act’s incentives that are 

designed to make it economically feasible for a buyer to seek 

redress through litigation, notwithstanding that his or her 

damages will generally be limited to include only the vehicle’s 

value, civil penalties up to double the amount of damages, and 

incidental damages (thus providing for only limited attorneys’ 

fees under a contingency fee agreement), and Code of Civil 

Procedure section 998’s incentive to encourage fair pretrial 

settlements. (Duale, supra, 148 Cal.App.4th at p. 728.) Indeed, 

the two provisions working in tandem create a more efficient 

mechanism for bringing consumers substantial relief by 

incentivizing the filing of an action to seek redress while 

encouraging a reasonable settlement that reduces the delay and 
19

legal expenses of trial. Accordingly, we conclude that a valid and 

reasonable section 998 offer by the seller, where the buyer

recovers less than the offer, precludes recovery by the buyer of 

postoffer attorneys’ fees and costs under Code of Civil Procedure 

section 1794, subdivision (d).10

C. FCA’s Section 998 Offers Were Valid

FCA contends the trial court erred in sustaining Covert’s 

objections to the first section 998 offer and in impliedly 

invalidating the second offer with identical nonmonetary terms

on the same grounds.

11 Covert responds that the nonmonetary 

terms made the offers uncertain, and FCA, as the party seeking 

to enforce the offers, failed to meet its burden to demonstrate 

their validity. We review the validity of the offers de novo and 

conclude they were “‘sufficiently specific to allow the recipient to 

10 In Hanna v. Mercedes-Benz USA, LLC, supra, 

36 Cal.App.5th at page 508, we upheld an award of attorneys’ 

fees and costs to the plaintiff buyer on her Song-Beverly Act 

claim but reversed the attorneys’ fees award as improperly 

calculated. We assumed, but did not specifically reach, that a 

defendant’s valid and reasonable section 998 offer would bar a 

prevailing Song-Beverly Act plaintiff’s recovery of attorneys’ fees 

and costs. We concluded that the plaintiff’s rejection of the 

defendant’s section 998 offer did not bar the plaintiff’s recovery of 

attorneys’ fees and costs because the offer contained unfavorable 

terms, and “[r]ejecting a settlement offer because of unfavorable 

terms is neither unreasonable nor a permissible ground for 

denying an award of attorney fees under the Song-Beverly Act.” 

(Ibid.)

11 We follow the parties’ approach to treat Covert’s objections 

as if they were asserted with respect to both section 998 offers.
20

evaluate the worth of the offer and make a reasoned decision 

whether to accept the offer.”’ (Menges, supra, 59 Cal.App.5th at 

p. 26.) 

1. Failure to address post-acceptance attorneys’ fees

The section 998 offers provided, “[D]efendants offer to pay 

reasonable costs, expenses and attorneys’ fees based on actual 

time extended pursuant to Civil Code section 1794(d) as 

stipulated by the parties or, if the parties cannot agree, upon 

motion to the Court, having jurisdiction over this action.” Covert 

objected that he was “unable to ascertain whether Defendants 

are offering to pay post-acceptance fees that may be incurred in 

this litigation.” Covert argued that if he were required to pay his 

attorneys for “post-offer clarification, enforcement of the offer, or 

any appeals or writs following rulings related to any of the 

foregoing,” those expenses could “essentially eviscerate” the 

monetary offer. 

Covert’s objection lacks merit. The payment provision of 

the section 998 offers expressly incorporated Civil Code 

section 1794, subdivision (d), which provides, “If the buyer 

prevails in an action under this section, the buyer shall be 

allowed by the court to recover as part of the judgment a sum 

equal to the aggregate amount of costs and expenses, including 

attorney’s fees based on actual time expended, determined by the 

court to have been reasonably incurred by the buyer in 

connection with the commencement and prosecution of such 

action.” Covert has provided no authority for the proposition that 

post-offer attorneys’ fees cannot be recovered in a motion under 

Civil Code section 1794, subdivision (d), as fees incurred in the 
21

“prosecution of [the] action.” Covert’s entitlement to fees would 

end only when prosecution of the action ends upon dismissal.

2. Failure to address prejudgment and postjudgment 

interest

Covert objected that FCA’s section 998 offers did “not 

address [Covert’s] entitlement to pre-judgment interest or postjudgment interest.” This objection lacks merit. “Prejudgment 

interest is an element of damages, not a cost.” (Warren v. Kia 

Motors America, Inc. (2018) 30 Cal.App.5th 24, 43.) Covert’s 

complaint included a prayer for damages, including prejudgment 

interest, and thus in evaluating the section 998 offer, Covert

necessarily had to weigh the amount offered against his potential 

trial recovery, including prejudgment interest. The trial court 

ultimately found Covert was not entitled to prejudgment interest 

because the amount of damages was a contested issue not 

ascertainable before trial. (See Duale, supra, 148 Cal.App.4th at 

p. 729 [trial court properly disallowed prejudgment interest on

Song-Beverly Act award because the damages depended on trial 

resolution of disputed warranty-related issues].) That Covert’s 

right to prejudgment interest was questionable may have made it 

difficult for him to estimate his likely trial recovery, but no more 

so than the amount of damages he was likely to recover at trial.

Covert’s objection that the section 998 offers did not 

address postjudgment interest borders on the frivolous. The 

offers provided “that a judgment will not be entered,” and thus,

there would be no unpaid judgment on which interest would be 

owed. 
22

3. Failure to specify whether FCA would require a 

separate release

Covert objected that the section 998 offers did not specify 

whether he would be required to sign a separate release 

agreement. This objection fares no better. The section 998 offers

provided for payment “in exchange for dismissal of this action 

with prejudice in its entirety and return of the vehicle that is the 

subject of this lawsuit.” This language did not create a likelihood 

that Covert would have to provide a release any broader than the 

lawsuit that was being dismissed. Goodstein, supra,

27 Cal.App.4th 899 is instructive. This court in Goodstein 

rejected the plaintiff’s argument that a section 998 offer that 

required execution of a general release with a dismissal with 

prejudice was invalid because the terms of the release were not 

specified. (Id. at p. 907.) Because the offer’s requirement of a 

release was preceded by the phrase “‘in full settlement of this 

action,’” this court concluded the offer could not reasonably be 

construed to require a broader release of present and future 

possible causes of action against the defendant. (Ibid.; see 

Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 272 [where 

section 998 offer required “‘mutual release of all current claims 

against one another’” and “‘mutual dismissal with prejudice of 

the parties’ lawsuits against one another,’” offer could be valued 

because, construing the language to be valid and enforceable, it 

was limited to release of claims in the lawsuit].) 

Here, the offers did not include a release requirement at 

all. Covert’s contention the absence of a release requirement 

could somehow bind him to a broad release is even further afield 

from the positions rejected by the courts in Goodstein and 
23

Lithicum and is not supported by any reasonable construction of 

the offers.

4. Failure to contain an express good faith provision

Covert objected that the offers “fail[ed] to contain an 

express good faith and reasonable offer component,” and

therefore was invalid. In its order sustaining the objection, the 

trial court characterized the defect as the omission of a provision 

“concerning good faith settlement.” On appeal, FCA argues that 

section 998 does not require that an offer of compromise contain a 

“reasonable offer” or “good faith settlement” provision, and it is 

unclear what language Covert believes was required. Covert fails 

to address in his respondent’s brief why the lack of a good faith 

offer component rendered the offers uncertain, or what such a 

component would entail. We reject Covert’s position as lacking 

support.

5. Lack of specific payment date

Covert objected that the lack of a specific date by which 

FCA was required to make the settlement payment rendered the 

section 998 offers uncertain. Covert argued that FCA regularly 

delays payment of settlement amounts for months, and in other 

Song-Beverly Act lawsuits against FCA, Covert’s attorneys “have 

been forced to regularly file motions to enforce settlement and for 

sanctions” when the offer does not contain a specific date for 

payment. In his respondent’s brief, Covert postulates two 

possible scenarios, one in which a section 998 offer requires a 

plaintiff to dismiss the action with prejudice 20 days before 

payment, and another in which the plaintiff must dismiss the 

action with prejudice 20 days after payment, observing that the 
24

second scenario is clearly more valuable to a plaintiff. Covert’s 

argument is based on a false premise—there is nothing in the 

section 998 offer that would require Covert to dismiss his case 

before FCA makes its payment.

Moreover, as FCA argues, the Courts of Appeal have 

repeatedly upheld the validity of section 998 offers without a 

payment date. (See, e.g., Goodstein, supra, 27 Cal.App.4th at 

p. 905 [bank’s offer provided that it would pay Goodstein 

$150,000 “‘[i]n full settlement of this action’” in exchange for a 

request for dismissal and “‘execution and transmittal of a 

General Release by [Goodstein] in favor of [Bank],’” with the 

parties to bear their own costs and attorneys’ fees]; Auburn 

Woods I Homeowners Association v. State Farm General 

Insurance Company (2020) 56 Cal.App.5th 717, 726 [offer 

provided for payment of $35,000 “‘in full settlement of all 

claims . . . asserted by [HOA] in this action against [State Farm] 

or Frank Lewis or both’” in exchange for request for dismissal 

with prejudice and execution of settlement agreement and release 

that would “‘forever end this case and the underlying disputes 

between [HOA] and each defendant’”].)

Covert cites no authority for his contention that an offer to 

pay money in exchange for a dismissal without a payment date 

renders the offer invalid. Further, under FCA’s section 998 

offers, Covert controlled when he would dismiss the action, and 

he was entitled to recover his attorneys’ fees and costs reasonably 

incurred in prosecuting the action. These provisions created a 

significant disincentive for FCA to engage in gamesmanship in 

delaying payment. 
25

6. Lack of specific vehicle surrender date

FCA offered a monetary payment “in exchange for 

dismissal of this action with prejudice in its entirety and return 

of the vehicle.” Covert objected the offers “lack[ed] specificity 

regarding the date [Covert] will be required to surrender the 

Subject Vehicle, thus making the offer uncertain.” Covert agues 

in his respondent’s brief that the absence of a term linking FCA’s 

payment to Covert’s surrender of the vehicle creates a potential 

for abuse because FCA could require Covert to return the vehicle 

before making the settlement payment, leaving Covert with no 

vehicle and no compensation. As he argues, even if the trial court 

were to construe the section 998 offers to require FCA to perform 

within a reasonable amount of time, “what is reasonable to a 

global corporation is not necessarily reasonable to an individual 

consumer. For example, while corporations may construe a 

reasonable time for payment on a commercial account to be 

30 days, it is unreasonable to expect a consumer to endure 

30 days without any vehicle or the funds to buy a new one.” 

(Italics omitted.)

Covert’s objection has superficial appeal because FCA could

refuse to make a settlement payment until the vehicle is 

surrendered. But this does not invalidate the offer for lack of 

certainty. For a section 998 offer to be valid, “[a]ny nonmonetary 

terms or conditions must be sufficiently certain and capable of 

valuation to allow the court to determine whether the judgment 

is more favorable than the offer.” (Fassberg, supra, 

152 Cal.App.4th at pp. 764-765; accord, MacQuiddy v. MercedesBenz USA, LLC (2015) 233 Cal.App.4th 1036, 1050 [“To be valid, 

an offer under section 998 may include nonmonetary terms and 

conditions, but it must be unconditional.”].) Covert had sufficient 
26

information on which to make a reasoned decision whether to 

accept FCA’s offers. The risk he identifies—surrendering his car 

before being paid—is the same risk posed by entry of a judgment 

after trial. As with the payment date, Covert can ensure 

compliance before dismissing the action, which increases the 

value of the settlement relative to a trial recovery. 

MacQuiddy v. Mercedes-Benz USA, LLC, supra, 

233 Cal.App.4th at page 1050, relied on by Covert, is not to the 

contrary. There, the Court of Appeal concluded a section 998 

offer was ambiguous, and thus invalid, where the defendant 

offered to repurchase the plaintiff’s vehicle “‘in an undamaged 

condition, save normal wear and tear,’” because “[t]his condition 

inserted uncertainty into the offer . . . . Whether the car was in 

an ‘undamaged condition’ was not defined, nor was it clear what 

would happen if [plaintiff] accepted the offer, but [defendant] 

subsequently concluded the car was ‘damaged’ beyond normal 

wear and tear.” (Ibid.) The court explained it “fail[ed] to see 

how, following trial, the [trial] court could compare the value of 

obtaining the repurchase of the car without regard to its 

condition to the offer requiring that the car be ‘undamaged,’ in 

order to determine whether [plaintiff] received a more favorable 

judgment than the offer. Such an evaluation would require a 

factual determination of whether the car was damaged.” (Ibid.) 

Here, by contrast, the lack of a vehicle surrender date did not 

prevent Covert from evaluating the value of the offers, even 

assuming some delay in payment, against his trial expectations.
27

D. The Trial Court Abused Its Discretion in Failing To 

Consider Whether the First Section 998 Offer Was 

Premature

Because the section 998 offers were valid, Covert had the 

burden to show the offers were not made in good faith in order to 

avoid their application.

12 (Licudine, supra, 30 Cal.App.5th at 

p. 926; Adams, supra, 199 Cal.App.4th at p. 1484.) Covert 

objected to the first section 998 offer on the ground it was 

“unreasonable at this stage in the litigation” because “[Covert] is 

unable to fully analyze the value of [Covert’s] claims against 

[FCA], such as the willfulness and maliciousness of [FCA]’s 

actions, as the complaint was filed less than three (3) months 

ago, and adequate discovery has not taken place.” In sustaining 

Covert’s objections, the trial court listed Covert’s six objections, 

including that the offer was “unreasonable”; however, the court 

12 In his respondent’s brief, Covert argues that even if FCA’s 

section 998 offers were enforceable, section 998 did not apply. He 

contends the $49,726 judgment was more favorable than the

offers because the judgment established FCA’s liability and

Covert’s right to postjudgment interest and would be enforceable 

under the Enforcement of Judgments Law, section 680.010 et seq. 

However, these asserted benefits of a judgment over a dismissal 

are only valuable if FCA fails to pay the judgment, requiring use 

of the enforcement tools and payment of postjudgment interest. 

By contrast, with respect to the section 998 offer, Covert can 

simply not dismiss the lawsuit until FCA pays, giving him a 

superior mechanism to ensure FCA’s compliance. In addition, 

Covert’s argument would require us to value a judgment at a 

significantly higher amount than a dismissal. To do so would 

cast doubt on all section 998 offers predicated on a dismissal 

without a judgment, undermining this court’s longstanding 

decision in Goodstein, supra, 27 Cal.App.4th at page 905. 
28

focused on the arguments relating to validity without addressing 

whether the offer was premature, and therefore not in good faith. 

FCA urges us to reverse the trial court’s order because 

“given that the trial court sustained all of Covert’s objections 

across the board, with no finding on the reasonableness of FCA’s 

first section 998 offer, the trial court did not exercise any 

discretion.” We agree that notwithstanding the court’s statement 

the offer was “unreasonable,” it does not appear from the record 

that the court considered whether the first section 998 offer—

served 63 days after the complaint was filed—was unreasonable 

because it was made prior to adequate discovery on potential 

penalties or fraud. This was an abuse of discretion. (See 

Fadeeff v. State Farm General Insurance Co. (2020) 

50 Cal.App.5th 94, 104 [“A trial court’s failure to exercise 

discretion is itself an abuse of discretion.”]; Kim v. Euromotors 

West/The Auto Gallery (2007) 149 Cal.App.4th 170, 176 [“A 

failure to exercise discretion is an abuse of discretion.”].)

Covert’s argument that the first section 998 offer was 

unreasonably premature, which he argued (briefly) in his 

objections and posttrial motions, was based on the fact that 

discovery had not yet taken place at the time the offer expired for 

Covert. Thus Covert did not have sufficient information on which 

to assess whether FCA’s violations of the Song-Beverly Act were

willful, supporting civil penalties,

13 and whether FCA was liable 

13 Under Civil Code section 1794, subdivision (c), a buyer who 

establishes a seller’s willful noncompliance with the 

requirements of the Song-Beverly Act may receive “a civil penalty 

which shall not exceed two times the amount of actual damages.” 

A finding of willfulness may be made where the seller “knew of 

its obligations but intentionally declined to fulfill them.” 
29

for fraud. FCA contends Covert’s detailed, 32-page complaint 

shows he had extensive information prior to filing the lawsuit 

about the defects in FCA’s integrated power module, and he was 

aware that FCA knew these defects had caused other owners of 

his vehicle model to have problems similar to those he 

experienced.14 However, significant factual issues remain as to 

(Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 894.) 

Conversely, “a violation is not willful if the defendant’s failure to 

replace or refund was the result of a good faith and reasonable 

belief the facts imposing the statutory obligation were not 

present. This might be the case, for example, if the manufacturer 

reasonably believed the product did conform to the warranty, or a 

reasonable number of repair attempts had not been made, or the 

buyer desired further repair rather than replacement or refund.” 

(Kwan v. Mercedes-Benz of North America, Inc. (1994) 

23 Cal.App.4th 174, 185; see Robertson v. Fleetwood Travel 

Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 815 [trial 

court erred in excluding from trial evidence of seller’s belief it 

could repair a damaged trailer, “including the nature and details 

of those prospective repairs” and whether “it had not yet been 

given a reasonable number of repair attempts.”].)

14 FCA cites Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 

1103, 1113-1114 for the proposition that a section 998 offer is not 

unreasonable when it is served at the outset of litigation. There, 

the Court of Appeal concluded the trial court did not abuse its 

discretion in rejecting a physician’s argument in a malpractice 

action that a plaintiff’s section 998 offer was premature because 

it was served two months after the physician responded to the 

complaint, where information regarding the decedent patient’s

income and the financial impact of his death had been produced 

in pre-offer discovery and the physician did not object to the offer 

as premature when it was made. (Ibid.; see Barbra v. Perez

(2008) 168 Cal.App.4th 444, 450-451 [trial court did not abuse its 
30

what FCA knew or should have known about Covert’s specific 

vehicle based on his repair attempts at an FCA-authorized 

facility. For example, was a defect in the integrated power 

module in Covert’s car the cause of his vehicle failures, and if so, 

was FCA aware of this fact? And did Covert know whether FCA 

was aware of this fact? Thus, there is a factual dispute as to 

whether the offeror (FCA) knew that the offeree (Covert) had 

sufficient information based on what the offeree knew, or 

reasonably should have known, “to intelligently evaluate the 

offer.” (Licudine, supra, 30 Cal.App.5th at pp. 924-925.) Absent 

any findings by the trial court on this issue, we are ill-equipped 

to resolve whether FCA’s first section 998 offer was made in good 

faith under the circumstances of this case. (See Elrod, supra, 

195 Cal.App.3d at p. 699 [“‘If the offeree has no reason to know 

the offer is reasonable, then the offeree cannot be expected to 

accept the offer.’”]) We remand for the trial court to determine in 

the first instance whether the first section 998 offer was 

premature and therefore not made in good faith.

15

discretion in finding section 998 offer served with complaint was 

not premature where the parties had a “close, semi-familial 

relationship, and there was free flow of information between 

them,” and the plaintiff informed defendant’s agent that he had

incurred about $70,000 in medical bills].)

15 Covert did not argue in the trial court, and does not 

contend on appeal, that the second offer was made prematurely 

or otherwise was not made in good faith. We note the offer was 

made on the eve of trial (and thus, not premature), and the offer 

for $145,000 was approximately three times the judgment Covert 

obtained at trial. Therefore, Covert did not meet his burden to 
31

DISPOSITION

We reverse the trial court’s November 26, 2019 orders 

granting Covert’s motion to tax costs, granting in part Covert’s 

motion for attorneys’ fees, and denying FCA’s motion to tax costs. 

We remand for the court to consider whether FCA’s first 

section 998 offer was premature and therefore not a good faith 

offer under section 998. If the court finds the offer was a good 

faith offer, it shall award FCA its costs, including expert witness 

fees, reasonably incurred after the first offer was served and deny 

Covert his attorneys’ fees and costs. If the court finds the first 

offer was not made in good faith, it shall award Covert his 

attorneys’ fees and costs reasonably incurred prior to service of 

the second section 998 offer and award FCA its costs, including 

expert witness fees, reasonably incurred after the second offer 

was served. The parties are to bear their own costs on appeal.

FEUER, J.

We concur:

PERLUSS, P. J. IBARRA, J.*

show the second offer was not made in good faith. In light of our 

holding that the second offer was valid, the trial court did not err 

in finding the second section 998 offer was enforceable.

* Judge of the Santa Clara County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.
1

Filed 1/11/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ERIC ALVIN COVERT,

Plaintiff and Respondent,

v.

FCA USA, LLC,

Defendant and Appellant.

 B303663

 (Los Angeles County

 Super. Ct. No. BC629240)

THE COURT: 

The opinion in this case filed January 4, 2022 is modified as 

follows: On page 19, in the last sentence of part B, delete Code of 

Civil Procedure and replace it with Civil Code, so the sentence 

reads: Accordingly, we conclude that a valid and reasonable 

section 998 offer by the seller, where the buyer recovers less than 

the offer, precludes recovery by the buyer of postoffer attorneys’ 

fees and costs under Civil Code section 1794, subdivision (d). 

Further, the opinion filed January 4, 2022 was not certified 

for publication. It appearing the opinion meets the standards for 

publication specified in California Rules of Court, rule 8.1105(c), 
2

appellant’s request for publication pursuant to California Rules 

of Court, rule 8.1120(a) is granted. 

IT IS HEREBY CERTIFIED that the opinion meets the 

standards for publication specified in California Rules of Court, 

rule 8.1105(c); and 

ORDERED that the words Not to be Published in the 

Official Reports appearing on page 1 of said opinion be deleted 

and the opinion herein be published in the Official Reports.

This order does not change the appellate judgment. 

PERLUSS, P. J. FEUER, J. IBARRA, J. *

* Judge of the Santa Clara County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.