Filed 12/6/18; Certified for Publication 12/27/18 (order attached)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JAMIE L. ETCHESON et al.,

Plaintiffs and Appellants,

v.

FCA US LLC, 

Defendant and Respondent.

 D072793

 (Super. Ct. No. 

 37-2015-0004033-CU-BC-CTL)

APPEAL from a postjudgment order of the Superior Court of San Diego County, 

Joan M. Lewis, Judge. Reversed and remanded with directions. 

Rosner, Barry & Babbit and Hallen D. Rosner, Arlyn L. Escalante, Shaghayegh 

Dinata-Hanson for Plaintiffs and Appellants.

Nixon Peabody and David Henry Tennant, Scott S. Shepardson for Defendant and 

Respondent.
2

Plaintiffs and appellants Jamie L. Etcheson and Kelly M. Etcheson brought an 

action under the Song-Beverly Consumer Warranty Act (Civ. Code,1 § 1790 et seq., 

commonly known as the "lemon law," hereafter the Act) against defendant and 

respondent FCA US LLC (FCA) after experiencing problems with a vehicle they had 

purchased new for about $40,000. After admitting the vehicle qualified for repurchase 

under the Act, FCA made two offers to compromise under Code of Civil Procedure 

section 998 (section 998): one in March 2015, to which plaintiffs objected and the trial 

court found was impermissibly vague, and a second in June 2016, offering to pay 

plaintiffs $65,000 in exchange for the vehicle's return. Following the second offer, the 

parties negotiated a settlement in which FCA agreed to pay plaintiffs $76,000 and deem 

them the prevailing parties for purposes of seeking an award of attorney fees. 

Plaintiffs moved for an award of $89,445 in lodestar attorney fees with a 1.5 

enhancement of $44,722.50 for a total of $134,167.50 in fees, plus $5,059.05 in costs. 

Finding the hourly rates and amount of counsels' time spent on services on plaintiffs'

behalf to be reasonable, the trial court tentatively ruled plaintiffs were entitled to recover 

$81,745 in attorney fees and $5,059.05 in costs. However, in its final order the court 

substantially reduced its award, concluding plaintiffs should not have continued to litigate 

the matter at all after FCA's March 2015 section 998 offer. It found their sought-after 

 

1 Undesignated statutory references are to the Civil Code.
3

attorney fees after the March 2015 offer were not "reasonably incurred," and cut off fees 

from that point, awarding plaintiffs a total of $2,636.90 in attorney fees and costs. 

Plaintiffs appeal from the postjudgment order. Pointing out their ultimate 

recovery was double the estimated value of FCA's invalid March 2015 section 998 offer, 

which they had no duty to counter or accept, they contend the trial court abused its 

discretion by cutting off all attorney fees and costs incurred after that offer. We agree. 

We reverse the order and remand to the court with directions to award plaintiffs 

reasonable attorney fees for their counsels' services, including those performed after 

FCA's March 2015 offer, as well as reasonable fees for services in pursuing their motion 

for fees and costs.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2010, plaintiffs purchased a new 2010 Chrysler Town & Country for 

$40,040.69, including sales tax and fees. After one year and about 15,000 miles of usage, 

the car began to exhibit abnormal engine noises and irregular shifting problems. These 

problems persisted for the next several years, leading plaintiffs in August 2014 to request 

that FCA repurchase the vehicle. FCA advised plaintiffs they could not do anything for 

them because plaintiffs had put more than 40,000 miles on the vehicle. 

In early February 2015, plaintiffs sued FCA and the vehicle's seller, Peck Jeep 

Eagle, Inc., for damages, civil penalties and attorney fees under the Act, attaching their 

retail installment sale contract as an exhibit to the complaint. About two weeks later, 

FCA informally offered "to make restitution of the actual price paid or payable, including 

any incidental or consequential expenses incurred" for the vehicle, less offsets permitted 
4

by statute, plus reasonable attorney fees, expenses, and costs, in exchange for the 

vehicle's return. FCA asked plaintiffs to provide a copy of the sales contract, current 

registration, payment history and a 30-day payoff so it could calculate the amount of 

restitution. It also asked plaintiffs to sign a release. FCA specifically stated that the offer 

"should not be construed as an admission of liability." Plaintiffs responded several days 

later, declining to accept the offer.2 

FCA answered the complaint in early March 2015 and acknowledged the vehicle 

"now qualifies for repurchase under the [Act]." FCA otherwise denied each allegation of 

the original complaint, including those that would entitle plaintiffs to a civil penalty.3 It 

also filed a cross-complaint against plaintiffs seeking a judicial declaration that it did not 

willfully violate the Act and that plaintiffs were not entitled to any civil penalty. FCA 

asked the court in advance to cut off plaintiffs' entitlement to attorney fees incurred after 

FCA's February 2015 informal offer. 

About a week later, FCA served an offer to compromise and to repurchase the 

vehicle under section 998. In an accompanying letter, FCA stated it did "not have the 

 

2 The record does not contain plaintiffs' response, but attorney invoices and other 

evidence indicates that several days later they sent a letter rejecting the informal offer as 

impermissibly vague and incapable of being accepted for failing to state a specific dollar 

amount. 

3 " 'If the buyer establishes that the failure to comply [with an obligation under the 

Song-Beverly Act] was willful, the judgment may include, in addition to [actual 

damages], a civil penalty which shall not exceed two times the amount of actual 

damages.' " (Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 468

(Goglin); quoting § 1794, subd. (c).)
5

information necessary to compute the appropriate amount of restitution . . . or the amount 

of attorney fees and other costs," but committed "to pay the full amounts owed pursuant 

to the relevant code sections." Accordingly, FCA offered to make restitution in an 

amount equal to the actual price paid for the vehicle (including charges for the 

transportation and manufacturer-installed options as well as collateral charges such as 

sales tax, license fees, and registration fees, but excluding nonmanufacturer items 

installed by a dealer or the buyer) less an offset for plaintiffs' personal use, plus 

reasonable costs, expenses, and attorney fees.4 Plaintiffs objected to the offer, stating in 

part: (1) its terms were vague, ambiguous, uncertain, and incomplete; (2) section 1793.2, 

subdivision (d)(2)(B) required restitution in an amount equal to the actual price "paid or 

payable" rather than "paid" as indicated in the offer; (3) it did not specify a dollar amount 

of restitution; (4) it did not indicate the mileage to be used in the offset calculation; (5) it 

was silent as to specific incidental and consequential damages; (6) it failed to specify if 

and when the vehicle was to be returned or the date plaintiffs would be paid; (7) it was 

unclear as to whether plaintiffs would be required to sign a release; (8) it limited the 

 

4 More fully, FCA's March 2015 section 998 offer was "to make restitution pursuant 

to . . . section 1793.2[, subdivision] (d)(2)(B) in an amount equal to the actual price paid 

for the vehicle, including any charges for the transportation and manufacturer-installed 

options, but excluding nonmanufacturer items installed by a dealer or the buyer, and 

including any collateral charges such as sales tax, license fees, and registration fees less 

an amount directly attributable to plaintiffs' use of the vehicle between the date they 

purchased the vehicle and the date on which the vehicle was first presented to an 

authorized Chrysler repair facility for repairs that gave rise to the nonconformity alleged 

in the complaint as calculated pursuant to . . . section 1793.2[, subdivision] (d)(2)(C) . . . 

[and] to pay reasonable costs, expenses and attorneys' fees based on actual time expended 

up to the date of this [section 998 offer], pursuant to . . . section 1794[, subdivision] (d)." 

(Some capitalization omitted.) 
6

recovery of fees by cutting off attorney fees from the date of the offer, contradicting the 

Act; and (9) it was silent as to prejudgment interest. 

Following the March 2015 section 998 offer, the matter proceeded with a 

demurrer to FCA's cross-complaint, discovery and other litigation over the next fifteen 

months in anticipation of the July 29, 2016 trial date. 

On June 27, 2016, FCA served an amended section 998 offer proposing to pay 

plaintiffs $65,000 in exchange for dismissal of the action and the vehicle's return. FCA 

offered to pay reasonable costs, expenses and attorney fees under section 1794, 

subdivision (d) based on actual attorney time expended up to the date of the offer either 

stipulated by the parties or by motion. By mid-July 2016, the parties had negotiated a 

settlement in which FCA agreed to pay plaintiffs $76,000 plus attorney fees, costs and 

expenses, and agreed plaintiffs were the prevailing parties. 

Unable to reach an agreement with FCA for the amount of attorney fees, costs, and 

expenses, plaintiffs moved for $139,227 in costs and fees, comprised of lodestar fees of 

$89,445, a 1.5 multiplier on the fees of $44,723, and costs of $5,059.05. In the motion, 

they summarized the litigation and efforts of their counsel, O'Connor & Mikhov, LLP, 

who took the matter on a contingent fee basis. They also submitted declarations from 

attorneys and staff, including partners Mark O'Connor5 and Steve Mikhov. Both detailed 

 

5 Attorney Mark O'Connor provided the hourly rates of all attorneys and staff from 

his firm in the matter. He stated the following individuals, including himself, worked on 

the case: Partner Mark O'Connor at $650 per hour, partner Steve Mikhov at $500 per 

hour, associate Russel Higgins at $400 per hour, associate Lauren Ungs at $350 per hour, 

associate Stephanie Marshall at $200 per hour, associate Alastair Hamblin at $325 per 
7

the hourly rates of attorneys and staff from their firm in the matter and described attorney 

fee awards in other lemon law matters. Attorney Mikhov further detailed the bases for 

their multiplier request, namely the risks associated with contingent fee arrangements and 

the results achieved. Additionally, Mikhov stated it is "not uncommon for attorney's fees 

and costs to exceed the client's damages . . . which is the reason behind the fee shifting 

provision of the [Act]." According to Mikhov, his firm's clients (including plaintiffs) 

realize cost savings due to the experience his firm has with lemon law cases because 

relevant work product from one case may be used similarly in others. 

FCA opposed the motion. Asserting plaintiffs' attorneys incurred the "maximum 

amount of attorneys' fees possible before resolving the matter," it argued the requested 

fees were excessive and unreasonable. FCA argued plaintiffs' attorneys ignored or 

objected to its settlement offers as too vague and unspecific, despite FCA's 

"straightforward and concise" offers to pay the "full amount of restitution according to 

the statute's formula, and to pay reasonable costs, expenses, and fees incurred." Further, 

FCA argued plaintiffs' counsel had all the information needed to make "[a] simple 

calculation" to estimate the total dollar amount of FCA's offers. According to FCA, these 

refusals preceded "aggressive discovery outside the bounds of what the value of the case 

 

hour, associate Chris Swanson at $325 per hour, associate Shawna Melton at $325 per 

hour, associate Amy Morse at $250 per hour, contract attorney Constance Morrison at 

$350 per hour, associate Kevin Van Hout at $300 per hour, associate Daisy Ortiz at $225 

per hour, associate Kristina Stephenson-Cheang at $350 per hour, contract attorney Kirk 

Donnelly at $375 per hour, and paralegal Amy Fox at $175 per hour. O'Connor did not 

summarize the total hours by individual, but instead referenced an attached exhibit of all 

invoices. The invoices detailed the expenses and the work performed by attorneys and 

staff, by date, from July 15, 2014, through January 31, 2017.
8

warrant[ed]" on a case they described as a basic Song-Beverly action without any novel 

legal or unique technical knowledge required. FCA asserted that plaintiffs' counsel 

created the risk of nonpayment by failing to accept or respond to FCA's offers, and were 

solely responsible for the delays in the case. FCA argued that the Act should not permit 

plaintiffs to recover attorney fees incurred solely in pursuit of a civil remedy or more 

fees; it asserted plaintiffs' counsel's sole objective was to prolong the litigation so as to 

incur substantial attorney fees before settling the action. FCA did not, however, establish 

with legal authority or otherwise what hours and rates would be considered reasonable 

for a case with a favorable result for the plaintiffs. 

In reply, plaintiffs argued FCA had misstated facts and law. They pointed out 

FCA did not dispute the lodestar method was the proper means for determining attorney 

fees or their prevailing party status. They argued it was FCA that mishandled the case by 

willfully failing to abide by its affirmative obligation under the Act to promptly offer 

restitution or replacement of a vehicle at the time it qualified for such a remedy. They 

argued FCA had a duty to inquire into the facts and circumstances but did not, and 

rejected their August 2014 demand for repurchase or replacement. Plaintiffs also argued 

FCA did not accurately recount the parties' settlement efforts; they pointed out it 

qualified its first March 2015 section 998 offer with a refusal to admit liability, and that 

offer was deemed withdrawn after 30 days so that plaintiffs had nothing to accept after 

that point. They pointed out that once FCA made a reasonable settlement offer in June 

2017, the case settled. Plaintiffs argued they were not in sole possession of information 

that would permit FCA to comply with its obligations under the Act, as the sales contract 
9

was attached to the complaint, and FCA could have determined the paid and payable 

amount as the amount financed was at 0 percent interest. They argued the "only 

explanation for the delay is that it took the skill and persistence of Plaintiffs' counsel for 

FCA to appreciate its own exposure to civil penalties under the [Act]." Plaintiffs 

reiterated that FCA had not rebutted the fact their case was taken on contingency basis, 

and asserted that FCA's attacks on their counsel as motivated to run up fees were entirely 

unsupported in the record. 

In February 2017, the court issued a tentative ruling awarding plaintiffs $81,745 in 

lodestar attorney fees and $5,059.05 in costs, stating it was "of the opinion that the 

lodestar represents reasonable hourly rates for the Plaintiffs' counsel and that the time 

was reasonably incurred."6 It denied the multiplier request. Following the hearing, the 

court took the matter under submission. 

About a month later, the court issued its final order. In it, the court drastically 

reduced plaintiffs' sought-after fees, indicating it was persuaded by FCA's counsel's 

argument that FCA's "repeated efforts to settle this matter immediately after litigation 

was commenced should significantly reduce any fees awarded." The court summarized 

FCA's February 12, 2015 informal settlement offer, FCA's March 3, 2015 answer 

admitting the vehicle qualified for repurchase, and FCA's March 10, 2015 section 998 

 

6 Plaintiffs' $89,445 lodestar request included twenty hours at $450 per hour in 

anticipation of the reply and appearance at the hearing. Their reply did not include 

support for this rate, therefore the court concluded a reasonable rate would be $325 and 

adjusted the lodestar accordingly.
10

offer. The court stated: "It does not appear that Plaintiffs' counsel responded to these 

letters or the [section 998 offer] with the numbers [FCA] sought to simply be able to 

settle the case." 

The court continued: "From essentially the moment the complaint was filed, the 

Defendant sought to resolve this case on the terms specified under the . . . Act. 

Notwithstanding Defendant's willingness to settle and communications of such intent, it 

does not appear Plaintiffs ever attempted to facilitate a prompt resolution. For example, 

later in 2015 when Defendant sought to ascertain by way of interrogatories the necessary 

amounts to which Plaintiffs would be entitled, the responses failed to provide Defendant 

that information."

"The Court would agree that if the issue before it was the enforceability of a 

[section] 998 offer, that (1) the February 2015 letter was not a valid [section 998 offer]; 

and (2) the March 2015 offer was vague. [¶] However, the enforceability of a [section] 

998 offer is not the issue before the Court. Rather the issue is whether the fees sought by 

the Plaintiffs were 'reasonably incurred by [the Plaintiffs] in connection with the 

commencement and prosecution of [this] action.' "

"The Court concludes that it cannot make a finding that the fees Plaintiffs seek 

were reasonably incurred in the prosecution of this action when it appears abundantly 

clear that Defendant from the beginning was trying to extricate itself from the case—

simply asking the Plaintiffs to tell it what the appropriate dollar amount was—with no 

cooperation from the Plaintiffs. Neither Plaintiffs' arguments at the hearing nor in their 
11

papers provided a satisfactory explanation for the continued litigation of this case after 

Defendants' initial settlement offers."

"Having reviewed the billing records of counsel, the Court finds that Plaintiffs are 

entitled to recover their attorneys' fees up to March 13, 2015, in the total amount of 

$2,095. Plaintiffs have failed to explain why any fees over and above this amount were 

'reasonably incurred.' In this regard, the Court again notes its initial review of the billing 

records revealed services performed that appeared reasonable in amount in terms of the 

amount of time spent on a given service and the dollar amount therefor. However, the 

real issue here is whether the performance of those services in the first instance was even 

necessary. The Court concludes that but for the services up to March 13, 2015, the 

remaining fees charged were not necessary and, therefore, not reasonably incurred." The 

court then found plaintiffs were entitled to $541.90 in costs for expenses incurred before 

March 13, 2015 ($106.90 for service of summons, and $435 for the complaint filing fee). 

It awarded a total of $2,636.90 in fees and costs. 

Plaintiffs timely appealed from the postjudgment attorney fees order. 

DISCUSSION

I. Legal Principles for Attorney Fee Recovery Under the Act and Standard of Review

We summarized the legal principles applicable to an attorney fee award under the 

Act in Goglin, supra, 4 Cal.App.5th 462: "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 
12

buyer in connection with the commencement and prosecution of such action.' (Civ. 

Code, § 1794, subd. (d).) The statute 'requires the trial court to make an initial 

determination of the actual time expended; and then to ascertain whether under all the 

circumstances of the case the amount of actual time expended, and the monetary charge 

being made for the time expended are reasonable. These circumstances may include, but 

are not limited to, factors such as the complexity of the case and procedural demands, the 

skill exhibited, and the results achieved. If the time expended or the monetary charge 

being made for the time expended are not reasonable under all the circumstances, then 

the court must take this into account and award attorney fees in a lesser amount. A 

prevailing buyer has the burden of "showing that the fees incurred were 'allowable,'

were 'reasonably necessary to the conduct of the litigation,' and were 'reasonable in 

amount.' " ' " (Goglin, at p. 470, in part quoting Nightingale v. Hyundai Motor America

(1994) 31 Cal.App.4th 99, 104.) 

" 'We review an award of attorney fees under [the Song–Beverly Act] for abuse of 

discretion. [Citations.] We presume the trial court's attorney fees award is correct, and 

"[w]hen the trial court substantially reduces a fee or cost request, we infer the court has 

determined the request was inflated." [Citation.] "The ' "experienced trial judge is the 

best judge of the value of professional services rendered in his [or her] court, and while 

his [or her] judgment is of course subject to review, it will not be disturbed unless the 

appellate court is convinced that it is clearly wrong." ' " ' " (Goglin, supra, 4 Cal.App.5th 

at pp. 470-471; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 148; 

see also 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 
13

Cal.App.5th 426, 433 (569 East County).) This standard of review applies to a trial 

court's application of correct legal standards to the circumstances of a specific case. (569 

East County, at p. 434.) 

Though the trial judge has broad discretion in awarding reasonable attorney fees, it 

is nevertheless "a legal discretion subject to the limitations of legal principles governing 

the subject of its action . . . ." (569 East County, supra, 6 Cal.App.5th at p. 433, fn. 8.) 

"[T]he determination of whether the trial court selected the proper legal standards in 

making its fee determination is reviewed de novo [citation] and, although the trial court 

has broad authority in determining the amount of reasonable fees, the award can be 

reversed for an abuse of discretion when it employed the wrong legal standard in making 

its determination." (Id. at p. 434; see also id. at p. 433, fn. 8 ["[W]hen the trial court 

mistakenly applies erroneous legal principles when exercising its discretion, we may 

review that error de novo."].) Further, when the record affirmatively shows the trial 

court's discretionary determination of fees pivoted on a factual finding entirely lacking in 

evidentiary support, the matter must be reversed with instructions to redetermine the 

award. (Id. at p. 435, fn. 10 [interpreting McKenzie v. Ford Motor Co. (2015) 238 

Cal.App.4th 695 (McKenzie)].) 

II. Contentions

Plaintiffs contend the trial court abused its discretion and essentially punished 

them and their counsel for pursuing their rightful recovery under the Act when it refused 

to award any attorney fees incurred after FCA's March 2015 settlement offer, which 

proposed to pay significantly less than the amount plaintiffs ultimately obtained in 
14

settlement with FCA. They argue the court had no discretion to consider lesser 

settlement offers in its analysis, which would be inconsistent with and defeat the purpose 

of section 998. They point out the court found reasonable the hourly rates and amounts 

their counsel charged for the services rendered, but disregarded the exceptional results 

they achieved in settling their case for $76,000. According to plaintiffs, their attorneys'

time following the March 2015 offer was well spent and reasonably incurred; they argue 

it would be beyond the bounds of reason to say that "obtaining a recovery of double the 

amount initially offered is not 'a satisfactory explanation for the continued litigation.' " 

Plaintiffs maintain upholding this sort of ruling would prevent consumer attorneys from 

effectively representing their clients by fighting for the best result, and incentivize 

manufacturers to never repurchase vehicles before litigation is filed or comply with the 

Act's requirements, because it would be unlikely that a consumer would find an attorney 

to represent them. 

FCA counters with a broad criticism of the "way counsel for buyers litigate cases 

under the Act." It says that counsel "litigates lemon law cases shorn of the conventional 

principles of reasonable economic value, efficiency, risk-benefit weighing, and 

proportionality—the normal principles that govern mainstream litigation and constrain 

lawyers from over-litigating cases and routinely lead to negotiated settlements." FCA 

asserts that "[a]ll but $2,095 of the attorney's fees . . . would have been avoided if 

Plaintiffs' counsel had acted in an economically rational manner and behaved responsibly 

and rationally when responding to a reasonable settlement offer (i.e., full statutory 

restitution) upon [FCA] answering the complaint." Characterizing plaintiffs' fee request 
15

as "overblown and unreasonable," and their counsel as "uncooperative and 

obstructionist," they contend plaintiffs failed to demonstrate the fees generated after 

March 10, 2015, were necessary and reasonably incurred. 

We conclude plaintiffs' points have merit. 

III. The Court Erred by Deciding Plaintiffs' Entitlement to Prevailing Party Attorney 

Fees Based on Their Failure to Accept Unreasonable or Invalid Settlement Offers

As we have stated above, when a trial court severely curtails the number of 

compensable hours in a fee award, as the court did here, a reviewing court may engage in 

a presumption that the court determined the fee request was inflated and thus 

unreasonable on that basis. (See 569 East County, supra, 6 Cal.App.5th at p. 434.) This 

is in keeping with the settled appellate review principle that an order is presumed correct. 

(Id. at p. 434, fn. 9.) But operation of that presumption has limits. We cannot indulge

in such a presumption if it is " ' "contradicted by or inconsistent with the record on 

appeal . . . ." ' " (Jara v. Suprema Meats, Inc. (2004) 121 Cal.App.4th 1238, 1250; see 

also Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 261; United States Elevator Corp. v. 

Associated International Insurance Company (1989) 215 Cal.App.3d 636, 648 ["on 

appeal we cannot indulge in a presumption which contradicts an express recital in the 

record. Where the record states what was done, it will not be presumed that something 

else was done"]; accord, McKenzie, supra, 238 Cal.App.4th at p. 704.7) Here, the court's 

 

7 In 569 East County this court interpreted McKenzie as standing for the proposition 

that a court will abuse its discretion if its order contravenes uncontradicted evidence. 

(569 East County, supra, 6 Cal.App.5th at p. 435, fn. 10.) McKenzie is more broadly 
16

rationale for finding plaintiffs were not entitled to attorney fees after March 13, 2015, 

was based on improper considerations as to the reasonableness of their response to and 

continued litigation after FCA's unreasonable or invalid settlement offers. 

Concededly, the trial court had broad discretion in determining the reasonableness 

of plaintiffs' fee request, and in its tentative ruling appeared to adopt the requested 

lodestar amount with some reductions for unsupported time and an excessive hourly rate 

(see footnote 6, ante). But the court ultimately discarded the lodestar inquiry in its final 

order; it used what the court itself found was a vague and invalid section 998 compromise 

offer to cut off plaintiffs' attorney fees, under the apparent theory that it was unreasonable 

for plaintiffs' counsel to reject that offer or counsel should have been more cooperative in 

facilitating a settlement for an award of restitution rather than continue litigating the issue 

of FCA's willfulness for a civil penalty under the Act or seek any additional recovery. In 

substance and effect the court incorporated the penalty provisions of section 998 

(applicable to instances—unlike this case—where the plaintiff's result obtained is less 

than the defendant's settlement offer) into its reasonableness analysis, and failed to 

acknowledge that plaintiffs for their counsel's litigation efforts recovered an amount more 

than double the value of FCA's initial restitution offers. In this way, the court abused its 

discretion. Its decision to cut off fees from the point of FCA's March 2015 offer, 

particularly in the face of plaintiffs settlement for almost double the amount, was error.

 

persuasive and controlling on the circumstances presented here, as it similarly involved 

an award under the Act and the trial court's erroneous decision to excise attorney fees 

incurred after a first section 998 offer as unreasonable and not recoverable. (McKenzie, 

supra, 238 Cal.App.4th at pp. 698, 702.)
17

We do not write on a blank slate in reaching our conclusions. Goglin involved a 

plaintiff who in November 2014 settled her action under the Act against the defendants 

for $75,000, less her loan balance. (Goglin, supra, 4 Cal.App.5th at pp. 468-469.) 

Defendants had previously offered to resolve the matter several times: Before the 

plaintiff filed suit, one of the defendants offered to repurchase her vehicle for all costs 

with an offset and reimburse her reasonable attorney fees, but conditioned the offer on 

her agreeing to sign a general release, a waiver of section 1542, and a confidentiality 

clause. (Id. at p. 465.) The plaintiff responded that she would accept an unconditional 

offer of reimbursement without offsets, and declined to sign the proposed release 

agreement with its contingencies and waivers. (Id. at p. 466.) After the plaintiff filed suit 

and some discovery had taken place, the defendants collectively offered to repurchase her 

vehicle and settle the matter for about $54,000, but again conditioned that offer on the 

plaintiff dismissing her case and executing a settlement agreement with a confidentiality 

clause and a waiver of unknown claims. (Id. at p. 467.) The plaintiff stated she would 

accept the offer if it were an unconditional offer to comply with section 1793.2, 

subdivision (d)(2) with a stipulation that she was the prevailing party, but again rejected 

the release with its contingencies and waivers. (Id. at pp. 467-468.) About five months 

before the parties settled the case for $75,000, the defendants served a section 998 offer 

to repurchase her vehicle for $45,762, pay her incidental and consequential damages, and 

reimburse her for attorney fees and costs to be determined by noticed motion. (Id. at 

p. 468.) 
18

The plaintiff in Goglin moved for an award of about $200,000 in attorney fees and 

costs; the defendants in opposition argued her counsel should not be compensated for any

litigation activities given the pre-trial settlement offer, and thus any time spent on 

litigation-related activities were unnecessary and unreasonable; the claimed fees were 

grossly inflated and not reasonably expended because the plaintiff "ignored repeated 

offers of restitution, filed an unnecessary lawsuit, and engaged in unnecessary litigation 

activity"; the case did not warrant such an award because it was not complex; the plaintiff 

settled for only a portion of the total recovery she initially sought; and none of the costs 

were reasonably necessary given the prelitigation offer to reimburse the plaintiff for 

everything she was owed. (Goglin, supra, 4 Cal.App.5th at p. 469.) The trial court 

awarded the plaintiff about $185,000 in attorney fees and costs. (Id. at p. 470.) 

On appeal, we addressed the defendants' argument that the plaintiff was not 

entitled to any fees or costs because she unreasonably refused to accept one of the 

defendant's prelitigation settlement offers. (Goglin, supra, 4 Cal.App.5th at p. 471.) We 

stated "this contention ignores the unfavorable aspects of the offer, including requiring 

[the plaintiff] to agree to a broad release of claims and a confidentiality clause.[] [The 

plaintiff] repeatedly and consistently objected to these extraneous provisions and the 

parties' final settlement agreement does not include them. Rejecting the prelitigation 

settlement because of these unfavorable extraneous terms was not unreasonable." (Ibid.) 

In reaching this conclusion, we relied in part on McKenzie, supra, 238 

Cal.App.4th 695. (Goglin, supra, 5 Cal.App.4th at p. 471.) In McKenzie, after the 
19

plaintiff settled his lemon law claims with the defendant, the trial court awarded him 

$28,350 in attorney fees out of his requested $48,000. (McKenzie, 238 Cal.App.4th at 

p. 697.) The defendant had made earlier settlement offers, the first in April 2013 

including a broad release and a confidentiality clause, which were removed from the 

second offer that the plaintiff accepted. (Id. at pp. 698, 699-700.) The trial court refused 

to award the plaintiff any of his attorney fees incurred after the defendant's initial 

settlement offer, ruling that the offer the plaintiff eventually accepted was identical to the 

first offer he had rejected, thus the 42 hours billed by counsel in the face of the first offer 

"amounted to 'plaintiff's counsel exaggerating the amount of their fees to increase their 

prized fees' " and the plaintiff had "unreasonably delayed settlement for the sole purpose 

of 'ginning up' his fee award." (Id. at pp. 698, 702.) The court also found the plaintiff's 

two attorneys had billed for many hours of duplicative work, which it deemed 

unreasonable. (Ibid.)

Our Division Three colleagues reversed. (McKenzie, supra, 238 Cal.App.4th at 

p. 698.) They declined to indulge the inference that the trial court had simply made an 

assessment of the usual lodestar factors to reach its award of $28,350 in reasonable fees: 

"[W]hile we could certainly do that in the absence of any specific analysis provided by 

the trial court, we cannot ignore the court's reasoning when detailed in the order. In this 

case, the court was quite explicit in explaining the basis for reducing McKenzie's fees—

rather than imposing a general reduction on the fees requested from the outset, on the 

basis the rates charged by McKenzie's counsel were too high or the overall time claimed 

was unreasonable given the complexity of the case, the court characterized its reduction 
20

as 'based on redaction of fees for duplicated and unnecessary services and billing

performed after defendant's service of its CCP Section 998 offer.' . . . The court awarded 

McKenzie 100 percent of the fees he requested for the period before Ford's initial offer, 

but found the entirety of 'the subsequent billing was unreasonable' and excised that 

specific portion of the fees from McKenzie's award. When the court states its reasons 

explicitly, we cannot infer its exercise of discretion rested on a wholly different basis." 

(Id. at pp. 704-705.) 

The Court of Appeal concluded the trial court's actual reasoning was an abuse of 

discretion, as the court had erroneously viewed the two settlement offers as essentially 

identical, and thus believed the plaintiff acted unreasonably in rejecting the first offer for 

the purpose of exaggerating his fees. (McKenzie, supra, 238 Cal.App.4th at p. 705.) The 

appellate court observed that though the defendant had conceded on appeal that its initial 

settlement offer contained numerous extraneous provisions, it took the position that they 

were legally meaningless or unenforceable, and continued to assert that the plaintiff's 

refusal to accept the first offer was unreasonable. (Ibid.) After pointing out the problems 

in the defendant's extraneous provisions, and rejecting the defendant's assertions 

concerning the duplication of work, the Court of Appeal held that the plaintiff had acted 

reasonably in rejecting the first proposed compromise offer, and "[t]he trial court's 

decision to award no fees in the wake of Ford's initial section 998 offer to compromise 

amounted to an abuse of discretion in the circumstances of this case." (Id. at p. 708.) It 

reversed the fee award and remanded the case, directing the court to reconsider the 
21

amount of fees to be awarded the plaintiff for the period following the defendant's initial 

section 998 offer. (Ibid.) 

The import of both Goglin and McKenzie is that where a defendant's settlement 

offer contains unfavorable provisions or is otherwise invalid, as FCA's offers were here, 

it is not unreasonable for a plaintiff to reject that offer. (Goglin, supra, 4 Cal.App.5th at 

p. 471; McKenzie, supra, 238 Cal.App.4th at p. 708.) We recognize that the plaintiffs in 

these cases engaged in some negotiating following the defendants' settlement offers, 

responding with counter offers. (Goglin, at pp. 466-468; McKenzie, at p. 700.) In

McKenzie, the court observed that the plaintiff's prompt service of a counter offer 

stripped of the extraneous terms reflected his willingness to complete a settlement. 

(McKenzie, at p. 708.) But the holdings in Goglin and McKenzie turn on evidence that 

the plaintiffs did not act unreasonably in continuing to litigate their cases in the face of 

the defendants' settlement offers, and on the absence of evidence that the failure to 

resolve the cases was solely attributable to counsel's desire to generate more fees. (See 

Goglin, at p. 472.) In Goglin, we specifically rejected the defendant's argument that the 

plaintiff's counsel's hours were unreasonable and unnecessary because the defendants'

settlement offers obviated the plaintiff's need to prove liability: "The settlement offers 

themselves contained no admission of liability and two of the three offers expressly 

indicated liability was not being admitted. Thus, until the case actually settled, Goglin 

had to conduct discovery and prepare to prove liability on her varied claims with their 

varied elements. She also had to be prepared to counter the numerous affirmative 

defenses raised in the answers to her complaint. We, therefore, cannot conclude the court 
22

abused its discretion in finding the time spent by Goglin's counsel on litigation activities 

was reasonable." (Id. at p. 473.)

In this case, as in McKenzie, we cannot indulge an inference that the trial court's 

order drastically reducing plaintiffs' fee request from $89,445 to $2,636 was based on a 

legitimate lodestar assessment of the overall reasonableness of counsel's fees based on 

rates, duplication of effort, or complexity. The court here found counsel's hourly rates 

and the time spent on tasks to be reasonable. Rather, it expressly based its ruling on the 

necessity of plaintiffs' continued efforts in litigating the case to the eventual settlement. 

But as in Goglin and McKenzie, FCAs settlement offers were unacceptable; the first 

informal offer required them to sign a release without stating any release terms, and the 

second was insufficiently specific, as the trial court found. (See MacQuiddy v. MercedesBenz USA, Inc. (2015) 233 Cal.App.4th 1036, 1050 [to be valid, a section 990 offer "must 

be sufficiently specific to permit the recipient meaningfully to evaluate it and make a 

reasoned decision whether to accept it, or reject it and bear the risk he may have to 

shoulder his opponent's litigation costs and expenses"]; Chen v. Interinsurance Exchange 

of the Automobile Club (2008) 164 Cal.App.4th 117, 121-122 [valid section 998's terms 

and conditions must be sufficiently certain to be capable of valuation].) On this record, it 

was not unreasonable for plaintiffs to reject FCA's settlement offers, and thus the court 

erred by using this criteria to assess plaintiffs' entitlement to fees.

Nor can we conclude that the trial court's order was correct regardless of its 

underlying reasoning. (569 East County, supra, 6 Cal.App.5th at p. 435, fn. 10.) That is 

because the record otherwise does not support the trial court's finding as to the 
23

unreasonableness of plaintiffs' attorney fees incurred after March 13, 2015. The record 

shows that FCA declined to accept plaintiffs' April 2014 pre-litigation demand that it 

repurchase their vehicle, but instead waited until after plaintiffs filed suit to make its first, 

nonspecific, offer to pay restitution. Absent a court finding that FCA's conduct was not 

willful as a matter of law, plaintiffs were entitled to proceed to litigate the issue of FCA's 

willfulness and pursue their claims for not only restitution, but civil penalties under the 

Act. " 'Attorneys generally must pursue all available legal avenues and theories in pursuit 

of their clients' objectives; it is impossible, as a practical matter, for an attorney to know 

in advance whether or not his or her work on a potentially meritorious legal theory will 

ultimately prevail.' " (Greene v. Dillingham Construction, N.A., Inc. (2002) 101 

Cal.App.4th 418, 424; see also Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 

819, 839 (Thayer); Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 250.) 

Plaintiffs' persistence eventually paid off; they reached a result in keeping with their 

efforts when they settled with FCA for $76,000 and were deemed the prevailing parties 

entitled to recover their reasonable attorney fees. In evaluating reasonableness, "the most 

critical factor is the degree of success obtained." (Hensley v. Eckerhart (1983) 461 U.S. 

424, 436.) Plaintiffs here achieved a relatively high degree of success in resolving their 

claims.

Citing Harman v. City and County of San Francisco (2006) 136 Cal.App.4th 1279, 

Thayer, supra, 92 Cal.App.4th 819, and Meister v. Regents of University of California 

(1998) 67 Cal.App.4th 437, FCA argues that the trial court could properly look to 

evidence of spurned settlement offers to determine if subsequently incurred attorney fees 
24

were in fact reasonably incurred. They acknowledge the cases such as these typically 

involve instances where the plaintiff obtains a less favorable result at trial, but maintain 

we should read them to allow a court to consider rejected settlement offers "whenever the 

post-settlement litigation produces a huge disparity between the legal fees incurred and 

the recovery obtained." FCA argues we should not look to the fact plaintiffs in the end 

obtained double the amount of their settlement offers, but focus on the "valued added" by 

plaintiffs' counsel in "running up nearly $90,000 in fees." They suggest plaintiffs 

spurned "good faith, reasonable settlement offers" and characterize plaintiffs' counsel as 

engaging in "self-dealing," "patent over-lawyering," "over-staff[ing]," and seeking 

"overblown fees." 

FCA's points concerning the reasonableness of their settlement offers and their 

characterizations of plaintiff's counsel's efforts are contradicted by the trial court's own 

findings and the nature of the settlement offers. And "[g]eneral arguments that fees 

claimed are excessive, duplicative, or unrelated do not suffice." (Premier Medical 

Management. Systems, Inc. v. California Insurance Guarantee Association (2008) 163 

Cal.App.4th at 550, 564.) Otherwise, we are not persuaded by FCA's arguments that we 

should judge plaintiffs' success in relation to the attorney fees expended to get there. 

Harman's plaintiff was only partially successful on his claims under the federal 

Civil Rights Act; the Court of Appeal observed that case law was not consistent as to 

whether a party's refusal of a settlement offer should be part of a court's analysis of a 

reasonable attorney fee. (Harman v. City and County of San Francisco, supra, 138 

Cal.App.4th at p. 1315.) But in that case, there was a "significant disproportionality"
25

between the attorney's trial fees, $247,903, and the additional recovery following trial, 

$5,000 more than the defendant's settlement offer of $25,000 made one month before 

trial. (Id. at pp. 1312, 1315-1316.) Under those facts, the appellate court held the trial 

court could consider defendant's settlement offer in evaluating the benefit to the plaintiff 

of the attorney's services at trial.8 Unlike in Harman, plaintiffs here succeeded on their 

sole claim, with FCA deeming them the prevailing party and agreeing to pay almost 

double the estimated restitution/repurchase amount (estimated by FCA on appeal at about 

$40,000) for their vehicle. Harman's principles are not applicable, and do not permit us 

to uphold the trial court's use of plaintiffs' rejection of FCA's settlement offers to deny 

them any fees incurred after March 13, 2015.

Nor does Thayer, supra, 92 Cal.App.4th 819 support FCA. Thayer involved the 

Court of Appeal's assessment of one (of many) counsel's request for enhanced lodestar 

fees in a case in which the defendant bank, two months after the lawsuit's filing, 

"promptly capitulated" entirely without ever disputing the plaintiffs' factual or legal 

 

8 Notably, on remand and having been directed to reconsider the reasonableness of 

the attorney fee award using the lodestar method, the trial court in Harman again 

awarded over $1.1 million in attorney fees in the case, in which the plaintiff had obtained 

a recovery of $30,300. (Harman v. City and County of San Francisco (2007) 158 

Cal.App.4th 407, 415.) In upholding that award, the Court of Appeal emphasized that 

"[t]he law does not mandate . . . that attorney fees bear a percentage relationship to the 

ultimate recovery of damages in a civil rights case. . . . '[T]he Supreme Court has not 

adopted a rule that measures a fee award by a proportion of the damages awarded.' " (Id. 

at p. 421.)
26

claims. (Id. at pp. 829, 838-839.)9 The trial court had applied a positive multiplier to 

two of four periods of time for which counsel sought fees (for preparing the complaint 

and negotiating the substantive provisions of the settlement agreement, id. at p. 831), and 

on appeal the bank challenged the court's order applying the lodestar factors and 

multiplier (though it did not contest the number of hours worked or the hourly fee used 

by the trial court). (Id. at pp. 833-834.) The Court of Appeal found no justification for 

the enhanced lodestar under the unique circumstances of that case, involving a bank's 

speedy and total concession of the plaintiffs' legal claims as well as their right to 

reasonable fees, and multiple counsel engaging in "protracted negotiations that delayed 

execution of the settlement agreement." (Id. at pp. 834-839.) At the same time, the 

Thayer court recognized the "need to encourage 'private attorneys general' willing to 

challenge injustices in our society" and that "[a]dequate fee awards are perhaps the most 

effective means of achieving this salutary goal." (Id. at p. 839.) Thus, it counseled, 

courts should not be "unduly parsimonious in the calculation of such fees." (Ibid.) 

"Compensation should not be strictly limited to efforts that were demonstrably 

productive. 'Lawyers for plaintiffs . . . must evaluate, accept and prosecute suits on the 

basis of the entire spectrum of theories that show early promise of vindicating their 

clients' rights. Every lawyer, indeed every judge, has pursued blind alleys that initially 

 

9 Thayer involved nine law firms for plaintiffs in five coordinated class action law 

suits arising from Wells Fargo's anticipatory breach of a promise to provide checking 

accounts free of any service charge during the account's lifetime. (Thayer, supra, 92 

Cal.App.4th at pp. 824-825.) The bank had retracted its notice to impose service fees on 

certain accounts and granted lifetime free checking to every account holder who had 

received the notice, claiming this mooted the law suit. (Id. at pp. 825 & fn. 2, 829.)
27

seemed reasonable or even professionally obligatory. To reward only the pursuit of a 

successful theory in cases such as this undercompensates the inevitable exploratory 

phases of litigation, and may also invite overly conservative tactics or even prohibit some 

high-risk but deserving actions entirely.' " (Ibid.) Ultimately, the Court of Appeal 

remanded the matter to the trial court to consider applying a negative multiplier for 

counsel's fee request, in view of the fact that "[d]uplication was . . . the hallmark of the 

coordinated proceeding." (Id. at pp. 840, 844-845) Nevertheless, the court concluded: 

"Nothing we have said in this opinion signals any retreat from our firm and continuing 

commitment to the settled principle that attorneys entitled to fee awards for advancing 

important public interests must be fully and fairly compensated, so as to encourage the 

provision of such legal assistance. However, the predicate of any attorney fee award, 

whether based on a percentage-of-the-benefit or a lodestar calculation, is the necessity 

and usefulness of the conduct for which compensation is sought. To award an attorney a 

premium for duplicative work that was neither difficult nor particularly productive, 

involved little or no risk, may well have delayed settlement, and seems to have been 

primarily designed to line counsel's pockets, would reward behavior which it is in the 

public interest (and as well the special interest of the legal profession) to strongly 

discourage." (Id. at p. 846.)

Unlike the defendant in Thayer, supra, 92 Cal.App.4th 819, FCA did not entirely 

or promptly capitulate on plaintiffs' claims, which included a request for civil penalty 

based on allegations that FCA engaged in a willful violation of the Act. FCA, as was its 

right, denied liability for a civil penalty, and went so far as to file a cross-complaint 
28

seeking a judicial declaration to the contrary, to which plaintiffs demurred. The trial 

court here found no issues with counsel's time or hourly rates, rejecting any suggestion of 

duplicative or inefficient effort. When FCA proposed a settlement taking into account 

some measure of relief over and above straight restitution, plaintiffs promptly negotiated 

a settlement. These circumstances are nothing like those in Thayer, in which the record 

lacked any justification for enhancing the attorney's requested fees. Rather, the 

controlling principle is Thayer's focus on granting plaintiffs' counsel "[a]dequate fee 

awards" in cases vindicating important public interests—here, consumer protection. (See 

Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 990.) As we have said, 

"California law requires that attorney fee awards be 'fully compensatory.' " (Roth v. 

Plikaytis (2017) 15 Cal.App.5th 283, 290.)

Meister v. Regents of University of California, supra, 67 Cal.App.4th 437, held a 

court has discretion to consider a reasonable nonstatutory settlement offer so as to reduce 

an attorney fee award if the party seeking fees continues to litigate after rejecting an offer 

greater than the relief the party ultimately obtained. (Id. at pp. 450, 452, 456.) Meister 

relied on authority reasoning that " 'where a rejected settlement offer exceeds the ultimate 

recovery, the plaintiff—although technically the prevailing party—has not received any 

monetary benefits from the postoffer services of his attorney.' " (Id. at p. 452, quoting 

Marek v. Chesny (1985) 473 U.S. 1, 11.) In Greene v. Dillingham Construction N.A., 

Inc., supra, 101 Cal.App.4th 418, Division Four of the First District Court of Appeal 

disagreed with the Sixth District's reasoning in Meister. The Greene court declined "to 

follow [Meister's] holding that a trial court can consider an informal settlement offer" in 
29

determining whether fees were reasonably spent. (Id. at p. 426.) We need not decide 

which is the better reasoned analysis, because Meister has no application here. Plaintiffs 

did not continue to litigate after receiving and rejecting an offer more favorable to them 

than their ultimate recovery; plaintiffs obtained more in their final settlement than the 

earlier straight restitution settlement offers made by FCA. Their litigation activities in 

pursuit of that result cannot be said to be unreasonably spent under Meister's rationale.

We cannot justify the trial court's order on the stated basis that plaintiffs' counsel 

failed to give FCA information to enable it to calculate a full and complete offer of 

restitution. The trial court apparently reasoned plaintiffs unnecessarily prolonged the 

case by failing to "facilitate a prompt resolution," thus any fees incurred after FCA's offer 

were unreasonable. On appeal, FCA does not continue to assert that it was unable to 

calculate a restitution amount for settlement purposes, and we observe it had in its 

possession the copy of plaintiffs' sales contract showing gross sales price, document fees 

and sales tax, registration, the total amount financed, monthly payment amounts, and the 

beginning and final payment dates (January 12, 2011, and December 12, 2016). FCA 

does not deny having access to warranty information related to the vehicle. Rather, FCA 

argues plaintiffs and their counsel made a "tactical decision" to refuse to engage in 

settlement talks when invited to do so. It maintains courts should not be obligated to 

award attorney fees to a plaintiff who rejects an offer of full statutory restitution "for th[e]

speculative inquiry" in exploring a possible civil penalty. We are unable to conclude on 

this record that plaintiffs alone somehow stonewalled or obstructed settlement 

negotiations by withholding key information. And as we have explained, plaintiffs were 
30

entitled to reject FCA's unreasonable offers and seek their full remedy in the absence of a 

court's finding as a matter of law that FCA did not willfully violate the Act. Their 

litigation efforts resulted in an outcome much more favorable to them than either of those 

offers.

FCA argues plaintiffs' request for a 1.5 multiplier shows the unreasonableness of 

their fee request. They cite no authority for the proposition, and we are not persuaded. 

While it is permissible to account for the pursuit of unsuccessful claims in determining a 

reasonable attorney fee, the fact that counsel seeks a multiplier as a component of its fee 

request—denied by the court in this case—is not itself a proper factor in determining the 

reasonableness of sought-after fees. In fact, it is not unusual for counsel to ask for a 

multiplier in contingent fee cases as this one. (See Bernardi v. County of Monterey 

(2008) 167 Cal.App.4th 1379, 1399 ["An enhancement of the lodestar amount to reflect 

the contingency risk is '[o]ne of the most common fee enhancers . . . .' "].)

IV. The Trial Court Erred as a Matter of Law by Applying the Section 998 Penalty in 

Awarding Reasonable Attorney Fees

As we have stated, in reducing plaintiffs' fee award the trial court in substance and 

effect applied the penalty of section 998 for plaintiffs' failure to accept FCA's March 

2015 settlement offer. Section 998 is intended to encourage settlement by punishing the 

party who fails to accept a reasonable offer. (Elite Show Services, Inc. v. Staffpro, Inc. 

(2004) 119 Cal.App.4th 263, 268.) Under the law, a plaintiff who fails to accept an offer 

and then fails to obtain a more favorable result at trial cannot recover his postoffer costs 

and must pay the defendant's costs from the time of the offer, including expert witness 
31

fees. (§ 998, subd. (c)(1).) Costs include attorney fees where authorized by statute, as 

here. (See Mangano v. Verity, Inc. (2008) 167 Cal.App.4th 944, 948.) Where a section 

998 offer is invalid it will not operate to cut off a plaintiff's costs. (See MacQuiddy v. 

Mercedes-Benz USA, LLC, supra, 233 Cal.App.4th at p. 1051.) 

None of the factors triggering section 998's penalty warranted its application here. 

Under the circumstances, the court's use of the March 13, 2015 date to cut off plaintiffs'

attorney fees was arbitrary and unsupportable. We therefore reverse the order.
32

DISPOSITION

The postjudgment order is reversed and the matter remanded with directions that 

the trial court award plaintiffs reasonable attorney fees for their counsels' services, 

including those performed after FCA's March 2015 offer, as well as reasonable fees for 

services in pursuing their motion for fees and costs. Plaintiffs shall recover their costs on 

appeal.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.
Filed 12/27/18 

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JAMIE L. ETCHESON et al.,

Plaintiffs and Appellants,

v.

FCA US LLC, 

Defendant and Respondent.

 D072793

 (Super. Ct. No. 

 37-2015-0004033-CU-BC-CTL)

ORDER GRANTING REQUESTS 

FOR PUBLICATION

THE COURT: 

The opinion in this case filed December 6, 2018, was not certified for publication. 

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 one of said opinion be 

deleted and the opinion herein be published in the Official Reports. 

McCONNELL, P. J.

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