Metropolitan News-Enterprise


Tuesday, May 24, 2011


Page 1


No Attorney Fees in Suit Over Dog Barred From MTA Bus—C.A.


By SHERRI M. OKAMOTO, Staff Writer


A Los Angeles woman who settled her lawsuit against the local transit authority for prohibiting her from bringing her dog on board a bus was not entitled to recover her attorney fees, this district’s Court of Appeal ruled yesterday.

Div. One clarified that an offer for monetary compromise under Code of Civil Procedure Sec. 998 which excludes costs also excludes attorney fees, unless the offer expressly states otherwise.

Since the Los Angeles County Metropolitan Transportation Authority’s statutory settlement offer expressly provided that each party would “bear their own costs,” the appellate panel concluded Jessica Martinez had to pay her own attorney fees.

Martinez had filed suit against the MTA after one of its drivers refused to allow her to ride a bus with her “companion dog,” Romeo.  Her complaint alleged causes of action for disability discrimination under federal and state law.

The MTA offered to settle her claims “for the total sum of $2,501.00, each side to bear their own costs.”  Martinez responded that she accepted the MTA’s offer “to compromise in the amount of $2,501.00, with each party bearing their own costs.” 

ADA Motion

Several weeks later, Martinez filed a motion for attorney fees under the Americans with Disabilities Act and California statutes protecting the civil rights of the disabled. She argued that her acceptance of the MTA’s settlement offer did not preclude her from recovering her statutory attorney fees because the offer referred only to “costs” and did not mention “attorney fees.” 

Los Angeles Superior Court  Judge Susan Bryant-Deason rejected Martinez’s argument, finding “statutory attorney’s fees are an item of costs pursuant to CCP section 1033.5(a)(10)(B)…and are therefore included in the defendant’s section 998 offer,  which states ‘each side to bear their own costs.’ ”

Martinez appealed, but the appellate court, in an opinion by Justice Frances Rothschild, agreed with Bryant-Deason.

‘Bright-Line Rule’

Rothschild noted that Engle v. Copenbarger & Copenbarger, LLP (2007) 157 Cal.App.4th 165 announced the “bright-line rule” that a party who secures a recovery by accepting a Sec. 998 offer is entitled to costs and attorney fees unless they are excluded by the offer, and said the circumstance of an offer which excludes costs but it silent on attorney fees “calls for another ‘bright-line rule.’”

The justice reasoned that the “rapport between sections 998, 1032 and 1033.5” establishes that “the exclusion of costs also excludes attorney fees.”

Under Sec. 998, Rothschild explained, a who accepts a monetary offer of compromise is the “prevailing party” for purposes of a cost award under Sec.1032, and allowable costs under that section are specified in Sec. 1033.5

As Sec. 1033.5 (a)(10) provides that attorney fees are allowable costs under Sec. 1032 when authorized by contract, statute, or law, Rothschild said “it follows that when a section 998 offer provides that each party will bear its own costs the word ‘costs’ refers to all the costs described in section 1033.5, including attorney fees.”

Presiding Justice Robert M. Mallano and Justice Jeffrey W. Johnson joined Rothschild in her decision.

David G. Geffen of the David Geffen Law Firm represented Martinez. James R. York of the Law Offices of York & Wainfeld, together with Martin Stein, Carolyn Oill and Gary J. Wax of Greines, Martin, Stein & Richland were counsel for the MTA.

The case is Martinez v. Los Angeles County Metropolitan Transportation Authority, B221234.


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