BILL NUMBER: SB 1661 CHAPTERED
BILL TEXT
CHAPTER 385
FILED WITH SECRETARY OF STATE AUGUST 24, 1998
APPROVED BY GOVERNOR AUGUST 24, 1998
PASSED THE SENATE AUGUST 6, 1998
PASSED THE ASSEMBLY JULY 7, 1998
AMENDED IN ASSEMBLY JUNE 18, 1998
AMENDED IN ASSEMBLY JUNE 4, 1998
INTRODUCED BY Senators Haynes, Kelley, and Knight
(Coauthors: Assembly Members Aguiar, Granlund, and Leonard)
FEBRUARY 13, 1998
An act to add and repeal Section 1021.1 of the Code of Civil
Procedure, relating to attorney's fees, and declaring the urgency
thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 1661, Haynes. Settlement offers: Riverside and San Bernardino
Counties.
Under law effective until January 1, 1998, in the Counties of
Riverside and San Bernardino, a party to a civil action was entitled,
in the discretion of the court, to an award of attorney's fees,
where the party had made a settlement offer, for services rendered
after the offer was made if the offer was not accepted and the party
to whom the offer was made failed to obtain a more favorable
judgment, as specified.
This bill would reenact those provisions. They would remain in
effect only until January 1, 2001. The bill would require the
Judicial Council to report to the Legislature on the impact of these
provisions on or before March 1, 2000, as specified.
The bill would declare that it is to take effect immediately as an
urgency statute.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1021.1 is added to the Code of Civil Procedure,
to read:
1021.1. (a) Reasonable attorney's fees, may be awarded in an
amount to be determined in the court's discretion, to a party to any
civil action as provided by this section, and that award shall be
made upon notice and motion by a party and shall be an element of the
costs of suit.
(b) A party may be entitled, in the discretion of the court, to an
award of attorney's fees under this section if all of the following
conditions are met:
(1) The party has made an offer for judgment under Section 998.
(2) That offer was not accepted within the time provided in
Section 998.
(3) The party to whom the offer was made thereafter failed to
obtain a more favorable judgment.
The party making the offer shall be entitled to attorney's fees
only for legal services rendered after the date of the offer.
(c) In exercising its discretion to award attorney's fees the
court shall consider the following factors:
(1) The reasonableness or lack thereof, of a party's failure to
accept an offer for judgment under Section 998 in light of the facts
known to the party at the time which, in light of all of the
circumstances, should have been known to the party. Reasonableness
shall be determined by a consideration of at least the following
matters:
(A) The then apparent merit or lack of merit in the claim that was
the subject of the action.
(B) The closeness of the questions of fact and law at issue.
(C) Whether the offeror has unreasonably refused to furnish
information necessary to evaluate the reasonableness of the offer.
(D) Whether the action was in the nature of a "test case,"
presenting questions of far-reaching importance affecting nonparties.
(E) The relief that might reasonably have been expected if the
claimant should prevail.
(F) The amount of the additional delay, cost, and expense that the
offeror reasonably would be expected to incur if the litigation
should be prolonged.
(G) Those other matters that the court may deem relevant in the
interest of justice.
(2) The amount of damages and other relief sought and the results
obtained for the client.
(3) The efforts made by the parties or the attorneys to settle the
controversy.
(4) The existence of any bad faith or abuse of legal procedure by
the parties or the attorneys.
(d) In exercising its discretion to determine the amount of
attorney's fees to be awarded, the court shall consider the following
factors, except that in no event shall the amount awarded exceed a
reasonable fee for the services actually rendered:
(1) Customary fees in the community in which the action or
proceeding is pending charged by attorneys with similar experience or
expertise.
(2) The time and labor reasonably required to be spent by the
attorney or attorneys.
(3) The experience and ability of the attorneys generally within
the profession and also with respect to the action or proceeding.
(4) The novelty and difficulty of the questions involved and the
skill required to perform the services properly.
(5) The extent to which the acceptance of the particular matter
imposes extraordinary burdens on the attorney or attorneys (A) by way
of precluding other employment, (B) by the time limitations imposed
by the client, or (C) by the circumstances.
(6) Whether the fee is fixed or contingent.
(7) Those other factors that the court may deem relevant in the
interest of justice, including any of the factors described in
subdivision (c).
(e) Nothing in this section shall be construed to repeal or modify
any other statutory provision for the award of attorney's fees or to
diminish any express or implied contractual right which a party to a
civil action may otherwise have to obtain an award of attorney's
fees for the prosecution or defense of an action.
(f) No attorney's fees shall be awarded pursuant to this section
in any of the following instances:
(1) Against a party who is proceeding in forma pauperis or a party
whom the court has found not to have the financial ability to pay
fees or who would suffer an unreasonable financial hardship if
ordered to pay fees.
(2) For or against any party with respect to any cause of action
under which an award for reasonable attorney's fees is authorized or
required by any other federal or California statute.
(3) For or against any party with respect to any cause of action
or proceeding commenced or prosecuted under Title 7 (commencing with
Section 1230.010) of Part 3.
(4) For or against any party in any action in which one or more
plaintiffs seek to proceed as a class under Section 382.
(5) For or against any party as to any cause of action the
gravamen of which is personal injury, wrongful death, or injunctive
relief.
(g) The determination under this section shall be made after the
final disposition of the action.
(h) This section shall apply only in Riverside County and San
Bernardino County. The Legislature finds and declares that, in order
to assess the impact of this section on a limited basis before
making it applicable on a statewide basis, it is necessary for this
section to be applicable for a limited period of time in those
counties.
(i) This section shall only be in effect from July 1, 1998, until
January 1, 2001, and as of that date is repealed, unless a later
enacted statute, that is enacted on or before January 1, 2001,
deletes or extends that date.
SEC. 2. It is the purpose of this act to encourage settlement of
cases before trial. For courts in Riverside County and San
Bernardino County, the effectiveness of this act shall be determined
by whether, and to what extent, this act increases the early
settlement of cases subject to its provisions. The Judicial Council
shall assess the impact of this act upon the courts to which it
applies and shall report its findings to the Legislature on or before
March 1, 2000. The assessment and report shall include a
determination of the number of filings in affected courts, the number
of cases in which a settlement offer is made pursuant to this act,
the number of cases settled pursuant to the offer, and the number of
cases in which attorney's fees were awarded pursuant to this act.
The presiding judges and clerks of the courts in which this act
applies shall cooperate with the Judicial Council in the assessment
and report required by this section.
SEC. 3. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to encourage settlements in civil actions in Riverside
and San Bernardino Counties, and to reduce congestion in the courts
of those counties as quickly as possible, it is necessary that this
act take effect immediately.