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.,                                        D072793

         Plaintiffs and Appellants,

         v.                                                      (Super. Ct. No.
                                                                  37-2015-0004033-CU-BC-CTL)
FCA US LLC,

         Defendant and Respondent.


         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.
       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.
                                               2
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

                                              3
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).)

                                               4
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.)
                                                5
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
                                              6
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.
                                              7
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

                                               8
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.

                                               9
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



                                             10
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

                                              11
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

                                             12
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

                                              13
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

                                              14
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
                                             15
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.)
                                              16
       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.)



                                              17
       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



                                              18
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

                                              19
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



                                              20
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

                                              21
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. Mercedes-

Benz 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

                                               22
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

                                               23
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"

                                              24
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.)

                                              25
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.)
                                              26
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

                                              27
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

                                             28
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

                                              29
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

                                               30
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.




                                             31
                                       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.




                                              32
Filed 12/27/18

                           CERTIFIED FOR PUBLICATION


                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



JAMIE L. ETCHESON et al.,                          D072793

        Plaintiffs and Appellants,

        v.                                         (Super. Ct. No.
                                                    37-2015-0004033-CU-BC-CTL)
FCA US LLC,
                                                  ORDER GRANTING REQUESTS
        Defendant and Respondent.                 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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