Filed 4/4/18 Broten v. Target Corporation CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



KIRK BROTEN,

Plaintiff and Appellant,

v.

TARGET CORPORATION,

Defendant and Respondent.
D070712



(Super. Ct. No.
37-2013-00045142-CU-WT-CTL)


APPEAL from orders of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed.
Shegerian & Associates and Carney R. Shegerian, Jill McDonell; The Hayes Law Firm and Christopher J. Hayes for Plaintiff and Appellant.
Levy Vinick Burrell Hyams and Darci E. Burrell for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Appellant.
Wilson Turner Kosmo and Claudette G. Wilson, Emily J. Fox and Mark A. Rein for Defendant and Respondent.


Plaintiff and appellant Kirk Broten sued his former employer, defendant and respondent Target Corporation, for several causes of action, including retaliation and wrongful termination under the Fair Employment and Housing Act, Government Code, sections 12900 et seq., 12965 (FEHA). A jury found by special verdict that Target had two "substantial motivating" reasons to discharge Broten: his complaint of harassment, and his poor job performance, and awarded no damages. After trial, Target moved for costs. Broten moved to strike and tax Target's costs. The court granted Broten's motion to tax in part and denied it in part. Broten also unsuccessfully moved for his attorney fees under FEHA.
Broten contends: (1) the trial court reversibly erred by awarding certain costs to Target despite the fact his FEHA action was meritorious; alternatively, this court should remand the matter for the trial court to consider his financial condition and further tax the cost award; (2) the trial court erroneously denied him attorney fees despite their being permissible under Harris v. City of Santa Monica (2013) 56 Cal.4th 203 (Harris); (3) at a minimum, he is entitled to all of his attorney fees incurred before he had rejected Target's Code of Civil Procedure section 998 offer to settle this case; and (4) this court should remand the matter for the trial court to declare him the prevailing party for attorney fees purposes. We affirm.


FACTUAL AND PROCEDURAL BACKGROUND
Target hired Broten in 2005, eventually promoted him to executive team leader and senior merchant, and terminated him in 2013. Broten filed the operative first amended complaint asserting several FEHA and other causes of action against Target: (1) wrongful termination in violation of public policy; (2) wrongful termination under FEHA; (3) interference with medical leave; (4) harassment; (5) retaliation in violation of public policy; (6) retaliation under FEHA; (7) retaliation for taking medical leave; (8) failure to investigate; (9) negligent supervision; and (10) unfair business practices (Bus. and Prof. Code, § 17200 et seq.). In April 2015, Target made a section 998 offer to pay Broten $51,000 and all of his reasonably incurred costs and fees. Broten rejected the offer. Following motions for summary judgment and summary adjudication, the case went to trial on the FEHA causes of action for retaliation and wrongful termination.
The jury answered, "Yes," to three special verdict form questions, finding Broten's "complaint of harassment [was] a substantial motivating reason for [Target's] discharge of [him]"; Broten's "poor job performance [was] also a substantial motivating reason for Target Corporation's discharge of [him]"; and Target would have discharged Broten "anyway at that time based on [his] poor job performance had Target [] not also been substantially motivated by retaliation." The jury did not award Broten damages.
After trial, Broten moved for injunctive relief, seeking a court order that "[Target] comply with the [FEHA] and cease toleration of discrimination and harassment at the workplace." The court denied the motion: "The jury did not find that any discrimination or harassment occurred in [Broten's] former workplace or that it was 'tolerated' by Target management even if such conduct did occur. Further, the jury did not find that complaints of discrimination or harassment were not adequately investigated by Target. Instead, the jury's finding was limited to a conclusion that [Broten] made a good faith complaint, and that this 'complaint of harassment [was] a substantial motivating reason for' [Broten's] discharge. The factual findings necessary to support the issuance of the requested injunction do not exist." The court added: "Any injuries [Broten] may have suffered are in the past. [He] is no longer employed by Target, and during trial he failed to identify any threat of real and immediate future injury to himself. Also, the trial record does not reflect any evidence that Target management presently tolerate[s] or condone[s] harassment or discrimination with respect to its current employees, and the jury did not make any factual findings in this regard."
Broten moved for $1,179,244.50 in attorney fees and requested a 1.5 multiplier for a total of $1,678,386.75. The court denied the motion: "[Broten] did not prevail. He did not receive an award of monetary damages or any other relief (e.g., injunctive relief). Only [a] Plaintiff who prevails on a FEHA based cause of action is entitled to an award of attorney fees [under Government Code, section 12965, subdivision (b).] The holding in [Harris, supra, 56 Cal.4th 203] sets forth the theoretical idea that Plaintiff may be entitled to an award of attorney fees where he or she obtains declaratory or injunctive relief in a 'mixed motive' case. However, no such relief was obtained in this action."
Target filed a cost memorandum for $111,778.89. Broten moved to strike and tax costs. Target filed a revised memorandum for $99,631, which excluded its costs incurred before its section 998 offer. The court in its tentative ruling said that at the hearing on the motion it would consider counsels' arguments regarding Broten's financial condition: "In sum, the ordinary costs and expert witness fees incurred by the prevailing employer after its section 998 offer was rejected, are recoverable in this action. However, this court is vested with the discretionary authority to reduce this award or to 'scale it down' in consideration of policy and [Broten's] circumstances. [¶] The court will hear on how, if at all, the court should consider the evidence of [Broten's] economic circumstances presented at trial, in evaluating the threshold issue of [Target's] entitlement, if any, to claimed costs." (Some capitalization omitted.)
At the hearing, the court inquired about Broten's economic circumstances, instructing Broten's counsel to support his argument with trial evidence. Broten's counsel replied: "I frankly don't recall much being said at all at trial on that point. I do recall [Broten] saying that he was starting this orchid business." Pointing out that Broten was in his early 40's, the court pointed out that if it granted all of Target's requested costs, that "could be tantamount to burying Mr. Broten economically for a long time to come."
The court concluded: "Given that the jury expressly found that [Broten] was terminated in retaliation for his complaint of harassment, this action was not frivolous or objectively without merit." Taking into account Broten's limited finances, the court struck Target's claim for $32,960.28 in expert witness fees: "As mentioned, the court was generally impressed [with Broten's credibility] at trial and does not question that, at this time, he has limited resources [with] which to satisfy [Target's] costs bill; however, the harder question is whether he has unreasonably failed to mitigate his damages and therefore is at least partially responsible for his current economic circumstances. The court is left with the stark contrast between [Broten's] election to live on limited resources with his duty to reasonably mitigate the damages he alleges were caused by [Target]. The balancing of these factors is, from the court's perspective, difficult. [¶] The court recognizes that, from [Target's] perspective, [it] served a reasonable settlement offer before trial, the expert costs it paid for were necessary and, after securing a defense verdict, [Broten] should not be permitted to zealously litigate his claims through trial while avoiding, without impunity, responsibility for [Target's] expert costs. At the hearing, defense counsel represented that the total expert costs at issue were $32,960.28. Though a very close call, the court exercises its discretion to grant this portion of [Broten's] motion and strike [Target's expert] costs of $32,960.28." (Some capitalization omitted.)
However, the court declined to tax $30,261.92 Target had sought for "electronic data processing and hosting fees," reasoning: "Litigation tools, which directly through the court or indirectly through the parties, assist[] the court to more efficiently process the court's workload, [are] reasonably necessary and beyond 'merely convenient or beneficial.' " (Some capitalization omitted.) The court accordingly awarded Target $66,075.10 in costs under section 998.


DISCUSSION
I.
Broten contends the trial court reversibly erred by awarding section 998 costs to Target despite its finding that his FEHA action was not frivolous: "Target may not recover any litigation costs, including those incurred after its section 998 offer, absent a showing that Broten's FEHA action was objectively without merit. The trial court found, and [Target] conceded, that such a showing cannot be made after the jury found that Target retaliated against Broten for complaining of harassment. . . . The trial court's award of costs to Target notwithstanding such finding sets aside the holding in [Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97 (Williams)] and impedes FEHA's central purpose." (Some capitalization omitted.)
Broten further contends this court should remand the matter for the trial court to consider his financial condition and tax Target's claim for $32,261.92 in electronic data processing and hosting fees. He also argues that, at a minimum, the court should tax $10,495.01 of those fees because some of those expenses were incurred after the discovery cutoff date. He adds that Target billed some of those fees without indicating what work, if any, was done. Broten argues the trial court should have considered that he cannot pay the costs, as he earns $174 bimonthly. Broten adds: "While the Trial Court acknowledged Broten's 'limited resources,' it did not compare those resources to those of Target's. . . . Instead, it impermissibly considered, and sua sponte concluded, that Broten failed to mitigate his earnings. . . . However, Broten testified that he tried starting a small online business, applied to at least 30 or 40 other retail businesses, and applied for grocery store positions, but received no job offers."
Target argues that under this court's holding in Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514 (Sviridov), employers may recover costs in FEHA litigation under section 998 without first showing an employee's action was frivolous. It argues Broten's reliance on Williams, supra, 61 Cal.4th 97 is unavailing because that case did not involve a section 998 offer. According to Target, the trial court here adequately considered Broten's financial condition and reduced Target's costs accordingly. Finally, Target argues Broten forfeited any claim regarding Target's electronic data processing and hosting fees by failing to provide evidence of his financial condition.
We review a trial court's prevailing party determination and its costs award for abuse of discretion. We independently review questions of law. (Litt v. Eisenhower Medical Center (2015) 237 Cal.App.4th 1217, 1221.) The general rule for civil cases is "[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (§ 1032, subd. (b).) In actions brought under FEHA, Government Code section 12965, subdivision (b) states, "the court, in its discretion, may award to the prevailing party . . . reasonable attorney's fees and costs, including expert witness fees." The California Supreme Court in Williams, supra, 61 Cal.4th 97 held this provision for a discretionary cost award is an "express exception" to section 1032, subdivision (b)'s mandate to award costs to a prevailing party. (Williams, supra, 61 Cal.4th at p. 105.) In authorizing discretionary awards of attorney fees and costs under Government Code section 12965, subdivision (b), the Legislature "sought 'to encourage persons injured by discrimination to seek judicial relief.' " (Williams, at p. 112.) Because the statute makes awards for costs and attorney fees discretionary, the Supreme Court determined the Legislature intended the court to exercise its discretion in the same manner for both and the rule established by Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n (1978) 434 U.S. 412 (Christiansburg), applied to both attorney fees and costs. (Williams, at pp. 114-115.) Under this standard, the court concluded "[a] prevailing defendant . . . should not be awarded fees and costs unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so." (Id. at p. 115.)
However, Target made statutory offers to settle Broten's claim pursuant to section 998, which provides, "(a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section. [¶] . . . [¶] (c)(1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, in any action or proceeding . . . the court . . . in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in . . . preparation for trial . . . or during trial . . . of the case by the defendant."
This court pointed out in Sviridov that section 998 is itself an exception to section 1032's provision that only a prevailing party is entitled to costs. Section 998 makes an award of ordinary costs mandatory against a plaintiff who did not accept a statutory offer to compromise and failed to obtain a more favorable judgment. It also gives the court discretion to award reasonable expert witness costs. Section 998 is " 'a cost-shifting statute which encourages the settlement of actions, by penalizing parties who fail to accept reasonable pretrial settlement offers. A plaintiff who refuses a reasonable pretrial settlement offer and subsequently fails to obtain a "more favorable judgment" is penalized by a loss of prevailing party costs and an award of costs in the defendant's favor.' [Citations.] In Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1562, the appellate court explained that section 998 'is designed to create economic incentives on both parties to settle rather than try their lawsuits. To do so, both sides must face some economic consequences if it turns out they miscalculate and lose. Thus, seldom would a court properly deny a successful defendant its entire section 998 cost award, even in a FEHA case.' " (Sviridov, supra,14 Cal.App.5th at pp. 519-521.)
The court in Holman v. Altana Pharma US, Inc. (2010) 186 Cal.App.4th 262 (Holman) considered the effect of a section 998 offer on an award of costs and fees to the prevailing party in a FEHA action. There, the plaintiff brought a FEHA action against her former employer, and the employer eventually prevailed on all causes of action. (Holman, at pp. 264-265.) The plaintiff appealed from the judgment and from the postjudgment order awarding expert witness fees to the defendant as costs. (Id. at
p. 265.) The plaintiff argued that a defendant prevailing in a FEHA action could not recover expert witness fees unless the plaintiff's case was found to be frivolous or without merit. She argued no such finding had been made, so the defendant could recover only its routine litigation costs but not its expert witness fees. The threshold issue before the court was "whether a prevailing employer in a FEHA case must show that the plaintiff's case was frivolous before it may recover expert witness fees under . . . section 998." (Holman, 186 Cal.App.4th at p. 277.) The court assumed the Christiansburg standard (Christiansburg, supra, 434 U.S. 412) would apply to recovery of attorney fees and expert witness fees in FEHA cases under Government Code section 12965, subdivision (b). (Holman, at p. 280.) But nothing in that section expressly disallowed an award of expert witness fees to a prevailing FEHA defendant under section 998. (Holman, at
p. 281.) Further, nothing in the FEHA statute expressly required compliance with the Christiansburg standard in order to recover expert witness fees under section 998. (Holman, at pp. 281-282.) "Thus, even if the Christiansburg standard implicitly applies when prevailing defendants seek to recover expert witness fees under [Government Code] section 12965, we conclude that the trial court was authorized to exercise its discretion under . . . section 998 to award expert witness fees here." (Id. at
p. 282.) The court stated, " 'consistent with the rationale of Christiansburg and like California decisions, it is entirely appropriate and indeed necessary for trial courts to "scale" those [expert witness fee] awards downward to a figure that will not unduly pressure modest- or low-income plaintiffs into accepting unreasonable offers,' " and "the court must not only look to whether the expense was reasonably incurred, but must also consider the economic resources of the offeree." (Holman, at p. 284, fn. omitted.)
"In reviewing a trial court's award of costs pursuant to section 998, the appropriate standard of review is abuse of discretion. [Citation.] The party appealing the trial court's decision to award costs bears the burden ' "to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power" [Citations.]' [Citation.] To meet its burden, a complaining party must therefore show that the trial court exercised its discretion in an 'arbitrary, capricious or patently absurd manner." (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1482.)
Broten has not shown the trial court abused its discretion in awarding routine litigation costs to Target, or in calculating the cost award. Specifically, the court did not err by declining to tax $30,261.92 in Target's electronic data processing and hosting fees based on its conclusion that Target's electronic system facilitated the court's work. Consequently, we have no basis for reversing the award of costs.
As set forth above, the court properly considered Broten's financial condition in granting Broten's request to tax Target's claim for expert fees. It addressed that matter in its tentative ruling, and later heard counsels' arguments on it. We therefore decline Broten's invitation to remand the matter for further consideration of his financial condition. The court acted well within its discretion.
To the extent Broten argues the court declined to consider Target's finances, we conclude the claim is forfeited because Broten does not cite to any legal authority for his claim in his opening brief. Every brief must contain a legal argument with citation to authorities. If none is furnished, the court may treat the claim as abandoned, forfeited, or waived, and pass it without consideration or discussion, because it is not the reviewing court's responsibility to develop an argument on behalf of the appellant. (Long v. Cal-Western States Life Ins. Co. (1955) 43 Cal.2d 871, 883; Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 79-80; R.A. Stuchbery & Others Syndicate 1096 v. Redland Ins. Co. (2007) 154 Cal.App.4th 796, 801-802, fn. 3.)
Broten argues the trial court erred by denying part of his motion to tax costs: "Section 998 does not apply to and has no effect on fees or costs in a FEHA case: 1. Because the FEHA has a comprehensive, internal, statutory mechanism with which to deal with the apportionment of attorney's fees and costs in Government Code section 12695, [subdivision] (b); 2. Because section 998 is dependent upon section 1032 by its own terms; 3. Because the Williams Court held a trial court may not award costs to a FEHA defendant unless the claim was frivolous; and 4. Because the Williams Court held [Government Code section 12695, subdivision (b)] to be an express exception to section 1032, [subdivision] (b). Costs may only be awarded to a defendant in a FEHA case under the Christiansburg standard of frivolousness." (Some Capitalization omitted.)
Broten and amicus rely on Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (2018) 19 Cal.App.5th 525 (Arave), which held: "The question we face is whether this provision allows defendants to recover expert witness fees even though Arave's FEHA claims were not frivolous and FEHA's fee and cost provision itself bars the award of expert witness fees incurred in defending nonfrivolous claims. Our answer is no. There is a conflict between section 998, [subdivision] (c) and [Government Code section 12965, subdivision (b)] as applied in this case. [Government Code section 12965, subdivision (b)] precludes the trial court from exercising its discretion to award defendants expert witness fees because plaintiff's FEHA claims were not frivolous. However, section 998, [subdivision] (c) purports to authorize the trial court to exercise its discretion and award defendants at least a portion of their expert witness fees because they offered to settle for an amount greater than the verdict. We resolve the conflict in favor of the FEHA provision, which the Legislature enacted as part of a comprehensive statutory scheme designed to encourage victims of discrimination in employment or housing to seek relief. Because [Government Code section 12965, subdivision (b)] provides for the award of attorney fees, ordinary costs, and expert witness fees in FEHA actions in a way that conflicts with the generally applicable provisions for such awards, we conclude the later, more specific FEHA provisions control. " (Arave, supra, at p. 552.)
We reject this line of reasoning. The Arave court distinguished our decision in Sviridov, supra, 14 Cal.App.5th 514 in part because we concluded the plaintiff in that case had forfeited his argument. (Arave, supra, 19 Cal.App.5th at p. 554.) But as the Arave court acknowledged, we had also briefly addressed the issue on the merits, reasoning that "a blanket application of Williams to preclude section 998 costs unless the FEHA claim was objectively groundless would erode the public policy of encouraging settlement in such cases." (Sviridov, at p. 521; Arave, at p. 555.) The Arave court stated: "[W]e believe our holding is correct because it properly takes into account the public policy of encouraging FEHA plaintiffs to bring meritorious claims. Sviridov does not mention this countervailing public policy other than to note plaintiff did 'not establish[ ] the court did not properly consider the policies of both provisions in making the award.' [Citation.] As we have discussed above, we believe allowing section 998 [subdivision] (c) expert fee awards to defendants who are not entitled to expert witness fees under [Government Code, section 12965, subdivision (b)] impermissibly undermines the effectiveness of FEHA." (Arave, supra, at pp. 554-555, some capitalization omitted.)
We continue to believe Sviridov, supra, 14 Cal.App.5th 514 was correctly decided. Contrary to the Arave court, we do not believe that our reasoning in Sviridov undermines the goal of permitting plaintiffs "to bring meritorious claims" under FEHA. (Arave, supra, 19 Cal.App.5th at p. 555.) We point out that FEHA's plain language does not carve out an exception for section 998 offers. " ' "Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history." ' [ Citation.] '[W]e must be careful not to add requirements to those already supplied by the Legislature.' " (Ennabe v. Manosa (2014) 58 Cal. 4th 697, 719.) In our view, the more important issue is whether once a meritorious FEHA claim is brought it should be maintained in the face of a reasonable offer to settle under section 998. We believe that the result we reach in this case, as in Sviridov, promotes judicial economy by providing an incentive to parties in FEHA cases to settle their disputes before trial as contemplated in section 998.
II.
Attorney Fees
Relying on Harris, supra, 56 Cal.4th at p. 235, Broten argues the trial court should have required Target to pay his attorney fees because Target's termination of him "was substantially motivated by his complaint of harassment. . . . Target's violation of FEHA is substantially responsible for this costly litigation that has spanned over four years and has consumed the limited resources of [his] attorneys and the courts. If [his] fees are denied, Target will incur zero consequences for its wrongdoing and will be free to retaliate against current and future employees. As Harris instructs, the 'same decision' finding in this case does not prevent other employees from suffering a compensable injury at the hands of Target. However, such employees will have limited recourse to vindicate their rights if [their] attorneys are deterred from litigating contingency-based FEHA cases knowing that they may prove liability and still recover nothing for their work."
By statute, the "prevailing party" in a FEHA action may be awarded reasonable attorney fees. (Gov. Code, § 12965, subd. (b); Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 984 (Chavez).) Because FEHA does not define the term "prevailing party," prevailing party status is determined in this context "based on an evaluation of whether a party prevailed ' "on a practical level." ' " (Donner Management Co. v. Schaffer (2006) 142 Cal.App.4th 1296, 1310.) In applying this standard, the trial court must identify the prevailing party "by analyzing the extent to which each party has realized its litigation objectives." (Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1023.)
We review the trial court's denial of attorney fees for abuse of discretion. (Chavez, supra, 47 Cal.4th at p. 989.) "Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.] . . . [W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598.)
In the FEHA context, the trial court's discretion is guided by the principle that "a prevailing plaintiff should ordinarily recover attorney fees unless special circumstances would render the award unjust, whereas a prevailing defendant may recover attorney fees only when the plaintiff's action was frivolous, unreasonable, without foundation, or brought in bad faith." (Chavez, supra, 47 Cal.4th at p. 985.)
The court did not err by denying Broten's request for attorney fees, as he did not prevail on any of his causes of action. He did not receive an award of monetary damages or any other relief (e.g., injunctive relief). Only a plaintiff who prevails on a FEHA based cause of action is entitled to an award of attorney fees. (Gov. Code, § 12965, subd. (b).) In arguing for a contrary conclusion, Broten appears to misread Harris's plain statement that attorney fees are "discretionary" under FEHA (Harris, supra, 56 Cal.4th at p. 235), to mean they are "mandatory." The Harris court made clear: "An award may take into account the scale of the plaintiff's success, and it must not encourage 'unnecessary litigation of claims that serve no public purpose either because they have no broad public impact or because they are factually or legally weak." (Ibid.) The touchstone is reasonableness. (Ibid.)
As another court recently pointed out: "Nevertheless, it is important to emphasize that Harris does not require the trial court to award attorney fees to any plaintiff who proves discrimination was a substantial motivating factor of an adverse employment decision; rather, such a plaintiff 'may be eligible' to recover attorney fees. (Harris, supra, 56 Cal.4th at p. 235.) Implicitly, therefore, such a plaintiff may not be eligible to recover attorney fees under FEHA, because he or she is not a 'prevailing party' as the term is defined in [Government Code] section 12965. [Citations.] Or, alternatively, in unusual circumstances, the trial court might exercise its discretion not to make an award of attorney fees, even to a plaintiff who is deemed to have prevailed." (Bustos v. Global P.E.T., Inc. (2017) 19 Cal.App.5th 558, 564.) The trial court reasonably determined that Broten should not be awarded attorney fees. As he had obtained no relief at trial—either monetary or equitable—he had not "realized [his] litigation objectives" (Castro, supra, 116 Cal.App.4th at p. 1023); therefore, it was legally immaterial that the jury answered a preliminary question on a special verdict form in his favor. Similarly, defendants, like Target, who obtain judgment in their favor on all claims are reasonably viewed to have "realized [their] litigation objectives," regardless of how the judgment was reached. (Ibid.)
Broten argues that even if section 998 precluded his recovery of certain postoffer costs, he was still entitled to his attorney fees incurred before the offer. He further argues that all of his causes of action were based on the same facts; therefore, his attorney fees cannot be apportioned between the preoffer and postoffer claims. He also argues his counsel's hourly rates were reasonable. Again, because Broten did not prevail in his lawsuit, he was not entitled to attorney fees. The court did not err by denying his request.





DISPOSITION
The orders are affirmed. Each party is to bear its own costs on appeal.


O'ROURKE, J.

WE CONCUR:



BENKE, Acting P. J.



IRION, J.