Date: 04-07-2018

Case Style: Efigenia Garcia v. Mercedes-Benz USA, LLC

Case Number: D070804

Judge: Hoffstadt

Court: California Court of Appeals Second Appellate District Division Two on appeal from the Superior Court, Los Angeles County

Plaintiff's Attorney: René Korper and Thomas E. Solmer

Defendant's Attorney: Jon D. Universal and James P. Mayo

Description: After the engine of a brand new Mercedes-Benz died, the
car’s manufacturer offered to repurchase the car for the full
amount less the $3,090 the buyer paid the dealer for additional
products and services (“dealer add-ons”). After the buyer sued
the manufacturer for breach of the implied warranty of
merchantability under the Song-Beverly Consumer Warranty Act
(the Act) (Civ. Code, § 1790 et seq.),1 the parties entered into a
confidential settlement leaving attorney’s fees and costs
unresolved, and the buyer moved for attorney’s fees as the
“prevailing party” under the Act. This appeal chiefly presents
the question: Is a buyer a prevailing party entitled to recover
attorney’s fees under the Act if, through settlement with the
manufacturer, all she obtains by litigating is the payment of
dealer add-ons for which the manufacturer is not responsible and
the payment of attorney’s fees? We conclude the answer is “no.”
For these reasons and others, we affirm the denial of attorney’s
fees but modify the judgment to award costs because the buyer
obtained a net monetary recovery by virtue of the settlement.
FACTS AND PROCEDURAL BACKGROUND
In April 2015, plaintiff Efigenia Garcia (Garcia) bought a
Mercedes-Benz GLA250W4 at Keyes European, an authorized
Mercedes-Benz dealer. Garcia paid $46,593.97, comprised of a
$8,540 down payment and a loan for the balance.2 The
$46,593.97 amount included the cost of the car and $3,090 in
dealer add-ons (namely, $1,700 for Mercedes-Benz tires and

1 All further statutory references are to the Civil Code unless
otherwise indicated.
2 The total sale amount was $49,546.88, which included the
projected finance charges over the life of the automobile loan she
took out. Because Garcia returned the car almost immediately
after driving it off the lot, those charges were never incurred.
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wheels, $995 for Ownerguard protection, and $395 for a thirdparty
surface protection product).
A month later, the car’s engine “failed entirely.”
Soon thereafter, Garcia contacted defendant MercedesBenz
USA, LLC (Mercedes-Benz), and Mercedes-Benz offered to
repurchase the car. Before Mercedes-Benz laid out the details of
the repurchase, Garcia hired an attorney. Mercedes-Benz sent a
follow-up email, explaining that it would repurchase Garcia’s car
for the amount she paid the manufacturer, but would not
reimburse her for dealer add-ons (or $18.99 in interest on those
add-ons) or pay any attorney’s fees.
A few days after receiving Mercedes-Benz’s more detailed
offer, Garcia sued Mercedes-Benz in a single-count complaint
alleging breach of the implied warranty of merchantability, but
which made additional allegations regarding the breach of an
express warranty and sought relief only available for a breach of
implied and express warranties. Pursuant to the Act, Garcia
sought a refund of the full purchase price (including the amount
paid to Mercedes-Benz for the car and the amount paid for the
dealer add-ons), civil penalties of twice her actual damages,
attorney’s fees, and costs.3 Garcia did not sue the dealer.
Before and after Garcia filed her complaint, the parties
tried to negotiate a settlement. Garcia demanded (1) that
Mercedes-Benz take custody of the car, (2) refund her the
amounts paid to the dealer as well as Mercedes-Benz, and (3) pay
her attorney’s fees, initially of $2,500 and subsequently of $4,020.
Mercedes-Benz’s pre-complaint offer eventually gave way to an
offer to refund her everything (including the amounts paid for the

3 We take judicial notice of the court file. (Evid. Code, § 452,
subd. (c).)
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dealer add-ons) and to pay either $1,000 in attorney’s fees and
costs or to leave them open for resolution by the court.
The parties entered into a confidential settlement that did
not disclose the settlement amount and left the issues of
attorney’s fees and costs for judicial resolution. Garcia
surrendered the car, and was paid the confidential amount.
Garcia then filed a motion for $8,430 in attorney’s fees as
the prevailing party under the Act as well as a memorandum of
costs seeking $750 in costs. After full briefing, the trial court
issued a written order denying attorney’s fees and costs. In
denying attorney’s fees, the court noted that Garcia’s entitlement
to attorney’s fees under the Act turned on whether she was the
prevailing party and thus had achieved her litigation objectives,
but ruled that the confidentiality of the settlement made it
impossible to know whether Garcia had, in fact, achieved those
objectives by obtaining more in the settlement than MercedesBenz
had offered her prior to the lawsuit. The court declined to
award costs on the ground that they could not be obtained by
noticed motion.
A few weeks later, the trial court entered a judgment
dismissing Garcia’s lawsuit with prejudice. Garcia thereafter
filed this timely appeal.
DISCUSSION
Garcia argues that the trial court erred in denying her
attorney’s fees and costs. Mercedes-Benz asserts that we need
not reach these questions because the trial court’s denial order is
not appealable. We address the appealability question first.
I. Appealability
Mercedes-Benz contends that we are without jurisdiction to
entertain Garcia’s appeal from the trial court’s order denying
attorney’s fees and costs because it is an interim order prior to
judgment that is outside our appellate jurisdiction. We
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independently review questions regarding our own jurisdiction.
(California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th
231, 252.)
As a general rule, we may only entertain appeals from final
judgments. (Code Civ. Proc., § 904.1, subd. (a).) This rule is
designed “‘to prevent piecemeal dispositions and costly multiple
appeals.’ [Citation.]” (Howeth v. Coffelt (2017) 18 Cal.App.5th
126, 133-134.) One corollary of this “one final judgment” rule is
that “‘‘interlocutory or interim orders are not appealable.”’”
(Id. at p. 133.) This corollary applies to an order denying interim
(that is, prejudgment) attorney’s fees. (Sese v. Wells Fargo Bank
N.A. (2016) 2 Cal.App.5th 710, 716.) However, a second corollary
of the “one final judgment” rule is that interim rulings that are
not themselves appealable remain “‘“‘reviewable on appeal’ from
the final judgment.”’” (Howeth, at p. 133.) Because “[a] dismissal
with prejudice following a settlement constitutes a final judgment
on the merits” (Estate of Redfield (2011) 193 Cal.App.4th 1526,
1533; Code Civ. Proc., § 581d), we have jurisdiction to review the
trial court’s prejudgment attorney’s fees and costs order on
appeal from the final judgment subsequently entered in this case.
II. Merits
Garcia contends that she is entitled to attorney’s fees and
costs as a prevailing party under the Act. We review a trial
court’s attorney’s fees and cost rulings, including its
determination of whether a party is the prevailing party for an
abuse of discretion. (Goglin v. BMW of North America, LLC
(2016) 4 Cal.App.5th 462, 470 (Goglin); MacQuiddy v. MercedesBenz
USA, LLC (2015) 233 Cal.App.4th 1036, 1047 (MacQuiddy);
El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc.
(2007) 150 Cal.App.4th 612, 617 [award of costs].) To the extent
these inquires require us to construe statutes, our review is de
novo (Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th
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1252, 1258 (Wohlgemuth)); to the extent they require us to review
the trial court’s factual findings, we review for substantial
evidence (Stratton v. Beck (2017) 9 Cal.App.5th 483, 496).
A. Attorney’s Fees
1. Legal framework
The Act is colloquially known as California’s “lemon law,”
and is a “strongly pro-consumer” law aimed at protecting, among
others, new car buyers. (Murillo v. Fleetwood Enterprises, Inc.
(1998) 17 Cal.4th 985, 990.) Toward that end, the Act:
(1) requires all “manufacturers” and “retail sellers” of new cars to
extend an implied warranty of merchantability to the buyer that
assures that the car is “fit for the ordinary purposes for which
[cars] are used” (§§1791.1, subd. (a)(2) & 1792; Brand v. Hyundai
Motor America (2014) 226 Cal.App.4th 1538, 1546 (Brand); see
also § 1792.3 [implied warranty not subject to wavier unless
strict requirements for “as is” sales are met]); and (2) regulates
how any express warranties made by manufacturers, retail
sellers, and others are created and enforced (§§ 1793.1, 1793.2,
1793.3, 1795).
The Act also grants new car buyers the right to sue when a
manufacturer or retail seller “fail[s] to comply” with any “implied
or express warranty.” (§ 1794, subd. (a).) A buyer bringing suit
may seek actual damages, which differ depending on whether she
alleges a breach of implied warranty or a breach of an express
warranty. (Compare §§ 1794, subd. (b), 1791.1, subd. (d); Cal. U.
Com. Code, §§ 2711-2715 [remedies for breach of implied
warranty] with §§ 1793.2, subd. (d), 1793.3 [remedies for breach
of express warranty], 1795 [“persons other than the
manufacturer of the goods” may make express warranties]; see
generally Music Acceptance Corp. v. Lofing (1995) 32 Cal.App.4th
610, 620-621 [noting how remedies differ]; Brand, supra,
226 Cal.App.4th at p. 1548 [same].) Unless a buyer’s “claim [is]
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based solely on a breach of an implied warranty,” the buyer may
also seek a “civil penalty” (of up to two times the amount of
actual damages) if the manufacturer’s or retail seller’s “failure to
comply was willful.” (§ 1794, subds. (c) & (e).)
Most pertinent here, a buyer who “prevails in [her] action”
may recover “costs and expenses, including attorney’s fees based
on actual time expended, determined by the court to have been
reasonably incurred by the buyer in connection with the
commencement and prosecution” of her action under the Act.
(§ 1794, subd. (d).) Making attorney’s fees available to prevailing
buyers (but not prevailing manufacturers or retail sellers) is
designed to “‘provide[] injured consumers strong encouragement
to seek legal redress in a situation in which a lawsuit might not
otherwise have been economically feasible.’” (Wohlgemuth,
supra, 207 Cal.App.4th at p. 1262.)
The Act does not define the term prevailing party. (§ 1794,
subd. (d).) The courts have split over how to fill this void when it
comes to the award of attorney’s fees.
A handful of courts have imported the definition of
prevailing party from the general statute governing costs, Code of
Civil Procedure section 1032. (See Reveles v. Toyota by the Bay
(1997) 57 Cal.App.4th 1139, 1158, disapproved on other grounds
in Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246,
1261; Kim v. Euromotors West/The Auto Gallery (2007)
149 Cal.App.4th 170, 181.) Under that statute, the party who
obtains “a net monetary recovery” is a prevailing party. (Code
Civ. Proc., § 1032, subd. (a)(4); DeSaulles v. Community Hospital
of Monterey Peninsula (2016) 62 Cal.4th 1140, 1157 (DeSaulles).)
A greater number of courts have elected to take a more
“pragmatic” and less restrictive approach to assessing whether a
buyer has prevailed. (See Wohlgemuth, supra, 207 Cal.App.4th
at p. 1264; MacQuiddy, supra, 233 Cal.App.4th at p. 1047;
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Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th
140, 149-151; see also Castro v. Superior Court (2004) 116
Cal.App.4th 1010, 1018-1019 [collecting cases].) Under this
approach, it is not enough for a buyer to show that he “obtained a
net monetary recovery.” (MacQuiddy, at p. 1047.) Instead,
courts ask: To what extent did the buyer achieve her litigation
objectives? (Wohlgemuth, at p. 1264.) By and large, litigation
objectives are measured by what the party sought to obtain by
filing suit. (E.g., Marina Pacifica Homeowners Assn. v. Southern
California Financial Corp. (2018) 20 Cal.App.5th 191, 204-205];
see generally Hsu v. Abbara (1995) 9 Cal.4th 863, 876 [looking to
party’s “pleadings, trial briefs, opening statements, and similar
sources”].) Where, as here, the party filed suit after receiving a
settlement offer, we measure litigation objectives by reference to
what that party sought to obtain by rejecting the last
prelitigation offer. (MacQuiddy, at pp. 1048-1049 [when buyer
was offered all but civil penalty prior to litigation, buyer’s
litigation objective is obtaining civil penalty].) This focus
dovetails neatly with the Act’s overarching goal—namely,
facilitating speedy and efficient refunds for (or exchanges of)
“lemons” by giving manufacturers and retail sellers the
incentives to make (and buyers the incentive to accept) offers that
give buyers the remedies to which the Act entitles them. Thus,
the question of whether a buyer is a prevailing party under the
Act looks to what the buyer was last offered by the manufacturer
or retail seller before filing suit and whether she achieved a
greater result by the time of settlement or verdict. (Id. at
p. 1049.)
We side with the decisions taking the more practical
approach, and do so for two reasons. First, Code of Civil
Procedure section 1032 provides on its face that its definition of
prevailing party is meant to be “used in this section,” not as the
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universal default definition of the term. (Accord, Galan
v. Wolfriver Holding Corp. (2000) 80 Cal.App.4th 1124, 1128;
Heather Farms Homeowners Assn. v. Robinson (1994)
21 Cal.App.4th 1568, 1572.) Second, importing Code of Civil
Procedure section 1032’s definition of prevailing party into the
Act disserves the Act’s purpose. As pertinent here, the Act is
designed to facilitate timely refunds for defective new cars (and
to discourage foot dragging by manufacturers and retail sellers).
In so doing, the Act contemplates that buyers will always get a
“net monetary recovery.” If that were enough by itself to qualify
a buyer as a prevailing party (as it would be under Code of Civil
Procedure section 1032’s definition), a buyer would always be
entitled to attorney’s fees, even when the manufacturer or retail
seller responds with alacrity to the buyer’s demand for a refund.
Always awarding attorney’s fees is not the Act’s purpose.
(Dominguez v. American Suzuki Motor Corp. (2008) 160
Cal.App.4th 53, 60 (Dominguez) [“Based on a plain reading of the
applicable statutory provisions, we cannot conclude the
Legislature intended that every time a manufacturer repurchases
or replaces consumer goods, a consumer is entitled to attorney
fees”].) Although adopting the pragmatic approach means that a
buyer might be a prevailing party for one purpose (costs) but not
another (attorney’s fees), this outcome is of no moment.
(E.g., McLarand, Vasquez & Partners, Inc. v. Downey Savings
& Loan Assn. (1991) 231 Cal.App.3d 1450, 1456 [“reject[ing] the
contention that the prevailing party for the award of costs under
section 1032 is necessarily the prevailing party for the award of
attorney[’s] fees”].)
The buyer bears the burden of showing that she prevailed.
(See Robertson v. Fleetwood Travel Trailers of California, Inc.
(2006) 144 Cal.App.4th 785, 817-818 (Robertson).)
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2. Analysis
Because Mercedes-Benz offered to repurchase her car for
the full amount save the dealer add-ons, Garcia pursued
litigation, at most, to achieve one or more of the following
objectives: (1) getting Mercedes-Benz to refund the amount of the
dealer add-ons; (2) obtaining a civil penalty; and (3) seeking an
award of attorney’s fees under the Act. Because Garcia did not
demand any civil penalty in any of her post-complaint
negotiations with Mercedes-Benz, she seemingly abandoned her
objective of obtaining a civil penalty; we will nevertheless
continue to treat it as one of her litigation objectives.
a. Dealer add-ons
The trial court did not abuse its discretion in declining to
find Garcia to be a prevailing party just because she pursued
litigation to obtain the dealer add-ons from Mercedes-Benz. That
is because she is not legally entitled, under the Act, to obtain a
refund of those dealer add-ons from the manufacturer.
(Cf. People v. Superior Court (Humberto S.) (2008) 43 Cal.4th
737, 746 [“when a trial court’s discretion rests on an error of law,
that decision is an abuse of discretion”].) Garcia purchased the
add-ons from the dealer, not Mercedes-Benz. Except as to
foodstuffs, a plaintiff seeking to recover for breach of an implied
warranty of merchantability must prove privity with the
breaching party. (Burr v. Sherwin Williams Co. (1954) 42 Cal.2d
682, 695 [“privity of contract is required in an action for breach
of . . . implied warranty”]; Arnold v. Dow Chemical Co. (2001)
91 Cal.App.4th 698, 720.) As to the dealer add-ons, Garcia’s
privity is with the dealer—not Mercedes-Benz.
The Act itself reinforces this conclusion. To begin, the Act
recognizes that manufacturers and retail sellers (that is, dealers)
are distinct entities. (Compare § 1791, subd. (j) [defining
“[m]anufacturer”] with § 1791, subd. (l) [defining “[r]etail
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seller”].) Further, by granting only retail sellers the right to seek
indemnity from manufacturers for any amounts they pay a buyer
for breach of the implied warranty (§ 1792), the Act (1) reinforces
that each entity is only to pay for its share of the buyer’s loss, and
(2) by negative implication affirms that manufacturers do not
have a reciprocal right to seek indemnification from retail sellers
for any amounts the manufacturers pay on retail sellers’ behalf
for a breach of the implied warranty. (Spicer v. City of Camarillo
(2011) 195 Cal.App.4th 1423, 1427 [“a statute may express the
law by ‘negative implication’”].) Yet Garcia is asking MercedesBenz
to pay for the dealer’s breach. Lastly, the Act affirmatively
states that manufacturers are not required to refund buyers for
the cost of “nonmanufacturer items installed by a dealer” when
the buyer sues for breach of an express warranty. (§ 1793.2 subd.
(d)(2)(B).) This statutory carve-out for dealer add-ons would be
nullified if we were to conclude that buyers had a right to make
manufacturers pay for dealer add-ons under an implied warranty
theory; all a buyer would have to do is restate her breach of
express warranty claim as a breach of implied warranty claim.
We must avoid rulings that nullify statutes. (Elder v. Carlisle
Ins. Co. (1987) 193 Cal.App.3d 1313, 1319 [“In construing a
statute, a court should . . . avoid an interpretation that would
effectively nullify a portion of the statute”].)
Garcia assails two of the above stated reasons for
concluding that a buyer cannot, under the Act, sue the
manufacturer for a refund of goods and services purchased from
the dealer. First, she argues that the Act does not require
privity. To be sure, there is language in a few cases stating that
“under the Act, the buyer can sue ‘the manufacturer’ for breach of
the implied warranty of merchantability despite a lack of privity.”
(Mega RV Corp. v. HWH Corp. (2014) 225 Cal.App.4th 1318,
1333, fn. 11; Gusse v. Damon Corp. (2007) 470 F.Supp.2d 1110,
12
1116, fn. 9 (Gusse).) But this language stands for the
unremarkable and statutorily compelled conclusion that a buyer
may always sue the manufacturer for breach of the implied
warranty under the Act irrespective of the buyer’s privity with
the manufacturer. (Mega RV, at p. 1333 [buyer may sue
manufacturer for defects in component parts integrated into a
vehicle]; Gusse, at p. 1116 [buyer may sue manufacturer for car
obtained from dealer]; see generally Mega RV, at p. 1333 [“The
Act protects purchasers of consumer goods by requiring specified
implied warranties [and] placing strict limitations on how and
when a manufacturer may disclaim those implied warranties”].)
This language does not stand for the much broader proposition
that privity does not matter at all under the Act. To the
contrary, and as explained above, the Act expressly treats
manufacturers and retail sellers as distinct entities and
consequently does not allow a buyer to sue a manufacturer for
the retail seller’s breach of an implied warranty.
Second, Garcia asserts that we need not be concerned that
buyers will always do “end runs” around the statutory carve out
for dealer add-ons that applies to an express warranty by
recasting their claims as breaches of an implied warranty
because buyers may seek a refund or a replacement vehicle (and
may sue for the failure to provide such) under an express
warranty theory only if the manufacturer is first given a
reasonable opportunity to repair the vehicle. (§ 1792.3, subd.
(d)(1) & (2); Oregel v. American Isuzu Motors, Inc. (2001)
90 Cal.App.4th 1094, 1103; Robertson, supra, 144 Cal.App.4th at
p. 810; see also Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th
1205, 1206-1207 [affirming conclusion that manufacturer may
insist upon two opportunities to repair vehicle].) But this
precursor requirement establishes, at best, that not all implied
warranty claims can be restated as express warranty claims.
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It does not speak to—or in any way undermine—our concern that
all express warranty claims can be restated as implied warranty
claims, thereby sidestepping and negating our Legislature’s
explicit limitation on express warranty claims.
Because Mercedes-Benz is not legally responsible to pay
Garcia for the dealer add-ons, Garcia’s success in getting
Mercedes-Benz to pay more than the statute requires does not
count as a cognizable litigation benefit. A buyer can be a
prevailing party under the Act if she incurs attorney’s fees after
rejecting a settlement on terms the law does not require or
permit. (E.g., Goglin, supra, 4 Cal.App.5th at pp. 471-472 [buyer
rejected settlement containing a broad waiver of rights;
prevailing party]; McKenzie v. Ford Motor Co. (2015)
238 Cal.App.4th 695, 705-708 [buyer rejected settlement
containing illegal confidentiality clause and broad waiver of
rights; prevailing party].) However, a buyer is not a prevailing
party under the Act just because she incurs attorney’s fees to
obtain relief beyond that to which she is entitled. In such a case,
the manufacturer or retail seller is paying more than it is legally
required to pay just to end the litigation. Were the buyer who
extracts such a “nuisance value” as part of a settlement to be
rewarded with attorney’s fees (by being declared a prevailing
party), we would be acting in derogation of the true purpose of
the Act’s attorney’s fees provision (which, as noted above, is to
remove the disincentive buyers might face when deciding
whether to hire a lawyer to enforce their rights under the Act
(Wohlgemuth, supra, 207 Cal.App.4th at p. 1262)) as well as
creating a perverse incentive for buyers to continue litigating in
the hopes of obtaining a nuisance value that would entitle them
to attorney’s fees as well (see Cowan v. Superior Court (1996)
14 Cal.4th 367, 392 [“A rule that creates . . . a perverse set of
incentives is untenable”]).
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We are cognizant that our conclusion that a buyer is not a
prevailing party under the Act’s attorney’s fees provision just
because she convinces the manufacturer to pay for products and
services supplied by the retail seller means that a buyer will not
have a right to obtain a full refund for all outlay associated with
her new defective car from a single party. And we recognize that
a “one-stop” remedy for buyers may make good sense, especially
when the buyer in most cases purchased the car as part of a “onestop”
shopping experience with the dealer. However, we are not
free to disregard the Act’s plain language to implement what
might be otherwise good public policy; that task lies solely with
our Legislature. (Friends of Shingle Springs Interchange, Inc. v.
County of El Dorado (2011) 200 Cal.App.4th 1470, 1492 [“Courts
defer to the legislative branch in matters of public policy.”].)
b. Civil penalty
A buyer’s decision to proceed to trial to obtain a civil
penalty under the Act can make her a prevailing party.
(MacQuiddy, supra, 233 Cal.App.4th at p. 1049.) In this case,
however, substantial evidence supports the trial court’s finding
that the confidential nature of the settlement precluded Garcia
from showing whether she achieved that litigation objective. We
know the parties’ prelitigation positions and that Garcia obtained
some monetary recovery (a point the parties concede), but we do
not know the exact terms they ultimately agreed to. The trial
court’s refusal to infer the parties’ ultimate settlement terms
from their final volley of a non-confidential settlement letter was
reasonable, and we must indulge all reasonable inferences when
evaluating a ruling for substantial evidence. (Crawford
v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) Although
settlements that make their financial terms confidential will in
most cases render it impossible to determine whether the buyer
prevailed in obtaining her litigation objective(s) (and thus
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effectively foreclose any award of attorney’s fees to the prevailing
buyer), the Act specifically contemplates that a buyer and
manufacturer or retail seller may effect a settlement that is
confidential as to its “financial terms.” (§ 1793.26, subd. (c).) As
long as the Act sanctions such confidential settlements, buyers
may effectively surrender their right to collect attorney’s fees
under the Act.
c. Attorney’s fees
Where, as here, the trial court could not have found Garcia
to be a prevailing party because Mercedes-Benz refunded the
dealer add-ons and did not find that Garcia prevailed because she
obtained a civil penalty, the trial court also did not abuse its
discretion in declining to find Garcia to be a prevailing party just
because she may have obtained the sole remaining litigation
objective—namely, an agreement to pay attorney’s fees in
whatever amount the trial court deemed appropriate. The Act
rewards a buyer who prevails with an award of attorney’s fees.
(§ 1794, subd. (d).) If a buyer’s decision to hold out for attorney’s
fees were enough by itself to confer prevailing party status upon
that buyer, then all a buyer would have to do to obtain attorney’s
fees is refuse to accept any settlement that did not offer
attorney’s fees and then sue for these fees. This is circular,
because the buyer’s entitlement to attorney’s fees would make
her a prevailing party and hence entitled to attorney’s fees. It
would also make attorney’s fees available in just about every
case, a result courts have soundly rejected. (Dominguez, supra,
160 Cal.App.4th at p. 60.)
B. Costs
As with attorney’s fees under the Act, a plaintiff is entitled
to her costs if she is a prevailing party. (§ 1794, subd. (d).) As
noted above, the Act does not define what it means to be
prevailing party. Fortunately, also as noted above, our
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Legislature has defined what the term means in the context of
costs in Code of Civil Procedure section 1032, making it
unnecessary for us to resort to the judicially developed definition
of prevailing party we used, above, to assess attorney’s fees.
Under section 1032, a prevailing party includes a “party” who
obtains “a net monetary recovery.” (Code Civ. Proc. § 1032, subd.
(a)(4).) Our Supreme Court recently clarified that “a partial
recovery, as long as it is a net monetary recovery, entitles a
plaintiff to costs.” (DeSaulles, supra, 62 Cal.4th 1140 at p. 1157.)
Because Garcia obtained some net monetary recovery in her
settlement with Mercedes-Benz (albeit of unknown amount), she
is entitled to costs.
The trial court declined to award costs on the ground that
Garcia submitted a motion for costs rather than a memorandum
for costs, as required by California Rules of Court, rule
3.1700(a)(1). The court’s ruling overlooked that Garcia submitted
a memorandum of costs along with her motion for attorney’s fees.
Although Garcia’s memorandum was filed before judgment was
entered (rather than after, as the Rules of Court contemplate),
this is of no significance. (Haley v. Casa Del Rey Homeowners
Assn. (2007) 153 Cal.App.4th 863, 880 [“courts treat prematurely
filed cost bills as being timely filed”].) Accordingly, Garcia is
entitled to the $750 in costs she requested.

Outcome: The judgment is modified to award Garcia $750 in costs. As modified, the judgment is affirmed. Each party is to bear its own costs on appeal.

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