Summary
In Hart, after the first day of trial the court dismissed the plaintiff's complaint with prejudice for lack of evidence.
Summary of this case from Tun v. Wells Fargo Dealer Servs., Inc.Opinion
No. C050384.
February 26, 2007. [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of Factual and Procedural Background of the Dismissal of Plaintiff's complaint and part I of the Discussion.
Appeal from the Superior Court of Placer County, No. SCV16942, Larry D. Gaddis, Judge.
Kinsey Consumer Law Center and Sharon L. Kinsey for Plaintiff and Appellant.
Kolar Associates, Elizabeth L. Kolar and William N. Blasser for Defendant and Respondent.
OPINION
In this action alleging violations of the Vehicle Leasing Act (Civ. Code, § 2985.7 et seq.; VLA) and the unfair competition law (Bus. Prof. Code, § 17200 et seq.; UCL), plaintiff Lisa Hart appeals from a judgment dismissing with prejudice her action against defendant Autowest Dodge for lack of evidence and from an order awarding attorney's fees. Plaintiff contends the trial court improperly denied leave to amend her complaint, improperly dismissed her lawsuit under an erroneous fact pleading standard, and improperly awarded attorney's fees under section 2988.9. In an unpublished portion of the opinion, we shall affirm the judgment. In the published portion of the opinion, we affirm the attorney's fees award.
Undesignated statutory references are to the Civil Code.
FACTUAL AND PROCEDURAL BACKGROUND OF THE DISMISSAL OF PLAINTIFF'S COMPLAINT
See footnote, ante, page 1258.
On December 1, 2003, plaintiff filed a complaint against defendant (and Wells Fargo, which is not party to this appeal), alleging defendant violated the VLA and the UCL. The complaint alleged as follows:
On April 27, 2000, plaintiff leased a 2000 Dodge Durango (Vehicle One) from defendant dealership for $430 per month. The next day, she discovered it did not have a third back seat, as represented. On April 29, 2000, plaintiff returned the vehicle to defendant and signed a new lease contract for a 2000 Dodge Durango vehicle identification number 1B4H628N4YF193039 (vehicle two) with a third back seat. Defendant said nothing about a change in price or monthly payments, but the new lease said monthly payments were $497, the "agreed upon value of the vehicle" was $32,250, and the listed registration fee was $457.
Defendant assigned the vehicle two contract to a lender. In December 2002, plaintiff was unable to maintain the monthly payments and voluntarily returned the vehicle to terminate the contract. The lender sold the vehicle and removed $11,816.83 from plaintiff's checking account pursuant to the set-off provisions of the lease contract.
The complaint's first cause of action alleged VLA violations. Defendant allegedly violated section 2985.8, subdivision (c)(2)(A), "by falsely stating that $29,613.69 was the value of the Vehicle agreed upon by Plaintiff. In truth, [defendant] had not mentioned a value to Plaintiff prior to preparing the Contract, had not explained the term `agreed upon value' to Plaintiff, and Plaintiff had not agreed to that value, or to any value." Defendant also allegedly violated section 2985.8, subdivision (d), "when it failed to disclose in its lease with Plaintiff in at least eight-point bold type, above the space provided for the lessee's signature and circumscribed by a line, the following notice [required by the statute]: `(1) Do not sign this lease before you read it or if it contains any blank spaces to be filled in; (2) You are entitled to a completely filled in copy of this lease; (3) Warning — Unless a charge is included in this lease for public liability or property damage insurance, payment for that coverage is not provided by this lease.'" Defendant also allegedly violated section 2985.8, subdivision (e), "when it failed to disclose in its lease with Plaintiff the following required disclosure, in at least eight-point bold type, on the first page of the contract and circumscribed by a line: `THERE IS NO COOLING OFF PERIOD? California does not provide for a "cooling off" or other cancellation period for vehicle leases. Therefore, you cannot later cancel this lease simply because you change your mind, decide? the vehicle costs too much, or wish you had acquired a different vehicle. You may cancel this lease only with the agreement of the lessor or for legal cause, such as fraud.'" Defendant also allegedly violated section 2985.8, subdivision (f), "when it failed to disclose in its lease with Plaintiff in at least eight-point bold type, the following: `You have the right to return the vehicle, and receive a refund of any payments made if the credit application is not approved, unless nonapproval results from an incomplete application or from incorrect information provided by you.'"
Section 2985.8, subdivision (c), states in part, "Every lease contract shall disclose all of the following: [¶] (1) All of the information prescribed by Regulation M [defined by § 2985.7, subdivision (e), as any rule, regulation, or interpretation promulgated by the Board of Governors of the Federal Reserve System or an authorized official (§ 2985.7, subd. (e)) under the federal Consumer Leasing Act ( 15 U.S.C. § 1667- 1667(e))] . . . [¶] (2) A separate statement labeled `Itemization of Gross Capitalized Cost' that shall appear immediately following or directly adjacent to the disclosures required to be segregated by Regulation M. The Itemization of Gross Capitalized Cost shall include all of the following and shall be circumscribed by a line: [¶] (A) The agreed-upon value of the vehicle as equipped at the time of signing the lease." (§ 2985.8, subd. (c).)
In her VLA cause of action, plaintiff sought actual damages of $50,000, plus 25 percent of the total amount of monthly payments under the lease, not to exceed $1,000.
Plaintiff's other claim against this defendant was the third cause of action, alleging deceptive business practices under the UCL. The UCL claim incorporated the previous paragraphs by reference and alleged defendant's practices of failing to disclose accurately the agreed upon value of leased vehicles, as well as misrepresenting the features of vehicles leased to consumers, were practices likely to mislead and deceive the general public and thus were unfair and deceptive practices under the UCL. (Bus. Prof. Code, § 17200 et seq.) The complaint sought orders enjoining the practices and directing defendant to disgorge ill-gotten gains and make restitution.
Trial was scheduled for April 4, 2005.
On March 15, 2005, plaintiff made an ex parte application for an order shortening time for hearing of various motions, including a motion for leave to file an amended complaint. The trial court denied the application for an order shortening time, on the ground that no good cause was shown.
Plaintiff incorrectly characterizes this as a denial of her motion for leave to amend the complaint, whereas it was in fact a denial of her request for an order shortening time to file a motion for leave to amend.
Had the court granted an order shortening time to file a motion for leave to amend the complaint, and had the court granted the motion for leave to amend, plaintiff's proposed first amended complaint would have deleted the VLA allegations in the original complaint and would have substituted new allegations that (1) defendant violated section 2985.8, subdivision (a), by failing to include in a single document all of the agreements with respect to the obligations of lessor and lessee, and (2) defendant violated section 2985.8, subdivision (c)(2)(E), by failing to itemize by type and amount all items included in the gross capitalized cost (defined by 12 C.F.R. § 213.2(f)) disclosed pursuant to Regulation M (as defined by § 2985.7, subd. (e)). The amended complaint also would have added class action allegations on the UCL claim (in response to recent legal developments concerning standing in UCL cases).
We granted plaintiff's request to augment the record with her proposed motion and proposed amended complaint. The declaration of plaintiff's attorney in support of the motion for leave to amend stated the amended complaint "[d]eleted VLA allegations which are no longer valid or require clarification based on discovery [¶] Added allegation for violation of `Single Document Rule' [¶] Added allegation for failure to properly itemize Gross Cap Cost on lease contracts."
Section 2985.8, subdivision (a), provides: "Every lease contract shall be in writing and the print portion of the contract shall be printed in at least 8-point type and shall contain in a single document all of the agreements of the lessor and lessee with respect to the obligations of each party." (§ 2985.8, subd. (a).)
Section 2985.8, subdivision (c), states in part, "Every lease contract shall disclose all of the following: [¶] . . . [¶] (2) A separate statement labeled `Itemization of Gross Capitalized Cost' that shall appear immediately following or directly adjacent to the disclosure required to be segregated by Regulation M. The Itemization of Gross Capitalized Cost shall include all of the following and shall be circumscribed by a line: [¶] . . . [¶] (E) Any charge for an optional debt cancellation agreement." (§ 2985.8, subd. (c).)
On March 30, 2005, defendant filed a "MOTION IN LIMINE TO EXCLUDE EVIDENCE THAT WILL WASTE THE COURT'S TIME." Defendant sought to preclude plaintiff from arguing or presenting evidence (1) that the agreed upon value of the vehicle was not disclosed in the lease, and (2) that any required disclosures under the VLA were not made. Defendant argued evidence on those issues would waste the court's time, because plaintiff admitted in her deposition that the lease contract did contain the disclosures which the complaint alleged were omitted.
On April 4, 2005, the action came on for trial. Plaintiff's attorney asked the court for leave to amend the complaint to add allegations that defendant violated the VLA by (1) failing to include in a single document all of the agreements of the lessor/lessee with respect to the obligation of each party (§ 2985.8, subd. (a)), and (2) failing to itemize items included in the gross capitalized cost. Specifically, plaintiff's attorney said:
"On April 29th [2000] plaintiff signed an automation [ sic] financial services theft protection program limited guarantee agreement, TPP agreement for vehicle two, which shows the selling price of $199 over price [ sic]. On April 29th, 2000 in conjunction with her lease of vehicle two, plaintiff signed an Autowest certification of motor sales — sales distribution pursuant to Vehicle Code section 364. This document shows the installation for $199 on April 29, 2000. In conjunction with her lease of vehicle two, plaintiff signed an Autowest disclosure for a non-Chrysler parts service contract, which lists TPP glass as installed — to be installed on vehicle two. According to the repair documents maintained by Autowest for vehicle two, Autowest installed the TPP glass etched on vehicle two on February 29, 2000. Bret Peterson, Autowest general manager, testified in his deposition that up through 2002 it was Autowest's customer practice to automatically install the TPP glass on all new vehicles."
The defense objected to amendment of the complaint, arguing that amendment at this "late date" was highly prejudicial to defendant, which had relied on the pleadings as framed in the complaint, and the complaint said nothing about the theft protection program (TPP) or the VLA statute upon which the TPP claim would be based. Plaintiff's counsel gave no indication that the TPP was an issue until about two weeks before the first date set for trial (March 8). Defense counsel also said that no discovery was conducted with the plaintiff regarding the TPP. Defense counsel also argued (incorrectly) that the case of LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977 ( LaChapelle), established that an automobile lessee can only state a VLA violation if the violation appears on the face of the lease. Defense counsel argued that plaintiff wanted to amend the complaint only because plaintiff's counsel was the attorney for the losing party in LaChapelle on the issue of gross capitalized cost, and after plaintiff's attorney lost the appeal (in October 2002) she decided she needed to come up with something better. The defense argued it was being blindsided on a matter that was never in issue and on which the defense had not retained an expert.
The augmented record on appeal includes an excerpt of plaintiff's deposition dated December 15, 2004, in which she was asked whether the vehicle had "theft etching," and she responded she knew nothing about it.
LaChapelle, supra, 102 Cal.App.4th 977, held a plaintiff could not pursue a VLA action against assignees of the lessor unless the violation appeared on the face of the lease agreement. ( Id. at pp. 982-985.)
In reply, plaintiff's attorney said the TPP was a subject of a production of documents. He also said that, although LaChapelle, supra, 102 Cal.App.4th 977, may impact the original complaint, that was not the reason for the amended complaint. He said defendant's representative testified in deposition that defendant's practice was never to include the TPP cost in the lease contract.
When the trial court asked for an explanation as to why plaintiff waited so long to seek amendment, plaintiff's counsel said there was the need for "additional discovery" (the deposition of defendant's general manager, Bret Peterson). Counsel said he sought the order shortening time on leave to amend within a few weeks of Peterson's deposition.
The trial court denied leave to amend the VLA cause of action, on the grounds that "we are up at the time of trial, and further discovery would be required. I do find it to be untimely at this time. Prejudice has been demonstrated, so it is denied."
The court also denied leave to amend to allege a class action suit. Plaintiff's attorney then requested leave to amend the UCL cause of action to add allegations that defendant failed to display on the vehicle the supplemental price sticker required by law when the price is more than the manufacturer's suggested retail price (MSRP) — a matter which assertedly came to light during discovery.
Defense counsel responded amendment would be prejudicial. Defendant's practice was to place supplemental stickers on vehicles that were marked up. This did not come out as a possible issue until the deposition of plaintiff's expert on the eve of trial.
The trial court denied leave to amend the UCL cause of action, because "it just does not appear to me that it was originally contemplated. It wasn't in the complaint. I heard nothing to convince me that there was any evidence that this may be a cause of action other than some questions asked, and therefore, I find it untimely." The court reiterated denial of leave to amend to allege a class action.
After a recess to allow plaintiff and her counsel to talk, the trial court denied plaintiff's request to file the written proposed motion for leave to amend. The court asked if plaintiff was prepared to go forward with the jury trial, to which plaintiff's attorney responded:
"Your Honor, as to the — based on the Court's rulings — based on the causes of action that are left in the complaint, and indulge me for [a] couple of minutes. I want to make sure I have this clear on there. Under the [VLA] of the following — in the original complaint, the following violations were stated with respect to the failure to — I'm sorry, paragraph 24 of the complaint, which is an eight point bold print type, do not sign the lease before you read it, or if it contained any blank spaces to be filled in in that particular paragraph, there is no evidence to proffer regarding that.
Paragraph 24 of the complaint alleged: "Dealer violated Civil Code § 2985.8(d), when it failed to disclose in its lease with Plaintiff in at least eight-point bold type, above the space provided for the lessee's signature and circumscribed by a line, the following notice: `(1) Do not sign this lease before you read it or if it contains any blank spaces to be filled in; (2) You are entitled to a completely filled in copy of this lease; (3) Warning — Unless a charge is included in this lease for public liability or property damage insurance, payment for that coverage is not provided by this lease.'"
"With respect to paragraph 25, which is a cooling-off period allegation, there are no facts in support of that based on the — a copy that was eventually received of the actual complete copy of the lease, Your Honor.
Paragraph 25 of the complaint alleged: "Dealer violated Civil Code § 2985.8(e), when it failed to disclose in its lease with Plaintiff the following required disclosure, in at least eight-point bold type, on the first page of the contract and circumscribed by a line: `THERE IS NO COOLING OFF PERIOD' California does not provide for a `cooling off' or other cancellation period for vehicle leases. Therefore, you cannot later cancel this lease simply because you change your mind, decide? the vehicle costs too much, or wish you had acquired a different vehicle. You may cancel this lease only with the agreement of the lessor or for legal cause, such as fraud.'"
"Paragraph 26, you have the right to return the vehicle, receive a refund of any payment if the credit application is not approved. The same with respect to that, Your Honor, or unable [ sic] to offer any facts in support of that.
Paragraph 26 of the complaint alleged: "Dealer violated Civil Code § 2985.8(f) when it failed to disclose in its lease with Plaintiff in at least eight-point bold type, the following: `You have the right to return the vehicle, and receive a refund of any payments made if the credit application is not approved, unless nonapproval results from an incomplete application or from incorrect information provided by you.'"
"With respect to paragraph 23, the dealer violated the Civil Code by falsely stating 29,613.69 was the value of the vehicle agreed upon by the plaintiff. In truth, the dealer not mentioning [ sic] the value to plaintiff prior to preparing the contract or had not explained the term agreed-upon value to plaintiff. The plaintiff had not agreed to that value or any value. We believe that — that there was not a specific value that was represented to plaintiff as to the vehicle. However, in the — in the contract, there is a stated capitalized value of the vehicle. That contention was that that capitalized value of the vehicle included some other costs, such as the TPP. That would be the only potential allegation that would be left in regard to the original complaint, with respect to the stated value of the vehicle, which I think was the subject of defense's argument earlier, with respect to the case law in that regard." (Italics added.)
Paragraph 23 of the complaint alleged: "Dealer violated Civil Code § 2985.8(c)(2)(A) by falsely stating that $29,613.69 was the value of the Vehicle agreed upon by Plaintiff. In truth, Dealers had not mentioned a value to Plaintiff prior to preparing the Contract, had not explained the term `agreed upon value' to Plaintiff, and Plaintiff had not agreed to that value, or to any value."
The trial court confirmed that plaintiff wanted to go to trial on the sole issue that she alleged the value of the vehicle was overstated by the cost of the TPP ($199 as stated in separate documents).
The trial court read from section 2985.8, subdivision (c)(2)(A), that itemization of gross capitalized cost includes the agreed-upon value of the vehicle as equipped at the time of the lease signing. The court suggested the vehicle "as equipped" would have included the price of the TPP etching.
Plaintiff's attorney responded: "Well, as an insurance product that's related to the etching, it's not included in the price. It's a separate, stated, $199 charge, and the fact is that the defendant may want to claim that that's a separate price over and beyond the agreed capitalized cost of the vehicle, but the fact is that they didn't mark that. My only concern with that allegation is based on your ruling that the complaint cannot be amended to include the etching issue and therefore, the motion in limine etching issues as to whether or not — if I can't put in those etching issues based on the ruling, then, you know, I wanted — then, I don't have any evidence to show — to be able to prove [paragraph] 23, and so I'm saying that in an abundance of caution, because I don't want to sit here and say I'm ignoring your ruling on this and just going on my way."
The trial court said: "Let me stop you, because now your argument is very circuitous. What the cause of action says here is that the dealer violated . . . Section 2985.8(c)2(a) [ sic: (A)] by falsely stating that $29,613.69 was the value of the vehicle agreed upon by the plaintiff. Now, what I hear is that that price was false, because the $199 was included in that price. However, the code clearly states that the price must be the agreed-upon value of the vehicle as equipped at the time of the signing of the lease. So I'm failing to understand your argument here with regard to how the $199 can factually support the allegation as made in the complaint."
Plaintiff's attorney said, "Because the — it doesn't include accessories, which would be if you had extra rims put on or some accessory that the customer says I want to add this on. On the other hand, what the — the product that we're talking about under Section E, which is the etching product. But in fact, what you're paying for is the product that reimburses you in the fact [ sic] that the car is sold under Section E of the code, is not — is included in that price which means that the price is inflated, and it doesn't really reflect the actual agreed-upon capitalization cost of the vehicle."
The court said this sounded like a question of law rather than fact.
Plaintiff's attorney said, "Well, in other words, assuming that there was evidence proffered that there was $199 paid for the — I keep calling it insurance. It's not quite an insurance policy, but for the added protect ion, and that added protection was, in fact, part of the capitalized cost price, because the evidence is that it was charged for because of the separate documents indicating there was a charge of $199, but that specific charge is not included in the capitalized cost, because it's not an accessory. It would be the additional items that have to be all individually named, which was Subsection E of the code that was the part which was subject to our motion to amend."
The court said, "it appears to be that the facts that were agreed to, at least in your point of view, that $199 was charged and was tacked onto the price, whether or not tacking that onto the agreed-upon value of the vehicle as equipped at the time of the signing of the lease is a violation of Section 2985.8 would be a question of law, because there is no disputed fact."
Plaintiff's attorney agreed it would be a question of law if there is no disputed fact.
Defense counsel then moved to dismiss the case for lack of evidence, because plaintiff admitted she had no evidence or facts to support her allegations.
The trial court said the $199, if an issue at all, was a question of law for the court, not for a jury, as was the UCL claim.
The trial court noted section 2985.8 requires a separate statement itemizing gross capitalized cost, including premiums for insurance and service contracts, and there was a question as to whether or not the $199 TPP cost (which was included) was supposed to be included. The court asked if the $199 could be characterized as anything other than a service contract or insurance policy. Plaintiff's attorney said yes and thought it was subparagraph (E) — a debt cancellation agreement. Plaintiff's attorney said the $199 was not for the TPP etching or a vehicle recovery system. "The $199 is for a product that is tied into the etching system, which is sold, which the etching system in and of itself — the etching in the car in and of itself . . . is not activated until they have purchased of [ sic] the protection, which is $2,500 in the event the vehicle is stolen." The court said it was not going to interpret the policy.
Section 2985.8, subdivision (c)(2), requires that lease contracts contain "[a] separate statement labeled `Itemization of Gross Capitalized Cost' . . . [which] shall include all of the following . . . [¶] (A) The agreed-upon value of the vehicle as equipped at the time of signing the lease. [¶] (B) The agreed-upon value and a description of each accessory and item of optional equipment the lessor agrees to add to the vehicle after signing the lease. [¶] (C) The premium for each policy of insurance. [¶] (D) The amount charged for each service contract. [¶] (E) Any charge for an optional debt cancellation agreement. [¶] (F) Any outstanding prior credit or lease balance. [¶] (G) An itemization by type and agreed-upon value of each good or service included in the gross capitalized cost other than those items included in the disclosures required in subparagraphs (A) to (F), inclusive." (§ 2985.8, subd. (c)(2).)
The trial court asked if plaintiff's position was that the complaint in its current form was specific enough to include the $199 TPP issue. Plaintiff's attorney said yes but acknowledged the complaint said nothing about the matter.
The trial court said: "I can't find it in there, Counsel. I can't find it in your complaint. On a plain reading of the complaint, which I read several times, it says that the dealer had not mentioned the value to plaintiff prior to preparing the contract, which is not the course [ sic] any longer, had not explained the term agreed-to value, which is not before us, and had not agreed to that value or any value, which is not before us."
Plaintiff's attorney agreed the TPP issue was not in the complaint but was the subject of the motion to amend the complaint.
Defense counsel noted the UCL claim turned on the alleged VLA violations and moved to dismiss the UCL cause of action as well.
The trial court said, "Based on the fact that I find really no notice of the $199 anywhere in the complaint as an issue, nor am I convinced that was it [ sic] raised in discovery, and based on the concessions I think made by counsel for the plaintiff as to the rest of the alleged problems, there appears to be nothing left of the complaint for this Court or a ?jury to look at. [¶] The motion to dismiss with prejudice is granted."
The judgment dismissing the case with prejudice was filed May 23, 2005, with notice of entry of judgment served on June 2, 2005.
On August 1, 2005, plaintiff filed a timely notice of appeal from order granting the dismissal motion, the denial of plaintiff's motion to amend her complaint, and the granting of defendant's motions in limine.
DISCUSSION
See footnote, ante, page 1258.
Plaintiff contends the trial court improperly denied leave to amend her complaint and improperly dismissed her complaint under an erroneous fact-pleading standard. We shall conclude plaintiff fails to show reversible error.
A. Denial of Leave to Amend
Plaintiff contends the trial court improperly denied her March and April 2005 motions for leave to amend her complaint. We will not address the March 2005 attempt to amend the complaint because, although plaintiff repeatedly makes the erroneous assertion that the trial court denied her motion for leave to amend in March 2005, the trial court did not deny a motion for leave to amend. Rather, the trial court denied plaintiff's ex parte application for an order shortening time to file a motion for leave to amend. On appeal, plaintiff presents no analysis or argument showing reversible error in the denial of an order shortening time. We therefore need not consider the matter. ( Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979; Cal. Rules of Court, rule 8.204.)
Nevertheless, plaintiff verbally moved to amend the complaint on the day the case was called for trial in April 2005. We shall consider whether the trial court improperly denied the oral motion.
The trial court has discretion to allow amendment of a complaint, evenon the day of trial, if the defendant will not be prejudiced. (Code Civ. Proc., §§ 473, 576.) In reviewing a trial court's denial of leave to amend a complaint, we apply an abuse of discretion standard of review. ( Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.)
Code of Civil Procedure section 473, subdivision (a), provides: "The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. [¶] (2) When it appears to the satisfaction of the court that the amendment renders it necessary, the court may postpone the trial, and may, when the postponement will by the amendment be rendered necessary, require, as a condition to the amendment, the payment to the adverse party of any costs as may be just." (Code Civ. Proc., § 473, subd. (a).)
Code of Civil Procedure section 576 provides: "Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order." (Code Civ. Proc., § 576.)
The court's power to permit amendments in furtherance of justice has been liberally construed. ( Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760 ( Atkinson).) This position is clearly in accord with the modern theories of pleading, which would permit amendment in the discretion of the court unless an attempt is made to present an entirely different set of facts by way of the amendment. ( Ibid.) "`Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only "[w]here no prejudice is shown to the adverse party. . . ." [Citations.]'" ( Atkinson, supra, 109 Cal.App.4th at p. 761.) It is irrelevant that new legal theories are introduced as long as the proposed amendments relate to the same general set of facts. ( Ibid.)
In Atkinson, supra, 109 Cal.App.4th 739, a homeowner sued a shingle manufacturer for violations of the Song-Beverly Consumer Warranty Act (the Act) and the Consumer Legal Remedies Act (CLRA). The trial court dismissed the CLRA cause of action on a motion for summary adjudication. Plaintiff moved to amend the complaint to add causes of action for fraud and violations of the UCL and federal law. On the Friday before the Monday trial was to begin, the trial court denied the motion to amend. When the case came on for trial, the trial court on its own motion granted nonsuit to the defendant, after argument but before plaintiff's opening statement. ( Id. at p. 743.) The Sixth Appellate District held the trial court erred in granting nonsuit before the plaintiff's opening statement, since plaintiff had not failed to prosecute diligently, and the complaint was neither fictitious nor a sham. However, this error was not reversible because the complaint would not have survived a motion for nonsuit after the opening statement, since roof shingles are not consumer goods within the meaning of the Act. ( Id. at p. 757.) Nevertheless, reversal was required because the trial court erred in denying leave to amend the complaint to add new causes of action, since the defendant "has not claimed that it will be prejudiced by this amendment." ( Id. at p. 761.)
Atkinson, supra, 109 Cal.App.4th 739, is distinguishable, because (1) there the plaintiff did not seek to add new facts but only new legal theories relating to the same facts, and (2) the defendant did not claim it would be prejudiced. ( Id. at p. 761.)
Here, the proposed amended complaint would have added both new facts and new law — the new facts being the TPP matter, and the new law being subparagraph (E) of section 2985.8, subdivision (c)(2). The trial court denied leave to amend as both untimely and prejudicial to defendant.
Plaintiff argues the trial court abused its discretion in denying leave to amend, because her proposed amendments were reasonable, were made within a reasonable time, and defendant would not have been prejudiced by amendment.
However, plaintiff fails to show her amendments were proposed within a reasonable time. To the contrary, the documents with which we allowed her to augment the record show she did not seek amendment in a reasonable time frame. She suspected a TPP issue in May 2004 but chose not to amend the complaint until she confirmed her suspicion shortly before trial. She did not, however, show diligence in attempting to confirm her suspicion.
Thus, plaintiff first sought to amend the complaint in March 2005. That motion (which the trial court never allowed to be filed) asserted in its memorandum of points and authorities: "In June 2004, [defendant] produced some, but not all, documents related to both lease transactions. Plaintiff's attorney reviewed the documents and suspected that both lease contracts (a) reflected inflated sales prices, (b) failed to disclose the TPP etch product which Plaintiff paid for, (c) the etch product was automatically added to the sales price, and (d) Plaintiff paid more than she should have for registration fees and appeared not to have received a refund of the excess. [¶] Plaintiff's attorney did not feel it appropriate to request leave to file an amended complaint until she received and reviewed all of the relevant documents, and obtained the testimony of [defendant] to validate her suspicions."
Plaintiff does not argue the matter of registration fees on appeal, and we therefore need not consider it.
The cited declaration of one of plaintiff's attorneys (in support of the unfiled motion to amend the complaint) said defendant produced some but not all requested documents on May 28, 2004, and, "When I [plaintiff's attorney] reviewed the documents, I felt there were certain irregularities in the disclosures on both lease contracts, but until I received all relevant documents and obtained the testimony of [defendant], it was speculative."
Plaintiff's memorandum of points and authorities said June 2004.
Thus, plaintiff's attorney admitted she had adequate information in May 2004. As to her comment that it was speculative, she fails to explain how it was speculative. The TPP cost was either itemized in the lease contract or it was not.
Moreover, plaintiff fails to show she acted expeditiously to investigate her "suspicions." Her attorney attested she asked her paralegal in mid-July 2004 (a month and a half after her suspicions arose) to set the depositions of defendant's custodian of records and person most knowledgeable. "It took until January 19, 2005, to make that happen."
The paralegal's declaration says the paralegal scheduled the depositions for August 2004, but cancelled them on July 30, 2004, because "Ms. Kinsey [ plaintiff's attorney] had been called for jury duty. . . ." The paralegal rescheduled for October 21, 2004, after an unsuccessful attempt to get defense counsel to confirm availability. Another party (Wells Fargo, which is not a party to this appeal) advised on October 18 that it could not attend the October 21 depositions. The depositions were therefore moved again. Again, defendant was uncooperative in rescheduling. Plaintiff rescheduled the depositions for December 16, 2004. On December 14, defense counsel said the witnesses would not be produced on December 16. Plaintiff rescheduled for January 2005.
However, the attachments to the paralegal's declaration include her letter to defense counsel, dated August 2, 2004, stating, "Ms. Kinsey is currently in trial. . . ."
Plaintiff's attorney attested she took the depositions on January 19, 2005, but the person produced by defendant as most knowledgeable was assertedly unable to answer the majority of questions counsel had regarding the documents produced in May 2004. On February 3, 2005, plaintiff took a partial deposition of defendant's general manager, Bret Peterson, who was able to answer most of counsel's questions.
On March 15, 2005, plaintiff sought an application to shorten time on a motion for leave to amend the complaint.
Thus, plaintiff's attorney, by her own admission, had documents on May 28, 2004, which gave her cause to amend the complaint — or at a minimum, put her on notice of grounds for amendment. Yet she did not seek leave to amend until March 15, 2005 (nine and a half months later), when it was too late to do so without an order shortening time for the motion.
While plaintiff tried to blame defendant for the delay, it was plaintiff's attorney who was responsible for cancellation of the first date set for the depositions, and it was Wells Fargo which was responsible for the second delay. Thus, plaintiff again misrepresents the record to this court by arguing in her reply brief: "[Defendant] conveniently ignores the fact that it caused the delay of Mr. Peterson's February 2005 deposition (initially scheduled for August 12, 2004)." Moreover, defendant's asserted lack of cooperation in rescheduling would not excuse plaintiff from acting with diligence to protect her own rights (even assuming for the sake of argument that plaintiff had to confirm her suspicions before amending the complaint). Plaintiff failed to explain why she acquiesced in defendant's asserted obduracy.
We conclude plaintiff failed to show any good reason why she delayed so long in seeking leave to amend.
Additionally, though she claims defendant would not have been prejudiced by amendment, we disagree.
We first observe that, in her reply brief, plaintiff wrongly claims defendant "never argued prejudice at either the March or April Motion hearings." First, there was no March hearing on a motion to amend, but only denial of plaintiff's ex parte application for an order shortening time to file a motion.
Second, defendant did argue prejudice at the April hearing.
Thus, defendant argued it did not have an expert witness to testify to the new issues of supplemental sticker and TPP, whereas plaintiff did have an expert. While neither side explains why an expert would or would not be necessary on these matters, the reporter's transcript does suggest why, in that plaintiff's attorney argued the TPP was actually a debt cancellation agreement rather than an insurance policy. Although the trial court was unpersuaded and it is not clear what difference it would make, it suffices for purposes of this appeal to say that on the face of it, plaintiff's own position would seem to raise a matter outside the common experience of the lay juror. As to the supplemental sticker, defendant asserted its practice was to place the stickers. It seems reasonable to conclude the new factual issue would require further defense preparation. Plaintiff's reply brief says defendant's claim of prejudice is undermined by defendant's concession that it produced the documents upon which plaintiff's claim is based. However, defendant's point was that it produced those documents in May 2004, yet plaintiff hid her new allegations regarding the sticker until her expert was deposed five days before trial in March 2005. Thus, plaintiff's point does not help her case. On appeal, plaintiff fails to meet her burden as appellant to show absence of prejudice in order to demonstrate abuse of discretion in the trial court's decision.
We conclude plaintiff fails to show the trial court abused its discretion in denying leave to amend. ( Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-487.)
We need not address defendant's argument that, even assuming abuse of discretion in denying leave to amend, the ruling did not harm plaintiff (Cal. Const., art. VI, § 13), because the trial court went on to entertain her argument about a VLA violation based on the TPP cost.
Under a separate subheading, plaintiff argues the trial court erred in refusing to allow her to amend to add class action allegations in order to comply with new standing rules for the UCL claim. Plaintiff complains the trial court gave an improper reason for denying leave to amend to add class action allegations, in that the court said that this would open up too many more issues. However, we may affirm a trial court's ruling for reasons other than those given by the trial court. ( Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-330.) Here, there was nothing for a UCL class to complain about. The UCL claim alleged defendant's violation of the VLA constituted an unlawful, unfair, and deceptive practice in violation of the UCL. Since plaintiff had no viable VLA claim of wrongdoing, she had nothing upon which to base a class action lawsuit.
We conclude the trial court did not abuse its discretion in denying leave to amend the complaint.
B. Dismissal
Plaintiff argues the trial court erred in dismissing her lawsuit. We disagree.
Plaintiff claims defendant never moved to dismiss the case, and the trial court did so on its own motion. This is clearly wrong. The reporter's transcript shows that, after the trial court denied leave to amend, defense counsel said, "I would move at this time based upon the evidence, unless your Honor would like me to argue for a motion to dismiss this case for lack of evidence [ sic]. . . ." Defense counsel argued that as a matter of law there was no viable VLA or UCL claim. After hearing argument, the trial court stated: "Based on the fact that I find really no notice of the $199 anywhere in the complaint as an issue, nor am I convinced that it was raised in discovery, and based on the concessions I think made by counsel for the plaintiff as to the rest of the alleged problems, there appears to be nothing left of the complaint for this Court or a ?jury to look at. [¶] The motion to dismiss with prejudice is granted."
A trial court has limited inherent discretionary power to dismiss claims with prejudice. ( Atkinson, supra, 109 Cal.App.4th at pp. 748-749.) This power has in the past been confined to two types of situations: (1) the plaintiff has failed to prosecute diligently; or (2) the complaint has been shown to be fictitious or sham so that the plaintiff has no valid cause of action. ( Ibid.) Atkinson said neither of those situations was present in the case before it, but "we will not reverse for this irregular procedure unless we find that Atkinson was prejudiced. [Citations.] [¶] Accordingly, we turn to the issue of whether Atkinson would have survived a motion for nonsuit after an opening statement." ( Id. at p. 749.) The Sixth Appellate District concluded the plaintiff would not have withstood a motion for nonsuit after opening statement, and therefore he was not prejudiced by the grant of nonsuit on the court's own motion. ( Id. at pp. 757-758.) As we discuss ante, Atkinson concluded the trial court should have allowed leave to amend the complaint for reasons distinguishable from the case before us.
Here, plaintiff argues the record shows only an inability to prove an element of the case, not a "fictitious or sham" complaint. She cites the legal dictionary meaning of "sham" as an obviously frivolous or absurd pleading made only for the purposes of vexation or delay. She urges de novo review. However, we need not decide the scope of "sham" because, even assuming the procedure was irregular, we will not reverse unless it was prejudicial. ( Atkinson, supra, 109 Cal.App.4th at p. 749.)
Thus, in addition to moving for dismissal, defendant moved in limine to exclude all evidence, which is the functional equivalent of a nonsuit. ( Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 676-677.) A nonsuit cannot be granted before the plaintiff's opening statement. (Code Civ. Proc., § 581c; Atkinson, supra, 109 Cal.App.4th at p. 747.) Plaintiff would not have withstood a motion for nonsuit after opening statement. Her attorney admitted at the hearing in the trial court that plaintiff had no evidence to support the VLA allegations (paragraphs 23, 24, and 25) of the original complaint. Thus, plaintiff admitted she had no valid cause of action based on her original complaint. She also admitted the new allegations she wanted to make in the amendment did not appear anywhere in the original complaint.
Plaintiff says she did not concede her claim under paragraph 23 of the original complaint, alleging defendant violated section 2985.8, subdivision (c)(2)(A), by falsely stating an agreed-upon value. However, she acknowledges she stated to the court that if the court barred her from asserting her TPP glass etching claim, she had no other evidence upon which to proceed with paragraph 23.
Plaintiff suggests her original complaint adequately encompassed the new allegations without the need for amendment, and the trial court erroneously held her to a fact-pleading standard, rather than the notice-pleading standard used in California. It does not appear to us that plaintiff made the argument about notice-pleading in the trial court. She merely argued the original complaint was specific enough to include the TPP matter. She asks us to exercise our discretion to consider the matter even if she forfeited it. Even assuming the argument was not forfeited for failure to raise it in the trial court, plaintiff fails to show grounds for reversal.
Thus, Code of Civil Procedure section 425.10, subdivision (a), states in part that a complaint shall contain "[a] statement of the facts constituting the cause of action, in ordinary and concise language." (Code Civ. Proc., § 425.10, subd. (a)(1).) Under California's pleading rules, a complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which the plaintiff proposes to prove those facts. ( Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212.) Here, plaintiff says she met the pleading rules by alleging defendant violated section 2985.8, subdivision (c)(2)(A), by falsely stating the value of the vehicle was agreed-upon (which she appears to view as the ultimate fact), and the amendment would merely add evidence (of the TPP) to prove this allegation. She says the trial court did not decide as a matter of law that a failure to disclose the $199 TPP charge could not violate section 2985.8, subdivision (c)(2)(A).
However, as we have mentioned, a complaint must contain "[a] statement of the facts constituting the cause of action in ordinary and concise language." (Code Civ. Proc., § 425.10, subd. (a)(1).) The complaint "serves to frame and limit the issues [citation] and to apprise the defendant of the basis upon which the plaintiff is seeking recovery [citation]. In fulfilling this function, the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts." ( Committee on Children's Television, Inc. v. General Foods Corp., supra, 35 Cal.3d at p. 212.) The distinction between ultimate facts and evidentiary facts is blurry. ( Estate of Lind (1989) 209 Cal.App.3d 1424, 1434; 4 Witkin, California Procedure (4th ed. 1997) Pleading, § 339, p. 437.) "The allegation of an ultimate fact as distinguished from an evidentiary fact usually, if not always, involves one or more conclusions. For example, the simple allegation that `the defendant executed a promissory note' involves several conclusions of fact based upon the evidentiary facts of the signing of the instrument, the intent with which that act was performed, the manual tradition or the constructive delivery of the instrument, and the intent with which that act was performed. The allegation that `the defendant by his attorney in fact thereunto duly authorized executed a promissory note' manifestly involves conclusions of both fact and law. Yet under the rules of pleading it is regarded as an allegation of ultimate fact. An allegation that the defendant negligently performed a certain act involves conclusions of fact, and if the claimed negligence is predicated upon an assumed violation of law, as is frequently the case, it involves conclusions of both fact and law. An allegation that `the plaintiff is the owner and entitled to the possession of the following described premises' involves numerous conclusions of both law and fact, yet it is universally regarded as good pleading." ( Estate of Bixler (1924) 194 Cal. 585, 589.)
Plaintiff's original complaint alleged defendant's statement about agreed-upon value was false because "[i]n truth, [defendant] had not mentioned a value to Plaintiff prior to preparing the Contract, had not explained the term `agreed upon value' to Plaintiff, and Plaintiff had not agreed to that value, or to any value."
Plaintiff believes she could have omitted this sentence in her original complaint and gotten by with the bare allegation that defendant "violated Civil Code § 2985.8(c)(2)(A) by falsely stating that $29,613.69 was the value of the Vehicle agreed upon by Plaintiff." The question would be whether such an allegation would suffice to apprise defendant of why it was being sued. "`What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.' [Citation.]" ( Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.)
Even assuming plaintiff could have gotten by with less specificity, she chose to allege the specific factual basis, i.e., the failure to get a verbal agreement of "agreed-upon value" before preparing the contract. Defendant relied upon her pleading. It would be unfair to allow her to change the facts now.
The complaint frames and limits the issues and apprises the defendant of the basis upon which the plaintiff is seeking recovery. ( Fuentes v. Tucker (1947) 31 Cal.2d 1, 4.) Evidence cannot be used to establish an issue that the parties have not raised in their pleadings. ( Hughes v. Blue Cross of Northern California (1989) 215 Cal.App.3d 832, 858.) Plaintiff's reply brief argues these cases are distinguishable because they merely hold irrelevant evidence is inadmissible, whereas her TPP evidence was highly relevant to the question of whether defendant violated section 2985.8, subdivision (c)(2)(A), by falsely stating that $29,613.69 was the value agreed upon by plaintiff and failed to disclose the agreed-upon value. However, plaintiff's proposed amendment asserted the TPP was a violation not of subdivision (c)(2)(A) of the statute, but rather of subdivision (c)(2)(E), i.e., failure to include in the itemization of gross capitalized cost any charge for an optional debt cancellation agreement.
The trial court did not violate California's pleading rules.
We conclude the trial court did not prejudicially err in dismissing plaintiff's case with prejudice.
II. Appeal from Order Regarding Attorney's Fees
After the trial court dismissed plaintiff's complaint with prejudice on the first day of trial, for lack of evidence, defendant filed a motion for attorney's fees pursuant to section 2988.9 (which we quote post). Defendant alleged that defendant was the prevailing party in an action on a contract subject to the VLA, that defendant alleged in its amended answer that it tendered to plaintiff, in an offer to compromise (Code Civ. Proc., § 998), the full amount to which she was entitled ($1,500) and deposited that amount with the court on June 25, 2004, and plaintiff failed to obtain a judgment more favorable than defendant's offer to compromise.Plaintiff opposed the motion, arguing section 2988.9 calls for attorney's fees only when the tender and deposit alleged in the defendant's answer to the complaint "is found to be true," and here there was no such finding before entry of judgment, and it was too late to make such a finding after judgment was entered.
On August 24, 2005, the trial court granted defendant's motion for attorney's fees and awarded the amount of $45,436.50. The court also granted in part plaintiff's motion to tax costs (which is not at issue on appeal). On October 28, 2005, plaintiff filed a timely notice of appeal from the order regarding attorney's fees and costs.
Plaintiff contends the trial court's award of attorney's fees to defendant was improper because defendant did not make a proper tender, did not allege proper tender in its initial answer to the complaint, and the trial court did not make requisite findings of tender and deposit to support an award of attorney's fees under section 2988.9. We shall affirm the award. (§ 2988.9.)
Both sides agree this appeal concerns interpretation of the statute, which presents a question of law which we review de novo. ( Trinkle v. Stroh (1997) 60 Cal.App.4th 771, 777 [ 70 Cal.Rptr.2d 661].)
Section 2988.9 provides: "Reasonable attorney's fees and costs shall be awarded to the prevailing party in any action on a lease contract subject to the provisions of this chapter regardless of whether the action is instituted by the lessor, assignee, or lessee. Where the defendant alleges in his or her answer that he or she tendered to the plaintiff the full amount to which he or she was entitled, and thereupon deposits in court, for the plaintiff, the amount so tendered, and the allegation is found to be true, then the defendant is deemed to be the prevailing party within the meaning of this section." (§ 2988.9.)
Both sides misconstrue the statute. They believe section 2988.9 authorizes attorney's fees only when the defendant has tendered and deposited in court the amount to which the plaintiff is entitled. Defendant adopted that view in its motion but argued it complied with the tender and deposit requirements.
However, both sides are wrong. The second sentence of the statute does not require tender and deposit as prerequisites for an attorney's fees award in addition to the "prevailing party" requirement of the statute's first sentence. Rather, the second sentence of the statute merely describes one way in which a defendant will be declared a "prevailing party," i.e., where a defendant who concedes owing money but disputes the amount, tenders and deposits the amount to which the plaintiff is entitled, and the allegation (that this is the full amount to which the plaintiff is entitled) is found to be true by the court. It would be nonsensical to require a defendant who has done nothing wrong to tender, deposit, and prove an amount to which plaintiff is "entitled" in order to recover attorney's fees.
"When uncertainty arises in a question of statutory interpretation, consideration must be given to the consequences that will flow from a particular interpretation. [Citation.] In this regard, it is presumed the Legislature intended reasonable results consistent with its expressed purpose, not absurd consequences. [Citations.]" ( Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1165-1166 [ 278 Cal.Rptr. 614, 805 P.2d 873].)
Defendant here appears to have conflated Civil Code section 2988.9 with an offer to compromise under Code of Civil Procedure section 998, and defendant apparently deposited in court the amount it offered to settle the suit. However, an offer to settle does not acknowledge liability, whereas section 2988.9 requires tender and deposit of the amount to which the plaintiff is "entitled."
Plaintiff cites no authority supporting her interpretation of the statute. In the main case cited by plaintiff — Joseph Magnin Co. v. Schmidt (1978) 89 Cal.App.3d Supp. 7 [152 Cal.Rptr. 523] (a nonbinding opinion of a trial court's appellate division involving a similarly worded statute) — a department store sued a customer for money due on a retail installment contract. The customer paid the amount due after the complaint was filed but before she filed an answer. Consequently, a judgment that plaintiff take nothing was rendered in favor of the customer. ( Id. at pp. Supp. 8-9.) The trial court rejected the store's argument that it was the prevailing party and therefore entitled to attorney's fees under section 1811.1. The trial court's appellate division reversed, with directions to award attorney's fees to the store, holding that in order to come within section 1811.1, which deems a defendant who tenders the amount due on a contract to be the prevailing party, the tender must be made before the litigation commences. (89 Cal.App.3d at pp. Supp. 10-13.) Thus, the purpose of the statutory language is clear; it prevents a defendant (who admittedly owes money) from making the plaintiff spend money on attorney's fees before getting paid, yet it allows the defendant who tries to do the right thing to recover attorney's fees if the plaintiff refuses the money and the defendant meets the statutory requirements of tender and deposit.
In language almost identical to the statute at issue in this appeal, section 1811.1 provides with respect to retail installment accounts that "[Reasonable attorney's fees and costs shall be awarded to the prevailing party in any action on a contract or installment account subject to the provisions of this chapter regardless of whether such action is instituted by the seller, holder or buyer. Where the defendant alleges in his answer that he tendered to the plaintiff the full amount to which he was entitled, and thereupon deposits in court, for the plaintiff, the amount so tendered, and the allegation is found to be true, then the defendant is deemed to be a prevailing party within the meaning of this article." (§ 1811.1.)
Plaintiff cites LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977 at page 994 [ 126 Cal.Rptr.2d 32] ( LaChapelle), for the proposition that courts routinely follow interpretations of section 1811.1 when interpreting the identical language of section 2988.9. However, LaChapelle did not interpret (or even discuss) the "tender and deposit" part of section 2988.9. There, an automobile lessee sued the agency that financed the lease and the credit corporation to which the lease was assigned, alleging VLA violations. ( LaChapelle, at pp. 980-981.) The trial court granted summary judgment to the defendants and awarded them attorney's fees. The appellate court affirmed the judgment and affirmed the order awarding attorney's fees. LaChapelle quoted only the first sentence of section 2988.9 — that the prevailing party in a VLA case shall be awarded attorney's fees. ( LaChapelle, at p. 992.) LaChapelle rejected the plaintiffs argument that, because another VLA provision imposes liability for attorney's fees on lessors who fail to comply with certain VLA requirements, section 2988.9 must be limited to VLA actions brought for some reason other than violation of the VLA's disclosure requirements. ( LaChapelle, at p. 993.) The court noted that, while section 2988.9 makes it financially feasible for consumers to bring suit, it appeared the Legislature also sought to discourage unwarranted suits by authorizing in section 2988.9 awards in favor of prevailing lessors and assignees. ( LaChapelle, at p. 993.) LaChapelle also said, "language such as that employed in . . . section 2988.9 has been interpreted as applying to any and all actions where the subject matter involves a contract subject to the provisions of the consumer protection legislation at issue. [Citations to cases including a case citing similar language in section 1811.1.] In light of the broad interpretation traditionally given such language, and the fact that the Legislature, presumably aware of this interpretation, did not alter it in enacting . . . section 2988.9, it cannot be presumed that section 2988.9 was intended to have only the limited application asserted by appellant. We conclude, therefore, that section 2988.9 authorizes an award of fees to the prevailing party in any type of action in which the subject matter involves a contract subject to the provisions of the VLA." ( LaChapelle, at pp. 993-994.)
Thus, LaChapelle, supra, 102 Cal.App.4th 977, does not assist plaintiff in this appeal.
Plaintiff argues consumer protection laws protect consumers, and we should therefore interpret in the consumer's favor a consumer protection statute that authorizes a defendant to recover fees. Plaintiff says that in another context, section 1794, subdivision (d), limits recovery under the act to buyers. However, plaintiff did not read the whole act. Section 1794 is all about actions by buyers. Section 1794.1, which addresses actions by retail sellers, in fact authorizes awards of attorney's fees for retail sellers.
Plaintiff also cites Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 924 [ 14 Cal.Rptr.3d 741], which said a defendant must show the plaintiff prosecuted a case in subjective bad faith where the statute authorized the defendant to recover attorney's fees if the plaintiffs claims were not in good faith. Here, in contrast, protection of consumers is not the sole purpose of section 2988.9, which expressly authorizes awards in favor of lessors, without requiring proof of bad faith by the plaintiff. As stated in LaChapelle, the Legislature, by authorizing attorney's fees awards in favor of lessors under section 2988.9, also sought to discourage unwarranted lawsuits, such as this one. ( LaChapelle, supra, 102 Cal.App.4th at p. 993.)
Thus, plaintiff cites no authority supporting her view that section 2988.9 makes "tender and deposit" a prerequisite for an award of attorney's fees.
It is apparent to us that the second sentence of section 2988.9 obviously does not apply where, as here, the defendant denies all liability on the complaint (i.e., that plaintiff is not entitled to anything), and the judgment awards the plaintiff no relief. In such a case, the defendant is clearly the prevailing party in the VLA action. That is the case here.
We conclude tender and deposit is not required where the defendant denies any liability and prevails in the trial court. We therefore need not address the parties' arguments about whether the tender must be alleged in the original answer, or whether the trial court was required to make an express finding as to whether defendant tendered the entire amount to which plaintiff was entitled.
We conclude the trial court properly granted defendant's motion for attorney's fees. Plaintiff does not challenge the amount of the award.
In the absence of a request by defendant, we decline to consider whether defendant should get attorney's fees for defending against the appeal from the judgment or from the order awarding attorney's fees. Certainly, defendant should not recover attorney's fees for defending against the appeal from the attorney's fees order, because defendant's respondent's brief was not useful to us.
DISPOSITION
The judgment is affirmed. The order granting attorney's fees is affirmed. Defendant shall recover its costs on appeal. (Cal. Rules of Court, rule 8.276(a)(1).)
Blease, Acting P. J., and Morrison, J., concurred.