Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-03-426028
Swager, J.
Appellants Hayward Dodge, Inc., Triad Financial Corporation (Triad), and AutoNation, Inc. (appellants) appeal the trial court’s order finding respondent to be the prevailing party and awarding him attorney fees and costs. We reverse.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On July 7, 2002, respondent purchased a used 2001 Hyundai XG300L truck from appellant Hayward Dodge. Over two years later, on January 7, 2005, respondent’s attorney sent Hayward Dodge a demand letter under the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.), accusing it of having committed several statutory violations in connection respondent’s purchase of the vehicle. The letter demanded that Hayward Dodge refund respondent’s money and take the vehicle back. The record reflects that before appellant attempted to return the Hyundai, he was involved in an accident that resulted in $10,000 worth of damage to the vehicle.
On March 22, 2005, respondent filed his third amended complaint against appellants, alleging eight causes of action, including common law fraud claims as well as claims involving alleged statutory violations. The fraud claims were submitted to a jury, which found against respondent. The statutory claims were tried by the court.
In its statement of decision filed January 9, 2006, the trial court found that appellants Hayward Dodge and Triad had violated the disclosure requirements of the Rees-Levering Automobile Sales Finance Act (Civ. Code, § 2981 et seq.) (ASFA), by failing to itemize the amount respondent paid for a short-term insurance premium. The court determined that this failure constituted a violation of the unfair competition law (Bus. & Prof. Code, § 17200 et seq.) (UCL). The court found against respondent on all of his remaining alleged statutory violations, and also determined that he failed to meet his burden of proof in attempting to pierce the corporate veil to render AutoNation liable for Hayward Dodge’s violation of the ASFA.
Civil Code section 2982, subdivision (a)(3), provides: “The contract shall contain the following disclosures, as applicable, which shall be labeled ‘itemization of the amount financed:’ [¶] . . . [¶] The aggregate amount of premiums agreed, upon execution of the contract, to be paid for policies of insurance included in the contract, excluding the amount of any insurance premium included in the finance charge.”
The trial court determined that the only remedy sought by respondent under the ASFA was rescission of the sales contract, which the court declined to order. The court ordered restitution for the violation of the ASFA in the amount of the $359 insurance premium plus $30.52 in tax (plus prejudgment interest at the rate of 10 percent). The court’s statement of decision indicates that this amount was awarded pursuant to the UCL, not the ASFA. Judgment was entered against appellants Hayward Dodge and Triad only.
Subsequently, the court denied appellants’ motion for attorney fees, on the grounds that they did not prove they were the prevailing parties. The court justified its ruling by its finding that they did not allege in their amended answer that they had tendered the full amount to which the plaintiff was entitled, as set forth in the ASFA’s attorney fee provision. (Civ. Code, § 2983.4, hereafter section 2983.4.)
Because he succeeded on his claim regarding the failure to itemize the insurance payment, the court found respondent to be the prevailing party. The court described the portion of his case on which he prevailed as a “a very simple case” involving no more than 50 hours of attorney time, which the court characterized as a “somewhat generous” estimate. The court awarded an additional 15 hours for posttrial work. The fee rate was set at $150 per hour, for a total of $9,750.00. Additionally, costs were awarded in the amount stated in respondent’s cost bill. This appeal followed.
In his memorandum of costs filed on January 24, 2006, respondent requested $281,594.26 in attorney fees.
Our review is severely constrained by the paucity of the record provided to us and by the nature of respondent’s brief which includes no citations to the record and few citations to primary legal authority. The California Rules of Court provide that “Each brief must [¶] . . . [¶] [s]upport any reference to a matter in the record by a citation to the volume and page number of the record . . . .” (Rule 8.204(a)(1)(C).) “It is not the task of the reviewing court to search the record for evidence that supports the party’s statement; it is for the party to cite the court to those references. Upon the party’s failure to do so, the appellate court need not consider or may disregard the matter.” (Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn. 1.) Respondent’s claims that appellants refused to let him borrow a copy of the record, and that he had insufficient resources to obtain his own copy, are not well-taken. There are procedures by which indigent litigants may proceed to acquire a copy of the record (see Cal. Rules of Court, rule 8.120(c)(3)).
I. Standard of Review
“While entitlement and amount of an attorney fee award is reviewed for abuse of discretion, the legal question of the interpretation of ‘prevailing party’ under the . . . ASFA is a question of statutory construction that we review independently.” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 149.)
II. Statutory Basis for Attorney Fees Award
Appellants correctly note that attorney fees and costs are not generally recoverable under the UCL. They point out that the trial court determined respondent did not prevail on his cause of action for violation of the ASFA and that his sole award of restitution for the insurance premium was made pursuant to the UCL only. They claim that the trial court thus erred in awarding respondent his attorney fees and costs because the fee award is not authorized by the UCL.
While not relevant to our analysis of this case, we note that a plaintiff who prevails on a UCL claim may seek attorney fees as a private attorney general under Code of Civil Procedure section 1021.5.
“The unfair competition law is independent of the Unfair Practices Act and other laws. Its remedies are ‘cumulative . . . to the remedies or penalties available under all other laws of this state’ [citation], but its sanctions are less severe than those of the Unfair Practices Act. Prevailing plaintiffs are generally limited to injunctive relief and restitution. [Citations.] Plaintiffs may not receive damages . . . or attorney fees.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179.)
Additional statutory schemes are often invoked in cases brought under the UCL. “A business practice is ‘unlawful’ if it is ‘forbidden by law.’ [Citations.] The unfair competition law thus creates an independent action when a business practice violates some other law.” (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169–1170.) “By proscribing ‘any unlawful’ business practice, ‘section 17200 “borrows” violations of other laws and treats them as unlawful practices’ that the unfair competition law makes independently actionable. [Citations.]” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., supra, 20 Cal.4th 163, 180.)
In contrast to the UCL, attorney fees are recoverable under the ASFA and they are equally available to prevailing sellers as well as to prevailing buyers. Section 2983.4 of that act provides, in part: “Reasonable attorney’s fees and costs shall be awarded to the prevailing party in any action on a contract or purchase order subject to the provisions of this chapter regardless of whether the action is instituted by the seller, holder or buyer.”
During the hearing on the parties’ motions for attorney fees, the trial court reiterated its belief that the only remedy respondent had sought under the ASFA was rescission. The court further observed that respondent’s overlapping UCL claim would not entitle him to attorney fees. The court concluded that respondent did not get remedies under the ASFA “because the only remedy [he] sought under that act was rescission, [to] which [the court] determined [he wasn’t] entitled . . . . So [he] actually got the remedy under [the UCL] which doesn’t provide for [attorney] fees . . . .” The trial court’s statements foreshadow our ruling in this case.
A. Respondent is Not Entitled to Attorney Fees
We agree with the trial court that respondent did not receive a remedy under the ASFA. Civil Code section 2983 provides, in part: “If the seller, except as the result of an accidental or bona fide error in computation, violates any provision of Section 2981.9 or of subdivision (a), (j), or (k) of Section 2982, the conditional sale contract shall not be enforceable, except by a bona fide purchaser, assignee or pledgee for value or until after the violation is corrected as provided in Section 2984, and if the violation is not corrected the buyer may recover from the seller the total amount paid, pursuant to the terms of the contract, by the buyer to the seller or his assignee.” (Italics added.)
The trial court concluded that the failure to itemize the insurance premium constituted a “formal, reporting violation rather than a substantive, fraud violation” and that therefore rescission of the entire contract would be “grossly disproportionate” and would give respondent “an unfair windfall, which would go against the policies of the [ASFA].” The court found that respondent intentionally purchased the insurance policy “for the specific purpose of being able to drive the car away from the dealership [on the date of purchase]. Had he not chosen to buy the insurance [contract], he would not have been able to take the car. He chose to buy the insurance contract, and [a fair and reasonable reading of the record establishes] that he understood that the $359 was included in the down payment amount listed on the contract—raising the previously discussed $2000 down payment . . . to $2359 . . . . He did not bind himself to continue that policy in force for any length of time. In fact, he understood that he could replace it—and he did replace it—with his own insurance before the month was up. He was not deceived with respect to the insurance.”
Respondent was thus aware that he was paying for the policy. The down payment amount as set forth in the contract reflected the insurance payment. Appellants’ sole fault was in failing to itemize this payment separately in the body of the contract, a defect which, under these circumstances, may properly be characterized as “trivial.” The trial court did not find anything to suggest that appellants’ failure to itemize the insurance premium was the result of any deliberate conduct. While it is undisputed that appellants violated the insurance premium disclosure provision of the ASFA, mere technical violations may not form the basis of a recovery under that act. (Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23, 29 [“[W]hen there is such actual compliance as to all matters of substance then mere technical imperfections of form or variations in mode of expression by the seller . . . should not be given the stature of noncompliance and thereby transformed into a windfall for an unscrupulous and designing buyer”].)
Nor did respondent’s ASFA claim specifically include a request for restitution of the insurance premium. As part of his prayer for relief with respect to the ASFA, respondent requested “a determination by the court that the Motor Vehicle contract has been rescinded and ordering payment of restitution with interest.” He also requested that the court order “such other and further relief as the court deems appropriate under the circumstances.” Thus, while respondent’s prayer for relief under the ASFA was not necessarily limited to rescission, his request for restitution was conditioned on a rescission. He did not separately request restitution of the insurance premium as a consequence of appellants’ failure to itemize the premium in the contract. His general request that the court order “such other and further relief as the court deems appropriate” does not, in our view, apply to the award in this case as the trial court ordered restitution pursuant to respondent’s claim under the UCL, not his claim under the ASFA.
Moreover, the remedy respondent received does not appear to be one that is authorized under the ASFA. Civil Code section 2983.1 provides, in part: “When a conditional sale contract is not enforceable under Section 2983 or 2983.1, the buyer may elect to retain the motor vehicle and continue the contract in force or may, with reasonable diligence, elect to rescind the contract and return the motor vehicle.” There are no provisions in the ASFA for the return of insurance premium payments absent a total rescission of the contract, which did not occur here. In sum, respondent did not prove an actionable violation of the ASFA. Consequently, we believe respondent was not entitled to attorney fees because he did not receive a remedy under that act and because he is not entitled to fees under the UCL.
B. Appellants are the Prevailing Parties Under the ASFA
Appellants contend that they qualify as prevailing parties under section 2983.4. In full, section 2983.4 provides: “Reasonable attorney’s fees and costs shall be awarded to the prevailing party in any action on a contract or purchase order subject to the provisions of this chapter regardless of whether the 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 section.” The trial court found that appellants did not qualify as prevailing parties under this section because they did not tender an amount prior to filing their answer and did not immediately file their deposit with the court.
Appellants’ memorandum of points and authorities filed in the court below in connection with their motion for attorney fees and costs states that they previously alleged as their 21st affirmative defense that they tendered to respondent the full amount to which he was entitled. It also avers that they subsequently deposited $2,500 with the court, citing to “Defendant’s Notice of Posting Bond.”
Neither appellants’ answer containing this affirmative defense nor the notice of posting bond are to be found in the record on appeal submitted to this court. Apart from a notation in the register of actions, the only other evidence that we have found in the record indicating that a bond was posted is a letter from appellants’ counsel to respondent dated February 4, 2005, which is attached to respondent’s amended complaint as an exhibit. The register of actions does not indicate for what purpose the bond was deposited.
Appellants’ memorandum filed with the court below, and included in the record, states that they attached their notice of posting bond as an exhibit thereto. This exhibit is not included in the clerk’s transcript submitted to this court.
The lack of a complete record, however, does not doom this appeal. It is not necessary for a defendant to make a tender and deposit in order to recover attorney fees if the defendant prevails on an ASFA claim. In a recent case involving a similarly worded provision found in the Vehicle Leasing Act (Civ. Code, § 2985.7 et seq.), the Third District Court of Appeal observed: “The second sentence of the statute does not require tender and deposit as prerequisites for an attorney 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 fees.” (Hart v. Autowest Dodge (2007) 147 Cal.App.4th 1258, 1262.)
Appellants must be deemed the prevailing parties within the meaning of section 2983.4 because respondent did not succeed in his claim under the ASFA and received no remedy under that act. Respondent’s only nominal remedy was under the UCL, a statutory scheme that does not allow for the recovery of attorney fees. As appellants are the prevailing parties under the ASFA, whether they made a valid tender and deposit pursuant to the second sentence of section 2983.4 is irrelevant.
Nor does an award of attorney fees to appellants appear to be inconsistent with the purpose of the ASFA. In construing the Vehicle Leasing Act’s attorney fees provision, appellate courts have observed that it applies equally to defendants: “It appears . . . that the Legislature also sought to discourage unwarranted suits by authorizing awards in favor of prevailing lessors and assignees.” (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 993.) As we find that the trial court’s order must be reversed it is unnecessary for us to consider appellants’ remaining arguments.
DISPOSITION
The order is reversed.
We concur: Marchiano, P. J., Stein, J.