Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CV814974
Mihara, J.
This appeal arises out of a dispute over a lease contract between plaintiffs Kenneth and Arcelia Whelan and defendant Anderson Chevrolet Los Gatos, Inc. (Anderson). The parties eventually proceeded to a bench trial on claims for violations of the Vehicle Leasing Act (VLA), the Consumer Legal Remedies Act (CLRA), and the Song-Beverly Warranty Act (Song-Beverly). Following trial, the court found in favor of the Whelans on the VLA and CLRA claims and in favor of Anderson on the Song-Beverly claim. The trial court awarded the Whelans $10,549.12 in damages and restitution and $159,118.70 in attorney’s fees. On appeal, Anderson challenges the sufficiency of the evidence to support the judgment and raises several contentions relating to the attorney’s fee award. For the reasons stated below, we affirm the judgment and the order awarding attorney’s fees.
I. Statement of Facts
On August 27, 2001, the Whelans met with Bob Davis and Jerri Hall, who were Anderson salespersons. The Whelans were interested in a Corvette, and Davis and Hall told them that it would cost “around $50,000” with payments of $50 more per month than the payments on their current vehicle. The manufacturer’s suggested retail price (MSRP) for this vehicle was $48,790. However, the Whelans did not see the federally-mandated MSRP sticker that was affixed to one of the side windows, because the windows were rolled down.
As part of the negotiations, the Whelans and Davis discussed the trade-in of the Whelans’ 2000 Dodge Ram 1500 truck, which they did not have with them. Mr. Whelan gave Davis an estimate of the mileage on the truck and the amount of their current monthly payments, but he did not know the amount of the balance owed. The sales manager commented that there might be negative equity in the truck, but he did not provide an estimate of this amount. Mr. Whelan told the sales manager that he did not want the negative equity “rolled into the price of the Corvette.” The sales manager said that “he would have to wait and see,” because he was trying to determine the payoff amount for the truck. Davis later told Mr. Whelan that Anderson would pay the balance due on the truck and that he should not worry about it. No one at Anderson ever told the Whelans that the payoff amount would affect the price that they paid for the Corvette. The Whelans would not have purchased the Corvette if they had been told that the contract included the negative equity from the truck.
The contract for the Corvette stated that the value of the vehicle was $54,000, the term of the lease was 72 months, and the monthly payments were $756.14. The contract failed to disclose the existence of negative equity and the value of the Whelans’ truck. No one at Anderson told the Whelans about any “supplemental charge” to the MSRP. The Whelans signed the contract and gave Anderson a down payment of $3,500. AEA Credit Union financed the transaction.
Anderson picked up the truck from the Whelans’ home the next day. Anderson paid $25,004.72, which was the balance due on the truck, to Washington Mutual. Anderson assigned an actual cash value of $16,500 to the truck, but was unable to produce the file that would explain how it arrived at this amount.
The trial court expressly found that the testimony of Anderson’s employees regarding the actual cash value of the truck was not credible.
The Whelans made eight payments on the lease, and then traded the Corvette for another vehicle.
II. Statement of the Case
On November 6, 2002, the Whelans sent Anderson a statutory demand letter pursuant to Civil Code section 1782, subdivision (a).
All further statutory references are to the Civil Code unless otherwise stated.
On February 24, 2003, the Whelans filed a complaint that included causes of action for statutory violations of the VLA, the CLRA, the Unfair Competition Law (UCL), the Song-Beverly, and fraud and negligent misrepresentation. The UCL claim was filed as a private attorney general claim under the former version of the UCL.
On July 21, 2003, the Whelans filed a first amended complaint that included the same causes of action.
On April 19, 2005, the trial court granted Anderson’s motion for summary adjudication on Ms. Whelan’s claims of fraud and negligent misrepresentation.
On September 21, 2005, the Whelans filed a second amended complaint that eliminated their UCL claim.
Mr. Whelan dismissed his fraud and negligent misrepresentation claims on the eve of trial.
Following trial, the court found in favor of the Whelans on their VLA and CLRA claims. The trial court found in favor of Anderson on the Song-Beverly claim. The trial court also determined that the Whelans were the prevailing parties and entitled to attorney’s fees and costs.
On November 10, 2005, Anderson filed a request for a statement of decision. The Whelans submitted a proposed statement of decision on November 13, 2005. Anderson filed its proposed statement of decision on November 21, 2005. On that same date, the trial court issued its proposed statement of decision. On November 30, 2005, the trial court filed a revised statement of decision.
On December 19, 2005, the trial court filed an amended judgment with the revised statement of decision. The revised statement of decision states in relevant part: “The lease did not disclose the trade-in nor did it reveal that negative equity was added to the price of the leased vehicle. The actual price of the leased Corvette was not clearly explained to the Plaintiffs. The weight of the evidence established that a supplemental sticker was not posted on the vehicle and that due to factors such as the amount of time devoted to selling the lease to the Plaintiffs, and securing a profit for Anderson, as well as commissions for employees, the Defendant was highly motivated to complete the transaction. . . . [¶] 1. The Court finds that the Defendant violated California Civil Code Section 2985.8 . . . by not including reference to the trade-in vehicle or the existence of negative equity in the lease. Thus, the ‘single document’ rule was violated as was the requirement that any outstanding prior credit balance be disclosed. (See Civil Code Section 2985.8(c)(2)(D).) [¶] 2. The Defendant violated Civil Code Section 1770(a)(9) by failing to disclose the fact that negative equity would be added to the cost of the vehicle which was misleading to the purchaser. In reaching this conclusion, the Court finds that the evidence shows that the Plaintiff made an appropriate demand and satisfied the Preliminary Notice Requirement of Civil Code Section 1782(a). [¶] 3. The Defendants did not violate Section 1794.4 of the Civil Code. [¶] 4. As a result of the above findings of law and fact, the Plaintiff is awarded damages in the amount of $10,549.12. . . . [T]he Plaintiff was entitled to $1000.00 as permitted by Civil Code Section 2988.5(a)(2). [¶] 5. In arriving at this decision, the Court concludes that the Plaintiff is entitled to restitution to obtain damages. The Vehicle Leasing Act clearly contemplates multiple potential remedies by recognizing both rescission (Civil Code Section 2988.7) and damages (Civil Code Section 2988.5). Moreover, the Consumer Legal Remedies Act, Civil Code Section 1780(a) (1)-(5), explicitly calls for restitution as a remedy. Regarding restitution as a statutory remedy, the goal of such relief is to place the injured party in a status quo ante position. Where it is ordered as a matter of statutory relief ‘the courts are not concerned with restoring the violator to the status quo ante.’ (People ex rel. Kennedy v. Beaumont Investment 111 Cal.App.4th 102, 134-135)”
On January 3, 2006, Anderson filed motions for new trial and to set aside the judgment. Following a hearing, the trial court denied the motions.
On February 9, 2006, the Whelans filed a motion for attorney’s fees. Anderson opposed the motion. Following a hearing, the trial court awarded the Whelans $159,118.70 in attorney’s fees and $4,184.51 in costs.
III. Discussion
A. Award of $9,549.12
Anderson contends that there was insufficient evidence to support an award of $9,549.12 as either restitution or damages. Anderson does not challenge the statutory penalty of $1,000 under the VLA.
Anderson claims that the trial court’s statement of decision does not indicate whether the award was made pursuant to the VLA or the CLRA, or both, or whether the award constituted damages or restitution. When a party fails to object to the trial court’s findings in the statement of decision on a particular ground, “that party waives the right to claim on appeal that the statement was deficient.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1134.) Here, Anderson failed to bring any ambiguities in the statement of decision to the trial court’s attention, and thus the issue has been waived.
We first consider the issue of waiver. The Whelans argue that Anderson has waived its arguments regarding the sufficiency of the evidence, because its factual presentation was improper. We agree.
Appellants who contend that there was insufficient evidence to support the judgment “‘are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed waived.’ (Italics added.) [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
Here, Anderson sets forth only the facts that support its position. More specifically, Anderson repeatedly refers to the amount of $8,504 as the amount of negative equity in the trade-in vehicle. In doing so, Anderson has completely ignored not only the judgment in favor of the Whelans, but also the trial court’s express finding that its employees, “who were involved in the negotiations with the [Whelans,] were not credible in their description of how the transaction occurred, the monetary amounts they referred to and the question of what stickers were posted or not.” A reviewing court does not reweigh evidence, reappraise the credibility of witnesses, or resolve factual conflicts contrary to the trial court’s findings, but only decides whether there is substantial evidence to support these findings. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) Thus, Anderson has waived any argument regarding the sufficiency of the evidence to support the judgment.
Even assuming that the issue has not been waived, Anderson’s contention has no merit.
As the trial court noted, the VLA contemplates multiple remedies, such as damages (§ 2988.5) and rescission (§ 2988.7). Rescission would include restitution of benefits conferred on Anderson. The CLRA also provides for damages (§ 1780, subd. (a)(1)) and restitution (§ 1780, subd. (a)(3)). The statement of decision refers to both damages and restitution, and the amended judgment states that the Whelans were awarded “restitution damages in the amount of $9,549.12.” The trial court also relied on case law discussing the issue of restitution. Thus, it appears that the trial court intended that the award represent either restitution or damages. After reviewing the record, we conclude that there was sufficient evidence to support a restitution award of $9,549.12 under the VLA.
Section 2988.5 provides in relevant part that “any lessor who fails to comply with any requirement under Section 2985.8 or 2988 for which no specific relief is provided with respect to any person shall be liable to such person in an amount equal to the sum of: [¶] (1) Any actual damages sustained by such person as a result of the failure.”
Section 2988.7 states that “[i]f the lessor fails to comply with Section 2985.8, as an alternative to an action under Section 2988.5, the lessee may rescind the contract if the failure to comply was willful, or if correction will increase the amount of the contract balance, unless the lessor waives the collection of the increased amount.”
Section 1780, subdivision (a) states: “Any consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice declared to be unlawful by Section 1770 may bring an action against that person to recover or obtain any of the following: [¶] (1) Actual damages, but in no case shall the total award of damages in a class action be less than one thousand dollars ($1,000). [¶] . . . [¶] (3) Restitution of property. . . .”
We first note that the issue of the amount of the award under the VLA is significant. Here Anderson tendered to the Whelans, and deposited into court, the amount of $7,500. The VLA has a fee shifting provision that would have made Anderson the prevailing party if the Whelans had recovered less than $7,500 on their VLA claim. Pursuant to section 2988.9, when a defendant tenders 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.” In finding that the Whelans were the prevailing party and awarding them attorney’s fees, the trial court necessarily found that they had recovered in excess of $7,500 on their VLA claim.
In order to prevail on a damages claim under the VLA, the Whelans were required to prove any “actual damages sustained . . . as a result of the failure” to notify them that the negative equity in their truck was added to the price of the Corvette. (§ 2988.5, subd. (a)(1).) The record established that Anderson failed to disclose that it added $8,504 to the price of the Corvette. Anderson arrived at this figure by subtracting the arbitrarily assigned cash value of $16,500 to the payoff amount of $25,004.72 on the truck. The lease contract indicated an “agreed upon value” of $54,000. Given that the trial court found that the testimony as to the amount of the negative equity was not credible, the Whelans paid $8,504 too much for the Corvette. The Whelans also paid DMV fees and taxes based on the inflated amount as well as interest on the inflated amount for eight months. However, Anderson would have been entitled under a damages theory to an offset for lease payments for the use of either the Corvette or the truck, thus reducing the amount of the award. (See Thompson v. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950.)
Nevertheless, even assuming that the Whelans were entitled to a damages award under the VLA that was less than $7,500, there was substantial evidence to support a restitution award in the amount of $9,549.12. Anderson, however, argues that a restitution award gave the Whelans a windfall based on the Whelans’ use of the Corvette and Anderson’s payment of the negative equity in the truck. Thus, Anderson claims that the award placed the Whelans in a better position than they were prior to the lease transaction.
As this court explained in People v. Beaumont Inv., Ltd. (2003) 111 Cal.App.4th 102, “[w]here restitution is ordered as a means of redressing a statutory violation, the courts are not concerned with restoring the violator to the status quo ante. The focus is on the victim. The status quo ante to be achieved by the restitution order was to again place the victim in possession of that money. . . . Moreover, in contrast to contract restitution, statutory restitution is not solely intended to benefit the [victims] by the return of money, but instead is designed to penalize a defendant for past unlawful conduct and thereby deter future violations.” (Id. at pp. 134-135; internal citations and quotation marks omitted.) This court reviews an award of statutory restitution under the abuse of discretion standard. (Id. at p. 135.)
Here, the Whelans paid $3,500 as a down payment and $6,049.12 in lease payments for a total of $9,549.12. In awarding restitution to the Whelans, the trial court clearly intended to benefit the Whelans while penalizing Anderson for its unlawful conduct. Since the amount of restitution would have been in excess of $7,500, Anderson would not have been the prevailing party and entitled to its attorney’s fees.
In awarding restitution under section 2988.7, the trial court was not authorized to award a statutory penalty under section 2988.5 because restitution under the VLA is an alternative remedy to any statutory penalty. However, as previously noted, Anderson has not challenged the statutory penalty of $1,000.
Relying on Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, Anderson also argues that the trial court could not order restitution of the funds paid by the Whelans because Anderson never possessed these funds. Anderson points out that the Whelans paid $6,049.12, that is, the eight lease payments of $756.14 each, to AEA Credit Union. Korea Supply is distinguishable from the present case. In that case, the plaintiff brought a claim under the UCL in which it alleged that the defendants illegally induced a foreign government to award a contract to a competitor. (Id. at p. 1140.) The California Supreme Court considered whether the “disgorgement of profits allegedly obtained by means of an unfair business practice is an authorized remedy under the UCL where these profits are neither money taken from a plaintiff nor funds in which the plaintiff has an ownership interest.” (Ibid.) The court held that nonrestitutionary disgorgement of profits was not a remedy under the UCL. (Id. at p. 1148.) The court also rejected the plaintiff’s claim that the disgorgement of profits was restitutionary in that case, noting that the plaintiff was “not seeking the return of money or property that was once in its possession.” (Id. at p. 1149.) The court emphasized that the competitor received the money from the foreign government, not the plaintiff. Here, the Whelans gave the money to ACE Credit Union, who then gave it to Anderson. Thus, in contrast to Korea Supply, the Whelans can trace their money directly to Anderson, who obtained it in violation of the VLA.
Though we have concluded that the evidence supported an award under the VLA, we also consider whether the Whelans established that Anderson was liable under the CLRA. Anderson argues that it did not violate the CLRA, because it did not sell the Corvette for more than its advertised price.
The trial court found that Anderson violated section 1770, subdivision (a)(9) by “failing to disclose the fact that negative equity would be added to the cost of the vehicle which was misleading” to the Whelans. The MSRP sticker on the Corvette was $48,790. The trial court also found that there was no credible evidence that there was a supplemental sticker of $10,000 on the Corvette.
Anderson asserts that there was no evidence to support the trial court’s finding that a supplemental sticker was not posted on the Corvette, and thus the advertised price was $58,790. “An appellate court cannot control a finding or conclusion denying credence, unless it appears that there are no matters or circumstances which at all impair the accuracy of the testimony, and a trial judge has an inherent right to disregard the testimony of any witness, or the effect of any prima facie showing based thereon, when he is satisfied that the witness is not telling the truth or his testimony is inherently improbable due to its inaccuracy, due to uncertainty, lapse of time, or interest or bias of the witness. All of these things may be properly considered in determining the weight to be given the testimony of a witness although there be no adverse testimony adduced. The trial judge is the arbiter of the credibility of the witnesses. A witness may be contradicted by the facts he states as completely as by direct adverse testimony, and there may be so many omissions in his account of particular transactions or of his own conduct as to discredit his whole story. His manner of testifying may give rise to doubts of his sincerity and create the impression that he is giving a wrong coloring to material facts. [Citations.] Where conflicting inferences may be drawn from testimony, this court is bound by the findings of the trial court as conclusively as in other cases of conflict. [Citation.]” (La Jolla Casa de Manana v. Hopkins (1950) 98 Cal.App.2d 339, 345-346.) Here an Anderson employee testified as to the custom and practice regarding the supplemental stickers on the Corvettes. However, the trial court found that the Anderson employees were not credible on the issue of whether the stickers were posted. Moreover, Anderson did not give any price stickers to the Whelans after they took possession of the Corvette. Thus, this court is bound by the trial court’s finding that a supplemental sticker was not placed on the Corvette.
Anderson argues that the Whelans cannot recover under the CLRA, because they did not see the sticker advertising the MSRP of $48,790.
Section 1770 states in relevant part: “(a) The following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer are unlawful: . . . [¶] (9) Advertising goods or services with intent not to sell them as advertised.”
Here the advertised price for the Corvette was $48,790, and Anderson employees told the Whelans that the price was around $50,000. There was no evidence that the Whelans saw the MSRP sticker, because the windows were rolled down. However, the Whelans relied on the statements by Anderson employees as to the amount of the advertised price. Thus, by failing to notify the Whelans that the contract price included the amount of the negative equity in the truck, Anderson intended not to sell the vehicle as advertised.
Anderson next contends that the Whelans failed to comply with the preliminary notice and demand requirement of the CLRA.
Section 1782 provides in relevant part that, at least 30 days prior to the commencement of an action for damages, a party shall: “(a)(1) Notify the person . . . of the particular alleged violations of Section 1770. [¶] (2) Demand that the person correct, repair, replace, or otherwise rectify the goods or services alleged to be in violation of Section 1770. . . .[¶] (b) . . . [N]o action for damages may be maintained under Section 1780 if an appropriate correction, repair, replacement, or other remedy is given, or agreed to be given within a reasonable time, to the consumer within 30 days after receipt of the notice.”
On November 6, 2002, the Whelans sent a demand letter in which they asserted, among other things, that Anderson had violated section 1770 by advertising goods with the intent not to sell them as advertised. The Whelans sought refund of the $3,500 down payment and the eight lease payments plus interest, reimbursement for the negative equity charged as a result of the trade in vehicle, and reasonable attorney’s fees.
On December 30, 2002, the Whelans sent a letter regarding possible settlement figures. It included an amount of $38,044 in damages, of which $3,870 represented fees and costs, and $100,000 in punitive damages.
On February 24, 2003, the Whelans filed their complaint for damages in which they sought actual damages of $150,000, statutory penalties of $1,000, punitive damages, and attorney’s fees. Thus, both demand letters were timely under section 1782.
Noting that the Whelans’ demand of $38,044 was approximately four times the amount of damages and restitution that they sought at trial, Anderson argues that the Whelans’ letter was not made in good faith and thus they were not entitled to damages under the CLRA. First, we note that there is no good faith requirement in section 1782. (Compare § 1782 with § 1780, subd. (d) [the trial court may award attorney’s fees under the CLRA to a prevailing defendant when it finds that the plaintiff did not prosecute the action in good faith].) Second, the fact that the Whelans did not prevail in recovering all of the damages that they sought does not establish that their initial demands were not made in good faith.
B. Award of Attorney’s Fees
Anderson next contends that the Whelans were not entitled to an award of attorney’s fees.
The Whelans sought a total of $159,118.70 in attorney’s fees. This amount was based on the expenditure of 397 hours of senior attorney time at $375 per hour, 27.4 hours of associate attorney time at $150/100 per hour, 84.52 hours of paralegal time at $135 per hour, and 1 hour of law clerk time at $75 per hour. No administrative, secretarial, or other staff time was billed. The Whelans’ fee agreement with their attorney was based on an hourly, contingent fee. In addition to extensive billing records, declarations by the Whelans’ counsel, copies of documents indicating that the Whelans repeatedly attempted to settle the case, the Whelans submitted a declaration by Mark Chavez, whose legal practice focused on representing plaintiffs in consumer cases challenging, among other entities, automobile dealerships. According to Chavez, the hourly rates sought by the Whelans counsel were “reasonable, and well within the range of prevailing market rates for attorneys of comparable skill, experience and qualifications in the Bay Area.”
Following the hearing on the Whelans’ motion for fees and costs, the trial court found that “Civil Code Sections 2988.5 and 1780(d) are specific statutes and that Code of Civil Procedure Section 1033 is not the controlling statute. [¶] The Court further found that Plaintiffs were the prevailing party and are entitled to fees and costs. It further found that Civil Code Section 1780(d) is mandatory by its use of the word ‘shall’ and acknowledges the strong public policy of the Vehicle Leasing Act. [¶] As it relates to the specific amounts sought, the Court found an hourly fee of $375.00 reasonable, and the number of hours requested reasonable based on the history of the case. The Court also stated that even if CCP 10[3]3 did apply, it would have made the same award. [¶] Plaintiffs are awarded $4,184.51 in costs. [¶] Plaintiffs are awarded $159,118.70 in attorney fees.”
Anderson argues that the trial court erred as a matter of law in ruling that Code of Civil Procedure section 1033 was inapplicable. This statute provides that fee and cost determinations are “as determined by the court in its discretion” when a plaintiff pleads and prosecutes an unlimited civil case, but recovers less than $25,000. Anderson claims that a prevailing party’s entitlement to attorney’s fees may be mandatory under the CLRA or VLA, but Code of Civil Procedure section 1033 authorizes the trial court to reduce the amount of that award to what a prevailing party would have spent in a limited jurisdiction lawsuit.
Code of Civil Procedure, section 1033, subdivision (a) states: “Costs or any portion of claimed costs shall be as determined by the court in its discretion in a case other than a limited civil case in accordance with [court rules] where the prevailing party recovers a judgment that could have been rendered in a limited civil case.” The maximum amount in controversy in a limited civil case is $25,000. (Code Civ. Proc., § 85.)
Section 1780, subdivision (d) provides in relevant part that “[t]he court shall award court costs and attorney’s fees to a prevailing plaintiff in litigation filed pursuant to [the CLRA].”
Section 2988.5, subdivision (3) provides that a lessor who fails to abide by the VLA “shall” be liable for “[t]he costs of the action, together with a reasonable attorney’s fee as determined by the court.”
Even assuming that Anderson is correct in its interpretation, here the trial court expressly found that it would have awarded the same amount of attorney’s fees under Code of Civil Procedure section 1033. Anderson acknowledges this finding, but claims that the trial court did not meaningfully exercise its discretion under this statute.
First, we note that there is no requirement that the trial court make express findings when exercising its discretion under Code of Civil Procedure section 1033. Second, “Evidence Code section 664 provides that ‘[i]t is presumed that official duty has been regularly performed’ and scores of appellate decisions, relying on this provision, have held that ‘in the absence of any contrary evidence, we are entitled to presume that the trial court . . . properly followed established law.’ [Citations.]” (Ross v. Superior Court) 19 Cal.3d 899, 913.) Thus, we must presume that the trial court exercised its discretion under section 1033.
We next consider whether the trial court abused its discretion in determining that the Whelans were entitled to an award of attorney’s fees under Code of Civil Procedure section 1033. “While the concept abuse of discretion is not easily susceptible to precise definition, the appropriate test has been enunciated in terms of whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. . . . A decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not to be set aside on review. Accordingly, an abuse of discretion transpires if the trial court exceeded the bounds of reason in making its award of attorney fees.” (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1249-1250, internal citations and quotation marks omitted.) It is the appellant’s burden to establish an abuse of discretion. (Dorman v. DWLC Corp. (1995) 35 Cal.App.4th 1808, 1815 (Dorman).)
In exercising its discretion under Code of Civil Procedure section 1033, some of the factors that a trial court may consider are the “‘plaintiff’s assessment of his chances of recovery beyond the jurisdiction of the municipal court when he filed his action—whether reasonable and in good faith—the amount of the recovery—looked at in relationship to the maximum amount of the municipal court jurisdiction—and the amount of costs incurred. . ..’” (Dorman, supra, 35 Cal.App.4th at p. 1816, italics omitted, quoting Greenberg v. Pacific Tel. & Tel. Co. (1979) 97 Cal.App.3d 102, 108.)
Relying on a January 15, 2003 letter discussing settlement, Anderson claims that the Whelans conceded that their case was worth less than $25,000. Anderson mischaracterizes the record. Excluding attorney’s fees and costs, the Whelans’ letter stated that they sought $25,254, which was in excess of the jurisdictional limit. Anderson next points out that the Whelans’ complaint, which was filed on February 24, 2003, sought “at least $150,000 according to proof” and then they sought $10,549 in damages and restitution and punitive damages at the time of trial. Thus, Anderson argues that the Whelans could not have had a good faith belief that they would have recovered in excess of $25,000. We disagree. The trial court could have reasonably found that the Whelans had a good faith belief that they would also recover punitive damages, and thus obtain an award in excess of the jurisdictional amount. Accordingly, this factor weighed in favor of allowing the fee award.
The second factor, that is, that the $10,549 award was less than half of the jurisdictional minimum, weighed in favor of reducing the attorney’s fee award. However, this factor is not dispositive.
We next consider the total amount of the fees incurred. Here, the trial court awarded the Whelans $159,118.70 in fees. This amount was fifteen times greater than their recovery of $10,549.12. However, the trial court addressed this concern by specifically noting “the strong public policy which supports the [VLA] as it relates to awarding attorneys’ fees for consumers as it relates to specific amounts. . . . [¶] In terms of the amount of attorneys’ fees requested, as we all know sometimes litigation is expensive. The history of this case supports the conclusion that the case was vigorously pursued by the plaintiff and vigorously defended on behalf of Anderson.” As the trial court recognized, the Legislature enacted the CRLA and VLA to protect consumers from unfair or deceptive business practices. (§§ 1760, 2985.8, 2988.) Moreover, “[t]he provision for recovery of attorney’s fees allows consumers to pursue remedies in cases as here, where the compensatory damages are relatively modest. To limit the fee award to an amount less than that reasonably incurred in prosecuting such a case, would impede the legislative purpose underlying” consumer legislation. (Hayward v. Ventura Volvo (2003) 108 Cal.App.4th 509, 512 (Hayward).) The record also fully supports the trial court’s observation that both sides “vigorously” litigated this matter. In considering all of these factors, we conclude that the trial court did not abuse its discretion in concluding that the Whelans were entitled to an award of attorney’s fees under section 1033.
Anderson next challenges the attorney’s fee award on the ground that the Whelans were not the prevailing party, because they did not prevail on the majority of their claims and only recovered a fraction of the relief that they originally sought. Anderson points out that they prevailed on the Song-Beverly claim, and that the Whelans did not pursue their UCL, fraud, and negligent misrepresentation claims.
Neither the VLA nor the CLRA define the term “prevailing party.” However, Code of Civil Procedure section 1032 states in relevant part that a “‘[p]revailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” Where a statute does not define the term prevailing party, some courts have adopted “a pragmatic approach, determining prevailing party status based on which party succeeded on a practical level. [Citations.] Under that approach, ‘the court exercises its discretion to determine the prevailing party by analyzing which party realized its litigation objectives.’” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 150, quoting Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1018.) Under either test, the Whelans could properly be characterized as the prevailing party. They prevailed on two of their three claims and recovered an award of $10,549, thereby achieving their litigation objective. Accordingly, the trial court did not abuse its discretion in recognizing them as the prevailing party.
Anderson also argues that even if the fees are not reduced under Code of Civil Procedure section 1033, the lodestar should have been reduced by 85 percent due to the limited relief obtained and the unsuccessful claims.
Unless a statute provides for another method of calculation, the trial court determines the amount of an attorney’s fee award under the lodestar method. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137.) In Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, the California Supreme Court summarized the legal principles involved in the calculation of attorney’s fees in public interest litigation. “‘[A] court assessing attorney fees begins with a touchstone or lodestar figure, based on the “careful compilation of the time spent and reasonable hourly compensation of each attorney . . . involved in the presentation of the case.” [Citation.] We expressly approved the use of prevailing hourly rates as a basis for the lodestar, noting that anchoring the calculation of attorney fees to the lodestar adjustment method “‘ is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts.’”’ [Citation.] In referring to “reasonable” compensation, we indicated that trial courts must carefully review attorney documentation of hours expended; “padding” in the form of inefficient or duplicative efforts is not subject to compensation. [Citation.]” (Id. at p. 579.) The trial court may award attorney’s fees based on the entire course of the litigation, including pretrial matter, settlement negotiations, discovery, and the trial itself. (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447.)
The lodestar figure may be “augmented or diminished by taking various relevant factors into account, including (1) the novelty and difficulty of the questions involved and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; and (3) the contingent nature of the fee award, based on the uncertainty of prevailing on the merits and of establishing eligibility for the award.” (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 639.) We review an award of statutory attorney’s fees under the abuse of discretion standard. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 324.)
Relying on Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328 (Mann), Anderson contends that the trial court erred in failing to reduce the attorney’s fee award, because the Whelans did not prevail on all of their causes of action. In Mann, the defendants brought an anti-SLAPP motion as to four of the plaintiff’s thirteen causes of action. (Id. at p. 333.) However, they were successful as to only one cause of action. (Ibid.) In awarding the defendants $57,000 in attorney’s fees as the prevailing party on the motion, the trial court stated that this amount was “‘reasonable and appropriate under the circumstances’” and “expressly declined to apportion the fees between the successful and unsuccessful causes of action because it found the same legal and factual theories were involved on each of the claims.” (Id. at pp. 341-342.) In reviewing the amount of the award, the appellate court stated that “[t]he issue of the proper amount of fees to be awarded when an attorney’s time is attributable to recoverable and nonrecoverable claims depends on the legislative intent and policies underlying the specific fee-shifting scheme at issue. [Citations.]” (Id. at pp. 342-343.) The court then explained that “[t]he fee-shifting provisions of section 425.16, subdivision (c) were enacted to impose litigation costs on those who assert meritless claims burdening the exercise of the defendant’s constitutional free speech and petition rights. [Citation.] The Legislature also sought to encourage private representation for defendants who might not otherwise have the financial resources to retain an attorney. [Citation.] However, when a defendant is only partially successful in challenging portions of the complaint, these policies to ensure prompt and meaningful redress for defendants subject to SLAPP suits must be balanced with the plaintiff’s constitutional right to petition for redress of his or her claims. If, after a court rules on an anti-SLAPP motion, a partially successful plaintiff is required to bear the entire cost of the anti-SLAPP litigation even though the defendant achieved only a relatively minor benefit and the essential thrust of the plaintiff’s complaint remains viable, this could impose a potential financial barrier to the plaintff continuing with the lawsuit, burdening the plaintiff’s right to exercise his or her right to petition for the redress of grievances.” (Id. at p. 344.)
In contrast to Mann, the present case does not involve competing constitutional interests. The Legislature enacted the CRLA “to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection.” (§ 1760.) Similarly, the purpose of the VLA is to protect consumers against deceptive practices by lessors of vehicles. (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 986.) As previously stated, “[t]he provision for recovery of attorney’s fees [in this type of litigation] allows consumers to pursue remedies in cases as here, where the compensatory damages are relatively modest.” (Hayward, supra, 108 Cal.App.4th at p. 512.) However, even assuming that the trial court was required under Mann to reduce the requested attorney’s fees to account for the unsuccessful claims in this case, we find no abuse of discretion.
Here, the trial court found that the hourly rate and the number of hours requested were reasonable “based on the history of the case.” The trial court also acknowledged that there was a “strong policy which supports the [VLA] as it relates to awarding attorneys’ fees for consumers as it relates to specific amounts.” The trial court further observed that “litigation is expensive” and that the “history of this case supports the conclusion that the case was vigorously pursued” by both parties. In doing so, the trial court implicitly recognized counsels’ skill in representing their clients. We also note that the Whelans’ counsel took the case on a contingent basis. The trial court could properly weigh these factors against the fact that the Whelans did not prevail on all of their original claims, and conclude that the lodestar should neither be augmented nor diminished. In light of these factors, we conclude that Anderson failed to carry its burden in establishing that the trial court’s decision in setting the amount of the attorney’s fee award was arbitrary, irrational, or beyond the bounds of reason.
III. Disposition
The judgment is affirmed. The order awarding attorney’s fees is affirmed. The Whelans are entitled to costs on appeal.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.