California Court of Appeals, Second District, Second Division
Filed Date 5/3/18
from a judgment of the Superior Court of Los Angeles County
No. BC588535. Mel Red Recana, Judge. Affirmed as modified.
Offices of René Korper, René Korper and Thomas
E. Solmer for Plaintiff and Appellant.
Universal & Shannon, Jon D. Universal and James P. Mayo
for Defendant and Respondent.
ordered that the opinion filed herein on April 5, 2018, be
modified as follows:
page 11, the sentence beginning on line 11 with
“Lastly, ” and ending on line 14 with “an
express warranty” is modified to read as
the Act affirmatively states that manufacturers are not
required to refund buyers for the cost of
“nonmanufacturer items installed by a dealer”
(that is, dealer add-ons) when the buyer sues for breach of
an express warranty.
page 11, the sentence beginning on line 15 with “This
statutory carve-out” and ending on line 19 with
“implied warranty claim” is modified to read as
statutory carve-out for dealer add-ons would be largely
nullified if we were to conclude that buyers had a right to
make manufacturers pay for dealer add-ons under an implied
warranty theory; all a buyer would have to do is restate her
breach of express warranty claim as a breach of implied
warranty claim, something that could be done in every case in
which the defect is one that renders the new car
“[un]fit for the ordinary purposes for which [cars] are
used” (thereby breaching the implied warranty) (§
1791.1, subd. (a)(2)) because such a defect necessarily
renders the car “nonconforming” (thereby
breaching any express warranty) (§ 1793.2, subd. (c)).
page 11, line 20, the words “in whole or in part”
are to be inserted after the word “statutes” so
the sentence reads as follows:
avoid rulings that nullify statutes in whole or in part.
the first sentence on page 13, the word “all” is
changed to “many” so the sentence reads:
not speak to-or in any way undermine-our concern that many
express warranty claims can be restated as implied warranty
claims, thereby sidestepping and negating our
Legislature's explicit limitation on express warranty
is no change in the judgment.
petition for rehearing is denied.
the engine of a brand new Mercedes-Benz died, the car's
manufacturer offered to repurchase the car for the full
amount less the $3, 090 the buyer paid the dealer
for additional products and services (“dealer
add-ons”). After the buyer sued the manufacturer for
breach of the implied warranty of merchantability under the
Song-Beverly Consumer Warranty Act (the Act) (Civ. Code,
§ 1790 et seq.),  the parties entered into a
confidential settlement leaving attorney's fees and costs
unresolved, and the buyer moved for attorney's fees as
the “prevailing party” under the Act. This appeal
chiefly presents the question: Is a buyer a prevailing party
entitled to recover attorney's fees under the Act if,
through settlement with the manufacturer, all she obtains by
litigating is the payment of dealer add-ons for which the
manufacturer is not responsible and the payment of
attorney's fees? We conclude the answer is
“no.” For these reasons and others, we affirm the
denial of attorney's fees but modify the judgment to
award costs because the buyer obtained a net monetary
recovery by virtue of the settlement.
AND PROCEDURAL BACKGROUND
April 2015, plaintiff Efigenia Garcia (Garcia) bought a
Mercedes-Benz GLA250W4 at Keyes European, an authorized
Mercedes-Benz dealer. Garcia paid $46, 593.97, comprised of a
$8, 540 down payment and a loan for the
balance. The $46, 593.97 amount included the
cost of the car and $3, 090 in dealer add-ons (namely, $1,
700 for Mercedes-Benz tires ...