California Court of Appeal Jan 24, 2022 No. E075101Unpublished
Filed 1/24/22 Solis v. MVP Cars CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
JERMAN SOLIS et al.,
Plaintiffs and Appellants, E075101
v. (Super. Ct. No. RIC1901684)
MVP CARS INC. et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Randall S. Stamen,
Judge. Reversed.
Law Offices of Kevin Faulk and Kevin Faulk; Elisa M. Swanson, for Plaintiffs
and Appellants.
Law Offices of Michael Geller and Michael S. Geller, for Defendants and
Respondents.
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I.
INTRODUCTION
Plaintiffs and appellants Jerman Solis and Patricia Newton bought a vehicle from
defendant and respondent MVP Cars, Inc. As part of the sale, MVP charged plaintiffs for
a smog test and a registration fee, but did not perform the test and did not register the
vehicle. After plaintiffs sued MVP, MVP “smogged” the vehicle and registered it, which
resolved plaintiffs’ complaints. Plaintiffs dismissed the case and sought about $21,000 in
attorney’s fees and $1,045 in costs, but the trial court awarded them only $1,925 in
attorney’s fees and no costs. Plaintiffs appeal, and we reverse and remand.
II.
FACTUAL AND PROCEDURAL BACKGROUND
After plaintiffs bought a car from MVP in November 2018, they learned it had not
passed a smog test and MVP had not obtained a “smog certificate,” as the law requires.
(See Veh. Code, § 24007, subd. (b)(2).) They also discovered MVP had not registered
the vehicle with the Department of Motor Vehicles (DMV), as MVP represented it would
do. Plaintiffs thus could not legally drive the vehicle.
In January 2019, Solis retained attorney Kevin Faulk to represent him for a
potential lawsuit against MVP. On February 19, 2019, Faulk sent MVP a demand letter
under the Consumer Legal Remedies Act (CLRA; Civ. Code, §§ 1750 et seq.) in which
he demanded, among other things, that MVP obtain a valid smog inspection certificate
for the vehicle and register it with the DMV. Faulk sent the demand letter through
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United States Postal Service (USPS) certified mail. On Solis’s behalf, Faulk sued MVP
and RLI Insurance Company (collectively, MVP) on February 25, 2019, for violating the
CLRA, among other things.
When USPS delivered Faulk’s letter on February 26, 2019, there was no
“authorized recipient” at MVP. USPS therefore returned the letter to Faulk on March 14,
2019, as “unclaimed.”
MVP answered Solis’s complaint in April 2019, and the parties litigated the matter
in the ensuing months. Counsel met and conferred, the parties served discovery on one
another, and MVP filed a motion requesting that Solis’s wife, Newton, be joined as a
plaintiff. Newton retained attorney Elisa Swanson to represent her. Solis then filed a
first amended complaint, which added Newton as a plaintiff.
In November 2019, MVP inspected the vehicle, smogged it, and registered it with
the DMV. Because this resolved plaintiffs’ issues with the vehicle, they asked the trial
court to dismiss their case in January 2020. Along with their request to dismiss, plaintiffs
moved for attorney’s fees and costs under the CLRA. They sought $1,045 in costs and
$17,800 in attorney’s fees, increased by a multiplier of 1.2, for a total of $21,360 in fees.
MVP opposed the motion. The thrust of MVP’s opposition was that plaintiffs’
lawsuit was unnecessary and so their request for attorney’s fees and costs was unjustified.
MVP argued in its opposition that plaintiffs’ issues with their vehicle “could have been
resolved with a phone call.” MVP also stated in its opposition that it not receive Faulk’s
demand letter and was unaware of plaintiffs’ complaints until they sued.
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MVP did not, however, support its arguments with any supporting documentation.
The only evidence it submitted along with its opposition was its counsel’s declaration,
which does not say anything about Faulk’s letter, the parties’ settlement efforts, or
MVP’s position that the dispute could have been resolved without litigation.
The trial court found that plaintiffs were the prevailing parties and thus were
entitled to an award of attorney’s fees and costs under the CLRA. But the court awarded
plaintiffs only $1,925 in attorney’s fees and no costs. The court’s reasoning was as
follows: “Defendant claims to have never received the CLRA 30-day notice letter
(Defendant’s Opp. to Motion, pages 4-5.) Defendant claims if it had notice of the issue,
‘they would have immediately called Plaintiff’ and addressed this ‘trivial’ issue. (Id. at p.
5.) It would have been reasonable for Plaintiffs to send a follow up letter to the
dealership and to make a phone call to discuss the issue prior to filing the Complaint or
moving forward with litigation. Plaintiffs do not provide billing statements prior to [June
04, 2019] [citation] and do not discuss the steps they took after sending the initial demand
letter. Furthermore, Plaintiffs did not wait 30 days from sending the letter before filing
the Complaint. This shows an unwillingness to resolve the issue informally, before filing
suit and incurring fees. All fees incurred after sending the demand letter (i.e. for
discovery, amending complaint to add Plaintiff Newton, calls with clients and opposing
counsel) were unnecessary. Plaintiffs did not reasonably attempt to resolve the smog test
and registration issue at the outset. [¶] The Court awards the attorney’s fees incurred in
drafting and sending the demand letter, $1,925 (5 hours at $385).”
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Plaintiffs timely appealed.
III.
DISCUSSION
Plaintiffs contend the trial court abused its discretion in granting them a fraction of
the attorney’s fees and costs they sought. We agree.
As the prevailing parties, plaintiffs were entitled to an award of reasonable
attorney’s fees and costs under the CLRA. (See Benson v. Southern California Auto
Sales, Inc. (2015) 239 Cal.App.4th 1198, 1205.) We review the trial court’s fee award
for an abuse of discretion. (Id. at p. 1207.) “We reverse only when no substantial
evidence supports the court’s findings.” (Ibid.)
We first decline to address MVP’s arguments that the trial court’s order should be
reversed because plaintiffs were not the prevailing parties and thus the matter should be
remanded with instructions to enter a judgment awarding MVP its fees and costs. MVP
cannot raise those arguments because it did not cross-appeal. (See Kardly v. State Farm
Mut. Auto. Ins. Co. (1995) 31 Cal.App.4th 1746, 1748 fn. 1 [“A respondent who fails to
file a cross-appeal cannot urge error on appeal.”].)
We also reject plaintiffs’ primary argument that the trial court failed to apply the
lodestar method to determine their fee award. We agree the lodestar method applies to
CLRA fee awards and “requires the trial court to first determine a touchstone or lodestar
figure based on a careful compilation of the actual time spent and reasonable hourly
compensation for each attorney.” (Robertson v. Fleetwood Travel Trailers of California,
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Inc. (2006) 144 Cal.App.4th 785, 818-819.) The trial court here found that plaintiffs’
counsel reasonably spent five hours on the case and deserved an hourly rate of $385 for a
total of $1,925 in attorney’s fees. This shows that the trial court applied the lodestar
method in calculating its fee award.
But the trial court’s calculation was erroneous and lacked evidentiary support.
The only evidence MVP offered to support their opposition to plaintiffs’ fee motion was
its counsel’s declaration. That declaration, however, mentioned nothing about the case
beyond stating that counsel spent under 26 hours on it. It did not, for instance, state that
MVP never received Faulk’s letter or explain why the parties could have informally
resolved their dispute without litigation. Nor did the declaration state that plaintiffs’
lawsuit was unnecessary because MVP would have resolved their complaints without
litigation, as MVP argued in its opposition in the trial court.
The trial court’s fee award thus improperly rests entirely on MVP’s counsel’s
arguments made without any supporting evidence. (See Gdowski v. Gdowski (2009) 175
Cal.App.4th 128, 139 [“Statements and arguments by counsel are not evidence”];
Villacorta v. Cemex Cement, Inc. (2013) 221 Cal.App.4th 1425, 1433 [appellate court
will “not consider counsel’s argument in determining whether there is substantial
evidence to support the verdict” because “[a]rgument by counsel is not evidence”].)
First, the trial court found—based only on MVP’s counsel’s argument—that MVP did
not receive Faulk’s demand letter and would have “‘immediately called’” Faulk to
address Solis’s “trivial” concerns had it received the letter. MVP provided no evidence
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to support the argument, and instead relied only on its counsel’s arguments, which is not
evidence. (Gdowski v. Gdowski, supra, 175 Cal.App.4th at p. 139.)
On the other hand, plaintiffs submitted a declaration from Faulk in which he stated
that he mailed the demand letter to MVP “to try to resolve the situation,” but it was
returned to him as “unclaimed.” Faulk also stated in his declaration that, after filing the
case, MVP did not try to resolve Solis’s issues, and instead demanded that Newton be
joined as a plaintiff. Swanson similarly stated in her declaration that MVP did not try to
settle the case throughout the litigation. The record thus does not support the trial court’s
finding that follow-up correspondence from Faulk to MVP would have resolved the
parties’ dispute without litigation.
Next, the trial court found that all of plaintiffs’ counsel’s fees incurred after
Faulk’s demand letter were “unnecessary” to resolve plaintiffs’ issues with the vehicle.
Again, defendants submitted no evidence that would support this finding. MVP does not
point to any evidence in the record that supports it. Instead, MVP relies only on its
counsel’s unsupported arguments, which are not evidence. (Gdowski v. Gdowski, supra,
175 Cal.App.4th at p. 139.) By contrast, plaintiffs provided declarations from their
attorneys testifying under oath that MVP did not try to settle the case, and “escalated it”
by filing a motion to join Newton as a co-plaintiff. The trial court’s finding that Solis
could have informally resolved his complaint without litigation thus lacks evidentiary
support, particularly given that MVP “smogged” and registered the vehicle only after the
parties litigated the matter for six months. As a result, the trial court’s order awarding
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plaintiffs only their pre-litigation attorney’s fees and no costs is not supported by
substantial evidence.
The trial court also made an error in calculating its fee award. The court awarded
plaintiffs “attorney’s fees incurred in drafting and sending the demand letter,” finding
that plaintiffs’ counsel reasonably spent five hours on it. But Faulk spent only .8 hours
on the letter, and Swanson was retained after Faulk mailed it. Nothing in the record
supports the trial court’s finding that plaintiffs’ counsel was entitled to five hours of
attorney time for Faulk’s letter. Substantial evidence thus does not support the trial
court’s finding that plaintiffs’ counsel reasonably spent five hours on the demand letter.
Because the trial court’s fee award is not supported by substantial evidence and its
award of $1,095 is based on an erroneous calculation, we reverse and remand the matter
to the trial court. We need not decide whether the trial court properly awarded plaintiffs’
counsel attorney’s fees at a rate of $385 per hour or whether they were entitled to a fee
multiplier. The trial court may revisit both issues on remand. (See Kerkeles v. City of
San Jose (2015) 243 Cal.App.4th 88, 105 [reversing fee award for erroneous ruling on
hours expended and noting that trial court may reconsider hourly rate on remand];
Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141 [declining to address fee multiplier
request because trial court’s errors in calculating fee award “require[d] remand . . . for
recalculation of attorney’s fees”].)1
1 Plaintiffs request that we award them attorney’s fees associated with this appeal. They must make that request in the trial court. (See Cal. Rules of Court, rule 3.1702(c); [footnote continued on next page]
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IV.
DISPOSITION
The trial court’s order on plaintiffs’ motion for attorney’s fees and costs is
reversed. The matter is remanded to the trial court for further proceedings consistent
with this opinion. Plaintiffs may recover their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
FIELDS J.
see also In re Marriage of James & Christine C. (2008) 158 Cal.App.4th 1261, 1277- 1278.) We express no opinion on the issue.
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AI Brief
AI-generated · verify before citing
Holding. The trial court abused its discretion by reducing the prevailing plaintiffs' attorney's fees and costs based on unsupported arguments of defense counsel rather than evidence, and by making calculation errors regarding the time spent on pre-litigation tasks.
Issues
Whether the trial court's attorney's fee award was supported by substantial evidence.
Whether the trial court erred in its calculation of hours reasonably expended by plaintiffs' counsel.
Disposition. reversed and remanded
Quotations verified verbatim against the opinion
“The trial court’s fee award thus improperly rests entirely on MVP’s counsel’s arguments made without any supporting evidence.”
“The trial court’s finding that Solis could have informally resolved his complaint without litigation thus lacks evidentiary support”
“Substantial evidence thus does not support the trial court’s finding that plaintiffs’ counsel reasonably spent five hours on the demand letter.”