Mikki v. Lifemark Group, Inc. CA4/1 ( 2021 )

Filed 1/20/21 Mikki v. Lifemark Group, Inc. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ILHAM MIKKI, D076885
Plaintiff and Respondent,
v. (Super. Ct. No.
37-2018-00038794-CU-BC-CTL)
LIFEMARK GROUP, INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Eddie C. Sturgeon, Judge. Reversed.
Gordon Rees Scully Mansukhani and Craig Joel Mariam, Alison M.
Pringle for Defendant and Appellant.
Law Offices of Douglas and Douglas Jaffe for Plaintiff and Respondent.
Defendant and appellant Lifemark Group, Inc. (Lifemark) appeals from
an order awarding Ilham Mikki attorney fees under the Consumers Legal
Remedies Act (Civ. Code,1 §§ 1750-1784; the CLRA) in her lawsuit against
Lifemark arising out of an alleged agreement to purchase a cemetery space.
1 Undesignated statutory references are to the Civil Code.
Mikki’s operative complaint sought solely injunctive relief under the CLRA.
After accepting Lifemark’s Code of Civil Procedure section 998 (section 998)
offer to compromise and dismissing her case with prejudice, Mikki moved for
$67,000 in attorney fees. The trial court granted Mikki’s motion in part,
awarding $38,300 in fees after reducing the requested sum by $11,400 for
fees incurred after the section 998 offer, allowing $2,700 for fees incurred for
bringing the motion, and further reducing the sum by $20,000 based on
apportionment. The trial court reasoned that as a practical matter, if the
case had progressed Mikki would have amended her complaint to seek
damages so as to permit the award of CLRA attorney fees.
Lifemark contends Mikki is not entitled to an attorney fee award under
the CLRA because she did not satisfy its statutory conditions, namely, its
requirement that a plaintiff make a pre-lawsuit demand for correction or
amend her pleading to seek damages. It further contends Mikki is not a
prevailing party because she did not obtain her requested relief under the
CLRA or state any other claim. Finally, Lifemark contends that even if
Mikki were entitled to a fee award, the court abused its discretion by
awarding more than half of the fees she incurred.
We hold that Mikki, who sued under the CLRA for solely injunctive
relief and whose section 998 compromise offer was silent on the question of
damage, is as a matter of law precluded from qualifying as a prevailing party
for purposes of recovering CLRA attorney fees. She cannot establish she
suffered some damage within the meaning of the CLRA and Meyer v. Sprint
2
Spectrum L.P. (2009) 45 Cal.4th 634, which requires that she do so in order
to obtain CLRA attorney fees.2 We reverse the order.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2018, Mikki and her husband sued Lifemark, a cemetery
owner/operator, alleging that a Lifemark representative and Mikki had
entered into a written agreement for a cemetery space, Mikki paid a security
deposit which Lifemark acknowledged, but Lifemark denied them access to
the cemetery. Among other causes of action,3 Mikki and her husband
included a claim for violation of the CLRA, alleging they were consumers who
entered into a transaction with Lifemark intended to result or resulting in
the sale or lease of services, Lifemark made various false representations
about its goods and services in violation of section 1770, subdivision (a), and
they relied on Lifemark’s false representations in deciding to purchase the
space. Mikki and her husband alleged: “Plaintiffs are seeking injunctive
relief, and [are] not currently seeking damages on this cause of action, and
therefore Plaintiffs were not required to send a pre-filing notice to Lifemark
pursuant to . . . section 1782.”
Mikki thereafter noticed the deposition of a Lifemark employee,
prompting Lifemark to seek a protective order to postpone discovery until
after it filed its responsive pleading. Lifemark then filed a demurrer. Before
the hearing on the demurrer, Mikki filed an amended complaint, dropping
2 At our request, the parties provided supplemental briefing on the
effect, if any, of Meyer v. Sprint Spectrum L.P., supra, 45 Cal.4th 634 on the
availability of attorney fees in this case.
3 In addition to the CLRA claim, plaintiffs’ complaint set out causes of
action for breach of contract, violation of the Unruh Civil Rights Act (§ 51),
negligence and violation of the Unfair Competition Law (Bus. & Prof. Code,
§ 17200).
3
her husband’s claims against Lifemark but retaining all causes of action
including for injunctive relief under the CLRA. In this pleading, Mikki
alleged she entered into the cemetery space purchase agreement so her
husband could be buried near her father, Lifemark accepted and
acknowledged Mikki’s deposit, but Lifemark later told her it would not
supply the space, telling Mikki it had been sold to another customer, though
it instead used it to install a bench. Mikki alleged her husband died in
September 2018 and was buried in another cemetery, making her extremely
upset that he was not buried near her father. Lifemark again demurred to
the amended pleading. In the interim, Mikki served written discovery and
again sought to depose the Lifemark employee. Lifemark renewed its motion
for a protective order.
About a month later, Lifemark served, and Mikki accepted, a section
998 offer to compromise for payment to Mikki of $5,000.01. The offer
provides in part that Lifemark’s payment “shall be exclusive of attorneys’ fees
and costs incurred as of the date of this offer.”4 In March 2019 Mikki filed a
4 More fully, the section 998 offer provides: “[P]ursuant to the provisions
of . . . section 998, defendant Lifemark . . . puts forth the following statutory
offer to compromise in exchange for a dismissal with prejudice of any and all
claims asserted or that may be asserted by plaintiff Ilham Mikki on the terms
set forth herein: [¶] 1. Payment on behalf of . . . Lifemark . . . in the amount
of five thousand dollars and one cent ($5,000.01), which shall be exclusive of
attorneys’ fees and costs incurred as of the date of this offer. [¶] 2. This offer
must be accepted in writing. Plaintiff may indicate her acceptance of this
offer by having her attorney sign in the space below and serving a copy of
same on the undersigned counsel. [¶] 3. If the offer is accepted, a dismissal
with prejudice shall be filed by plaintiff with the San Diego Superior Court as
to . . . Lifemark. . . . [¶] Failure to agree to compromise in the manner set
forth above in conjunction with this offer within the statutory period will
result in the lapse of this offer by operation of law, whereupon it will no
longer be available to plaintiff.”
4
request for dismissal of her action with prejudice “pursuant to [the] . . .
section 998 agreement.” The dismissal provides that the court “did not waive
court fees and costs for a party in this case.”
Mikki thereafter moved for $67,000 in attorney fees under the CLRA.
She maintained the section 998 offer’s language that it was “exclusive of
attorneys’ fees and costs incurred as of the date of this offer” preserved her
right to fees under Timed Out LLC v. 13359 Corp. (2018) 21 Cal.App.5th 933.
Mikki argued the CLRA applied to her agreement; that she was a consumer
and had entered into a transaction with Lifemark for goods or services within
the meaning of the law. She argued an award of fees was mandatory under
section 1780, subdivision (e) even when the litigation was resolved by pretrial
settlement agreement. Mikki argued she was the prevailing party as the
party with the net monetary recovery under Code of Civil Procedure section
1032, subdivision (a)(4), the amount of fees she sought was reasonable, and
she should recover all of the sought-after fees without apportionment.
Lifemark opposed the motion, arguing that because Mikki did not
receive the sole relief she sought under the CLRA—an injunction—she was
not entitled to recover attorney fees as a matter of law. It argued that
assuming she was entitled to any fees, such fees could not include fees
incurred after the date of the offer or that were unnecessary or excessive to
the action. Lifemark argued Mikki unnecessarily incurred fees in drafting
her complaint and seeking unproductive court intervention, including on
behalf of her husband. According to Lifemark, under Benson v. Southern
California Auto Sales, Inc. (2015) 239 Cal.App.4th 1198 (Benson), a plaintiff
who could not maintain a damages claim under the CLRA was not entitled to
recover attorney fees based on a monetary settlement.
5
The trial court granted Mikki’s motion in part, ordering Lifemark to
pay $38,300 in attorney fees after reducing her request by $11,400 for fees
incurred after the section 998 offer and allowing $2,700 in fees for bringing
the motion. Finding the CLRA must be liberally construed to promote its
underlying purpose, the court ruled the amount of fees did not need to be tied
to any percentage of the recovery. It nevertheless reduced the fees an
additional $20,000 “based upon apportionment with regard to [plaintiff’s
husband’s] claims and because only one cause of action out of five allowed
attorney’s fees.”
Lifemark filed this appeal from the order.5
DISCUSSION
I. Standard of Review
“ ‘On review of an award of attorney fees after trial, the normal
standard of review is abuse of discretion. However, de novo review of such a
trial court order is warranted where the determination of whether the
criteria for an award of attorney fees and costs in this context have been
satisfied amounts to statutory construction and a question of law.’ ”
(Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175; see also
Medina v. South Coast Car Co., Inc. (2017) 15 Cal.App.5th 671, 683; Benson,
supra, 239 Cal.App.4th at p. 1211; Kim v. Euromotors West/The Auto Gallery
(2007) 149 Cal.App.4th 170, 176 (Kim).) Where a court makes a prevailing
party determination by comparing the parties’ relative degrees of success, we
5 “A dismissal with prejudice is considered a judgment on the merits
preventing subsequent litigation between the parties on the dismissed claim.”
(Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 91; see also
Boeken v. Phillip Morris USA, Inc. (2010) 48 Cal.4th 788, 793 [“ ‘[a] dismissal
with prejudice . . . bars any future action on the same subject matter’ ”],
citing cases.) The trial court’s order awarding attorney fees is therefore an
appealable order after judgment. (Code Civ. Proc., § 904, subd. (2).)
6
review the court’s conclusion for an abuse of discretion. (See
DisputeSuite.com, LLC v. Scoreinc.com (2017) 2 Cal.5th 968, 971; Graciano v.
Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 148 (Graciano).)
Once a party has met the criteria for an attorney fee award, we assess
the amount of the fee award for abuse of discretion, as that is a matter
entrusted to the trial court’s sound discretion. (In re Tobacco Cases I (2013)
216 Cal.App.4th 570, 587; Benson, supra, 239 Cal.App.4th at p. 1207.) Under
either standard of review, a trial court will err by either failing to exercise
discretion, or by taking “ ‘ “ ‘ “action that transgresses the confines of the
applicable legal princip[les]” ’ ” ’ ” because such action is an abuse of
discretion. (Kim, supra, 149 Cal.App.4th at pp. 176-177; see Graciano, supra,
144 Cal.App.4th at p. 148.)
II. The CLRA
“The CLRA proscribes ‘unfair methods of competition and unfair or
deceptive acts or practices undertaken by any person in a transaction
intended to result or that results in the sale or lease of goods or services to
any consumer[]’ . . . .” (Valdez v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th
600, 608-609.) Such proscribed acts include, for example, “[m]isrepresenting
the source, sponsorship, approval, or certification of goods or services”;
“[r]epresenting that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities that they do not
have”; “[r]epresenting that goods or services are of a particular standard,
quality, or grade, or that goods are of a particular style or model, if they are
of another”; “advertising goods or services with intent not to sell them as
advertised”; and “[r]epresenting that the subject of a transaction has been
supplied in accordance with a previous representation when it has not.”
(§ 1770, subd. (a)(2), (5), (7), (9), (16).)
7
“ ‘The Legislature enacted the CLRA “to protect consumers against
unfair and deceptive business practices and to provide efficient and
economical procedures to secure such protection.” [Citation.] “To promote”
these purposes, the Legislature directed that the CLRA “be liberally
construed and applied.” [Citation.]’ ” (Valdez v. Seidner-Miller, Inc., supra,
33 Cal.App.5th at p. 609.)
“Section 1780, subdivision (a), provides, ‘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. . . . [¶] (2) An order enjoining the methods, acts, or practices. [¶]
(3) Restitution of property. [¶] (4) Punitive damages. [¶] (5) Any other relief
that the court deems proper.’ ” (Valdez v. Seidner-Miller, Inc., supra, 33
Cal.App.5th at p. 609.)
“At least 30 days ‘prior to the commencement of an action for damages’
under the CLRA, the consumer must provide written notice ‘of the particular
alleged violations of Section 1770’ and ‘[d]emand that the person correct,
repair, replace, or otherwise rectify the goods or services alleged to be in
violation of Section 1770.’ (§ 1782, subd. (a).) Further, ‘no 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.’
(§ 1782, subd. (b).)” (Valdez v. Seidner-Miller, Inc., supra, 33 Cal.App.5th at
p. 609.)
The CLRA contains an attorney fee clause as follows: “The court shall
award court costs and attorney’s fees to a prevailing plaintiff in litigation
filed pursuant to this section. Reasonable attorney’s fees may be awarded to
8
a prevailing defendant upon a finding by the court that the plaintiff’s
prosecution of the action was not in good faith.” (§ 1780, subd. (e).) This
clause provides for mandatory attorney fees to a prevailing plaintiff. (Ibid.;
Kim, supra, 149 Cal.App.4th at p. 178.) “ ‘[T]he availability of costs and
attorneys fees to prevailing plaintiffs is integral to making the CLRA an
effective piece of consumer legislation, increasing the financial feasibility of
bringing suits under the statute.’ ” (Meyer v. Sprint Spectrum L.P., supra, 45
Cal.4th at p. 644.)
III. Mikki’s Entitlement to Attorney Fees
Lifemark makes a series of contentions as to why Mikki is not entitled
to an attorney fee award under the CLRA. It contends such an award is
barred because Mikki could not and did not bring an action to recover CLRA
damages. Lifemark points out Mikki did not satisfy pre-lawsuit demand
requirements, and it asserts that under Benson, supra, 239 Cal.App.4th 1198,
a plaintiff who cannot maintain a suit for damages under the CLRA is not
entitled to attorney fees based on a monetary settlement. Lifemark
maintains the trial court’s ruling concerning the possibility of Mikki’s
amendment to seek damages was speculative and contrary to the CLRA.
Lifemark further contends Mikki is not a prevailing party under the CLRA
because (1) she failed to obtain either damages or her sought-after injunctive
relief; and (2) she did not succeed on any significant issue, and its $5000.01
settlement payment was not a “monetary recovery” making her a prevailing
party under either Code of Civil Procedure section 1032 or the CLRA.
Lifemark argues that Mikki failed to state a CLRA or any other claim and did
not prosecute her claims in good faith, precluding any attorney fee award.
9
A. Benson Is Not Pertinent to Mikki’s Attorney Fee Claim
We are unpersuaded by Lifemark’s claims premised on Benson. In
Benson, the plaintiff filed suit against a car dealership, its owner, and a
finance company after making a demand for correction under the CLRA, but
failed to wait 30 days after his demand letter to file his complaint. (Benson,
supra, 239 Cal.App.4th at pp. 1203-1204.) The defendants responded to the
complaint with a settlement offer, after which the plaintiff demanded more
money and rescission of the contract. (Id. at p. 1204.) The plaintiff then
amended his complaint to add claims for CLRA damages. (Ibid.) Before trial,
the dealership stipulated to a $34,500 judgment against it on the complaint,
plus waiver of the loan on the condition the plaintiff return the vehicle and
execute a release of all the defendants. (Ibid.) The settlement agreement
allowed plaintiff to make a motion for attorney fees and costs and further
allowed the defendants to contest the motion “ ‘on any grounds available to
them’ ” (id. at p. 1205), including by contending they were the prevailing
parties “ ‘in light of the pre-litigation offer per the CLRA.’ ” (Ibid.) The trial
court denied plaintiff’s motion for attorney fees and costs under CLRA on
grounds plaintiff could not maintain an action for CLRA damages because
the defendants had offered him an appropriate correction. (Ibid.)
The Court of Appeal framed two issues for appeal: “First, was [the
dealership’s] . . . offer an appropriate correction in response to [plaintiff’s]
notice, and, second, if it was, does the fact that [plaintiff] could not maintain
an action for CLRA damages preclude him from seeking court costs and
attorney fees under the statute?” (Benson, supra, 239 Cal.App.4th at
p. 1206.) Explaining that the propriety of a correction offer was left to the
lower court’s discretion, the appellate court concluded the trial court did not
err in deeming the correction offer appropriate, which “thereby negat[ed
10
plaintiff’s] ability to maintain a cause of action for damages under [the
CLRA].” (Id. at p. 1211.)
Turning to the attorney fees issue, the court held “that if a suit for
damages cannot be maintained under the CLRA because a merchant offered
an appropriate correction in response to a consumer’s notice, then a plaintiff
cannot collect attorney fees for such a suit.” (Benson, supra, 239 Cal.App.4th
at p. 1212.) The court analogized the CLRA’s written notice requirement to
exhaustion of administrative remedies or a notice to a local public entity of
intent to sue for money or damages, such that “a lawsuit cannot go forward
until the potential plaintiff has received a response to a notice or the time for
responding has expired.” (Ibid.) “If the plaintiff sues without fulfilling this
requirement, the lawsuits are fatally defective from the beginning. It follows,
then, that the plaintiff should not be able to make the defendants pay his or
her attorneys for filing and maintaining such a suit. Attorney fees are not
recoverable in actions for damages under the CLRA unless the response to
the notice letter is not an appropriate one or no response is forthcoming
within the statutory time period.” (Ibid.) The court concluded: “To the
extent [plaintiff’s] suit was one for damages, it should not have been filed
after [the dealership] offered an appropriate correction, and he cannot require
the defendants to pay attorney fees for a suit to obtain damages.” (Id. at p.
1213.) In reaching this holding, the court emphasized that because the
parties had not briefed or argued the issue: “[W]e do not here address the
requirements for an attorney fee award based on a request for injunctive
relief.” (Ibid.)
Assuming arguendo we agree with Benson’s holding, it is not pertinent
to Mikki’s claim for attorney fees. Benson made clear that the plaintiff in
that case sought to allege a claim for damages but failed to meet the
11
prelawsuit notice requirements, and thus her lawsuit was fatally defective,
precluding an attorney fee award. Here, Mikki did not seek damages in her
lawsuit; she disclaimed damages and only sought injunctive relief. As
summarized above, Benson expressly did not reach the propriety of an
attorney fee award in this instance. (Benson, supra, 239 Cal.App.4th at
p. 1213.) Mikki was entitled to sue for injunctive relief under the CLRA
without complying with the CLRA’s prelawsuit notice requirement, so her
lawsuit, unlike the plaintiff’s in Benson, was not “fatally defective from the
beginning” so as to entirely preclude her from seeking to prove some
entitlement to attorney fees. (Id. at p. 1212.)
Benson’s limitation was recognized by the Ninth Circuit Court of
Appeals in Gonzales v. CarMax Auto Superstores, LLC (9th Cir. 2017) 845
F.3d 916 (Gonzales). In Gonzales, a car purchaser sought only injunctive
relief and attorney fees under the CLRA, disclaiming damages like Mikki.
(Gonzales, at p. 917.) On the plaintiff’s application for appellate attorney
fees, the defendant argued it made a timely and proper CLRA correction offer
that the plaintiff had rejected, precluding him from recovering attorney fees.
(Id. at pp. 917-918.)
The Ninth Circuit observed that the CLRA explicitly authorizes
injunctive relief as well as “ ‘[a]ny other relief that the court deems proper.’ ”
(Gonzales, supra, 845 F.3d at p. 918.) It explained that the California
Supreme Court in Meyer v. Sprint Spectrum L.P., supra, 45 Cal.4th 634 noted
that the CLRA in section 1782, subdivision (d) “ ‘contemplates the filing of a
CLRA action for injunctive relief alone, and such actions are not subject to
the requirements of subdivisions (a) and (b) of notice and allowance for
voluntary correction,’ which apply only to an action for damages.” (Gonzales,
at p. 918, quoting Meyer, at p. 644.) Thus, Gonzales held defendant’s
12
correction offer “whether it was appropriate or not” did not bar the plaintiff
from recovering attorney fees. (Id. at p. 917.) In reaching its conclusion, the
Ninth Circuit observed that Benson, supra, 239 Cal.App.4th 1198 “explicitly
declined to ‘address the requirements for an attorney fee award based on a
request for injunctive relief.’ ” (Gonzales, at p. 918.)
The Ninth Circuit did not address whether the plaintiff demonstrated
he had prevailed, however. It went on to say it was for the trial court in the
first instance to decide whether the plaintiff was a prevailing party.
(Gonzales, supra, 845 F.3d at p. 918.)
In sum, Benson does not support the conclusion urged by Lifemark here
that a plaintiff’s failure to satisfy prelawsuit notice requirements necessarily
bars an attorney fee award under the CLRA. Because Mikki was not
required to comply with the procedural notice requirements in section 1782,
the court’s ruling—at least insofar as it proceeded to allow Mikki to make her
attorney fee motion and attempt to establish she was a prevailing party—did
not “contradict[] the clear intent and language of the CLRA.”
B. Prevailing Party Determination
The question remains whether Mikki, whose CLRA cause of action
sought strictly injunctive relief, showed she is entitled to recover attorney
fees under that statute. Mikki was not prevented from arguing she was the
prevailing party by the section 998 offer itself. The 998 offer here, which we
may interpret de novo (Linton v. County of Contra Costa (2019) 31
Cal.App.5th 628, 635), provides that Lifemark’s settlement payment is
“exclusive of attorney fees and costs incurred as of the date of this offer” but
it does not otherwise address apportionment of costs and fees. (Accord,
Doran v. North State Grocery, Inc. (2006) 137 Cal.App.4th 484, 487.)
“Indisputably, a section 998 offer that is silent as to attorney fees cannot
13
reasonably be interpreted as excluding such recovery to the prevailing party,
provided attorney fees are authorized by statute or contract.” (Linton, at
p. 632; Wohlgemuth v. Caterpillar, Inc. (2012) 207 Cal.App.4th 1252, 1259.)
A section 998 offer “ ‘excludes [attorney] fees only if it says so expressly.’ ”
(Wohlgemuth, at p. 1259.) Under this standard, the section 998 offer in this
case did not prevent Mikki from seeking to establish she was entitled to such
recovery. But the section 998 offer did not deem Mikki to be the prevailing
party, mandate an award of attorney fees, or otherwise establish Mikki
suffered damage, and, as we explain below, that omission is fatal to her
ability to show she prevailed on her CLRA cause of action.
The CLRA’s attorney fee clause is simple, providing: “The court shall
award court costs and attorney’s fees to a prevailing plaintiff in litigation
filed pursuant to this section.” (§ 1780, subd. (e).) It requires only that the
plaintiff have filed litigation “pursuant to this section” and prevailed. The
California Supreme Court has addressed the attorney fee clause’s “pursuant
to this section” language, and found it creates a prerequisite for a plaintiff to
obtain attorney fees under the CLRA: the consumer must have established
she suffered “some ‘damage’ ” as a result of the claimed unlawful practices.
(Meyer v. Sprint Spectrum L.P., supra, 45 Cal.4th at p. 644.)
Meyer examined the CLRA’s standing provision, section 1780,
subdivision (a), and held that unless a plaintiff alleges he or she has suffered
“some kind of damage” resulting from a CLRA violation, there is no standing
under the statute: “[T]he statute provides that in order to bring a CLRA
action, not only must the consumer be exposed to an unlawful practice, but
some kind of damage must result. If the Legislature had intended to equate
‘any damage’ with being subject to the unlawful practice by itself, it
presumably would have omitted the causal link between ‘any damage’ and
14
the unlawful practice, and instead would have provided something like, ‘any
consumer who is subject to a method, act, or practice declared to be unlawful
by Section 1770 may bring an action’ under the CLRA.” (Id. at p. 641; see
also Hansen v. Newegg.com Americas, Inc. (2018) 25 Cal.App.5th 714, 724
[under CLRA, “consumer must merely ‘experience some kind of damage’ or
‘some type of increased costs’ as a result of the unlawful practice”]; Bower v.
AT&T Mobility, LLC (2011) 196 Cal.App.4th 1545, 1556.) The Meyer court
explained the phrase “any damages” in section 1780 does not mean actual or
pecuniary damages; given its breadth, it may include harms other than
pecuniary damages—e.g., lost money or property—as well as damages
representing transaction or opportunity costs. (Id. at pp. 640 & fn. 1.) It is a
“low but nonetheless palpable threshold of damage . . . .” (Id. at p. 646.)
In reaching this conclusion, the court addressed the plaintiffs’
argument that the CLRA did not preclude a person who suffered no damage
from obtaining injunctive relief. (Meyer v. Sprint Spectrum L.P., supra, 45
Cal.4th at p. 643.) It acknowledged section 1782, subdivision (d) of the CLRA
contemplates actions for solely injunctive relief, and such actions were not
subject to the pre-lawsuit correction demand requirement. (Id. at p. 644.)
The court explained this provision did not alter the basic requirement that a
plaintiff suffer some damage as a result of unlawful practices. (Id. at p. 644.)
The court found a “problem” with concluding otherwise having “to do with the
availability of attorney fees for prevailing plaintiffs.” (Id. at p. 644.) It
stated: “The attorney fee provision is to be found in [now section 1780,
subdivision (e)], which states that the court ‘shall award court costs and
attorney’s fees to a prevailing plaintiff in litigation filed pursuant to this
section.’ Thus, by its terms, attorney fees are not available under the CLRA
for actions that do not meet the requirements of section 1780, including the
15
requirement that the consumer suffer some ‘damage’ as the result of specified
unlawful practices. We do not believe the Legislature intended to authorize a
CLRA action in which the critical attorney fee remedy would be lacking.” (Id.
at p. 644, some italics added.)
Meyer also addressed the plaintiffs’ policy-based argument urging a
different conclusion based on the fact the CLRA should be “ ‘liberally
construed and applied to promote its underlying purpose[] [of protecting]
consumers against unfair and deceptive business practices.’ ” (Meyer v.
Sprint Spectrum L.P., supra, 45 Cal.4th at p. 645.) According to the
plaintiffs, a preemptive claim against unlawful practices, even without
injury, was consistent with the CLRA’s purpose. The court rejected the
argument: “[A] mandate to construe a statute liberally in light of its
underlying remedial purpose does not mean that courts can impose on the
statute a construction not reasonably supported by the statutory language.
[Citation.] . . . [P]laintiffs do not advance a reasonable construction of the
CLRA that would permit a lawsuit based on that statute when a plaintiff has
not suffered damage as a result of the practices proscribed by section 1770.”
(Ibid.)
Lifemark contends Mikki did not prevail; it points out she did not
obtain her sought-after injunctive relief or succeed on any significant issue,
but received only a “nuisance-based” $5,000.01 payment having no
relationship to her CLRA cause of action, which did not seek damages.
Lifemark also argues Mikki cannot prevail based on obtaining a “net
monetary recovery” under Code of Civil Procedure section 1032, because this
court in Graciano rejected the notion that the net monetary recovery
definition controls the prevailing party determination. (Graciano, supra, 144
Cal.App.4th at p. 153.) It maintains Mikki failed to state a CLRA or any
16
other cause of action and she did not prosecute her claims in good faith,
precluding an attorney fee award.6
Even if Meyer’s discussion of CLRA attorney fees can be characterized
as dictum, it is persuasive and generally speaking, we should follow it.
(Aviles-Rodriguez v. Los Angeles Community College Dist. (2017) 14
Cal.App.5th 981, 990.) We agree Mikki cannot recover attorney fees on her
CLRA cause of action because she has not shown it meets the requirement of
section 1780 that she suffer some damage as a result of unlawful practices.
Mikki did not allege she suffered a tangible loss of money or property, nor do
her allegations reflect some other transaction or opportunity costs as a result
of Lifemark’s alleged misconduct. (Meyer v. Sprint Spectrum L.P., supra, 45
Cal.4th at p. 640.) To the contrary, she expressly disclaimed damages in
connection with her CLRA claim.
In this way, the CLRA’s predicate that a plaintiff must suffer some
damage to qualify for attorney fees under the CLRA is like other statutes—
such as the Unruh Act—which require a finding of the defendant’s liability as
a predicate to an statutory attorney fee award. (See Doran v. North State
Grocery, Inc., supra, 137 Cal.App.4th at pp. 489-491 [Unruh Act only
6 This latter argument is without merit. The CLRA provides that a
defendant may be a prevailing party where the plaintiff’s prosecution of the
action was not in good faith. (§ 1780, subd. (e).) From this, Lifemark argues
“it can be inferred that a plaintiff who does not prosecute an action in good
faith is not entitled to fees.” Lifemark goes on to assert that it is the
prevailing party on Mikki’s CLRA claim, and it should be entitled to recover
its fees. But Lifemark did not seek attorney fees below, and expressly
disclaimed any intent to do so. And the CLRA cannot be reasonably
interpreted as Lifemark asserts; the Legislature in the CLRA did not insert a
bad faith exception on a prevailing plaintiff’s recovery of attorney fees, and
we may not import such language into section 1780, subdivision (e). (Kim v.
Reins International California, Inc., supra, 9 Cal.5th at p. 85.) If Mikki
prevailed on her CLRA claim, her subjective bad faith is irrelevant.
17
authorizes an award of attorney fees to a person “ ‘denied the rights provided
in’ ” specified Unruh Act provisions]; accord, Linton v. County of Contra
Costa, supra, 31 Cal.App.5th at p. 634 [provision of Disabled Persons Act
(DPA) imposing liability for attorney fees on a person “who denies or
interferes with admittance to or enjoyment of the public facilities as specified
in [other DPA provisions] or otherwise interferes with the rights of an
individual with a disability under [specified DPA provisions]” required a
finding of defendant’s liability to authorize statutory attorney fees].) Thus, in
Doran, the Court of Appeal reversed an attorney fee award to the plaintiff
who had accepted a $10,000 section 998 compromise offer that was silent on
whether the defendant had violated the Unruh Act. (Doran, at pp. 491-492.)
The court observed that a section 998 compromise settlement is not an
adjudication of liability. (Id. at p. 491.) And, because the settlement
operated as a bar to reopening the controversy, the plaintiff was “precluded
at this late stage from establishing that [defendant] denied him any rights
guaranteed by [the Unruh Act],” so as to entitle him to attorney fees. (Id. at
p. 492.) “Applying the rule that a compromise settlement concludes those
matters put in issue by the pleadings, the offer to compromise [plaintiff]
accepted bars the reopening of whether [defendant] denied [plaintiff] any
rights guaranteed by [the Unruh Act’s] section 51—the same issue [plaintiff]
would need to address to prevail on a claim for attorney fees.” (Ibid.)
As in Doran, the section 998 payment in compromise did not make
Mikki the prevailing party. Lifemark did not admit liability in connection
with the settlement, and the parties did not deem the payment damages.
Mikki is now barred from establishing she suffered some tangible measure of
damage as a result of an alleged CLRA violation by Lifemark. As a result,
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and because the section 998 offer is silent concerning any damages suffered
by Mikki, we must reverse the attorney fees award.
IV. Mikki’s Arguments Do Not Compel a Different Result
Mikki’s various arguments do not persuade us to reach a different
conclusion.
A. Arguments Based on the Section 998 Offer
Mikki contends the settlement pursuant to section 998 is “decisive” of
the parties’ rights and bars reopening the original controversy with respect to
attorney fees. She uses this rationale to maintain that Lifemark can no
longer assert she failed to meet pre-lawsuit demand requirements. Mikki is
correct about the effect of the section 998 settlement, but the theory operates
to her detriment as we have concluded above. We have rejected Lifemark’s
argument based on Benson and the need for a pre-filing correction demand,
so we need not further address Mikki’s contention.7
7 Likewise, we need not address Mikki’s arguments that Lifemark
waived any issue concerning the demand letter by not addressing it in its
section 998 offer or she did not need to meet CLRA prefiling demand
requirements because she sought restitution, which does not require such a
demand letter. In connection with her section 998 arguments, Mikki asks
this court to take judicial notice of an unpublished opinion “for the limited
purpose of any persuasive value of the analysis therein.” We deny the
request. A court may take judicial notice of prior unpublished opinions in
related appeals (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1171, 1173),
or opinions that are part of its court records. (Evid. Code, § 452, subd. (d).)
The unpublished opinion is neither and it is not citable authority. (Cal. Rules
of Court, rule 8.1115(a) [with exceptions not applicable, “an opinion of a
California Court of Appeal or superior court appellate division that is not
certified for publication or ordered published must not be cited or relied on by
a court or a party in any other action”]; People v. Evans (2011) 200
Cal.App.4th 735, 752, fn. 11; Moss v. Kroner (2011) 197 Cal.App.4th 860, 874,
fn. 6.)
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Mikki further contends the section 998 offer must be construed in her
favor, suggesting doing so means she “achieved the more favorable recovery.”
In supplemental briefing, Mikki argues “Lifemark recognized it caused ‘any
damage’ to [her] through its violation of the CLRA by offering to pay
‘$5,000.01, exclusive of attorneys’ fees and costs’ in a 998 offer without
restrictions or limitations . . . .” To the extent Mikki is saying the section 998
offer may be interpreted as a concession she suffered damage, we disagree.
As we have stated, it is silent on damages. Mikki suggests the court in
Timed Out LLC v. 13359 Corp., supra, 21 Cal.App.5th 933, interpreted a
section 998 offer with similar language to “preserve a Plaintiff’s right to
attorney fees and costs . . . .” The case is inapposite, and does not support a
conclusion that Mikki somehow prevailed for purposes of the CLRA. In
Timed Out, the Court of Appeal interpreted a section 998 offer to pay a total
sum “exclusive of reasonable costs and attorney[] fees, if any” (an offer the
plaintiff did not accept) as preserving the plaintiff’s right to be declared the
prevailing party on her statutory misappropriation claim in a subsequent
attorney fee motion. (Id. at pp. 936, 942-944.) The issue was whether the
plaintiff, who had prevailed in a bench trial and been awarded damages by
the court, was limited to pre-offer attorney fees and costs because she had not
achieved a more favorable judgment under section 998. (Id. at pp. 935-936.)
The Court of Appeal rejected plaintiff’s arguments seeking to invalidate the
section 998 offer as ambiguous, and in doing so, pointed out the plaintiff had
incurred significant attorney fees and costs that would have been factored
into the calculus of whether she had achieved the more favorable recovery.
(Id. at pp. 943-946.) Timed Out does not support the proposition Lifemark’s
section 998 settlement payment made Mikki a prevailing party under the
CLRA.
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B. Net Monetary Recovery Argument
Citing Kim, supra, 149 Cal.App.4th 170, Mikki similarly contends that
because she was the party with the net monetary recovery, she prevailed in
her lawsuit. Even if we did not reach our conclusion above, this argument
would not persuade us. Section 1032’s definition of prevailing party does not
control when another statute provides for different means of allocating costs,
and its definition does not apply to attorney fee statutes or other statutes
that contain a prevailing party concept. (See DeSaulles v. Community
Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1147; John Russo
Industrial Sheetmetal, Inc. v. City of Los Angeles Dept. of Airports (2018) 29
Cal.App.5th 378, 385.) We have declined to use the section 1032 definition,
instead opting for a pragmatic approach, determining prevailing party status
based on which party succeeded on a practical level. (See Graciano, supra,
144 Cal.App.4th at p. 150.)
C. Unruh Act
Mikki argues she alleged a claim under the Unruh Act, which provides
for an award of attorney fees, comparing the circumstances to those in Doran
v. North State Grocery, Inc., supra, 137 Cal.App.4th 484. It is not entirely
clear whether Mikki is asserting she is entitled to fees under the Unruh Act,
as Lifemark interprets her argument. Such an argument fails because Mikki
did not make it below. (Sweetwater Union High School Dist. v. Julian Union
Elementary School Dist. (2019) 36 Cal.App.5th 970, 993.) We would reject it
in any event. As we have explained, and Mikki acknowledges, the Unruh Act
requires a finding of the defendant’s liability as a predicate to an attorney fee
award. (Doran v. North State Grocery, Inc., supra, 137 Cal.App.4th at pp.
489-491.) The parties here did not make such a liability determination; the
section 998 offer was silent on the point. (Accord, id. at pp. 491-492.)
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D. Restitution
Mikki argues she sought restitution under the CLRA, which she
maintains does not require a CLRA pre-lawsuit demand letter. She makes a
similar argument in her supplemental brief, which is unrelated to the point
on which we sought additional briefing. The arguments go to the same point
we have already rejected above. To the extent Mikki argues a demand for, or
recovery of, restitution bears on her status as a prevailing party, Mikki did
not make the point below, and any such argument is forfeited. (Sweetwater
Union High School Dist. v. Julian Union Elementary School Dist., supra, 36
Cal.App.5th at p. 993.)
DISPOSITION
The order is reversed. The parties shall bear their own costs on appeal.
O’ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
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