Filed 9/1/20 Giamela v. Jaguar Land Rover North America CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

WILLIAM GIAMELA,

Plaintiff and Respondent,

v.

JAGUAR LAND ROVER NORTH AMERICA, LLC,

Defendant and Appellant.

B299729

(Los Angeles County

Super. Ct. No. BC683018)

APPEAL from an order of the Superior Court of Los Angeles County. Michael L. Stern, Judge. Affirmed.

Bowman and Brooke, Brian Takahashi and Colin P. Cronin for Defendant and Appellant.

Rosner, Barry & Babbitt, Hallen D. Rosner, Arlyn L. Escalante; The Barry Law Firm and David N. Barry for Plaintiff and Respondent.

_________________________

This appeal is taken by Jaguar Land Rover North America, LLC (Jaguar) from a posttrial award of $144,200 in attorney fees and $5,969.15 in costs in favor of William Giamela (Giamela) in his action under the Song-Beverly Consumer Warranty Act (the Act). (Civ. Code, § 1790 et. seq.)

We affirm.

FACTS

The Demand; the Complaint; Competing Offers to Settle

On October 28, 2017, Giamela’s attorney wrote a letter demanding that Jaguar repurchase Giamela’s 2015 Range Rover (vehicle). In the demand letter, which was addressed generally to “Jaguar Land Rover North America” at an office in New Jersey, Giamela explained that he took his vehicle in for repair on four occasions for a check engine light, and that on one of those occasions Jaguar had the vehicle for over 30 days. He added, “Please be advised that this offer to resolve this matter on a pre-litigation basis will remain open for 7 days from your receipt of this letter. At the expiration of this time frame, should we not have been able to resolve Mr. Giamela’s Song-Beverly Claim, my office will have no other alternative but to file suit, seeking civil penalties, as well as attorney’s fees and costs incurred with the prosecution of this matter.” The letter referenced a vehicle identification number but did not reference a purchase contract, the purchase price, the place of purchase, or the mileage on the vehicle. It did not attach a purchase contract or evidence establishing that the vehicle had been serviced but not repaired.

Giamela served Jaguar with a summons and complaint on November 15, 2017. It alleged two causes of action under the Act, one for breach of implied warranty and one for breach of express warranty.

On November 17, 2017, a Jaguar representative e-mailed Giamela’s attorney that Jaguar would respond to the demand on or before December 1, 2017. Ten days later, the Jaguar representative e-mailed Giamela’s attorney an offer (first offer) stating that Jaguar would agree to repurchase the vehicle pursuant to the terms of section 1793.2, subdivision (d)(2), conditional upon Giamela providing a copy of the sales agreement, a copy of his monthly payment history from the lienholder plus the current payoff quote, a copy of the vehicle’s current registration, a copy of the front and back of title if there was no lienholder, a list of all aftermarket items on the vehicle, and a list of any vehicle damage. The first offer then stated, “Once the requested information is provided, we can resolve this matter pursuant to the statute. Please be aware that the subject vehicle needs to be returned with all of its original manufacturer items on it at the time of its sale . . . , and that if any such items are missing and need to be replaced, it will be assessed at retailer cost for the parts and labor necessary to install such equipment. In addition, should the condition inspection reveal collision damage unrelated to any warranty defect and/or intentionally inflicted damage to the vehicle, either you will repair that damage before the final vehicle condition inspection or the amount to repair the damage will be assessed at retailer cost. Payment for missing manufacturer items, collision damage and/or intentionally inflicted damage will be required at the vehicle’s surrender.” Jaguar stated that the first offer was good for 10 days.

On December 14, 2017, Jaguar filed an answer that contained a general denial.

Two months later, Giamela’s attorney e-mailed Jaguar’s attorney and stated, “I have discussed this matter at length with my client and am authorized to make the following settlement demand of a repurchase plus a 2x civil penalty, with fees and costs of $25,000.”

Giamela’s Discovery Responses

In a special interrogatory, Jaguar asked Giamela to identify the basis for civil penalties. He stated that Jaguar represented that it had conformed the vehicle to the applicable warranties when in fact it had not done so, then it “refused to repurchase the subject vehicle.”

At his deposition, Giamela was asked what he expected to obtain by suing Jaguar. He replied, “I expect to get all my money back, and additional money for the aggravation I had to go through.”

Jaguar’s Second Offer

On December 7, 2018, a month before the scheduled trial, Jaguar made its second offer. It stated, “Subject to proof, [Jaguar] will pay [Giamela] the past amounts which [he has] paid for the [vehicle]. . . . In addition, [Jaguar] will pay directly to the lender . . . the remaining amount necessary to pay-off the loan on the [vehicle]. . . . The total amounts paid will be the amounts to which [Giamela] is legally entitled under [section 1793, subdivision (d)(2)(B)], using 11,312 miles as the numerator regarding the mileage offset permitted by [section 1793.2, subdivision (d)(2)(C)].” Jaguar also stated that it would pay incidental and consequential damages to which he was entitled under the Act. Last, it offered to pay $4,500 in fees, costs and expenses. If Giamela filed a motion for attorney fees and costs under section 1794, subdivision (d), Jaguar reserved all its defenses.

On December 20, 2018, Jaguar’s attorney sent a text to Giamela’s attorney asking for a response to the second offer. He sent a text back stating that Giamela wanted “[r]epurchase plus 20.” That same day, however, Giamela’s attorney accepted the second offer.

The Motion for Attorney Fees and Costs

Giamela filed a motion for attorney fees and costs pursuant to section 1794, subdivision (d) in which he sought (1) $144,200 in attorney fees with a multiplier of 1.25 for a total of $180,250; and (2) $5,969.15 in costs. In opposition, Jaguar argued, inter alia, that Giamela’s motion should be denied because he was not the prevailing party given that he did not obtain his litigation objective of securing civil penalties. At the hearing, Jaguar’s attorney further argued that Giamela was not the prevailing party. After some colloquy regarding how the case had been litigated, the trial court said, “At this point, it’s like talking about who really won World War I[.]” It granted the costs requested, and it awarded the attorney fees without a multiplier. However, the trial court did not expressly rule which party had prevailed.

This appeal followed.

DISCUSSION

Jaguar argues: (1) the award of attorney fees and costs should be reversed because (a) the trial court never determined that Giamela was the prevailing party for purposes of section 1794, subdivision (d), (b) if the trial court did make that determination, it applied the wrong legal standard, and (c) case law establishes that Giamela was not the prevailing party; (2) it did not have an affirmative duty to repurchase the vehicle before November 1, 2017; (3) upon receipt of Giamela’s demand letter, it should have had 30 days to respond; and (4) its first offer was valid even though it (a) stated that it was entitled to a mileage offset, and (b) requested that the vehicle be returned with its factory equipment, without unrepaired collision damage, and without intentional damage.

I. Award of Attorney Fees and Costs.

Whether Giamela was the prevailing party depends upon whether he obtained his litigation objective. (MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1048 (MacQuiddy).) We review the trial court’s determination of foundational facts under the substantial evidence test and its ruling based on those findings for an abuse of discretion. (Id. at pp. 1047–1048; People v. DeHoyos (2013) 57 Cal.4th 79, 132.) If the trial court applied the wrong legal standard, that is a per se abuse of discretion. (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1242.)

Case law establishes that evidence is substantial if it is reasonable, credible and of solid value. If there is substantial evidence, it does not matter whether it is contradicted by other evidence. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874; Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) Inferences constitute substantial evidence if they are the product of logic and reason. Speculation and conjecture do not qualify. (Ibid.)

A. Implied Finding Sufficient.

Though the trial court did not rule that Giamela was the prevailing party, it made an implied finding, and the absence of an express finding is no basis for reversal. If it applied the correct legal standard, the implied finding must be upheld if it was supported by substantial evidence. (People v. McKinzie (2012) 54 Cal.4th 1302, 1368, disapproved on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)

B. Proper Standard Applied.

We presume that the trial court followed the law. The fact that the trial court did not explicitly refer to the litigation objective test “does not support the conclusion that it was ignored.” (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563.) We observe that MacQuiddy was argued by Jaguar below, which supports the presumption that the trial court applied its holding.

Error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) On that score, Jaguar has not met its obligation. Nothing in the record indicates that the trial court applied the wrong standard.

C. Evidence Sufficient; No Abuse of Discretion.

The fact that Giamela accepted the second offer and did not go to trial to obtain civil penalties supports a logical and reasonable inference that obtaining repurchase was his litigation objective and that he therefore qualified as the prevailing party. This qualifies as substantial evidence. It is irrelevant that other evidence might have led the trial court to draw contrary inferences. Because substantial evidence supported the trial court’s implied finding that Giamela obtained his litigation objective, the trial court did not abuse its discretion when it granted Giamela’s motion.

Jaguar contends that under MacQuiddy, the evidence was insufficient to establish that obtaining repurchase was Giamela’s litigation objective.

In MacQuiddy, which involved an action under the Act, the defendant did not make a prelitigation demand for repurchase of the vehicle. (MacQuiddy, supra, 233 Cal.App.4th at p. 1049.) After he sued, the defendant filed an answer in which it admitted liability for the cost of the vehicle, various other expenses, and costs and attorney fees. (Id. at pp. 1040–1041.) The defendant then served an offer to compromise under Code of Civil Procedure section 998 in which it offered to repurchase the vehicle under the Act, less a reasonable mileage offset. (Id. at p. 1041.) The plaintiff rejected the offer and the matter went to trial where the parties stipulated that the plaintiff was entitled to $68,948.07 under the Act for the repurchase. The only issue presented to the jury was whether to impose a civil penalty against the defendant for willfully failing to repurchase or replace the vehicle. On that issue, the jury found in favor of the defendant. Judgment was entered for the plaintiff in the amount of $68,948.07. The plaintiff proceeded to move for $74,530 in attorney fees as the prevailing party and lost. The MacQuiddy court upheld the ruling, concluding that the plaintiff did not obtain his litigation objective and therefore did not prevail because the defendant conceded liability for the repurchase and the parties went to trial only as to a civil penalty. (Id. at p. 1049.)

MacQuiddy is distinguishable. Unlike the plaintiff in MacQuiddy, Giamela made a prelitigation demand seeking a repurchase remedy under the Act. Unlike the defendant in MacQuiddy, Jaguar’s answer contained a general denial. Then, when Jaguar made its second offer, Giamela accepted it. He did not, like the plaintiff in MacQuiddy, reject the offer and go to a trial in which the parties stipulated to a repurchase amount but litigated civil penalties.

In his reply brief, Jaguar argues that a case cited by Giamela, Patel v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 1007 (Patel), supports reversal because it held that a net monetary gain test is improper for determining the prevailing party. (Id. at p. 1017.) According to Jaguar, Patel mandates that we reverse because here, as in Patel, the trial court improperly used a net monetary gain test. But, as we have stated, we presume that the trial court applied the correct law, and nothing in the record defeats that presumption.

In an alternative argument, Jaguar suggests that Patel supports reversal because it is distinguishable. That suggestion goes like this. In Patel, the manufacturer did not make a statutory offer from the outset, and the plaintiff did not initially demand repurchase plus a civil penalty. (Patel, supra, 43 Cal.App.5th at pp. 1009–1014, 1017.) Impliedly, Jaguar suggests that Patel stands for the proposition that when such an offer and demand are absent, the plaintiff’s litigation objective was repurchase. But when they are present, then, as a matter of law, the plaintiff’s litigation objective was obtaining civil penalties. But Patel did not offer a holding on such facts and, in any event, the substantial evidence test dictates our analysis.

II. Other Issues Moot.

Jaguar has not demonstrated that the other issues it raises set forth actual controversies that are relevant to the challenged order. As to these issues, we decline to issue an advisory opinion. (California Charter Schools Assn. v. Los Angeles Unified School Dist. (2015) 60 Cal.4th 1221, 1234.)

DISPOSITION

The order is affirmed. Giamela is entitled to his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

LUI

_______________________, J.

HOFFSTADT