Opinion
E054517 E056595
07-27-2017
RACEWAY FORD CASES
Rosner, Barry & Babbitt and Hallen D. Rosner, Christopher P. Barry for Plaintiffs and Appellants Carl Stone et al. Lewis Brisbois Bisgaard & Smith, Kellie S. Christianson for Defendant and Respondent Raceway Ford, Inc.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. JCCP4476) OPINION APPEAL from the Superior Court of Riverside County. Dallas Holmes, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Dismissed. Rosner, Barry & Babbitt and Hallen D. Rosner, Christopher P. Barry for Plaintiffs and Appellants Carl Stone et al. Lewis Brisbois Bisgaard & Smith, Kellie S. Christianson for Defendant and Respondent Raceway Ford, Inc.
I. INTRODUCTION
These consolidated appeals return to us after review by the California Supreme Court. Plaintiffs, appellants, and cross-respondents (plaintiffs) are consumers who purchased vehicles from defendant, respondent, and cross-appellant Raceway Ford (Raceway), an automobile dealership. Plaintiffs alleged numerous causes of action based on laws proscribing certain acts against consumers, unfair competition, and deceptive business practices, bringing both individual claims and claims on behalf of two certified classes.
One of the classes, referred to as "Class One" or the "Backdating Class" by the parties, includes "[a]ll persons who, since January 12, 2011, (1) purchased a vehicle from Raceway Ford, for personal use, (2) on a later date rescinded their original purchase contract, and (3) signed a subsequent or second contract for the purchase of the same vehicle, which contract was dated the date of the original purchase contract and involved financing at an annual percentage rate greater than 0.00%." The other class, referred to as "Class Two" or the "Smog Fee Class," includes "[a]ll persons [except for one named plaintiff who entered into a separate settlement agreement with Raceway] who, since January 12, 2001, purchased a diesel vehicle from Raceway Ford for personal use and were charged a smog fee and a smog certification fee."
The trial court, after a bench trial, entered judgment in favor of Raceway and against plaintiffs on all causes of action, except that a single plaintiff was granted rescission on one of his causes of action. Separately, the trial court awarded attorneys' fees and costs to Raceway in the amount of $1,503,084.50. In these appeals, which we ordered consolidated for oral argument and decision, plaintiffs challenged the trial court's judgment on the merits (case No. E054517) and fee order (case No. E056595); Raceway cross-appealed regarding one aspect of the fee order.
In our previous opinion, we addressed only the trial court's judgment on the merits, affirming in part and reversing in part, and remanding with instructions. We declined to address the arguments raised by the parties in plaintiffs' appeal and Raceway's cross-appeal of the fee order, because our partial reversal of the trial court's judgment undermined the basis for the fee order.
The California Supreme Court granted review of the claims asserted by the two certified classes under the Automobile Sales Finance Act, also known as the Rees-Levering Motor Vehicle Sales and Finance Act (ASFA) (Civ. Code, § 2981 et seq.). (Raceway Ford Cases (2016) 2 Cal.5th 161, 164, 167, 169.) It affirmed in part and reversed in part our judgment, and in doing so restored the basis for the trial court's award of fees to Raceway. (Raceway Ford Cases, supra, at pp. 172, 179-180.)
After the Supreme Court's remittitur issued, therefore, we initially turned for the first time to the parties' challenges to the trial court's fee order. After our tentative opinion addressing those issues circulated to the parties, however, Raceway advised the court that the parties have reached a settlement of the appeal as a whole. We therefore dismiss the appeals.
II. BACKGROUND
A. Summary of Previous Rulings.
The trial court entered judgment in favor of Raceway on all of plaintiffs' claims, except for the common law fraud cause of action asserted by plaintiff Francisco Salcedo in his individual capacity. In case No. E054517, plaintiffs asserted claims of error with respect to the trial court's judgment on their causes of action under the ASFA, as well as the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.) and the Consumer Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.). Raceway did not appeal the trial court's ruling in Mr. Salcedo's favor.
With respect to the causes of action asserted by Mr. Salcedo under the UCL and the CLRA in his individual capacity, our previous opinion reversed the trial court's judgment in favor of Raceway, and directed the trial court to enter judgment in favor of Mr. Salcedo on those causes of action as well. We also directed the trial court to determine in the first instance what additional remedies, if any, other than those he has already been awarded with respect to his cause of action for common law fraud, he should receive. (Raceway Ford Cases (Sept. 16, 2014, E054517, E056595) [nonpub. opn.].) These aspects of our judgment were not reviewed by the Supreme Court.
In our previous opinion, we rejected plaintiffs' request that we order judgment be entered in their favor with respect to Class One's cause of action for violation of the ASFA, but reversed the judgment of the trial court in favor of Raceway and ordered the matter remanded to the trial court "for any further proceedings necessary to determine whether the members of Class One, or some subsection thereof, can establish a violation of the ASFA under the law as explicated in this opinion." (Raceway Ford Cases, supra, E054517, E056595.) This portion of our judgment was reversed by the Supreme Court, which found no further proceedings or factual findings by the trial court to be necessary; Raceway is entitled to judgment in its favor on Class One's ASFA cause of action. (Raceway Ford Cases, supra, 2 Cal.5th at pp. 171, 179-180.)
Our previous opinion affirmed the trial court's judgment in favor of Raceway on Class Two's claims under the ASFA. The Supreme Court affirmed this portion of our judgment. (Raceway Ford Cases, supra, 2 Cal.5th at p. 180.)
Our previous opinion affirmed the trial court's judgment in favor of Raceway on Class One's UCL and CLRA causes of action. This aspect of our judgment was not reviewed by the Supreme Court.
With respect to the claims of plaintiffs Carl Stone, Deborah Stone, Francisco Salcedo, Anselmo Alaniz, Joe Contreras, Edelmira Contreras, Jonathan Ott, Martha Ott, Eldridge Johnson, Randal Kidd, Macon Pollard, Ozetta Pollard, and Suzanna Moreno under the ASFA in their individual capacities, our previous opinion affirmed the trial court's judgment in favor of Raceway. (Raceway Ford Cases, supra, E054517, E056595.) This aspect of our judgment was not reviewed by the Supreme Court.
In case No. E056595, our previous opinion vacated the trial court's fee order, pending final adjudication of the merits of plaintiffs' claims. As noted, the Supreme Court found that no further proceedings were necessary to enter judgment in Raceway's favor on Class One's claims; consequently, the Supreme Court also reversed our judgment with respect to the fee order "to the extent it vacates and directs further proceedings concerning the award of attorney's fees related to Class One's claims." (Raceway Ford Cases, supra, 2 Cal.5th at p. 180.)
B. Background Regarding Fee Order.
As detailed in our previous opinion, after trial of the matter was completed in March 2010, there were a series of delays before the trial court entered a signed judgment on October 12, 2011.
On October 13, 2011, plaintiffs mailed a copy of the judgment to this court with an accompanying cover letter, where it was filed the following day. According to the documents' proof of service, a copy was also served by mail on Raceway.
On March 20, 2012, Raceway filed its motion for attorney fees and costs, together with supporting documentation. Raceway sought an award of $1,874,203 in attorney fees, as well as $34,704.55 in costs. Plaintiffs' opposition was filed on April 7, 2012.
The trial court held a hearing on the matter on May 1, 2012, and later issued a written order stating its findings. It found Raceway's motion to be timely, rejecting plaintiffs' arguments to the contrary. It awarded Raceway the entire requested amount of $34,704.55 in costs, finding that plaintiffs did not timely contest Raceway's memorandum of costs. With respect to attorney fees, the trial court found that Raceway was entitled to fees as the prevailing party pursuant to ASFA, and declined to apportion fees between ASFA claims and non-ASFA claims, because they were "inexorably intertwined with the rest of plaintiffs' claims . . . ." It applied the lodestar method, multiplying 4,918.6 hours (the amount requested by Raceway, which the trial court found reasonable) by $300 per hour (less than the amount requested by Raceway, representing a "reasonable blended rate" and "the market value of the rates for similar services in this community") to reach the amount of $1,475,580 in attorney fees. From that sum, the trial court subtracted $7,200 as an adjustment to account for the circumstance that Mr. Salcedo prevailed on his common law fraud claim. The court explicitly ordered that seven plaintiffs who, prior to trial, dismissed their individual causes of action and withdrew as named class representatives were not subject to the award of fees and costs. Mr. Salcedo, too, was not made subject to the award. Twelve remaining individual plaintiffs were held jointly and severally liable for the total monetary award of attorney fees and costs of $1,503,084.50.
These seven plaintiffs are: Ernest Myles, Helen Flores, Gloria Mendez, Rosana Martinez, Zenaida Diaz, Elisha Mejia, and Mable Armstrong.
The trial court's fee order, which was drafted as a proposed order by Raceway's attorneys, makes no mention at all of an eighth plaintiff, Rene Lopez Romero, who dismissed her individual causes of action and withdrew as a named class representative at the same time and by means of the same filings as the other seven. On appeal, however, Raceway has asked only that we reverse the trial court's ruling with respect to the seven plaintiffs named above and in the fee order. In essence, therefore, the trial court implicitly ruled that Rene Lopez Romero should not be held liable for any award of fees and costs, and Raceway has not challenged that ruling on appeal.
These 12 plaintiffs are: Carl Stone, Deborah Stone, Anselmo Alaniz, Joe Contreras, Edelmira Contreras, Jonathan Ott, Martha Ott, Eldridge Johnson, Randal Kidd, Macon Pollard, Ozetta Pollard, and Suzanna Moreno. --------
II. REQUEST FOR DISMISSAL
After the Supreme Court's remittitur issued, we addressed the parties' challenges to the trial court's fee order, and a new tentative opinion was circulated to the parties. Oral argument was scheduled. On July 12, 2017, Raceway filed a Notice of Settlement of Appeal as a Whole, advising the court that the parties have reached a settlement. We therefore dismiss the appeals.
An appellant may not dismiss an appeal as a matter of right. (Huschke v. Slater (2008) 168 cal.app.4th 1153, 1160 [imposing $6,000 sanctions on attorney for unreasonable delay in notifying appellate court that parties had settled and dismissed the underlying case].) Rather, pursuant to California Rules of Court, rule 8.244(c)(2), "On receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct immediate issuance of the remittitur." (Italics added.) Thus, dismissal is discretionary. Here, because the resolution of this case is fact specific, we grant the request.
III. DISPOSITION
The appeals are dismissed. The parties shall each bear their own costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MCKINSTER
J. MILLER
J.