HART v. DODGE

Filed 2/26/07

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

----

STORY CONTINUED FROM PART I..

In Atkinson, supra, 109 Cal.App.4th 739, a homeowner sued a shingle manufacturer for violations of the Song-Beverly Consumer Warranty Act (the Act) and the Consumer Legal Remedies Act (CLRA). The trial court dismissed the CLRA cause of action on a motion for summary adjudication. Plaintiff moved to amend the complaint to add causes of action for fraud and violations of the UCL and federal law. On the Friday before the Monday trial was to begin, the trial court denied the motion to amend. When the case came on for trial, the trial court on its own motion granted nonsuit to the defendant, after argument but before plaintiffs opening statement. (Id. at p. 743.) The Sixth Appellate District held the trial court erred in granting nonsuit before the plaintiffs opening statement, since plaintiff had not failed to prosecute diligently, and the complaint was neither fictitious nor a sham. However, this error was not reversible because the complaint would not have survived a motion for nonsuit after the opening statement, since roof shingles are not consumer goods within the meaning of the Act. (Id. at p. 757.) Nevertheless, reversal was required because the trial court erred in denying leave to amend the complaint to add new causes of action, since the defendant has not claimed that it will be prejudiced by this amendment. (Id. at p. 761.)

Atkinson, supra, 109 Cal.App.4th 739, is distinguishable, because (1) there the plaintiff did not seek to add new facts but only new legal theories relating to the same facts, and (2) the defendant did not claim it would be prejudiced. (Id. at p. 761.)

Here, the proposed amended complaint would have added both new facts and new law -- the new facts being the TPP matter, and the new law being subparagraph (E) of section 2985.8, subdivision (c)(2). The trial court denied leave to amend as both untimely and prejudicial to defendant.

Plaintiff argues the trial court abused its discretion in denying leave to amend, because her proposed amendments were reasonable, were made within a reasonable time, and defendant would not have been prejudiced by amendment.

However, plaintiff fails to show her amendments were proposed within a reasonable time. To the contrary, the documents with which we allowed her to augment the record show she did not seek amendment in a reasonable time frame. She suspected a TPP issue in May 2004 but chose not to amend the complaint until she confirmed her suspicion shortly before trial. She did not, however, show diligence in attempting to confirm her suspicion.

Thus, plaintiff first sought to amend the complaint in March 2005. That motion (which the trial court never allowed to be filed) asserted in its memorandum of points and authorities: In June 2004, [defendant] produced some, but not all, documents related to both lease transactions. Plaintiffs attorney reviewed the documents and suspected that both lease contracts (a) reflected inflated sales prices, (b) failed to disclose the TPP etch product which Plaintiff paid for, (c) the etch product was automatically added to the sales price, and (d) Plaintiff paid more than she should have for registration fees and appeared not to have received a refund of the excess.^[[1]] [] Plaintiffs attorney did not feel it appropriate to request leave to file an amended complaint until she received and reviewed all of the relevant documents, and obtained the testimony of [defendant] to validate her suspicions.

The cited declaration of one of plaintiffs attorneys (in support of the unfiled motion to amend the complaint) said defendant produced some but not all requested documents on May 28, 2004,^[2]and, When I [plaintiffs attorney] reviewed the documents, I felt there were certain irregularities in the disclosures on both lease contracts, but until I received all relevant documents and obtained the testimony of [defendant], it was speculative.

Thus, plaintiffs attorney admitted she had adequate information in May 2004. As to her comment that it was speculative, she fails to explain how it was speculative. The TPP cost was either itemized in the lease contract or it was not.

Moreover, plaintiff fails to show she acted expeditiously to investigate her suspicions. Her attorney attested she asked her paralegal in mid-July 2004 (a month and a half after her suspicions arose) to set the depositions of defendants custodian of records and person most knowledgeable. It took until January 19, 2005, to make that happen.

The paralegals declaration says the paralegal scheduled the depositions for August 2004, but cancelled them on July 30, 2004, because Ms. Kinsey [plaintiffs attorney] had been called for jury duty . . . .^[3] The paralegal rescheduled for October 21, 2004, after an unsuccessful attempt to get defense counsel to confirm availability. Another party (Wells Fargo, which is not a party to this appeal) advised on October 18 that it could not attend the October 21 depositions. The depositions were therefore moved again. Again, defendant was uncooperative in rescheduling. Plaintiff rescheduled the depositions for December 16, 2004. On December 14, defense counsel said the witnesses would not be produced on December 16. Plaintiff rescheduled for January 2005.

Plaintiffs attorney attested she took the depositions on January 19, 2005, but the person produced by defendant as most knowledgeable was assertedly unable to answer the majority of questions counsel had regarding the documents produced in May 2004. On February 3, 2005, plaintiff took a partial deposition of defendants general manager, Bret Peterson, who was able to answer most of counsels questions.

On March 15, 2005, plaintiff sought an application to shorten time on a motion for leave to amend the complaint.

Thus, plaintiffs attorney, by her own admission, had documents on May 28, 2004, which gave her cause to amend the complaint -- or at a minimum, put her on notice of grounds for amendment. Yet she did not seek leave to amend until March 15, 2005 (nine and a half months later), when it was too late to do so without an order shortening time for the motion.

While plaintiff tried to blame defendant for the delay, it was plaintiffs attorney who was responsible for cancellation of the first date set for the depositions, and it was Wells Fargo which was responsible for the second delay. Thus, plaintiff again misrepresents the record to this court by arguing in her reply brief: [Defendant] conveniently ignores the fact that it caused the delay of Mr. Petersons February 2005 deposition (initially scheduled for August 12, 2004). Moreover, defendants asserted lack of cooperation in rescheduling would not excuse plaintiff from acting with diligence to protect her own rights (even assuming for the sake of argument that plaintiff had to confirm her suspicions before amending the complaint). Plaintiff failed to explain why she acquiesced in defendants asserted obduracy.

We conclude plaintiff failed to show any good reason why she delayed so long in seeking leave to amend.

Additionally, though she claims defendant would not have been prejudiced by amendment, we disagree.

We first observe that, in her reply brief, plaintiff wrongly claims defendant never argued prejudice at either the March or April Motion hearings. First, there was no March hearing on a motion to amend, but only denial of plaintiffs ex parte application for an order shortening time to file a motion. Second, defendant did argue prejudice at the April hearing. Thus, defendant argued it did not have an expert witness to testify to the new issues of supplemental sticker and TPP, whereas plaintiff did have an expert. While neither side explains why an expert would or would not be necessary on these matters, the reporters transcript does suggest why, in that plaintiffs attorney argued the TPP was actually a debt cancellation agreement rather than an insurance policy. Although the trial court was unpersuaded and it is not clear what difference it would make, it suffices for purposes of this appeal to say that on the face of it, plaintiffs own position would seem to raise a matter outside the common experience of the lay juror. As to the supplemental sticker, defendant asserted its practice was to place the stickers. It seems reasonable to conclude the new factual issue would require further defense preparation. Plaintiffs reply brief says defendants claim of prejudice is undermined by defendants concession that it produced the documents upon which plaintiffs claim is based. However, defendants point was that it produced those documents in May 2004, yet plaintiff hid her new allegations regarding the sticker until her expert was deposed five days before trial in March 2005. Thus, plaintiffs point does not help her case. On appeal, plaintiff fails to meet her burden as appellant to show absence of prejudice in order to demonstrate abuse of discretion in the trial courts decision.

We conclude plaintiff fails to show the trial court abused its discretion in denying leave to amend. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-487.)

We need not address defendants argument that, even assuming abuse of discretion in denying leave to amend, the ruling did not harm plaintiff (Cal. Const., art. VI, 13), because the trial court went on to entertain her argument about a VLA violation based on the TPP cost.

Under a separate subheading, plaintiff argues the trial court erred in refusing to allow her to amend to add class action allegations in order to comply with new standing rules for the UCL claim. Plaintiff complains the trial court gave an improper reason for denying leave to amend to add class action allegations, in that the court said that this would open up too many more issues. However, we may affirm a trial courts ruling for reasons other than those given by the trial court. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-330.) Here, there was nothing for a UCL class to complain about. The UCL claim alleged defendants violation of the VLA constituted an unlawful, unfair, and deceptive practice in violation of the UCL. Since plaintiff had no viable VLA claim of wrongdoing, she had nothing upon which to base a class action lawsuit.

We conclude the trial court did not abuse its discretion in denying leave to amend the complaint.

B. Dismissal

Plaintiff argues the trial court erred in dismissing her lawsuit. We disagree.

Plaintiff claims defendant never moved to dismiss the case, and the trial court did so on its own motion. This is clearly wrong. The reporters transcript shows that, after the trial court denied leave to amend, defense counsel said, I would move at this time based upon the evidence, unless your Honor would like me to argue for a motion to dismiss this case for lack of evidence [sic] . . . . Defense counsel argued that as a matter of law there was no viable VLA or UCL claim. After hearing argument, the trial court stated: Based on the fact that I find really no notice of the $199 anywhere in the complaint as an issue, nor am I convinced that it was raised in discovery, and based on the concessions I think made by counsel for the plaintiff as to the rest of the alleged problems, there appears to be nothing left of the complaint for this Court or a []jury to look at. [] The motion to dismiss with prejudice is granted.

A trial court has limited inherent discretionary power to dismiss claims with prejudice. (Atkinson, supra, 109 Cal.App.4th at pp. 748-749.) This power has in the past been confined to two types of situations: (1) the plaintiff has failed to prosecute diligently; or (2) the complaint has been shown to be fictitious or sham so that the plaintiff has no valid cause of action. (Ibid.) Atkinson said neither of those situations was present in the case before it, but we will not reverse for this irregular procedure unless we find that Atkinson was prejudiced. [Citations.] [] Accordingly, we turn to the issue of whether Atkinson would have survived a motion for nonsuit after an opening statement. (Id. at p. 749.) The Sixth Appellate District concluded the plaintiff would not have withstood a motion for nonsuit after opening statement, and therefore he was not prejudiced by the grant of nonsuit on the courts own motion. (Id. at pp. 757-758.) As we discuss ante, Atkinson concluded the trial court should have allowed leave to amend the complaint for reasons distinguishable from the case before us.

Here, plaintiff argues the record shows only an inability to prove an element of the case, not a fictitious or sham complaint. She cites the legal dictionary meaning of sham as an obviously frivolous or absurd pleading made only for the purposes of vexation or delay. She urges de novo review. However, we need not decide the scope of sham because, even assuming the procedure was irregular, we will not reverse unless it was prejudicial. (Atkinson, supra, 109 Cal.App.4th at p. 749.)

Thus, in addition to moving for dismissal, defendant moved in limine to exclude all evidence, which is the functional equivalent of a nonsuit. (Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 676-677.) A nonsuit cannot be granted before the plaintiffs opening statement. (Code Civ. Proc., 581c; Atkinson, supra, 109 Cal.App.4th at p. 747.) Plaintiff would not have withstood a motion for nonsuit after opening statement. Her attorney admitted at the hearing in the trial court that plaintiff had no evidence to support the VLA allegations (paragraphs 23, 24, and 25) of the original complaint. Thus, plaintiff admitted she had no valid cause of action based on her original complaint. She also admitted the new allegations she wanted to make in the amendment did not appear anywhere in the original complaint.

Plaintiff says she did not concede her claim under paragraph 23 of the original complaint, alleging defendant violated section 2985.8, subdivision (c)(2)(A), by falsely stating an agreed-upon value. However, she acknowledges she stated to the court that if the court barred her from asserting her TPP glass etching claim, she had no other evidence upon which to proceed with paragraph 23.

Plaintiff suggests her original complaint adequately encompassed the new allegations without the need for amendment, and the trial court erroneously held her to a fact-pleading standard, rather than the notice-pleading standard used in California. It does not appear to us that plaintiff made the argument about notice-pleading in the trial court. She merely argued the original complaint was specific enough to include the TPP matter. She asks us to exercise our discretion to consider the matter even if she forfeited it. Even assuming the argument was not forfeited for failure to raise it in the trial court, plaintiff fails to show grounds for reversal.

Thus, Code of Civil Procedure section 425.10, subdivision (a), states in part that a complaint shall contain [a] statement of the facts constituting the cause of action, in ordinary and concise language. (Code Civ. Proc.,  425.10, subd. (a)(1).) Under Californias pleading rules, a complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which the plaintiff proposes to prove those facts. (Committee on Childrens Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212.) Here, plaintiff says she met the pleading rules by alleging defendant violated section 2985.8, subdivision (c)(2)(A), by falsely stating the value of the vehicle was agreed-upon (which she appears to view as the ultimate fact), and the amendment would merely add evidence (of the TPP) to prove this allegation. She says the trial court did not decide as a matter of law that a failure to disclose the $199 TPP charge could not violate section 2985.8, subdivision (c)(2)(A).

However, as we have mentioned, a complaint must contain [a] statement of the facts constituting the cause of action in ordinary and concise language. (Code Civ. Proc., 425.10, subd. (a)(1).) The complaint serves to frame and limit the issues [citation] and to apprise the defendant of the basis upon which the plaintiff is seeking recovery [citation]. In fulfilling this function, the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts. (Committee on Childrens Television, Inc. v. General Foods Corp., supra, 35 Cal.3d at p. 212.) The distinction between ultimate facts and evidentiary facts is blurry. (Estate of Lind (1989) 209 Cal.App.3d 1424, 1434; 4 Witkin, California Procedure (4th ed. 1997) Pleading, 339, p. 437.) The allegation of an ultimate fact as distinguished from an evidentiary fact usually, if not always, involves one or more conclusions. For example, the simple allegation that the defendant executed a promissory note involves several conclusions of fact based upon the evidentiary facts of the signing of the instrument, the intent with which that act was performed, the manual tradition or the constructive delivery of the instrument, and the intent with which that act was performed. The allegation that the defendant by his attorney in fact thereunto duly authorized executed a promissory note manifestly involves conclusions of both fact and law. Yet under the rules of pleading it is regarded as an allegation of ultimate fact. An allegation that the defendant negligently performed a certain act involves conclusions of fact, and if the claimed negligence is predicated upon an assumed violation of law, as is frequently the case, it involves conclusions of both fact and law. An allegation that the plaintiff is the owner and entitled to the possession of the following described premises involves numerous conclusions of both law and fact, yet it is universally regarded as good pleading. (Estate of Bixler (1924) 194 Cal. 585, 589.)

Plaintiffs original complaint alleged defendants statement about agreed-upon value was false because [i]n truth, [defendant] had not mentioned a value to Plaintiff prior to preparing the Contract, had not explained the term agreed upon value to Plaintiff, and Plaintiff had not agreed to that value, or to any value.

Plaintiff believes she could have omitted this sentence in her original complaint and gotten by with the bare allegation that defendant violated Civil Code 2985.8(c)(2)(A) by falsely stating that $29,613.69 was the value of the Vehicle agreed upon by Plaintiff. The question would be whether such an allegation would suffice to apprise defendant of why it was being sued. What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief. [Citation.] (DohenyPark Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.)

Even assuming plaintiff could have gotten by with less specificity, she chose to allege the specific factual basis, i.e., the failure to get a verbal agreement of agreed-upon value before preparing the contract. Defendant relied upon her pleading. It would be unfair to allow her to change the facts now.

The complaint frames and limits the issues and apprises the defendant of the basis upon which the plaintiff is seeking recovery. (Fuentes v. Tucker (1947) 31 Cal.2d 1, 4.) Evidence cannot be used to establish an issue that the parties have not raised in their pleadings. (Hughes v. Blue Cross of Northern California (1989) 215 Cal.App.3d 832, 858.) Plaintiffs reply brief argues these cases are distinguishable because they merely hold irrelevant evidence is inadmissible, whereas her TPP evidence was highly relevant to the question of whether defendant violated section 2985.8, subdivision (c)(2)(A), by falsely stating that $29,613.69 was the value agreed upon by plaintiff and failed to disclose the agreed-upon value. However, plaintiffs proposed amendment asserted the TPP was a violation not of subdivision (c)(2)(A) of the statute, but rather of subdivision (c)(2)(E), i.e., failure to include in the itemization of gross capitalized cost any charge for an optional debt cancellation agreement.

The trial court did not violate Californias pleading rules.

We conclude the trial court did not prejudicially err in dismissing plaintiffs case with prejudice.

II. Appeal from Order Re: Attorneys Fees

After the trial court dismissed plaintiffs complaint with prejudice on the first day of trial, for lack of evidence, defendant filed a motion for attorneys fees pursuant to section 2988.9 (which we quote post). Defendant alleged that defendant was the prevailing party in an action on a contract subject to the VLA, that defendant alleged in its amended answer that it tendered to plaintiff, in an offer to compromise (Code Civ. Proc., 998), the full amount to which she was entitled ($1,500) and deposited that amount with the court on June 25, 2004, and plaintiff failed to obtain a judgment more favorable than defendants offer to compromise.

Plaintiff opposed the motion, arguing section 2988.9 calls for attorneys fees only when the tender and deposit alleged in the defendants answer to the complaint is found to be true, and here there was no such finding before entry of judgment, and it was too late to make such a finding after judgment was entered.

On August 24, 2005, the trial court granted defendants motion for attorneys fees and awarded the amount of $45,436.50. The court also granted in part plaintiffs motion to tax costs (which is not at issue on appeal). On October 28, 2005, plaintiff filed a timely notice of appeal from the order regarding attorneys fees and costs.

Plaintiff contends the trial courts award of attorneys fees to defendant was improper because defendant did not make a proper tender, did not allege proper tender in its initial answer to the complaint, and the trial court did not make requisite findings of tender and deposit to support an award of attorneys fees under section 2988.9. We shall affirm the award. ( 2988.9.)

Both sides agree this appeal concerns interpretation of the statute, which presents a question of law which we review de novo. (Trinkle v. Stroh (1997) 60 Cal.App.4th 771, 777.)

Section 2988.9 provides: Reasonable attorneys fees and costs shall be awarded to the prevailing party in any action on a lease contract subject to the provisions of this chapter regardless of whether the action is instituted by the lessor, assignee, or lessee. Where the defendant alleges in his or her answer that he or she tendered to the plaintiff the full amount to which he or she was entitled, and thereupon deposits in court, for the plaintiff, the amount so tendered, and the allegation is found to be true, then the defendant is deemed to be the prevailing party within the meaning of this section. ( 2988.9.)

Both sides misconstrue the statute. They believe section 2988.9 authorizes attorneys fees only when the defendant has tendered and deposited in court the amount to which the plaintiff is entitled. Defendant adopted that view in its motion but argued it complied with the tender and deposit requirements.

However, both sides are wrong. The second sentence of the statute does not require tender and deposit as prerequisites for an attorneys fees award in addition to the prevailing party requirement of the statutes first sentence. Rather, the second sentence of the statute merely describes one way in which a defendant will be declared a prevailing party, i.e., where a defendant who concedes owing money but disputes the amount, tenders and deposits the amount to which the plaintiff is entitled, and the allegation (that this is the full amount to which the plaintiff is entitled) is found to be true by the court. It would be nonsensical to require a defendant who has done nothing wrong to tender, deposit, and prove an amount to which plaintiff is entitled in order to recover attorneys fees.

When uncertainty arises in a question of statutory interpretation, consideration must be given to the consequences that will flow from a particular interpretation. [Citation.] In this regard, it is presumed the Legislature intended reasonable results consistent with its expressed purpose, not absurd consequences. [Citation.] (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1165-1166.)

Defendant here appears to have conflated section 2988.9 with an offer to compromise under Code of Civil Procedure section 998, and defendant apparently deposited in court the amount it offered to settle the suit. However, an offer to settle does not acknowledge liability, whereas section 2988.9 requires tender and deposit of the amount to which the plaintiff is entitled.

Plaintiff cites no authority supporting her interpretation of the statute. In the main case cited by plaintiff -- Joseph Magnin Co. v. Schmidt (1978) 89 Cal.App.3d Supp. 7 (a nonbinding opinion of a trial courts appellate division involving a similarly-worded statute) -- a department store sued a customer for money due on a retail installment contract. The customer paid the amount due after the complaint was filed but before she filed an answer. Consequently, a judgment that plaintiff take nothing was rendered in favor of the customer. (Id. at pp. 8-9.) The trial court rejected the stores argument that it was the prevailing party and therefore entitled to attorneys fees under section 1811.1.^[4] The trial courts appellate division reversed, with directions to award attorneys fees to the store, holding that in order to come within section 1811.1, which deems a defendant who tenders the amount due on a contract to be the prevailing party, the tender must be made before the litigation commences. (Id. at pp. 10-13.) Thus, the purpose of the statutory language is clear; it prevents a defendant (who admittedly owes money) from making the plaintiff spend money on attorneys fees before getting paid, yet it allows the defendant who tries to do the right thing to recover attorneys fees if the plaintiff refuses the money and the defendant meets the statutory requirements of tender and deposit.

Plaintiff cites LaChapelle, supra, 102 Cal.App.4th 977 at page 994, for the proposition that courts routinely follow interpretations of section 1811.1 when interpreting the identical language of section 2988.9. However, LaChapelle did not interpret (or even discuss) the tender and deposit part of section 2988.9. There, an automobile lessee sued the agency that financed the lease and the credit corporation to which the lease was assigned, alleging VLA violations. (LaChapelle at pp. 980-981.) The trial court granted summary judgment to the defendants and awarded them attorneys fees. The appellate court affirmed the judgment and affirmed the order awarding attorneys fees. LaChapelle quoted only the first sentence of section 2988.9 -- that the prevailing party in a VLA case shall be awarded attorneys fees. (LaChapelle at p. 992.) LaChapelle rejected the plaintiffs argument that, because another VLA provision imposes liability for attorneys fees on lessors who fail to comply with certain VLA requirements, section 2988.9 must be limited to VLA actions brought for some reason other than violation of the VLAs disclosure requirements. (LaChapelle at p. 993.) The court noted that, while section 2988.9 makes it financially feasible for consumers to bring suit, it appeared the Legislature also sought to discourage unwarranted suits by authorizing in section 2988.9 awards in favor of prevailing lessors and assignees. (LaChapelle at p. 993.) LaChapelle also said, language such as that employed in . . . section 2988.9 has been interpreted as applying to any and all actions where the subject matter involves a contract subject to the provisions of the consumer protection legislation at issue. [Citations to cases including a case citing similar language in section 1811.1.] In light of the broad interpretation traditionally given such language, and the fact that the Legislature, presumably aware of this interpretation, did not alter it in enacting . . . section 2988.9, it cannot be presumed that section 2988.9 was intended to have only the limited application asserted by appellant. We conclude, therefore, that section 2988.9 authorizes an award of fees to the prevailing party in any type of action in which the subject matter involves a contract subject to the provisions of the VLA. (LaChapelle at pp. 993-994.)

Thus, LaChapelle, supra, 102 Cal.App.4th 977, does not assist plaintiff in this appeal.

Plaintiff argues consumer protection laws protect consumers, and we should therefore interpret in the consumers favor a consumer protection statute that authorizes a defendant to recover fees. Plaintiff says that in another context, section 1794, subdivision (d), limits recovery under the Act to buyers. However, plaintiff did not read the whole Act. Section 1794 is all about actions by buyers. Section 1794.1, which addresses actions by retail sellers, in fact authorizes awards of attorneys fees for retail sellers.

Plaintiff also cites Corbett v. Hayward Dodge (2004) 119 Cal.App.4th 915, 924, which said a defendant must show the plaintiff prosecuted a case in subjective bad faith where the statute authorized the defendant to recover attorneys fees if the plaintiffs claims were not in good faith. Here, in contrast, protection of consumers is not the sole purpose of section 2988.9, which expressly authorizes awards in favor of lessors, without requiring proof of bad faith by the plaintiff. As stated in LaChapelle, the Legislature, by authorizing attorneys fees awards in favor of lessors under section 2988.9, also sought to discourage unwarranted lawsuits, such as this one. (LaChapelle, supra, 102 Cal.App.4th at p. 993.)

Thus, plaintiff cites no authority supporting her view that section 2988.9 makes tender and deposit a prerequisite for an award of attorneys fees.

It is apparent to us that the second sentence of section 2988.9 obviously does not apply where, as here, the defendant denies all liability on the complaint (i.e., that plaintiff is not entitled to anything), and the judgment awards the plaintiff no relief. In such a case, the defendant is clearly the prevailing party in the VLA action. That is the case here.

We conclude tender and deposit is not required where the defendant denies any liability and prevails in the trial court. We therefore need not address the parties arguments about whether the tender must be alleged in the original answer, or whether the trial court was required to make an express finding as to whether defendant tendered the entire amount to which plaintiff was entitled.

We conclude the trial court properly granted defendants motion for attorneys fees. Plaintiff does not challenge the amount of the award.

In the absence of a request by defendant, we decline to consider whether defendant should get attorneys fees for defending against the appeal from the judgment or from the order awarding attorneys fees. Certainly, defendant should not recover attorneys fees for defending against the appeal from

the attorneys fees order, because defendants respondents brief was not useful to us.

DISPOSITION

The judgment is affirmed. The order granting attorneys fees is affirmed. Defendant shall recover its costs on appeal. (Cal. Rules of Court, rule 8.276(a)(1).)

SIMS , J.

We concur:

BLEASE , Acting P.J.

MORRISON , J.

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^* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of Factual and Procedural Background of the Dismissal of Plaintiffs Complaint and part I of the Discussion.

^[1]Plaintiff does not argue the matter of registration fees on appeal, and we therefore need not consider it.

^[2]Plaintiffs memorandum of points and authorities said June 2004.

^[3]However, the attachments to the paralegals declaration include her letter to defense counsel, dated August 2, 2004, stating, Ms. Kinsey is currently in trial . . . .

^[4]In language almost identical to the statute at issue in this appeal, section 1811.1 provides with respect to retail installment accounts that [r]easonable attorneys fees and costs shall be awarded to the prevailing party in any action on a contract or installment account subject to the provisions of this chapter regardless of whether such action is instituted by the seller, holder or buyer. Where the defendant alleges in his answer that he tendered to the plaintiff the full amount to which he was entitled, and thereupon deposits in court, for the plaintiff, the amount so tendered, and the allegation is found to be true, then the defendant is deemed to be a prevailing party within the meaning of this article. ( 1811.1.)