Opinion
— After experiencing problems with his Mercedes-Benz that required multiple repair attempts, plaintiff Rand MacQuiddy filed suit against *1039 defendant Mercedes-Benz USA, LLC (Mercedes-Benz), under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.; the Act) and the federal Magnuson-Moss Warranty — Federal Trade Commission Improvement Act (15 U.S.C. § 2301). MacQuiddy sought a refund for the car and a civil penalty for the alleged willful violation of the Act. In its answer to the complaint, Mercedes-Benz admitted it had not been able to conform the car to the applicable warranties within the timeframes set forth in the Act. Mercedes-Benz also admitted it had not yet replaced the car or made restitution, but asserted it would offer to reimburse MacQuiddy as required under the Act. MacQuiddy subsequently rejected a statutory offer to compromise in which Mercedes-Benz offered to repurchase the car for an amount consistent with the Act, and to pay MacQuiddy’s attorney fees and costs incurred up to that point. Because Mercedes-Benz admitted liability for failure to repurchase or replace the car under the Act, and the parties stipulated to a restitution amount, trial proceeded only on MacQuiddy’s claim for a civil penalty. A jury found Mercedes-Benz did not willfully fail to comply with the Act.
On appeal, MacQuiddy contends the trial court erred in denying his motion to compel discovery responses and in granting a protective order that prevented him from taking two “persons most knowledgeable” depositions. MacQuiddy further challenges the trial court order denying his motion for attorney fees, denying in part his motion for costs, and awarding Mercedes-Benz its costs. We reverse the trial court’s costs order, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2010, MacQuiddy bought a 2010 Mercedes-Benz E550 C two-door coupe. On one occasion in August 2011, he could not get the car to start. The same thing happened on three separate occasions in November 2011, January 2012, and May 2012. After each incident, MacQuiddy took the car to the W.I. Simonson dealership for repair. In May 2012, the dealership kept the car for approximately 30 days.
During the May to June 2012 period when the car was in the shop, MacQuiddy spoke with a service adviser at the dealership twice a week to “ascertain [the] status” of the car, and to determine “if there was anything that [he] could do to help to try and move things along.” MacQuiddy wanted his car back and was frustrated that the shop could not find and solve the problem. Sometime between June 10th and 12th, MacQuiddy called Mercedes-Benz customer assistance at the suggestion of the dealership. At trial, MacQuiddy testified: “It was suggested to me by the dealership . . . that I contact . . . Mercedes-Benz USA because they were still having . . . problems . . . getting . . . feedback on . . . what the problem might be. And *1040 also that ... it was now to the point where there might be some form of . . . compensation that might be due.”
The customer service representative said he had the records of the service visits. MacQuiddy asked if there was anything the representative could do to “escalate it to where the technical team could get more involved with [the] car so [he] could get [his] car back.” MacQuiddy testified as to the representative’s response: “He directed me . . . back to W.I. Simonson and said that . . . further work . . . further follow-through and contact should go through them and that they would make sure that the technical team worked with the . . . people at the dealership.” According to MacQuiddy, the representative said he understood and respected that MacQuiddy had experienced a lot of trouble and there would be “some type of compensation through [sz'c], but he did not say what type.” MacQuiddy neither requested that Mercedes-Benz repurchase the car, nor discussed a buyback with the representative. MacQuiddy testified the conversation ended with MacQuiddy thanking the representative and the representative: “directing] me to . . . further conversations to go through the dealer.” MacQuiddy understood that he would work with the service adviser at the dealership.
A day or two after the conversation, the dealership informed MacQuiddy his car was ready to be picked up. The service adviser told MacQuiddy that Mercedes-Benz would contact him. MacQuiddy did not hear from Mercedes-Benz again. He did not try to contact the company. After approximately one month, he contacted a lawyer. 1 On July 20, 2012, MacQuiddy filed suit alleging claims under the Act and the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act. MacQuiddy sought rescission of the purchase contract and restitution of the money he had paid for the car, as well as a civil penalty of two times his actual damages.
In late August 2012, Mercedes-Benz answered the complaint. In the answer, the company admitted that it or its authorized repair facility was unable to conform MacQuiddy’s car to the applicable express and implied warranties after a reasonable number of attempts, or within 30 days. Mercedes-Benz further admitted it had “not yet replaced the new motor vehicle or [made] restitution in accordance with the Act” but stated it would “offer to reimburse Plaintiff under the Act, in an amount equal to the actual price paid or payable by Plaintiff, including any charges for transportation and manufacturer-installed options . . . and including any collateral charges such as sales tax, license fees, registration fees, and other official fees, plus any incidental damages to which Plaintiff is entitled, including but not limited to, reasonable repair, towing, and rental car costs actually incurred by *1041 Plaintiff.” The answer admitted MacQuiddy was entitled to revoke acceptance of the car under the Act and was entitled to reimbursement of the price paid, “less that amount directly attributable to use by the Plaintiff prior to discovery of the nonconformities.” The answer further admitted MacQuiddy was entitled to the “aggregate amount of costs and expenses, including attorney’s fees, reasonably incurred in connection with the commencement and prosecution of this action.”
Section 998 Offer
In late September 2012, Mercedes-Benz served MacQuiddy with an offer to compromise pursuant to Code of Civil Procedure section 998 (section 998). The offer contained the following term: “Pursuant to California Code § 1793.2(d)(2), MBUSA offers to repurchase Plaintiff’s 2008 [¿ic] Mercedes-Benz E550 (‘E550’) ... in an undamaged condition, save normal wear and tear, for the amount of the vehicle down payment, any and all payments made, and the amount of Plaintiff’s outstanding loan obligation related to the purchase of the subject vehicle, if any, as well as any collateral charges and incidental costs in accordance with Civil Code § 1793.2(d)(2)(B), less a reasonable mileage offset in accordance with Civil Code § 1793.2(d)(2)(C), all to be determined by court motion if the parties cannot agree.” The offer further provided Mercedes-Benz would pay “Plaintiff’s recoverable court costs, expenses, and reasonably-incurred attorney fees pursuant to Civil Code § 1794(d) to be determined by the Court by way of a noticed motion.” The offer indicated the fee and cost amount would be calculated as if MacQuiddy was found to have prevailed in a Civil Code section 1794, subdivision (d) action as of the date of the offer, except that Mercedes-Benz would not be liable for a multiplier greater than 1.0 and MacQuiddy could “recover for fees and costs reasonably and actually incurred in bringing such a fee/cost motion.”
MacQuiddy objected to the offer and did not accept it.
Discovery Issues
In November 2012, MacQuiddy moved to compel discovery responses from Mercedes-Benz. The motion concerned 11 special interrogatories, 19 document requests, and 13 requests for admissions. The discovery requests related to Mercedes-Benz’s actions in MacQuiddy’s case, as well as Mercedes-Benz’s general practices and policies, and the E550 C in general. For example, the requests included such topics as all inspections of MacQuiddy’s car; all contacts Mercedes-Benz had with anyone regarding the car; the dates the car was at an authorized repair facility; any request by MacQuiddy for a repurchase or replacement of the car; and the reasons for any denial. MacQuiddy *1042 also sought discovery of Mercedes-Benz’s policies or procedures since 2007 concerning refunds or replacements under the Act; its procedures for handling customer complaints; records of the same defect appearing in other cars of the same year, make, and model as MacQuiddy’s car; and Mercedes-Benz’s warranty claims policy and procedure manuals and related documents.
In addition to objecting to the discovery requests as overbroad, harassing, argumentative, burdensome, and not in good faith, Mercedes-Benz objected: “MBUSA has already admitted liability in this action and has agreed to repurchase Plaintiff’s vehicle. Thus, MBUSA contends that Plaintiff has not propounded this discovery in good faith and has propounded such discovery to harass MBUSA and its attorneys and to cause unnecessary delay and needless increase in the cost of litigation.”
MacQuiddy also noticed the depositions of persons most qualified from Mercedes-Benz and W.I. Simonson, with accompanying document demands. MacQuiddy sought to depose the witnesses on topics such as Mercedes-Benz’s policies for responding to consumer complaints regarding defective vehicles; MacQuiddy’s “requests for repurchase” of his car; the company’s policies for complying with repurchase or replacement demands under the Act; the repairs to the car; communications between Mercedes-Benz and the dealership about the car; allegations of “customer abuse, misuse or lack of information”; service bulletins or recalls related to MacQuiddy’s car; and complaints by owners of the same car. Mercedes-Benz sought a protective order to prevent the depositions. Mercedes-Benz argued that since it had admitted it failed to comply with the Act, the depositions were unnecessary. Mercedes-Benz further argued that to the extent MacQuiddy was seeking discovery to prove the failure to comply was willful, the effort was improper because MacQuiddy was not entitled to a civil penalty as a matter of law due to his failure to serve a notice demanding compliance with the Act.
The trial court denied MacQuiddy’s motion to compel and granted the protective order. The record does not indicate MacQuiddy attempted any other discovery.
Trial and Judgment
At trial, the parties stipulated MacQuiddy was entitled to $68,948.07 under the Act for repurchase of the car. Each side presented only one witness. MacQuiddy testified as detailed above. A witness for Mercedes-Benz who was responsible for handling customer repurchase or replacement requests under the Act testified he did not receive a buyback demand from MacQuiddy before the suit was filed. He testified that after receiving the suit, he *1043 determined Mercedes-Benz should repurchase the car. He also testified that, had he been asked to evaluate MacQuiddy’s car before the suit was filed, he would have recommended a repurchase. The only issue presented to the jury was whether to impose a civil penalty against Mercedes-Benz for willfully failing to repurchase or replace the car. After brief deliberations, the jury returned a special verdict finding Mercedes-Benz did not willfully fail to repurchase or replace the car. 2
The court entered a judgment on the special verdict. The judgment stated MacQuiddy had lost his claim for a civil penalty, but included the following stipulated language: “It is further ordered and adjudged that, by admission and stipulation of Defendant . . . MacQuiddy is entitled to restitution in the amount of Sixty-Eight Thousand Nine Hundred Forty-Eight and 07/100 ($68,948.07) Dollars in exchange for return of the subject vehicle to Defendant ... . The Court shall determine which party has prevailed in this action and whether that party is entitled to costs and/or attorney fees in separate proceedings.”
Attorney Fees and Costs
MacQuiddy subsequently filed a motion seeking $74,530 in attorney fees as the prevailing party in the litigation. He contended he had secured a net monetary recovery, thus he was the prevailing party and the Act mandated an award of attorney fees. Mercedes-Benz opposed the motion, arguing the fees were not “reasonably incurred” to litigate the civil penalty claim, and no fees should be awarded for work done after the section 998 offer was made. Both sides moved for costs. They filed opposing motions to tax costs.
The trial court awarded Mercedes-Benz costs, excluding attorney fees. The court denied MacQuiddy’s motion for attorney fees. The court taxed all of MacQuiddy’s requested costs except filing fees for the complaint and service of process costs.
MacQuiddy appealed from the judgment and the court’s attorney fee and costs order.
DISCUSSION
I. The Song-Beverly Consumer Warranty Act
We begin with a brief summary of the relevant portions of the Act, commonly known as the automobile “ ‘lemon law.’ ”
(Duale v. Mercedes-Benz
*1044
USA, LLC
(2007)
With respect to restitution, Civil Code section 1793.2, subdivision (d)(2)(B) provides: “In the case of restitution, the manufacturer shall make restitution in an amount equal to the actual price paid or payable by the buyer, including any charges for transportation and manufacturer-installed options, but excluding nonmanufacturer items installed by a dealer or the buyer, and including any collateral charges such as sales or use tax, license fees, registration fees, and other official fees, plus any incidental damages to which the buyer is entitled under Section 1794, including, but not limited to, reasonable repair, towing, and rental car costs actually incurred by the buyer.”
Civil Code section 1794, subdivision (a) authorizes a buyer of consumer goods to bring an action for recovery of damages and other relief for the failure to comply with the Act. Under section 1794, subdivision (c): “If the buyer establishes that the failure to comply was willful, the judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty which shall not exceed two times the amount of actual damages.” 3
*1045 II. MacQuiddy Has Not Established the Trial Court’s Discovery Rulings Were Prejudicial
MacQuiddy contends the trial court erred in denying his motion to compel and in granting the protective order preventing the two depositions he sought to take. According to MacQuiddy, the result of these rulings was that he was unable to secure any pretrial discovery. We find no basis for reversing the judgment.
We review a trial court’s discovery orders for an abuse of discretion. “ ‘ “The trial court’s determination will be set aside only when it has been demonstrated that there was ‘no legal justification’ for the order granting or denying the discovery in question.” ’ [Citation.]”
(Lickter v. Lickter
(2010)
Here, we need not decide if the trial court’s discovery rulings were an abuse of discretion because, even assuming they were, MacQuiddy has failed to demonstrate it is reasonably probable the outcome of the trial would have been more favorable to him had the trial court granted his motion to compel, and allowed him to take the two depositions he sought.
(Conservatorship of Maria B.
(2013)
Similarly, MacQuiddy has not shown he was prejudiced by the denial of discovery regarding Mercedes-Benz’s failure to correct the defects in the car *1046 since that issue was uncontested at trial, his testimony regarding the ongoing problems with the car was uncontroverted, and also uncontroverted was his testimony that the Mercedes-Benz customer service representative admitted he could see the record of service visits. Although on appeal MacQuiddy asserts evidence responsive to his requests existed, such as a document Mercedes-Benz sought to use at trial memorializing the Mercedes-Benz contacts with MacQuiddy, the trial court ultimately excluded the document and prohibited Mercedes-Benz from using the portions to which MacQuiddy objected. The mere existence of the document does not establish MacQuiddy was prejudiced by his inability to procure it before trial. He also argues courts have found relevant discovery requests seeking a car manufacturer’s warranty policies and procedures, policies on buyback requests, and other customer complaints. Yet he does not show that, in this case, had the trial court compelled responses to his requests or denied the protective order, it is reasonably probable the jury would have found Mercedes-Benz willfully failed to repurchase or replace his car.
Indeed, the sum of MacQuiddy’s prejudice argument on appeal is that the categories of information and documents he sought were relevant, and the discovery requests may have turned up admissible evidence. This is insufficient.
(Lickter, supra,
III. The Trial Court Did Not Abuse Its Discretion in Determining MacQuiddy Was Not a Prevailing Party for Purposes of Attorney Fees Under the Act
MacQuiddy challenges the trial court ruling denying him attorney fees and the determination that he did not prevail under the Act. We find no error.
Under Civil Code section 1794, subdivision (d), a buyer who prevails in an action brought under the Act “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and *1047 expenses, including attorney’s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.”
The Act does not define “prevail.” MacQuiddy contends the trial court abused its discretion because, despite losing the civil penalty claim, he secured a net monetary recovery, and was therefore a prevailing party under Code of Civil Procedure section 1032 (section 1032), subdivision (a)(4). However, section 1032 is the general costs statute. A prevailing party under section 1032 is not necessarily a prevailing party under a separate attorney fee statute.
(Foothill Properties
v.
Lyon/Copley Corona Associates
(1996)
We review the trial court’s prevailing party ruling for abuse of discretion.
(Wohlgemuth, supra,
As noted above and further explained in
Graciano,
when “prevailing party” is undefined by the statute, “
1
“a court may base its attorney fees decision on a pragmatic definition of the extent to which each party has realized its litigation objectives, whether by judgment, settlement, or otherwise. [Citation.]” [Citation.] In assessing litigation success,
Hsu
v.
Abbara
(1995)
In this case, while MacQuiddy secured repurchase of the car for a stipulated amount of over $68,000, Mercedes-Benz’s liability for a repurchase amount, calculated under the statute, was never contested. Mercedes-Benz admitted liability under the Act in its answer to the complaint. Although the parties did not stipulate as to the amount of restitution until the beginning of trial, the amount was not litigated. The only issue litigated and tried was whether Mercedes-Benz was also liable for a civil penalty. MacQuiddy lost on that issue. Using a pragmatic approach, and being guided by equitable considerations, the trial court could conclude within the confines of the applicable principles of law that MacQuiddy was not a prevailing party because he did not achieve his main litigation objective — obtaining a civil penalty.
National Computer Rental, Ltd. v. Bergen Brunswig Corp.
(1976)
Likewise, in this case MacQuiddy’s monetary judgment was for an amount never disputed and on an issue never litigated because it was conceded. The trial court could reasonably conclude that under the circumstances of this case, in which there was no evidence MacQuiddy made a prelitigation demand for repurchase of his car, Mercedes-Benz immediately admitted liability for failure to replace or repurchase the car and offered to do so, the amount of restitution was not contested, and the entire trial concerned the civil penalty, MacQuiddy’s main litigation objective was to obtain a civil penalty. The fight in this case was not about the repurchase of the car. (See
Foothill Properties, supra,
46 Cal.App.4th at pp. 1555-1556;
Epstein v. Frank
(1981)
IV. The Trial Court Erred in Finding the Mercedes-Benz Section 998 Offer Valid
MacQuiddy contends the trial court erred in denying a portion of his costs on the grounds that Mercedes-Benz’s offer to compromise under section 998 was valid, and that MacQuiddy failed to receive a judgment more favorable than the offer. We agree the trial court erred in finding the section 998 offer valid.
Under section 998, “if the plaintiffs reject a defendant’s offer to compromise and then fail to win a more favorable judgment, the plaintiffs cannot recover their postoffer costs and must pay the costs the defendant incurred after the offer.”
(Chen
v.
Interinsurance Exchange of the Automobile Club
(2008)
*1050
To be valid, an offer under section 998 may include nonmonetary terms and conditions, but it must be unconditional.
(Barella
v.
Exchange Bank
(2000)
We focus on one term in the section 998 offer as particularly undefined. Although for the most part the section 998 offer simply offered to comply with the restitution provision of the Act, it limited compliance to repurchase of the car, “in an undamaged condition, save normal wear and tear.” This condition inserted uncertainty into the offer, which otherwise tracked the language of the Act. Whether the car was in an “undamaged condition” was not defined, nor was it clear what would happen if MacQuiddy accepted the offer, but Mercedes-Benz subsequently concluded the car was “damaged” beyond normal wear and tear. While the offer allowed that the amount, charges, and costs were “all to be determined by court motion if the parties cannot agree,” everything besides the condition of the car was at least minimally determined by the Act itself.
In addition, we fail to see how, following trial, the court could compare the value of obtaining the repurchase of the car without regard to its condition to the offer requiring that the car be “undamaged,” in order to determine whether MacQuiddy received a more favorable judgment than the offer. Such an evaluation would require a factual determination of whether the car was damaged, which was not an issue otherwise relevant to the proceedings.
Because of the undefined and subjective nature of the term that Mercedes-Benz would repurchase the “undamaged” car, we conclude the section 998 offer was at least ambiguous, and was therefore not valid.
(Chen, supra,
V. The Trial Court’s Costs Order Must Be Reversed
We conclude the trial court’s costs order must be reversed. Generally, a trial court’s determination of costs is reviewed for abuse of discretion.
(Goodman v. Lozano
(2010)
*1051 Due to the invalidity of the offer, section 998 did not operate to cut off MacQuiddy’s costs, nor did it entitle Mercedes-Benz to recoup its postoffer costs. 5 Although the trial court granted Mercedes-Benz all of its litigation costs, we conclude this was error.
Under section 1032, subdivision (b), “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Section 1032, subdivision (a)(4) defines “prevailing party”: “ ‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.”
In this case, although the court found MacQuiddy did not prevail under Civil Code section 1794, subdivision (d), he could still be deemed a prevailing party for purposes of Code of Civil Procedure section 1032. (See
Agnew
v.
State Bd. of Equalization
(2005)
Thus, MacQuiddy was entitled to his litigation costs, excluding attorney fees, under section 1032.
*1052 DISPOSITION
The costs order is reversed and the trial court is directed to vacate its order denying MacQuiddy costs, and awarding costs to Mercedes-Benz. On remand, the court is to permit MacQuiddy to file a new memorandum of costs, and to recalculate such costs without regard to Mercedes-Benz’s section 998 offer. In all other respects the judgment, and the order denying attorney fees, are affirmed. Each party to bear its own costs on appeal.
Rubin, J., and Flier, J., concurred.
Notes
At the May 2013 trial, MacQuiddy testified that since the car was returned to him in June 2012, the problem starting the car had not reoccurred.
The jury began deliberations at 11:46 a.m. It returned a verdict that afternoon, after the noon recess, and before 2:50 p.m., when, after remarks from the trial court thanking the jurors and a brief colloquy between the court and counsel, the transcript for that day concluded.
While Civil Code section 1794, subdivisions (a) and (c) apply to any consumer goods under the Act, section 1794, subdivision (e) concerns remedies specifically for the buyer of a new motor vehicle. Under subdivision (e)(1), “if the buyer establishes a violation of paragraph (2) of subdivision (d) of Section 1793.2, the buyer shall recover damages and reasonable attorney’s fees and costs, and may recover a civil penalty of up to two times the amount of damages.” (Civ. Code, § 1794, subd. (e)(1).) However, there are exceptions. The manufacturer will not be liable for the civil penalty if it maintains a “qualified third-party dispute resolution process which substantially complies with Section 1793.22.” (Civ. Code, § 1794, subd. (e)(2).) Further, under subdivision (e)(3): “After the occurrence of the events giving rise to the presumption established in subdivision (b) of Section 1793.22, the buyer may serve upon the manufacturer a written notice requesting that the manufacturer comply with paragraph (2) of subdivision (d) of Section 1793.2. If the buyer fails to serve the notice, the manufacturer shall not be liable for a civil penalty pursuant to this subdivision.” (Civ. Code, § 1794, subd. (e)(3).) Subdivision (e)(5) indicates that “[i]f the buyer recovers a civil penalty under subdivision (c), the buyer may not also recover a civil penalty under this subdivision for the same violation.” (Civ. Code, § 1794, subd. (e)(5).) MacQuiddy argues he only attempted to secure the civil penalty under section 1794, subdivision (c), which required a showing of willfulness, rather than under section 1794, subdivision (e)(1).
Reveles v. Toyota by the Bay
(1997)
We note our conclusion that the section 998 offer was invalid does not affect our conclusion that the trial court did not abuse its discretion in finding MacQuiddy was not entitled to attorney fees. MacQuiddy was not entitled to attorney fees, irrespective of section 998, because the court determined he did not prevail under the Act.