This decision follows the pragmatic approach to determining whether plaintiff was the prevailing party—declining to follow the handful of courts that have applied CCP 1032.5’s definition of prevailing party for purposes of costs. Under the pragmatic approach, the court looks to whether by filing suit, the plaintiff achieved a better result than the defendant’s last pre-suit offer of settlement. Here, in a Song-Beverly Act case, before suit, the manufacturer offered a full refund of all sums other than for dealer add-ons. After the suit was filed, the parties settled for an undisclosed sum. Even assuming that the manufacturer agreed to pay for the dealer add-ons, that victory could not be counted in plaintiff’s favor in determining the prevailing party because dealer add-ons are not recoverable from the manufacturer (but only from the dealer) under the Song-Beverly Act. Plaintiff should not be rewarded for rejecting a settlement of the full sum to which she was entitled by statute and holding out for more as that would create a perverse incentive for buyers to continue litigating in the hopes of obtaining a nuisance value that would entitle them to attorney’s fees as well. The trial court did not abuse its discretion in inferring that the confidential settlement amount did not include civil penalties. And the chance to recover attorney fees cannot itself make the plaintiff a prevailing party entitled to a fee award. So the trial court did not abuse its discretion in deciding that plaintiff had not achieved a pragmatic victory and so was not a prevailing party and was not entitled to an attorney fee award.
California Court of Appeal, Second District, Division 2 (Hoffstadt, J.); April 5, 2018; 2018 WL 1633322