Filed 3/16/ 22 De N ike v. Mathew Enterprise CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
TIMOTHY DENIKE, Plaintiff and Respondent,

v. MATHEW ENTERPRISE, INC., Defendant and Appellant. H046718 (Santa Clara County Super. Ct. No. CV273438)

Mathew Enterprise, Inc. , doing business as Stevens Creek Chrysler Jeep Dodge (S CJ) , appeals from a postjudgment order awarding attorney fees to Timothy DeNike after a jury found in DeNike’s favor o n causes of action for
violations of the Consumer s Legal Remedies Act (CLRA) (Civ. Code, § 1750

et seq.) , 1 violations of the Song

- Beverly Consumer Warranty Act (Song

- Beverly
Act ) (§ 1790 et seq.) , and for intentional misrepresentation. 2 Before awarding attorney fees, t he trial court issued a permanent injunction against SCJ based on its independent findings that SCJ violated the CLR A

. For the reasons set forth below, we reverse the order awarding attorney fees
and remand the matter to the tria l court for further proceedings.

1 Unspecified statutory references are to the Civil Code.
2 SCJ separately appealed from the judgment and we issue our published opinion in that case concurrently . ( DeNike v

. Mathew Enterprise , Inc

. (Mar. 16, 2022, H046420)

__ Cal.App.5th

__ ( DeNike ).)2

I. F ACTUAL AND P ROCEDURAL B ACKGROUND We refer to the facts and procedural background set forth in detail in this

court ’ s published opinion, filed concurrently . ( DeNike , supra ,

__ Cal.App.5th

__ .) 3 We discuss here only t hose facts and background relevant to the specific issues in this appeal. In 2014, DeNike purchased a new Jeep Wrangler , with a hardtop, from
SCJ. DeNike believed, and SCJ led him to believe, that the hardtop had been installed at the factory. When DeNi ke subsequently learned that the vehicle was
in fact manufactured with a soft top and the hardtop had been installed afterwards, he sought to return it. DeNike filed a complaint against SCJ alleging violations of the CLRA, fraud by intentional misrepresentation and/or concealment, and violations of the Song

- Beverly Act

. DeNike also sent SCJ a CLRA demand letter. In response,
SCJ offered to rescind the contract, take back the vehicle, pay off the financing , refund any payments made by DeNike, and pay his incidental and consequential damages , as well as attorney fees and costs

. Unable to reach an agreement, principally on the issue of attorney fees, the
matter went to trial. The trial court rule d that DeNike’s claims for damages under the CLRA were barred because SCJ’s correction offer was appropriate, but allowed the jury to decide DeNike’s cause of action for restitution under the
CLRA. T he jury found that SCJ: (1) violated the CLRA ; (2) made an intentional misrepresentation to DeNike ; (3) did not commit fraud by concealment ; and

3 Our summary of the facts and procedural background is drawn from the clerk ’ s transcript and reporter ’ s transcript filed in this appeal, as well as from the record in the concurrent appeal. ( DeNike , supra ,

__ Cal.App.5th

__ .) On our own motion, we take judicial notice of the latter record. (Evid. Code, §§ 452, subd. (d)(1), 459; see Stephenson v

. Drever (1997) 16 Cal.4th 1167, 1170, fn. 1.)3

(4) violated the Song

- Beverly Act

. The jury determined DeNike was entitled to a n award of $36,192.79

. 4
The trial court then granted DeNike’s request for a perman ent injunction under the CLRA, noting that its decision was based on its own independent concurrence with the jury’s conclusions that SCJ had committed specific
violations of the CLRA.
DeNike moved for an award of attorney fees, costs and expenses on t he
CLRA and Song

- Beverly Act causes of action. SCJ opposed the motion arguing that DeNike was not entitled to such fees, or alternatively, that any award be reduced because it had made an appropriate offer of correction under the CLRA. SCJ further argued that the requested fees were not reasonable or necessary, and that the trial court should apply a negative multiplier to the request for fees

. Following a hearing, the trial court found that DeNike ’s “justified,
reasonable , and necessary” attorney fees were $270,769.50 , the “ request for a multiplier of 1.5 [was] appropriate, justified, and reasonable under the
circumstances of this case

. ” The trial court awarded DeNike attorney fees totaling $406,154.25

. SCJ timely appealed.
II. D ISCUSS ION We begin by noting that b oth parties agree that, if the underlying judgment
is reversed in SCJ’s related appeal from the judgment , the award of attorney fees
must also be reversed

. (See Allen v

. Smith (2002) 94 Cal.App.4th 1270, 1284 [award of attor ney fees to the party prevailing will not stand after reversal of the judgment].)

4 The jury awarded identical amounts to DeNike under each of the three causes of action on which he prevailed

.4

In light of our reversal of the judgment which vacates the CLRA jury verdict, t he only question remaining is what directions , if any, we will provide to
the trial court on r emand with respect to attorney fees

. SCJ argues that the trial court’s conclusion that it made an appropriate correction offer under the CLRA also operates to bar any award of attorney fees , citing Benson v

. Southern California Auto Sales , Inc

. (2015) 239 Cal.App.4th
1198 ( Benson )

. According to SCJ, b ecause DeNike did not obtain any relief beyond what he would have obtained had he accepted SCJ’s offer of correction, he
is not entitled to fees under his other theories of relief

. We disagree.
S CJ relies on Benson as barring any award of attorney fees, regardless of the theory of recovery, where an appropriate CLRA correction offer is made. It is
true that Benson holds that where “a suit for damages cannot be maintained under
the CLRA because a merchant offered an appropriate correction in response to a consumer’s notice, then a plaintiff cannot collect attorney fees for such a suit.” ( Benson , supra , 239 Cal.App.4th at p. 1212.) In Benson , the underlying complaint
included several other causes of action, including a cause of action for violation of the Song

- Beverly Act . I n affirming the trial court’s order denying the plaintiff’s motion for attorney fees under the CLRA , the court adopted the trial court’s description of those other claims for r elief as being “ ‘inextricably intertwined with the CLRA claim and based on the same conduct.’ ” ( Benson , supra , at
p. 1210.)
To the extent SCJ reads Benson as precluding an award of attorney fees under the Song

- Beverly Act as well as the CLRA, that reading is based on dicta. 5
After obtaining a stipulated judgment against the defendant, the plaintiff in Benson

5 “ ‘Dicta consists of observations and statements unnecessary to the appellate court’s resolution of the case.’ ” ( Sonic

- Calabasas A , Inc

. v
. Moreno (2013) 57 Cal.4th 1109, 1158.)5

sought attorney fees only under the CLRA and the Automobile Sales Finance Act (ASFA ) ( § 2981 et seq.) , not the Song

- Beverly Act

. 6 ( Benson , supra , 239 Cal.App.4th at p. 1205.) Consequently, t he trial court in Benson did not rule on plaintiff’s entitlement to an award of attorney fees under the Song

- Beverly Act,
and thus that question was not before the ap pellate court. Furthermore, w e need not rely on the Song

- Beverly Act as an independent basis for attorney fees in this case because DeNike obtained relief under the CLRA pursuant to his request for injunctive relief. Even if we were to follow
Benson ’s dicta that an appropriate correction offer under the CLRA operates to bar an award of attorney fees based on a violation of the Song

- Beverly Act, the
Benson court itself expressly declined to address if and when a plaintiff may
obtain an award of attorney fees based on a request for injunctive relief under the CLRA. ( Benson , supra , 239 Cal.App.4th at p. 1213.)
As discussed in the related appeal from the underlying judgment , we agree that DeNike’s claim for restitution under the CLRA was barred as a consequence of the trial court finding that SCJ’s correction was appropriate

. ( DeNike , supra ,

__ Cal.App.5th

__ .) However, because the trial court independently concluded, in ruling on DeNike’s request for injunctive relief, that SCJ violated the C LRA,
DeNike was entitled to seek his fees under that statute. As a result, we will not direct the trial court to reconsider its ruling on DeNike’s motion for attorney fees on remand.

6 On appeal, t he plaintiff in Benson did not brief

— and was deemed to have waived

— any argument that he was entitled to fees under the ASFA. ( Benson , supra , 239 Cal.App.4th at p. 1209, fn. 8.)6

III. D ISPOSITION The order is reversed and the matter remanded to the trial court . On entry of a new judgment as directed in the related appeal, the trial court shall reenter its original award of attorney fees. DeNike shall recover his costs on appeal.___________________________________ Wilson, J.

WE CONCUR:

______________________________________

Elia , Acting P.J.

______________________________________

Danner, J.

DeNike v. Mathew Enterprise, Inc. H 046718