Filed 3/30/21

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

BRANDON CRAYTON,

Plaintiff and Appellant,

v.

FCA US LLC,

Defendant and 

Respondent.

 B294528, B296241

 (Los Angeles County

 Super. Ct. No. BC654811)

APPEALS from a judgment and postjudgment order of the 

Superior Court of the County of Los Angeles, Michael P. Linfield, 

Judge. Affirmed in part, reversed in part, and remanded with 

directions.

Rosner, Barry & Babbitt, Halen D. Rosner and Michelle A. 

Cook; Strategic Legal Practices, Payam Shahian and Jacob 

Cutler, for Plaintiff and Appellant.

* Certified for publication, with the exception of parts II.E., 

III.A.3.d. and e., and III.B.
2

Gibson, Dunn & Crutcher, Thomas H. Dupree, Jr. and Matt 

Gregory; Gates, Gonter, Guy, Proudfoot & Muench, Matthew M. 

Proudfoot, for Defendant and Respondent.

___________________________________

I. INTRODUCTION

Plaintiff and appellant Brandon Crayton leased a new 

vehicle manufactured by defendant and respondent FCA US LLC 

that developed unrepairable defects. He sued defendant, alleging 

violations of the Song-Beverly Consumer Warranty Act (Civ.

Code, § 1790 et seq.).1 The trial court entered a judgment 

awarding plaintiff restitution and civil penalties under the Act, 

followed by an order awarding him attorney fees.

On appeal from the judgment and order, plaintiff contends 

that the trial court erred by not including in the award 

restitution based on the residual value of the leased vehicle and 

incidental damages for the amounts he paid for annual 

registration renewal fees and insurance premiums. Plaintiff also 

contends that the court abused its discretion by arbitrarily 

reducing the amount of attorney fees awarded for the legal 

1 “[P]opularly known as the ‘lemon law’” (Kirzhner v. 

Mercedes-Benz USA, LLC (2020) 9 Cal.5th 966, 969 (Kirzhner)), it 

will be referred to in this opinion as the Act. As explained below, 

the Act entitles buyers and lessees of new vehicles with 

unrepairable defects to either a replacement vehicle or 

restitution. (Ibid.) All further statutory references are to the 

Act, unless otherwise indicated.
3

services rendered after defendant admitted liability. We affirm 

in part, reverse in part, and remand with directions.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Vehicle Lease

In July 2015, plaintiff leased a new 2016 Dodge Charger 

from a dealership, which then assigned the lease and sold the 

vehicle to Ally Financial Trust (Ally). Under the terms of the 

lease, plaintiff paid at signing $5,055.31, a first monthly lease 

payment of $500.12, and sales tax, as well as title, registration, 

and other fees, for a total of $6,750. He also agreed to pay an 

additional 47 monthly lease payments of $500.12 each, for a total 

amount of future monthly lease payments of $23,505.64. The 

lease defined “[r]esidual value” as “[t]he value of the vehicle at 

the end of the lease” and included a purchase option under which 

plaintiff could “buy the vehicle at the end of the lease term for 

[the residual value of] $24,458.60 . . . .”

B. Complaint and Amended Answer Admitting Liability

Approximately eight months after plaintiff leased the 

Charger, he filed an action against defendant asserting six causes 

of action for statutory violations, including violations of the Act. 

Plaintiff alleged that, soon after he leased the Charger, it 

developed a number of defects that defendant was unable to 

service or repair after a reasonable number of opportunities. 

Plaintiff further alleged that defendant failed to replace promptly
4

the Charger or provide restitution under sections 1793.1, 

subdivision (a)(2) and 1793.2, subdivision (d). And plaintiff 

alleged that defendant’s failure to replace promptly the Charger 

or provide restitution was willful, entitling him to civil penalties 

of two times his actual damages pursuant to section 1794, 

subdivision (c).

Defendant initially answered the complaint and denied 

liability. The parties then stipulated that defendant would file 

an amended answer that admitted liability and offered to 

compensate plaintiff for the actual damages he was entitled to 

receive, including incidental damages but excluding the residual 

value of the Charger. Defendant also offered to pay plaintiff a

civil penalty under the Act in the amount of two times his actual 

damages.

C. Bench Trial on Damages

Following defendant’s admission, the parties proceeded to a 

bench trial on damages. Prior to trial, the parties stipulated, 

among other things, that plaintiff was “entitled to recover his

actual damages pursuant to . . . section 1793.2[, subdivision] 

(d)(2)(B) and 1794[, subdivision] (b) . . . [¶] . . . [and] a civil 

penalty of two times his actual damages pursuant to . . . section 

1794[, subdivision] (c).”

Plaintiff submitted for trial his declaration authenticating 

a copy of his lease and a copy of a March 9, 2018, letter he 

received from his lessor, Ally, advising him of the amount he 

would be required to pay to terminate his lease early and 

purchase the Charger. According to Ally, plaintiff and “any colessee” could buy back the vehicle for $29,997.64, but if plaintiff 
5

“want[ed] to arrange for someone else to buy the vehicle, [he] 

must first buy it from [Ally].” Plaintiff also requested judicial

notice of an excerpt from a transcript of a deposition in which a 

representative of the California Department of Consumer Affairs 

confirmed that vehicle manufacturers must comply with the 

replacement and repurchase calculations under section 1793.2, 

subdivision (d)(2) and that purchase and lease transactions were 

treated the same for purposes of such calculations.

In his trial brief, plaintiff argued that he was entitled to 

recover, among other amounts, the amount necessary for 

defendant to reacquire the vehicle, i.e., the residual value, as 

restitution. According to plaintiff, “the only way [defendant 

could] reacquire the [v]ehicle from [p]laintiff [was] if [p]laintiff 

terminat[ed] the [l]ease by paying the lease payoff amount 

assessed by [Ally].” Plaintiff conceded that he “had no obligation 

to make such payment as of [the] lease signing,” but argued that 

he thereafter became “‘obligated to return the vehicle to 

[defendant] in order to recover restitution pursuant to [the Act].’”

In its trial brief, defendant argued that plaintiff was only 

entitled to recover the amounts he actually paid, or which were 

payable, under the lease. According to defendant, because 

plaintiff was not obligated to pay the residual value at the time 

he entered into the lease, that amount should not be included in 

the restitution to which he was entitled under the Act. 

Defendant also maintained that the title branding and disclosure 

requirements of the Act did not require plaintiff to acquire title to 

the vehicle from Ally; instead, it was defendant’s obligation to 

acquire the vehicle by paying the residual value directly to Ally. 

Finally, defendant asserted that registration renewal fees, 
6

insurance premiums, and amounts paid for dealer options were 

not recoverable as damages under the Act.

The trial court conducted a bench trial, noting at the outset 

that the parties had stipulated there were no factual disputes 

and that the case involved a legal issue: the amount of 

restitution to which plaintiff was entitled under the Act. After 

hearing argument, the court accepted defendant’s position that 

“‘actual price paid or payable by the buyer,’” as set forth in 

section 1793.2, subdivision (d)(2)(B), did not include the residual 

value of the vehicle or the amounts paid by plaintiff for 

registration renewal fees or insurance premiums.

D. Judgment

The trial court entered a judgment that provided, as 

relevant to this appeal, as follows: “1. The civil penalty 

provisions of the . . . Act . . . do not extend to cover the residual 

value of [p]laintiff’s vehicle after the lease period is completed. 

[¶] 2. Plaintiff may not recover any amount for registration 

renewal fees or insurance premiums. [¶] . . . [¶] 5. The [c]ourt 

declined to make any ruling regarding the ‘branding’ of 

[p]laintiff’s vehicle. [¶] 6. Defendant shall [pay off] the current 

loan on the vehicle and be given possession of the vehicle after it 

pays all sums due under this judgment. [¶] On the basis of these 

findings and [d]efendant’s [a]mended [a]nswer . . . IT IS 

ORDERED that defendant shall pay the amounts stated below: 

[¶] a. To plaintiff, the amount of $30,255.64 minus a mileage 

offset of $1,271.04 for a total of $28,984.60, with a two-time civil 

penalty in the amount of $57,969.20, for a total of $86,953.80; [¶] 

b. Attorneys’ fees, costs and pre-judgment interest (if any), per 
7

agreement of the parties, or alternatively, by way of a single 

noticed [m]otion, absent an agreement; [¶] c. The vehicle loan 

payoff shall be made directly to the lender.”

E. Motion for Attorney Fees

On November 15, 2018, plaintiff filed a motion for an award 

of attorney fees and costs. The motion included a request for 

attorney fees based on the billing statements of plaintiff’s two law 

firms in the amount of $105,321.50, plus a multiplier of .35, that 

is, an additional $36,862, for a total fee request of $142,183.50. 

Defendant opposed the motion, arguing that plaintiff should not 

be awarded fees for services expended by his attorneys after 

defendant admitted liability. Defendant calculated that the 

reasonable fees incurred by plaintiff prior to defendant’s 

admission of liability was $11,688.

In his reply, plaintiff argued that the fees he incurred after 

defendant’s admission of liability were reasonable because 

defendant engaged in conduct that forced him to continue to 

litigate damages.

At the hearing on the fee motion, the trial court found that 

the hourly rates of plaintiff’s attorneys were reasonable and 

awarded him $11,688.50 in fees for the time expended by his first 

law firm litigating the matter through defendant’s admission of 

liability. In denying plaintiff the amount of attorney fees 

requested for the time expended after defendant admitted 

liability, the court concluded that plaintiff’s “post-amended 

answer litigation conduct was neither necessary nor useful.” On 

the issue of whether additional restitution was recoverable, “the 

[c]ourt found in favor of defendant’s position.” In the court’s 
8

view, “it would be inequitable to award [p]laintiff the more than 

$100,000 in attorney’s fees he is requesting for arguments he 

consistently lost.” The court therefore awarded plaintiff only 

$15,000 in fees for the time expended by plaintiff’s two law firms 

after the admission of liability, to be divided equally between 

each firm. And the court awarded a 1.1 multiplier on the fee 

awards, for a total award based on the time expended by the first 

firm of $21,107.35 and on the time expended by the second firm 

of $8,250, for a total fee award of $29,357.35.

III. DISCUSSION

A. Restitution Award

1. The Act

“The Act allows buyers or lessees of new motor vehicles 

that are under warranty and have defects the manufacturer is 

unable to repair after a reasonable number of attempts to elect 

one of two remedies: [replacement of the vehicle or restitution].” 

(Kirzhner, supra, 9 Cal.5th at p. 969.) “Section 1793.2, 

subdivision (d)(2) sets forth the manufacturer’s affirmative 

obligation to ‘promptly’ repurchase or replace a defective vehicle 

it is unable to repair, providing that if a manufacturer is ‘unable 

to service or repair a new motor vehicle . . . to conform to the 

applicable express warranties after a reasonable number of 

attempts, the manufacturer shall either promptly replace the 

new motor vehicle in accordance with subparagraph (A) or 

promptly make restitution to the buyer in accordance with 

subparagraph (B).’ In turn, the restitution remedy in subdivision 
9

(d)(2)(B) states that ‘the manufacturer shall make restitution in 

an amount equal to the actual price paid or payable by the buyer, 

. . . including any collateral charges . . . , plus any incidental 

damages to which the buyer is entitled under [s]ection 1794 . . . .’ 

Finally, section 1794 is the Act’s general damages provision, 

providing that a buyer may seek damages for a manufacturer’s 

‘failure to comply with any obligation under this chapter or under 

an implied or express warranty,’ the measure of which includes 

the restitution and replacement remedies as well as the remedies 

allowed by the California Uniform Commercial Code, including 

incidental damages.” (Id. at pp. 971–972, italics added.)

2. Standard of Review and Statutory Construction

Defendant’s contentions concerning the trial court’s 

restitution award require us to interpret the language of the Act’s 

replacement and restitution remedies, a legal issue governed by 

an independent standard of review. (City of Alhambra v. County 

of Los Angeles (2012) 55 Cal.4th 707, 718.) “To determine the 

Legislature’s intent in interpreting these statutory provisions, 

‘[w]e first examine the statutory language, giving it a plain and 

commonsense meaning.’ (Coalition of Concerned Communities,

Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737 . . . 

[(Concerned Communities)].) We do not consider statutory 

language in isolation; instead, we examine the entire statute to 

construe the words in context. (West Pico Furniture Co. v. Pacific 

Finance Loans (1970) 2 Cal.3d 594, 608 . . . .) If the language is 

unambiguous, ‘then the Legislature is presumed to have meant 

what it said, and the plain meaning of the language governs.’ 

(Kizer v. Hanna (1989) 48 Cal.3d 1, 8 . . . .) ‘If the statutory 
10

language permits more than one reasonable interpretation, 

courts may consider other aids, such as the statute’s purpose, 

legislative history, and public policy.’ (Concerned Communities,

[supra, 34 Cal.4th] at p. 737.) We keep in mind that the Act is 

‘“manifestly a remedial measure, intended for the protection of 

the consumer; it should be given a construction calculated to 

bring its benefits into action.”’ (Murillo v. Fleetwood Enterprises, 

Inc. (1998) 17 Cal.4th 985, 990 . . . .)” (Kirzhner, supra, 9 Cal.5th 

at p. 972.)

3. Residual Value

Plaintiff contends that the trial court erred by refusing to 

include in its restitution award the residual value of the Charger 

under the lease. We disagree.

a. Statutory Language

As we discuss above, under section 1793.2, subdivision 

(b)(2), if a manufacturer is unable to repair a vehicle after a 

reasonable number of attempts, then it must either replace the 

vehicle in accordance with subparagraph (A) or make restitution

in accordance with subparagraph (B). In the case of restitution, 

subparagraph (B) of section 1793.2, subdivision (d)(2) provides 

that “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 
11

fees, plus any incidental damages to which the buyer is entitled 

under [s]ection 1794, including, but not limited to, reasonable 

repair, towing, and rental car costs actually incurred by the 

buyer.” (Italics added.)

“[T]he phrase ‘actual price paid or payable,’ includes all 

amounts [the plaintiff] became legally obligated to pay when [he] 

agreed to [lease] the [vehicle] . . . .” (Mitchell v. Blue Bird Body 

Co. (2020) 80 Cal.App.4th 32, 38 (Mitchell).) In a lease 

transaction, unlike a purchase, the lessee acquires the limited 

right to use and possess the vehicle for a specified term. In 

return for that limited right, a lessee makes certain payments at 

signing—just as plaintiff did here in the amount of $6,750—and 

agrees to make a specified number of future monthly payments, 

in this case the 47 monthly payments of $500.12 each for a total 

of $23,505.64. Both the payments at signing and the future 

monthly payments are part of the actual price payable under the 

lease.

But the lease here did not require plaintiff to acquire title 

to the vehicle at the end of the lease; instead, plaintiff acquired at 

signing the option to purchase the vehicle for an agreed-upon 

sum certain, in this case the residual value of $24,458.60. 

(C. Robert Nattress & Assocs. v. Cidco (1986) 184 Cal.App.3d 55, 

66 [“‘[An] option is a contract by which the owner of property 

invests another with the exclusive right to purchase said 

property at a stipulated sum within a limited or reasonable time 

in the future’”]; see also Langberg v. Langberg (1972) 24 

Cal.App.3d 742, 751 [“‘an option agreement is a contract distinct 

from the contract to which the option relates, since it does not 

bind the optionee to perform or enter into the contract upon the 

terms specified in the option’”].) Because plaintiff was not under 
12

a legal obligation at the time of the lease signing to purchase the 

vehicle for the residual value, that amount is not part of the 

“‘actual price . . . payable’” by plaintiff under section 1793.2, 

subdivision (d)(2). (Mitchell, supra, 80 Cal.App.4th at p. 38.)

Our conclusion is consistent with the Act’s use of the term 

“restitution.” As the court in Niedermeier v. FCA US LLC (2020) 

56 Cal.App.5th 1052 (Niedermeier) observed: “[W]e think it 

significant that the Legislature chose the term ‘restitution’ to 

define the Act’s refund remedy in section 1793.2, subdivision 

(d)(2). The [court in Mitchell, supra, 80 Cal.App.4th 32] 

interpreted that choice to mean that the Legislature intended 

that remedy ‘to restore “the status quo ante as far as is 

practicable . . . ” in other words, to place the buyer in the position 

he or she would have been in had he or she not purchased the 

defective vehicle. ([Id.] at p. 36.) . . . [¶] Just as the Mitchell

court concluded that ‘restitution’ under the Act cannot leave a 

plaintiff in a worse position than when he or she purchased the 

vehicle, it similarly would be inimical to the concept of restitution 

to leave a plaintiff in a better position, rather than merely 

restoring her to the status quo ante.” (Niedermeirer, supra, 56 

Cal.App.5th at p. 1071.)

Here, awarding plaintiff the residual value of the 

Charger—an amount he admits he did not pay and was not 

obligated to pay under the terms of the lease—would leave him in 

a better position than he was in at the time he leased the 

Charger. It would therefore be contrary to the Legislature’s 

intent in using the term restitution to describe a lessee’s damages 

remedy under the Act.
13

b. Equal Treatment of Lease Transactions

We are unpersuaded by plaintiff’s assertion that excluding 

the residual value from the restitution award would result in 

unequal treatment of lease transactions, as compared to purchase 

transactions, in violation of the Act.2 Plaintiff’s equal treatment 

argument ignores the basic legal and economic differences 

between a vehicle purchase and lease transaction. In a purchase, 

the terms of the sales agreement, including the terms of any loan 

the buyer takes out to complete the transaction, define and limit 

the amounts the buyer becomes obligated to pay at signing. 

Similarly, when a vehicle is leased, the terms of the lease govern 

the amounts the lessee is obligated to pay in exchange for 

possession of the vehicle. And, under the express language of 

section 1793.2, a lessee’s right to restitution is limited to the 

“actual price” the lessee became obligated to pay upon signing the 

lease, which in this case was the total of the future monthly 

payments that plaintiff agreed to pay under the lease.

2 Section 1793.2, subdivision (d)(2)(D) provides that 

“[p]ursuant to [s]ection 1795.4, a buyer of a new motor vehicle 

shall also include a lessee of a new motor vehicle.” Section 

1795.4, subdivision (b) provides: “The lessee of goods has the 

same rights under this chapter against the manufacturer and 

any person making express warranties that the lessee would 

have had under this chapter if the goods had been purchased by 

the lessee, and the manufacturer and any person making express 

warranties have the same duties and obligations under this 

chapter with respect to the goods that such manufacturer and 

other person would have had under this chapter if the goods had 

been sold to the lessee.”
14

Thus, contrary to plaintiff’s assertion, the trial court’s 

restitution award, which was limited to the amounts plaintiff 

either paid or became legally obligated to pay at signing under 

the terms of the lease, treated that transaction the same as a 

purchase in which the buyer recovers the down payment and any 

amounts paid or payable under the loan. The restitution award 

therefore did not violate the equal treatment mandate of the Act.

c. Plaintiff’s Duty to Exercise Purchase Option

Recognizing that, under the express terms of his lease, he 

was under no legal obligation to purchase the Charger upon 

termination of the lease, plaintiff maintains that he nevertheless 

became obligated to terminate the lease and purchase the vehicle 

when he sought restitution under the Act. As plaintiff interprets 

the branding and disclosure requirements of the Act, his right to 

restitution was conditioned upon his ability to provide a clean 

title to defendant so that it could, in turn, reacquire title to the 

Charger and discharge its branding and disclosure obligations.

We disagree with plaintiff’s characterization of the Act’s 

branding provisions. Under section 1793.22, subdivision (f)(1), a 

manufacturer that reacquires a vehicle pursuant to section 

1793.2 is prohibited from reselling the vehicle unless it discloses 

to the prospective buyer the nature and extent of the defects in 

the vehicle experienced by the original buyer. And, as noted, 

section 1793.23, subdivision (b) specifies the disclosures the 

manufacturer is required to make. Neither section, however, 

requires a buyer or lessee seeking restitution to take any action 

in connection with a manufacturer’s branding obligations.
15

In Martinez v. Kia Motors America, Inc. (2011) 193 

Cal.App.4th 187 (Martinez), the court rejected the assertion that 

the Act required a buyer to maintain possession of the defective 

vehicle to obtain restitution under the Act. “The plain language 

of [sections 1793.2 and 1794] does not support [the plaintiff’s]

construction. Significantly, nowhere does the Act provide that 

the consumer must own or possess the vehicle at all times in 

order to avail himself or herself of these remedies. All the Act 

requires of the buyer is that the buyer ‘deliver [the] 

nonconforming goods to the manufacturer’s service and repair 

facility’ for the purpose of allowing the manufacturer a 

reasonable number of attempts to cure the problem. (§ 1793.2, 

subds. (c), (d); [citation].) Once this delivery occurs and the 

manufacturer fails to cure the problem, the ‘manufacturer shall’

replace the vehicle or reimburse (make restitution to) the buyer.

(§§ 1794, subd. (b), 1793.2, subd. (d)(2).) The Act says nothing 

about the buyer having to retain the vehicle after the 

manufacturer fails to comply with its obligations under its 

warranty and the Act. If the Legislature intended to impose such 

a requirement, it could have easily included language to that 

effect. It did not. ‘We may not rewrite the section to conform to 

that unexpressed, supposed intent.’ [Citation.]” (Martinez, 

supra, 193 Cal.App.4th at p. 194, fns. omitted.)

We agree with the reasoning of Martinez, supra, 193 

Cal.App.4th 187, and conclude there is no provision in the Act 

that required plaintiff to acquire ownership of the vehicle in order 

to obtain restitution. If the Legislature had intended to impose 

such a burden on lessees seeking restitution, it would have 

included language expressly requiring them to purchase the 

vehicle prior to obtaining restitution. Contrary to plaintiff’s 
16

construction of the Act, we do not infer such a duty; instead, we 

read the Act as expressly imposing reacquisition, branding, and 

disclosure requirements solely on manufacturers who cannot 

repair a vehicle after a reasonable number of attempts.

d. Judicial Estoppel

Following the entry of judgment and the filing of plaintiff’s 

appeals, defendant took a position in opposition to a motion in a 

case pending in the Superior Court of Ventura County (Ventura 

action). Plaintiff contends that position is “totally inconsistent” 

with one of defendant’s current positions on appeal, i.e., plaintiff 

is not required under the Act to purchase the Charger from Ally 

and transfer the title to defendant; rather, defendant can acquire 

the title directly from Ally. According to plaintiff, defendant 

should be judicially estopped in this appeal from arguing that 

inconsistent position.

i. Background

The plaintiff in the Ventura action accepted defendant’s 

offer to settle under Code of Civil Procedure section 998 for a sum 

certain. A dispute subsequently arose between the parties over 

the interpretation of the offer. The plaintiff claimed that the 

offer did not include any amount that was earmarked for 

purchasing the leased vehicle from the lessor under the terms of 

the lease. Defendant insisted that the offer included the amount 

necessary for the plaintiff to acquire the vehicle from the lessor. 

The plaintiff therefore filed a motion to enforce the settlement, 
17

according to his understanding of its terms, under Code of Civil 

Procedure section 664.6.

Defendant opposed the motion, arguing that its settlement 

offer must be construed to include an amount for the purchase of 

the leased vehicle from the lessor. According to defendant, that 

specific amount was included in the settlement offer to enable the 

plaintiff to facilitate the transfer of title to defendant so that it 

could, in turn, satisfy its title-branding obligations under the Act. 

Defendant emphasized that the plaintiff’s obligation to purchase 

the vehicle from the lessor was “reflected in the written terms of 

the settlement agreement and the settlement amount,” but added 

that the contractual obligation was “reinforced by [defendant’s] 

duty under [the Act] to repurchase the vehicle and provide 

subsequent transferees with notice of the vehicle’s issues.” 

(Italics added.)

The trial court in the Ventura action found the Code of 

Civil Procedure section 998 offer was “not valid” and refused to 

enforce the settlement.

ii. Legal Principles

“‘“Judicial estoppel precludes a party from gaining an 

advantage by taking one position, and then seeking a second 

advantage by taking an incompatible position. [Citations.] The 

doctrine’s dual goals are to maintain the integrity of the judicial 

system and to protect parties from opponents’ unfair strategies.

[Citation.] Application of the doctrine is discretionary.”’

[Citation.] The doctrine applies when ‘(1) the same party has 

taken two positions; (2) the positions were taken in judicial or 

quasi-judicial administrative proceedings; (3) the party was 
18

successful in asserting the first position (i.e., the tribunal adopted 

the position or accepted it as true); (4) the two positions are 

totally inconsistent; and (5) the first position was not taken as a 

result of ignorance, fraud, or mistake.’ [Citations.]” (Aguilar v. 

Lerner (2004) 32 Cal.4th 974, 986–987 (Aguilar).)

“‘“‘The doctrine’s dual goals are to maintain the integrity of 

the judicial system and to protect parties from opponents’ unfair 

strategies. [Citation.]’”’” (Aguilar, supra, 32 Cal.4th [at p.] 986.) 

Consistent with these purposes, numerous decisions have made 

clear that judicial estoppel is an equitable doctrine, and its 

application, even where all necessary elements are present, is 

discretionary. [Citations.]” (MW Erectors, Inc. v. Niederhauser

Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422.)

iii. Analysis

We do not ordinarily consider arguments raised for the first 

time on appeal. (Ochoa v. Pacific Gas & Electric Co. (1998) 61 

Cal.App.4th 1480, 1488, fn. 3.) But even if we were to exercise 

our discretion to consider the merits of plaintiff’s judicial estoppel 

argument, we would reject it because, among other things, 

defendant’s challenged position on appeal is not totally 

inconsistent with its position in the Ventura action. Defendant 

opposed the motion to enforce a settlement in the Ventura action 

on the grounds that the parties mutually intended their 

settlement agreement to obligate the plaintiff to use part of the 

settlement proceeds to purchase the vehicle. Although defendant 

maintained that its interpretation of the agreement was 

consistent with its duty to reacquire the vehicle for title branding 

purposes under the Act, defendant did not state or imply that it 
19

could not purchase the vehicle directly from the lessor. Thus, its 

position on appeal—that it can purchase the Charger directly 

from Ally, thereby obviating the need for plaintiff to purchase 

it—is not completely inconsistent with its position on the 

settlement.

Further, plaintiff cannot demonstrate that the trial court in 

the Ventura action adopted defendant’s position or treated it as 

true in making its decision. The only evidence in our record on 

that issue—the court’s minute order denying the motion—does 

not provide a reason for finding the Code of Civil Procedure 

section 998 offer invalid, much less expressly state that the trial 

court accepted defendant’s position as true or otherwise adopted 

it. Thus, plaintiff has failed to establish that judicial estoppel 

applies on appeal.

e. Enforceability of Judgment

Plaintiff maintains that without an award of the residual 

value of the Charger, the trial court’s judgment is 

“unenforceable.” According to plaintiff, as written, the judgment 

orders: (i) Ally, a nonparty, to breach its lease with plaintiff and 

to sell the Charger directly to defendant, which order the court 

had no jurisdiction to make; and (ii) plaintiff to breach his lease 

by surrendering the Charger to defendant, an order the court 

again had no authority to enter. Due to these purported 

jurisdictional issues with enforceability, plaintiff concludes that 

the judgment is void or voidable.
20

Plaintiff’s enforceability argument misconstrues the trial 

court’s judgment,3 which ordered defendant to make restitution 

to plaintiff and to “[pay off] the current loan on the vehicle,”4

orders that the court clearly had jurisdiction to enter. Contrary 

to plaintiff’s assertion, the judgment does not purport to order 

Ally to do anything. And, although the judgment also provides 

that after defendant pays all sums due under the judgment, it 

shall “be given possession of the vehicle,” it does not order Ally to 

surrender such possession or order plaintiff to breach his lease. 

Rather, under the judgment, plaintiff would be required to 

surrender the Charger to defendant only after defendant had paid 

Ally in full and acquired title, and only after plaintiff had been 

paid the amounts necessary to satisfy any remaining obligation 

he may have to Ally under the lease. Under those circumstances, 

plaintiff would receive exactly what he prayed for in his 

complaint, namely, restitution and civil penalties. And because 

he would be under no further obligations under the lease, he 

3 “The meaning and effect of a judgment is determined 

according to the rules governing the interpretation of writings 

generally. [Citations.] ‘“[T]he entire document is to be taken by 

its four corners and construed as a whole to effectuate the 

obvious intention.”’ [Citations.] ‘“No particular part or clause in 

the judgment is to be seized upon and given the power to destroy 

the remainder if such effect can be avoided.”’ [Citations.]” 

(People v. Landon White Bail Bonds (1991) 234 Cal.App.3d 66, 

76.)

4 Plaintiff drafted the judgment and apparently intended the 

term “current loan” to refer to the amount necessary to purchase 

the Charger from Ally as calculated under the terms of the lease.
21

would be free to surrender the Charger without breaching any 

obligation to Ally.

4. Registration Renewal Fees and Insurance Premiums

Plaintiff next challenges the trial court’s decision not to 

award damages for the annual registration renewal fees and 

insurance premiums that he paid after defendant’s statutory 

obligation to replace the Charger or provide restitution arose. 

Defendant, in its supplemental brief, agrees that under Kirzhner, 

supra, 9 Cal.5th 966, plaintiff may be entitled to amounts paid 

for registration renewal fees, if he incurred those fees due to 

defendant’s failure to discharge promptly its replacement and 

restitution obligations under the Act.

The parties disagree, however, on whether Kirzhner, supra,

9 Cal.5th 966, which did not specifically address the issue,

applies to insurance premiums. They also disagree on whether 

remand is necessary on the issue of the recovery of registration 

renewal fees. According to defendant, we can simply estimate the 

additional amount of damages for registration renewal fees to 

which plaintiff is entitled, amend the judgment accordingly, and 

then affirm without remanding for further proceedings.

In Kirzhner, supra, 9 Cal.5th 966, the court held that 

registration renewal and nonoperation fees may be recoverable as 

incidental damages pursuant to section 1793.2, subdivision 

(d)(2)(B) if such fees were “incurred after the manufacturer’s duty 

to promptly provide a replacement vehicle or restitution arises.” 

(Kirzhner, supra, 9 Cal.5th at p. 980.) “At this point in time, the 

fees are no longer simply a standard cost of ownership. They 

instead closely resemble the types of postrevocation preservation 
22

and maintenance costs courts have awarded as incidental 

damages reasonably incurred in the care and custody of 

nonconforming goods pending their return to the seller.” (Ibid.)

We thus consider whether insurance premiums incurred 

after a manufacturer’s duties under the Act have arisen are 

sufficiently analogous to registration renewal fees to be 

recoverable under the rationale of Kirzhner, supra, 9 Cal.5th 966. 

According to the court in Kirzhner, in determining whether 

certain costs incurred are recoverable as incidental damages, we 

focus on two interrelated inquires under the California Uniform 

Commercial Code: “First, [were] such [costs] incurred in the 

‘inspection, receipt, transportation and care and custody’ of a 

vehicle? [Citation.] Second, [did] such [costs] ‘[result] from’ or 

[were] they incurred ‘incident to’ a manufacturer’s breach of 

warranty or other violation of the Act? [Citation.]” (Kirzhner, 

supra, 9 Cal.5th at p. 979.)

As to the first inquiry, insurance premiums can be incurred 

for the care and custody of a vehicle if, for example, the buyer 

continues to maintain a policy covering property damage to the 

vehicle after the manufacturer’s duty to replace or provide 

restitution has arisen. At that point in time, “the buyer no longer 

has the same ownership interest in the vehicle since the 

manufacturer can (and should) replace or repurchase it at any 

moment.” (Kirzhner, supra, 9 Cal.5th at p. 980.) The buyer’s 

continued payment of policy premiums therefore would inure, at 

least in part, to the manufacturer’s benefit because they would 

operate to safeguard the vehicle from damage due to a collision, 

theft, vandalism, fire, and similar risks, the occurrence of which 

would otherwise reduce the value of the manufacturer’s interest 

in the vehicle. These payments thus would no longer be a 
23

standard cost of ownership, but rather would closely resemble 

preservation and maintenance costs.

As to the second inquiry, premiums insuring against 

property damage could “result from” or be incurred “incident to” a 

manufacturer’s breach of its replacement or restitution duties, 

depending on the circumstances. For example, a buyer may stop 

driving the vehicle—because the defects render it either 

inoperable or unsafe—and park it on the street or in a garage 

while the buyer waits for the manufacturer to replace or pay the 

value of the vehicle. Under such circumstances, the buyer may 

choose to keep in force a policy insuring the vehicle against 

property damage because of a continuing obligation to the lessor 

to return the vehicle in good condition. Those continued 

payments of property damage premiums—which the buyer would 

not have incurred if the vehicle had been timely replaced or paid 

off—would be the direct result of the manufacturer’s breach of its 

duty to replace or pay value for the vehicle and would therefore 

be recoverable by the buyer as incidental damages. Because the 

restitution award in this case was rendered before a record on 

this causation issue could be developed, we are unable to 

determine, as a factual matter, whether the claimed insurance 

premiums “result[ed] from” defendant’s breach of its duties under 

the Act or were otherwise “incidental to” those breaches.

Accordingly, absent an agreement on appeal as to the 

causation issue and the amount of premiums and registration 

renewal fees to which plaintiff is entitled, reversal and remand 
24

for further proceedings under Kirzhner, supra, 9 Cal.5th 966 is 

necessary.5

B. Attorney Fees

Plaintiff additionally challenges as arbitrary the trial 

court’s reduction of his requested attorney fees. In his reply and 

supplemental briefs, filed after the Supreme Court’s decision in 

Kirzhner, supra, 9 Cal.5th 966, he further contends that the 

entire fee award must be reversed because it was based on the 

damages award which must be reversed for further proceedings 

and potential modification below.

Because we have concluded that reversal and limited 

remand is necessary on the issues of registration renewal fees 

and insurance premiums, reversal of the fee award is also 

required because the trial court’s challenged reduction in the 

amount of fees claimed was based, in part, on the court’s view 

that, following the admission of liability, plaintiff did not prevail 

on most of his arguments regarding the calculation of restitution 

5 In his opening brief—filed before our Supreme Court’s 

decision in Kirzhner, supra, 9 Cal.5th 966—plaintiff argued that 

if we determine he is entitled to additional damages for 

registration renewal fees or insurance premiums, we should also 

hold that he is entitled to a civil penalty of two times those 

additional amounts. We have made no determination as to 

whether plaintiff is entitled to additional damages. On remand, 

if the trial court awards additional amounts for incidental 

damages, it may also determine whether plaintiff is entitled to a 

corresponding increase in his civil penalties pursuant to section 

1794, subdivision (c) and the parties’ stipulation.
25

and damages. On remand, the court should also consider 

whether, if the damages award increases, plaintiff would be 

entitled to additional attorney fees. (See, e.g., Greenwich S.F., 

LLC v. Wong (2010) 190 Cal.App.4th 739, 768 [reversal of a 

portion of damages award required reversal of attorney fee award 

to allow trial court to reconsider that award].)
26

IV. DISPOSITION

The parts of the judgment concerning registration renewal 

fees, insurance premiums, and attorney fees are reversed and 

remanded with directions to conduct further proceedings for the 

limited purpose of determining: (1) whether plaintiff is entitled 

to recover incidental damages for amounts paid, if any, for 

registration renewal fees and insurance premiums after 

defendant’s duty to replace the Charger or provide restitution 

arose; and (2) if any such incidental damages are awarded,

whether (a) to assess additional civil penalties under the parties’ 

stipulation and (b) to reconsider the amount of the attorney fees 

award in light of any increased total recovery. In all other 

respects, the judgment is affirmed. No costs are awarded on 

appeal.

CERTIFIED FOR PARTIAL PUBLICATION

KIM, J.

We concur:

RUBIN, P. J. BAKER, J.