Filed 4/5/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

EFIGENIA GARCIA,

Plaintiff and Appellant,

v.

MERCEDES-BENZ USA, LLC,

Defendant and Respondent.

 B279897

 (Los Angeles County

 Super. Ct. No. BC588535)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Mel Red Recana, Judge. Affirmed as modified.

Law Offices of René Korper, René Korper and Thomas E. 

Solmer for Plaintiff and Appellant.

Universal & Shannon, Jon D. Universal and James P. 

Mayo for Defendant and Respondent.

* * * * * *
2

After the engine of a brand new Mercedes-Benz died, the 

car’s manufacturer offered to repurchase the car for the full 

amount less the $3,090 the buyer paid the dealer for additional

products and services (“dealer add-ons”). After the buyer sued 

the manufacturer for breach of the implied warranty of 

merchantability under the Song-Beverly Consumer Warranty Act 

(the Act) (Civ. Code, § 1790 et seq.),1 the parties entered into a 

confidential settlement leaving attorney’s fees and costs 

unresolved, and the buyer moved for attorney’s fees as the 

“prevailing party” under the Act. This appeal chiefly presents 

the question: Is a buyer a prevailing party entitled to recover 

attorney’s fees under the Act if, through settlement with the 

manufacturer, all she obtains by litigating is the payment of 

dealer add-ons for which the manufacturer is not responsible and 

the payment of attorney’s fees? We conclude the answer is “no.” 

For these reasons and others, we affirm the denial of attorney’s 

fees but modify the judgment to award costs because the buyer 

obtained a net monetary recovery by virtue of the settlement.

FACTS AND PROCEDURAL BACKGROUND

In April 2015, plaintiff Efigenia Garcia (Garcia) bought a 

Mercedes-Benz GLA250W4 at Keyes European, an authorized 

Mercedes-Benz dealer. Garcia paid $46,593.97, comprised of a 

$8,540 down payment and a loan for the balance.2 The 

$46,593.97 amount included the cost of the car and $3,090 in 

dealer add-ons (namely, $1,700 for Mercedes-Benz tires and 

 

1 All further statutory references are to the Civil Code unless 

otherwise indicated.

2 The total sale amount was $49,546.88, which included the 

projected finance charges over the life of the automobile loan she 

took out. Because Garcia returned the car almost immediately 

after driving it off the lot, those charges were never incurred. 
3

wheels, $995 for Ownerguard protection, and $395 for a thirdparty surface protection product).

A month later, the car’s engine “failed entirely.” 

Soon thereafter, Garcia contacted defendant MercedesBenz USA, LLC (Mercedes-Benz), and Mercedes-Benz offered to 

repurchase the car. Before Mercedes-Benz laid out the details of 

the repurchase, Garcia hired an attorney. Mercedes-Benz sent a 

follow-up email, explaining that it would repurchase Garcia’s car 

for the amount she paid the manufacturer, but would not 

reimburse her for dealer add-ons (or $18.99 in interest on those 

add-ons) or pay any attorney’s fees.

A few days after receiving Mercedes-Benz’s more detailed 

offer, Garcia sued Mercedes-Benz in a single-count complaint 

alleging breach of the implied warranty of merchantability, but 

which made additional allegations regarding the breach of an 

express warranty and sought relief only available for a breach of 

implied and express warranties. Pursuant to the Act, Garcia 

sought a refund of the full purchase price (including the amount 

paid to Mercedes-Benz for the car and the amount paid for the 

dealer add-ons), civil penalties of twice her actual damages, 

attorney’s fees, and costs.3 Garcia did not sue the dealer.

Before and after Garcia filed her complaint, the parties 

tried to negotiate a settlement. Garcia demanded (1) that 

Mercedes-Benz take custody of the car, (2) refund her the 

amounts paid to the dealer as well as Mercedes-Benz, and (3) pay 

her attorney’s fees, initially of $2,500 and subsequently of $4,020. 

Mercedes-Benz’s pre-complaint offer eventually gave way to an 

offer to refund her everything (including the amounts paid for the 

 

3 We take judicial notice of the court file. (Evid. Code, § 452, 

subd. (c).)
4

dealer add-ons) and to pay either $1,000 in attorney’s fees and 

costs or to leave them open for resolution by the court.

The parties entered into a confidential settlement that did 

not disclose the settlement amount and left the issues of 

attorney’s fees and costs for judicial resolution. Garcia 

surrendered the car, and was paid the confidential amount.

Garcia then filed a motion for $8,430 in attorney’s fees as 

the prevailing party under the Act as well as a memorandum of 

costs seeking $750 in costs. After full briefing, the trial court 

issued a written order denying attorney’s fees and costs. In 

denying attorney’s fees, the court noted that Garcia’s entitlement 

to attorney’s fees under the Act turned on whether she was the 

prevailing party and thus had achieved her litigation objectives, 

but ruled that the confidentiality of the settlement made it 

impossible to know whether Garcia had, in fact, achieved those 

objectives by obtaining more in the settlement than MercedesBenz had offered her prior to the lawsuit. The court declined to 

award costs on the ground that they could not be obtained by 

noticed motion.

A few weeks later, the trial court entered a judgment 

dismissing Garcia’s lawsuit with prejudice. Garcia thereafter 

filed this timely appeal.

DISCUSSION

Garcia argues that the trial court erred in denying her 

attorney’s fees and costs. Mercedes-Benz asserts that we need 

not reach these questions because the trial court’s denial order is 

not appealable. We address the appealability question first.

I. Appealability

Mercedes-Benz contends that we are without jurisdiction to 

entertain Garcia’s appeal from the trial court’s order denying 

attorney’s fees and costs because it is an interim order prior to 

judgment that is outside our appellate jurisdiction. We 
5

independently review questions regarding our own jurisdiction. 

(California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 

231, 252.)

As a general rule, we may only entertain appeals from final 

judgments. (Code Civ. Proc., § 904.1, subd. (a).) This rule is 

designed “‘to prevent piecemeal dispositions and costly multiple 

appeals.’ [Citation.]” (Howeth v. Coffelt (2017) 18 Cal.App.5th 

126, 133-134.) One corollary of this “one final judgment” rule is 

that “‘‘interlocutory or interim orders are not appealable.”’” 

(Id. at p. 133.) This corollary applies to an order denying interim 

(that is, prejudgment) attorney’s fees. (Sese v. Wells Fargo Bank 

N.A. (2016) 2 Cal.App.5th 710, 716.) However, a second corollary 

of the “one final judgment” rule is that interim rulings that are 

not themselves appealable remain “‘“‘reviewable on appeal’ from 

the final judgment.”’” (Howeth, at p. 133.) Because “[a] dismissal 

with prejudice following a settlement constitutes a final judgment 

on the merits” (Estate of Redfield (2011) 193 Cal.App.4th 1526, 

1533; Code Civ. Proc., § 581d), we have jurisdiction to review the 

trial court’s prejudgment attorney’s fees and costs order on 

appeal from the final judgment subsequently entered in this case.

II. Merits

Garcia contends that she is entitled to attorney’s fees and 

costs as a prevailing party under the Act. We review a trial 

court’s attorney’s fees and cost rulings, including its 

determination of whether a party is the prevailing party for an 

abuse of discretion. (Goglin v. BMW of North America, LLC

(2016) 4 Cal.App.5th 462, 470 (Goglin); MacQuiddy v. MercedesBenz USA, LLC (2015) 233 Cal.App.4th 1036, 1047 (MacQuiddy); 

El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc.

(2007) 150 Cal.App.4th 612, 617 [award of costs].) To the extent 

these inquires require us to construe statutes, our review is de 

novo (Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 
6

1252, 1258 (Wohlgemuth)); to the extent they require us to review 

the trial court’s factual findings, we review for substantial 

evidence (Stratton v. Beck (2017) 9 Cal.App.5th 483, 496).

A. Attorney’s Fees

1. Legal framework

The Act is colloquially known as California’s “lemon law,” 

and is a “strongly pro-consumer” law aimed at protecting, among 

others, new car buyers. (Murillo v. Fleetwood Enterprises, Inc.

(1998) 17 Cal.4th 985, 990.) Toward that end, the Act: 

(1) requires all “manufacturers” and “retail sellers” of new cars to 

extend an implied warranty of merchantability to the buyer that 

assures that the car is “fit for the ordinary purposes for which 

[cars] are used” (§§1791.1, subd. (a)(2) & 1792; Brand v. Hyundai 

Motor America (2014) 226 Cal.App.4th 1538, 1546 (Brand); see 

also § 1792.3 [implied warranty not subject to wavier unless 

strict requirements for “as is” sales are met]); and (2) regulates 

how any express warranties made by manufacturers, retail 

sellers, and others are created and enforced (§§ 1793.1, 1793.2, 

1793.3, 1795).

The Act also grants new car buyers the right to sue when a 

manufacturer or retail seller “fail[s] to comply” with any “implied 

or express warranty.” (§ 1794, subd. (a).) A buyer bringing suit 

may seek actual damages, which differ depending on whether she 

alleges a breach of implied warranty or a breach of an express 

warranty. (Compare §§ 1794, subd. (b), 1791.1, subd. (d); Cal. U. 

Com. Code, §§ 2711-2715 [remedies for breach of implied 

warranty] with §§ 1793.2, subd. (d), 1793.3 [remedies for breach 

of express warranty], 1795 [“persons other than the 

manufacturer of the goods” may make express warranties]; see 

generally Music Acceptance Corp. v. Lofing (1995) 32 Cal.App.4th 

610, 620-621 [noting how remedies differ]; Brand, supra, 

226 Cal.App.4th at p. 1548 [same].) Unless a buyer’s “claim [is] 
7

based solely on a breach of an implied warranty,” the buyer may 

also seek a “civil penalty” (of up to two times the amount of 

actual damages) if the manufacturer’s or retail seller’s “failure to 

comply was willful.” (§ 1794, subds. (c) & (e).)

Most pertinent here, a buyer who “prevails in [her] action” 

may recover “costs and 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 her action under the Act. 

(§ 1794, subd. (d).) Making attorney’s fees available to prevailing 

buyers (but not prevailing manufacturers or retail sellers) is 

designed to “‘provide[] injured consumers strong encouragement 

to seek legal redress in a situation in which a lawsuit might not 

otherwise have been economically feasible.’” (Wohlgemuth, 

supra, 207 Cal.App.4th at p. 1262.)

The Act does not define the term prevailing party. (§ 1794, 

subd. (d).) The courts have split over how to fill this void when it 

comes to the award of attorney’s fees.

A handful of courts have imported the definition of 

prevailing party from the general statute governing costs, Code of 

Civil Procedure section 1032. (See Reveles v. Toyota by the Bay

(1997) 57 Cal.App.4th 1139, 1158, disapproved on other grounds 

in Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 

1261; Kim v. Euromotors West/The Auto Gallery (2007) 

149 Cal.App.4th 170, 181.) Under that statute, the party who 

obtains “a net monetary recovery” is a prevailing party. (Code 

Civ. Proc., § 1032, subd. (a)(4); DeSaulles v. Community Hospital 

of Monterey Peninsula (2016) 62 Cal.4th 1140, 1157 (DeSaulles).)

A greater number of courts have elected to take a more 

“pragmatic” and less restrictive approach to assessing whether a 

buyer has prevailed. (See Wohlgemuth, supra, 207 Cal.App.4th 

at p. 1264; MacQuiddy, supra, 233 Cal.App.4th at p. 1047; 
8

Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 

140, 149-151; see also Castro v. Superior Court (2004) 116 

Cal.App.4th 1010, 1018-1019 [collecting cases].) Under this 

approach, it is not enough for a buyer to show that he “obtained a 

net monetary recovery.” (MacQuiddy, at p. 1047.) Instead, 

courts ask: To what extent did the buyer achieve her litigation 

objectives? (Wohlgemuth, at p. 1264.) By and large, litigation 

objectives are measured by what the party sought to obtain by 

filing suit. (E.g., Marina Pacifica Homeowners Assn. v. Southern 

California Financial Corp. (2018) 20 Cal.App.5th 191, 204-205]; 

see generally Hsu v. Abbara (1995) 9 Cal.4th 863, 876 [looking to 

party’s “pleadings, trial briefs, opening statements, and similar 

sources”].) Where, as here, the party filed suit after receiving a 

settlement offer, we measure litigation objectives by reference to 

what that party sought to obtain by rejecting the last 

prelitigation offer. (MacQuiddy, at pp. 1048-1049 [when buyer 

was offered all but civil penalty prior to litigation, buyer’s 

litigation objective is obtaining civil penalty].) This focus 

dovetails neatly with the Act’s overarching goal—namely, 

facilitating speedy and efficient refunds for (or exchanges of) 

“lemons” by giving manufacturers and retail sellers the 

incentives to make (and buyers the incentive to accept) offers that 

give buyers the remedies to which the Act entitles them. Thus, 

the question of whether a buyer is a prevailing party under the 

Act looks to what the buyer was last offered by the manufacturer 

or retail seller before filing suit and whether she achieved a 

greater result by the time of settlement or verdict. (Id. at 

p. 1049.)

We side with the decisions taking the more practical 

approach, and do so for two reasons. First, Code of Civil 

Procedure section 1032 provides on its face that its definition of 

prevailing party is meant to be “used in this section,” not as the 
9

universal default definition of the term. (Accord, Galan 

v. Wolfriver Holding Corp. (2000) 80 Cal.App.4th 1124, 1128; 

Heather Farms Homeowners Assn. v. Robinson (1994) 

21 Cal.App.4th 1568, 1572.) Second, importing Code of Civil 

Procedure section 1032’s definition of prevailing party into the 

Act disserves the Act’s purpose. As pertinent here, the Act is 

designed to facilitate timely refunds for defective new cars (and 

to discourage foot dragging by manufacturers and retail sellers). 

In so doing, the Act contemplates that buyers will always get a 

“net monetary recovery.” If that were enough by itself to qualify 

a buyer as a prevailing party (as it would be under Code of Civil 

Procedure section 1032’s definition), a buyer would always be 

entitled to attorney’s fees, even when the manufacturer or retail

seller responds with alacrity to the buyer’s demand for a refund. 

Always awarding attorney’s fees is not the Act’s purpose. 

(Dominguez v. American Suzuki Motor Corp. (2008) 160 

Cal.App.4th 53, 60 (Dominguez) [“Based on a plain reading of the 

applicable statutory provisions, we cannot conclude the 

Legislature intended that every time a manufacturer repurchases 

or replaces consumer goods, a consumer is entitled to attorney 

fees”].) Although adopting the pragmatic approach means that a 

buyer might be a prevailing party for one purpose (costs) but not 

another (attorney’s fees), this outcome is of no moment. 

(E.g., McLarand, Vasquez & Partners, Inc. v. Downey Savings 

& Loan Assn. (1991) 231 Cal.App.3d 1450, 1456 [“reject[ing] the 

contention that the prevailing party for the award of costs under 

section 1032 is necessarily the prevailing party for the award of 

attorney[’s] fees”].)

The buyer bears the burden of showing that she prevailed. 

(See Robertson v. Fleetwood Travel Trailers of California, Inc.

(2006) 144 Cal.App.4th 785, 817-818 (Robertson).)
10

2. Analysis

Because Mercedes-Benz offered to repurchase her car for 

the full amount save the dealer add-ons, Garcia pursued 

litigation, at most, to achieve one or more of the following 

objectives: (1) getting Mercedes-Benz to refund the amount of the 

dealer add-ons; (2) obtaining a civil penalty; and (3) seeking an 

award of attorney’s fees under the Act. Because Garcia did not 

demand any civil penalty in any of her post-complaint 

negotiations with Mercedes-Benz, she seemingly abandoned her 

objective of obtaining a civil penalty; we will nevertheless 

continue to treat it as one of her litigation objectives. 

a. Dealer add-ons

The trial court did not abuse its discretion in declining to 

find Garcia to be a prevailing party just because she pursued 

litigation to obtain the dealer add-ons from Mercedes-Benz. That 

is because she is not legally entitled, under the Act, to obtain a 

refund of those dealer add-ons from the manufacturer. 

(Cf. People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 

737, 746 [“when a trial court’s discretion rests on an error of law, 

that decision is an abuse of discretion”].) Garcia purchased the 

add-ons from the dealer, not Mercedes-Benz. Except as to 

foodstuffs, a plaintiff seeking to recover for breach of an implied 

warranty of merchantability must prove privity with the 

breaching party. (Burr v. Sherwin Williams Co. (1954) 42 Cal.2d 

682, 695 [“privity of contract is required in an action for breach 

of . . . implied warranty”]; Arnold v. Dow Chemical Co. (2001) 

91 Cal.App.4th 698, 720.) As to the dealer add-ons, Garcia’s 

privity is with the dealer—not Mercedes-Benz.

The Act itself reinforces this conclusion. To begin, the Act 

recognizes that manufacturers and retail sellers (that is, dealers) 

are distinct entities. (Compare § 1791, subd. (j) [defining 

“[m]anufacturer”] with § 1791, subd. (l) [defining “[r]etail
11

seller”].) Further, by granting only retail sellers the right to seek 

indemnity from manufacturers for any amounts they pay a buyer 

for breach of the implied warranty (§ 1792), the Act (1) reinforces 

that each entity is only to pay for its share of the buyer’s loss, and 

(2) by negative implication affirms that manufacturers do not 

have a reciprocal right to seek indemnification from retail sellers 

for any amounts the manufacturers pay on retail sellers’ behalf 

for a breach of the implied warranty. (Spicer v. City of Camarillo 

(2011) 195 Cal.App.4th 1423, 1427 [“a statute may express the 

law by ‘negative implication’”].) Yet Garcia is asking MercedesBenz to pay for the dealer’s breach. Lastly, the Act affirmatively 

states that manufacturers are not required to refund buyers for 

the cost of “nonmanufacturer items installed by a dealer” when 

the buyer sues for breach of an express warranty. (§ 1793.2 subd. 

(d)(2)(B).) This statutory carve-out for dealer add-ons would be 

nullified if we were to conclude that buyers had a right to make 

manufacturers pay for dealer add-ons under an implied warranty 

theory; all a buyer would have to do is restate her breach of 

express warranty claim as a breach of implied warranty claim. 

We must avoid rulings that nullify statutes. (Elder v. Carlisle 

Ins. Co. (1987) 193 Cal.App.3d 1313, 1319 [“In construing a 

statute, a court should . . . avoid an interpretation that would 

effectively nullify a portion of the statute”].)

Garcia assails two of the above stated reasons for 

concluding that a buyer cannot, under the Act, sue the 

manufacturer for a refund of goods and services purchased from 

the dealer. First, she argues that the Act does not require 

privity. To be sure, there is language in a few cases stating that 

“under the Act, the buyer can sue ‘the manufacturer’ for breach of 

the implied warranty of merchantability despite a lack of privity.” 

(Mega RV Corp. v. HWH Corp. (2014) 225 Cal.App.4th 1318, 

1333, fn. 11; Gusse v. Damon Corp. (2007) 470 F.Supp.2d 1110, 
12

1116, fn. 9 (Gusse).) But this language stands for the 

unremarkable and statutorily compelled conclusion that a buyer 

may always sue the manufacturer for breach of the implied 

warranty under the Act irrespective of the buyer’s privity with 

the manufacturer. (Mega RV, at p. 1333 [buyer may sue 

manufacturer for defects in component parts integrated into a 

vehicle]; Gusse, at p. 1116 [buyer may sue manufacturer for car 

obtained from dealer]; see generally Mega RV, at p. 1333 [“The 

Act protects purchasers of consumer goods by requiring specified 

implied warranties [and] placing strict limitations on how and 

when a manufacturer may disclaim those implied warranties”].) 

This language does not stand for the much broader proposition 

that privity does not matter at all under the Act. To the 

contrary, and as explained above, the Act expressly treats 

manufacturers and retail sellers as distinct entities and 

consequently does not allow a buyer to sue a manufacturer for 

the retail seller’s breach of an implied warranty.

Second, Garcia asserts that we need not be concerned that 

buyers will always do “end runs” around the statutory carve out 

for dealer add-ons that applies to an express warranty by 

recasting their claims as breaches of an implied warranty 

because buyers may seek a refund or a replacement vehicle (and 

may sue for the failure to provide such) under an express 

warranty theory only if the manufacturer is first given a 

reasonable opportunity to repair the vehicle. (§ 1792.3, subd. 

(d)(1) & (2); Oregel v. American Isuzu Motors, Inc. (2001) 

90 Cal.App.4th 1094, 1103; Robertson, supra, 144 Cal.App.4th at 

p. 810; see also Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 

1205, 1206-1207 [affirming conclusion that manufacturer may 

insist upon two opportunities to repair vehicle].) But this 

precursor requirement establishes, at best, that not all implied 

warranty claims can be restated as express warranty claims. 
13

It does not speak to—or in any way undermine—our concern that 

all express warranty claims can be restated as implied warranty 

claims, thereby sidestepping and negating our Legislature’s 

explicit limitation on express warranty claims.

Because Mercedes-Benz is not legally responsible to pay 

Garcia for the dealer add-ons, Garcia’s success in getting 

Mercedes-Benz to pay more than the statute requires does not 

count as a cognizable litigation benefit. A buyer can be a 

prevailing party under the Act if she incurs attorney’s fees after 

rejecting a settlement on terms the law does not require or 

permit. (E.g., Goglin, supra, 4 Cal.App.5th at pp. 471-472 [buyer 

rejected settlement containing a broad waiver of rights; 

prevailing party]; McKenzie v. Ford Motor Co. (2015) 

238 Cal.App.4th 695, 705-708 [buyer rejected settlement 

containing illegal confidentiality clause and broad waiver of 

rights; prevailing party].) However, a buyer is not a prevailing 

party under the Act just because she incurs attorney’s fees to 

obtain relief beyond that to which she is entitled. In such a case, 

the manufacturer or retail seller is paying more than it is legally 

required to pay just to end the litigation. Were the buyer who 

extracts such a “nuisance value” as part of a settlement to be 

rewarded with attorney’s fees (by being declared a prevailing 

party), we would be acting in derogation of the true purpose of 

the Act’s attorney’s fees provision (which, as noted above, is to 

remove the disincentive buyers might face when deciding 

whether to hire a lawyer to enforce their rights under the Act 

(Wohlgemuth, supra, 207 Cal.App.4th at p. 1262)) as well as 

creating 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 (see Cowan v. Superior Court (1996) 

14 Cal.4th 367, 392 [“A rule that creates . . . a perverse set of 

incentives is untenable”]).
14

We are cognizant that our conclusion that a buyer is not a 

prevailing party under the Act’s attorney’s fees provision just 

because she convinces the manufacturer to pay for products and 

services supplied by the retail seller means that a buyer will not 

have a right to obtain a full refund for all outlay associated with 

her new defective car from a single party. And we recognize that 

a “one-stop” remedy for buyers may make good sense, especially 

when the buyer in most cases purchased the car as part of a “onestop” shopping experience with the dealer. However, we are not 

free to disregard the Act’s plain language to implement what 

might be otherwise good public policy; that task lies solely with 

our Legislature. (Friends of Shingle Springs Interchange, Inc. v. 

County of El Dorado (2011) 200 Cal.App.4th 1470, 1492 [“Courts 

defer to the legislative branch in matters of public policy.”].)

b. Civil penalty

A buyer’s decision to proceed to trial to obtain a civil 

penalty under the Act can make her a prevailing party. 

(MacQuiddy, supra, 233 Cal.App.4th at p. 1049.) In this case, 

however, substantial evidence supports the trial court’s finding 

that the confidential nature of the settlement precluded Garcia 

from showing whether she achieved that litigation objective. We 

know the parties’ prelitigation positions and that Garcia obtained 

some monetary recovery (a point the parties concede), but we do 

not know the exact terms they ultimately agreed to. The trial 

court’s refusal to infer the parties’ ultimate settlement terms

from their final volley of a non-confidential settlement letter was 

reasonable, and we must indulge all reasonable inferences when 

evaluating a ruling for substantial evidence. (Crawford 

v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) Although 

settlements that make their financial terms confidential will in 

most cases render it impossible to determine whether the buyer 

prevailed in obtaining her litigation objective(s) (and thus 
15

effectively foreclose any award of attorney’s fees to the prevailing 

buyer), the Act specifically contemplates that a buyer and 

manufacturer or retail seller may effect a settlement that is 

confidential as to its “financial terms.” (§ 1793.26, subd. (c).) As 

long as the Act sanctions such confidential settlements, buyers 

may effectively surrender their right to collect attorney’s fees 

under the Act.

c. Attorney’s fees

Where, as here, the trial court could not have found Garcia 

to be a prevailing party because Mercedes-Benz refunded the 

dealer add-ons and did not find that Garcia prevailed because she 

obtained a civil penalty, the trial court also did not abuse its 

discretion in declining to find Garcia to be a prevailing party just 

because she may have obtained the sole remaining litigation 

objective—namely, an agreement to pay attorney’s fees in 

whatever amount the trial court deemed appropriate. The Act 

rewards a buyer who prevails with an award of attorney’s fees. 

(§ 1794, subd. (d).) If a buyer’s decision to hold out for attorney’s 

fees were enough by itself to confer prevailing party status upon 

that buyer, then all a buyer would have to do to obtain attorney’s 

fees is refuse to accept any settlement that did not offer 

attorney’s fees and then sue for these fees. This is circular, 

because the buyer’s entitlement to attorney’s fees would make 

her a prevailing party and hence entitled to attorney’s fees. It 

would also make attorney’s fees available in just about every 

case, a result courts have soundly rejected. (Dominguez, supra, 

160 Cal.App.4th at p. 60.)

B. Costs

As with attorney’s fees under the Act, a plaintiff is entitled 

to her costs if she is a prevailing party. (§ 1794, subd. (d).) As 

noted above, the Act does not define what it means to be 

prevailing party. Fortunately, also as noted above, our 
16

Legislature has defined what the term means in the context of 

costs in Code of Civil Procedure section 1032, making it 

unnecessary for us to resort to the judicially developed definition 

of prevailing party we used, above, to assess attorney’s fees. 

Under section 1032, a prevailing party includes a “party” who 

obtains “a net monetary recovery.” (Code Civ. Proc. § 1032, subd. 

(a)(4).) Our Supreme Court recently clarified that “a partial 

recovery, as long as it is a net monetary recovery, entitles a 

plaintiff to costs.” (DeSaulles, supra, 62 Cal.4th 1140 at p. 1157.) 

Because Garcia obtained some net monetary recovery in her 

settlement with Mercedes-Benz (albeit of unknown amount), she 

is entitled to costs.

The trial court declined to award costs on the ground that 

Garcia submitted a motion for costs rather than a memorandum 

for costs, as required by California Rules of Court, rule 

3.1700(a)(1). The court’s ruling overlooked that Garcia submitted 

a memorandum of costs along with her motion for attorney’s fees. 

Although Garcia’s memorandum was filed before judgment was 

entered (rather than after, as the Rules of Court contemplate), 

this is of no significance. (Haley v. Casa Del Rey Homeowners 

Assn. (2007) 153 Cal.App.4th 863, 880 [“courts treat prematurely 

filed cost bills as being timely filed”].) Accordingly, Garcia is 

entitled to the $750 in costs she requested.
17

DISPOSITION

The judgment is modified to award Garcia $750 in costs. 

As modified, the judgment is affirmed. Each party is to bear its 

own costs on appeal.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ