Filed 9/29/20; certiified for publication 10/23/20 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

JOSE SANTANA,

 Plaintiff and Respondent,

v.

FCA US, LLC,

 Defendant and Appellant.

 G057244, G058020

 (Super. Ct. No. 30-2016-00882680)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Hugh 

Michael Brenner, Judge. (Retired judge of the Orange Sup. Ct. assigned by the Chief 

Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part.

Hawkins Parnell & Young, Jeffrey T. Thayer; Gibson, Dunn & Crutcher, 

Thomas H. Dupree Jr., and Shaun A. Mathur for Defendant and Appellant.

Rosner, Barry & Babbitt, Hallen D. Rosner, Arlyn L. Escalante; Center for 

Constitutional Litigation, Robert Peck; O’Conner Law Group and Mark O’Connor for 

Plaintiff and Respondent.

* * *
2

A jury held defendant FCA US, LLC (Chrysler) liable on three causes of 

action arising from plaintiff Jose Santana’s defective vehicle: breach of the express and 

implied warranty under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et 

seq.; the Song-Beverly Act), and fraudulent concealment.1 Santana’s economic damages 

from violation of the express warranty under the Song-Beverly Act were $31,896.60 and 

the jury also imposed a civil penalty of $63,795.20 for the willful failure to repurchase or 

replace the vehicle. On the fraud claim, the jury awarded economic damages of 

$33,839.91, noneconomic damages of $100,000, and punitive damages of $1 million, 

resulting in a total verdict of $1,229,531.71. After an award of fees and costs, the total 

judgment amounted to $1,740,169.58. 

Chrysler contends most of those damages must be vacated because there 

was no substantial evidence of fraudulent concealment. We agree. Santana’s fraud 

theory was that Chrysler concealed an electrical defect in Santana’s vehicle. But there 

was no evidence Chrysler was aware of the defect until after Santana purchased his 

vehicle, and thus no evidence that Chrysler concealed it. Because the fraud judgment 

must fall, the separate award of economic damages, the noneconomic damages, and the 

punitive damages fall with it. 

Chrysler also contends there was no evidence of a willful violation of the 

Song-Beverly Act. We disagree with that contention and affirm that aspect of the 

judgment. By the time Chrysler’s duty to repurchase arose, it was aware of the electrical 

defect in Santana’s vehicle, which it chose not to repair adequately.

1

The parties do not discuss the jury’s verdict on the breach of implied 

warranty count. Accordingly, neither do we.
3

Finally, Chrysler contends the court erred in failing to apportion attorney 

fees and by doubling Santana’s Lodestar calculation. We conclude the court did not 

abuse its discretion and thus affirm the fee award.

FACTS

Santana’s Vehicle

Santana purchased a 2012 Dodge Durango in November 2011, for a total 

purchase price of $44,748. He purchased the “Citadel” model, which was the most 

luxurious version of the Durango. The vehicle came with a three-year, 36,000 mile 

bumper-to-bumper warranty, and a five-year, 100,000 mile power-train warranty. 

Almost immediately, Santana experienced problems with the vehicle.

The first time Santana brought his vehicle in for repair was in June 2012 at 

9,466 miles. The vehicle would not start. This would prove to be a recurring problem for 

Santana, who estimated that it occurred 10 times, a few of which required repairs at the

dealer. 

Santana’s no-start problem was the central theme of the trial, so we pause 

to explain Santana’s theory of what went wrong with his vehicle. Santana’s expert 

generally attributed his no-start problem to a component called the Totally Integrated

Power Module, or TIPM for short. The TIPM is an enclosed box in the engine 

compartment of the vehicle, which contains a circuit board and regulates power to most 

of the systems in the vehicle. The circuit board was covered with a conformal coating, 

which is a thin rubbery coating over the entirety of the circuit board, which is intended to 

protect it from dust and vibration, as well as to insulate it from heat. The TIPM’s used by 

Chrysler were manufactured by a company called Continental, which is not a party to this 

lawsuit. The fuel pump electrical relay, which was attached to the circuit board, was built 

by NEC Components (also a nonparty). NEC warned against using a conformal coating 
4

made of silicone because the heat from the circuit board can cause the silicone to emit 

gas, and the gas can enter the fuel-pump relay, which leads to failure of the relay, which, 

in turn, leads to stalling or a failure to start. At the time Santana purchased his vehicle, 

Continental was producing TIPMs with a silicone conformal coating. Santana’s expert 

opined this was the root cause of many of Santana’s problems.

While Santana attributed many of his problems to the TIPM, he 

experienced several other issues too. Santana’s second repair visit was at 22,029 miles, 

in October 2013. The front suspension was shaking while the car was moving. The 

dealership balanced, rotated, and aligned the tires, but, according to Santana, the issue 

was never resolved. Instead, Santana bought a lifetime tire-balancing warranty from a 

tire store and had the tires balanced every time the shaking started up again. 

In April 2014, at 28,047 miles, Santana brought the vehicle in to repair a 

problem with the seatbelt warning being too sensitive. Putting a telephone on the 

passenger seat would cause the fasten seatbelt alert to chime. Chrysler never fixed that 

problem. Santana ended up just buckling the seatbelt on the empty seat to work around 

it.

In May 2014, at 28,644 miles, Santana brought the vehicle in to repair the 

sun roof which had become inoperable. The dealership taught Santana a trick: All 

Santana needed to do was to turn the ignition on, open the door, and press the gas pedal 

three times. This trick would cause the computer to reset and the sunroof would work 

again. The issue was never fully resolved. Santana’s expert attributed this problem to 

the TIPM.

In August 2014, at 30,262 miles, Santana had the vehicle towed to the 

dealership because it would not start. At this appointment, the dealership determined that 

the fuel pump relay in the TIPM was not receiving power, so they performed a so-called 

bridge operation. This involved adding an additional electrical relay, external to the 

TIPM, and rerouting the electricity to the fuel pump through the external relay. 
5

Afterward, Santana arrived home and turned off his vehicle, but heard a hissing sound. 

He turned the vehicle back on and heard a mini explosion followed by a profusion of 

smoke from the exhaust pipe. As it turns out, the fuel pump was still on and pumping 

fuel even after the vehicle was turned off. He returned the vehicle to the dealership for 

the second time that day. 

At the same visit, the vehicle’s battery was found to be weak and in a failed 

state. It was replaced.

In December 2014, at 33,121 miles, Santana brought the vehicle in to repair 

squeaking noises coming from the front and rear of the vehicle. The dealership 

determined the rear shocks were weak and replaced them, and made some adjustments to 

hinges in the front.

In March 2015, at 37,179 miles, Santana brought the vehicle in to replace a 

defective front passenger seatbelt.

In April 2015, at 37,569 Santana brought the vehicle in to replace a 

defective driver’s seatbelt. 

At 38,157 miles, again in April 2015, Santana brought the vehicle in to 

address front suspension shimmying at highway speeds. According to Santana, this was 

never properly fixed.

In December 2015, at 43,462 miles, Santana brought the car in again to 

address a no-start issue. The problem stemmed from the WIN module (the wireless 

ignition), which was replaced. 

In January 2016, at 44,467 miles, the seatbelt had malfunctioned for the 

third time. 

That was the last straw for Santana and the point at which he contacted 

Chrysler to inquire about it buying back the vehicle. He explained to Chrysler customer 

service that he thought the vehicle was a “lemon” and wanted Chrysler to buy it back. 

After waiting on hold for 30 minutes, he was told that because the initial three-year, 
6

36,000 mile warranty had expired, he did not qualify for a buyback. No one from 

Chrysler followed up with him. And Chrysler did not perform any further investigation 

to determine whether Santana qualified for a buyback.

In June 2016, at 49,408 miles, Santana had the vehicle towed into the 

dealership because, while driving on side streets, the dash board “lit up”—the 

temperature gauge spiked, the car stopped, and smoke came out from under the hood. 

The dealership replaced the radiator. At this point Santana felt his vehicle was a “ticking 

time bomb” and he purchased another vehicle, trading in his Durango for $20,000. 

History of Problems Related to the TIPM

Chrysler experienced various problems related to the TIPM, which was first 

introduced in model year 2007 vehicles. 

In July 2007, shortly after the introduction of the TIPM, Chrysler issued a 

recall due to stalling problems. Chrysler determined the problem was software related 

and the recall entailed reprogramming the software on the TIPM. 

In November 2008, Chrysler staff prepared an “Issue Detail Report” noting 

that in the vehicle coded DS (which was a Dodge Ram truck), some vehicles (unclear 

how many) were experiencing a problem in which the TIPM failed to enter sleep mode 

when the vehicle was turned off. As a result, the vehicle was drawing too much power 

when not in use, resulting in premature battery failure. The TIPM in the Dodge Ram was 

a different configuration than the TIPM in the Durango.

In June 2009, a similar “Issue Detail Report” was prepared noting that the 

same vehicle (“DS”) was experiencing a no-start failure due to low batteries. The 

batteries were low because the TIPM was experiencing a parasitic load—meaning an 

unintended draw of electricity—when the vehicle was not in operation, which drained the 

battery. Once again, there is nothing in the record to suggest how pervasive this problem 

was, but we note that Santana’s vehicle’s battery did fail prematurely. 
7

Beginning in August 2009, as evidenced by a chain of internal Chrysler emails, problems were arising concerning a malfunctioning front blower for the air 

conditioning/heater. The record does not reveal the nature of the problem, how severe it 

was, or even what vehicles it affected. The subject of the e-mail chain was “TIPM 

Returns from safety office Weekly Meeting Agenda” so we can surmise it involved the 

TIPM. A solution was proposed in an attached document, which is not in our record. 

However, we can infer the solution from the e-mails we do have. A senior technical 

specialist wrote, “Ideas our team with Conti[nental] came up with to fix HVAC front 

blower issue. The one on page 10 is our choice. Our goal is to work with you to package 

both the relay (280 high current micro from OMRON) and the fuse (40 A Jcase) as a field 

fix and for 2010 V2 production.” In response, another Chrysler employee wrote, “To add 

a wiring assembly with a stand alone relay and stand alone fuse can create quality issues. 

Please review other more feasible options to correct the HVAC front blower issue.” 

Another Chrysler employee chimed in, “How about you fix the TIPM since it is the root 

cause of the failures???” 

In January 2012, Chrysler prepared another “Issue Detail Report” 

describing a problem in which the sunroof stopped working. This condition was 

correlated with a blown fuse in the TIPM. Although the report pertained to vehicle 

“WK,” which was the Jeep Cherokee, that vehicle contained the same TIPM as the 

Dodge Durango. Santana’s vehicle also experienced a failed sunroof which his expert 

opined was caused by the TIPM. 

In 2013, reports began accumulating of failures of the fuel pump electrical 

relay in the TIPM. In September of that year, one employee wrote an e-mail exclaiming, 

“What is going on with the ‘11 GC tipms? I have them coming out of the woodwork, one 

dealer got 4 calls today alone! [¶] Conditions is cold ambient crank no start, no fuel 

pump power to or out of pump fuse (internal relay), no DTC.” “Mileages all in the 40-

50k range (out of warranty, a $850 parts bill is hard to swallow). [¶] We are just starting 
8

to get in the 40’s now, so I think this may grow even bigger . . . .” A service support lead 

for Chrysler responded, “I can’t comment on the TIPM quality issues, robustness of new 

parts, or availability. However, I do know there are techs out there using the attached 

repair procedure as a temporary work around to get cars back on the road. I don’t bless 

this in any way, but it’s a good MacGyver trick to get you out of a pinch if you need it.” 

A Chrysler manager responded, “There is an issue with TIPM failure on the 2011 

WK/WD[2] with the fuel pump relay. It was found that Conti[nental] was conformal 

coating the boards with a product containing silicon. The higher current draw for the fuel 

pump is shown to cause failure over time. This same conformal coating was used 

through March 2013. Service is running short on TIPMs, and several techs are coming 

up with alternate, unapproved work around methods. It has become a durability issue 

with vehicles coming in between 20-50k miles – many are out of warranty. There is a 

large usage in the field claiming no fuel pump power to or out of pump fuse (internal 

relay).” Another Chrysler employee responded, “This is going to get hot quick if we 

can’t come up with something.”

In a separate e-mail chain on August 30, 2013 involving different Chrysler 

employees around the same time, the bridge procedure was explained (apparently the 

bridge procedure performed on Santana’s vehicle in August 2014), leading one Chrysler 

employee to respond, “The bypass is not recommended due to past issues.” Another 

employee explained a safety flaw in the proposal: “I don’t think this procedure is a good 

idea. The fuel pump relay is supposed to be controlled by the PCM so that in the case of 

an accident, the PCM can shut down the fuel pump. The proposal removes the PCM 

portion of the control.” “Their proposal bypasses the PCM’s control.” Santana’s expert 

explained, the fuel pump relay on the TIPM “is controlled by the computer, the PCM and 

power train control module. And in the event of a rollover, it shuts off the fuel pump. So 

2 WD was an internal reference to the Dodge Durango.
9

if your car is in some sort of an accident, the fuel pump doesn’t continue to pump.” 

When asked whether Santana’s vehicle still had that safety feature after the external fuel 

pump relay was added, Santana’s expert testified, “No. That feature was not available at 

that point.” 

Around the same time as the above e-mails, Continental (the manufacturer 

of the TIPM) performed an experiment that proved the source of the problem was, in fact, 

the silicone conformal coating.3 The experiment used three sets of TIPM modules, one 

set with the silicone conformal coating, one set with no conformal coating, and one set 

with a non-silicon based conformal coating. The circuit boards were subjected to specific 

heat and usage conditions. The modules with no conformal coating or a non-silicon 

based coating all saw fairly constant voltage drops across the relay contacts throughout 

the course of the experiment. The circuit boards with a silicon-based conformal coating, 

however, saw significant increases in voltage drops across the relay contacts as the 

experiment progressed. This was consistent with the hypothesis that heat was converting 

the silicone into a gaseous state and increasing the resistance across the contact points of 

the relay. 

Almost a year later, in August 2014, an “Executive Review” presentation 

was prepared that explained and illustrated the magnitude of the problem. This 

presentation would have been given to high level executives at Chrysler. As a corrective 

action, the executive review recommended a bypass, or bridge procedure, similar to that 

performed on Santana’s vehicle. There is nothing in the executive review about the 

potential safety problem associated with the bridge procedure. 

3

The findings were published internally by Continental in an undated 

document. However, the documents bear a 2013 copyright notice, and the results are first 

discussed internally at Chrysler in an e-mail dated August 2013, which describes the test 

as “recently conducted.”
10

In December 2014, Chrysler instituted a safety recall for the Dodge 

Durango to implement the bridge procedure to install an external fuel pump relay. The 

recall notice says nothing about the potential safety liability of bypassing the internal 

TIPM relay.

Chrysler instituted a second recall in July 2015 related to the TIPM. 

Although that recall notice is not in our record, according to Santana’s expert’s 

testimony, it simply required technicians to inspect to ensure an external fuel pump relay 

was present, and, if not, to install it. This inspection was performed on Santana’s vehicle.

Soon after Chrysler issued the second recall, the National Highway Traffic 

Safety Administration (NHTSA) completed its own study of the issue. The Center for 

Auto Safety had petitioned NHTSA to “initiate a safety defect investigation into alleged 

failures” of the TIPM installed in certain vehicles, including the Dodge Durango, 

“beginning in the 2007 model year.” In response to the petition, NHTSA reviewed 

customer complaints and reports, as well as documents concerning the design and 

manufacture of the TIPM. 

In July 2015, NHTSA denied the petition, concluding that further 

investigation was not warranted. The safety agency explained that the stall and no-start 

problem “ha[d] been addressed by [Chrysler’s] safety recalls” and concluded further 

investigation was unlikely to be fruitful. However, it cautioned that “[t]his action does 

not constitute a finding by NHTSA that a safety-related defect does not exist.”

In October 2016, Santana filed the underlying complaint, asserting causes 

of action for breach of express warranty (Song-Beverly Act), breach of implied warranty 

(Song-Beverly Act), fraudulent inducement by concealment, and negligent repair. Only 

the first three causes of action were brought to trial. 

The jury found in favor of Santana on all three causes of action. It awarded 

economic damages of $31,896.60 on the express warranty claim under the Song-Beverly 

Act, $33,839.91 on the implied warranty claim under the Song-Beverly Act, additional 
11

economic damages of $33,839.91 on the fraud claim, and noneconomic damages on the 

fraud claim of $100,000. It found Chrysler violated the Song-Beverly Act willfully and 

imposed a civil penalty of $63,795.20. Additionally, the jury imposed punitive damages 

in the amount of $1 million on the fraud claim. The total verdict amounted to 

$1,229,531.71. Afterward, Chrysler moved for a new trial and for judgment 

notwithstanding the verdict, both of which were denied. Santana subsequently moved for 

his attorney fees, seeking a lodestar amount of $235,553.50 and a multiplier of 2.5. The 

court granted the motion, accepted Santana’s lodestar amount, and employed a 2.0

multiplier for a total award (including costs) of $510,637.87. The total judgment 

amounted to $1,740,169.58. Chrysler timely appealed.

DISCUSSION

Fraudulent Concealment

Chrysler contends there was no substantial evidence of fraudulent 

concealment. We agree. 

Santana’s theory at trial was that, at the time he purchased the vehicle, 

Chrysler fraudulently concealed material information, i.e., that the vehicle contained a 

defective TIPM. Thus, the jury was instructed, “Jose Santana relied on [Chrysler’s] 

concealment if, 1, the concealment substantially influenced him to purchase or continue 

to own the 2012 Dodge Durango; and 2, he would probably not have bought the 2012 

Dodge Durango without the concealment.” (Italics added.) Further, on the verdict form, 

the jury found that Chrysler “intentionally fail[ed] to disclose facts that Jose Santana did 

not know and could not reasonably have discovered prior to his purchase of the 2012 

Dodge Durango.” (Italics added.) Santana purchased his vehicle in November 2011. 
12

The focus of our inquiry, therefore, is what the evidence disclosed regarding Chrysler’s 

knowledge of the defect prior to November 2011.

The sum total of the evidence on that front is the following: a publicly 

disclosed 2007 recall related to a software problem that apparently was fixed; an issue 

that cropped up in 2008 and 2009, with an unknown frequency, in a different vehicle, 

where a TIPM was drawing too much power when the vehicle was not in use; and a 2009 

internal e-mail exchange regarding the heating and air conditioning front blower in some 

vehicle that occurred some amount of times that had something to do with a relay in a 

TIPM. All the other evidence post-dates the critical time period, which is pre-November 

2011.

That is not enough. The very existence of a warranty presupposes that 

some defects may occur. Thus, the occurrence of a few defects that, so far as the record 

reveals, were all fixable, and mostly involved vehicles Santana did not own, is not 

enough to demonstrate an intent to conceal a defect in the TIPM. Santana would need 

evidence that, prior to Santana’s purchase of the vehicle, Chrysler was aware of a defect 

in the TIPM that it was either unwilling or unable to fix. There was no such evidence.4

4

Two federal district courts that addressed the exact same TIPM defect came 

to the same conclusion we reach. (Base v. FCA US LLC (N.D.Cal., Mar. 11, 2019, No. 

17-CV-01532-JCS) 2019 U.S. Dist. Lexis 38895; Dienes v. FCA US LLC (S.D.Cal., Mar. 

12, 2018, No. 16-CV-1812-AJB-BGS) 2018 U.S. Dist. 40226.) A third federal district 

court case, Cieslikowski v. Fiat Chrysler (C.D.Cal., Feb. 4, 2019, No. ED CV 17-562 

MRW) 2019 U.S. Dist Lexis 40665, reached the same conclusion we do as well. 

However, that decision was recently reversed by the Ninth Circuit in an unpublished 

memorandum opinion. (See Cieslikowski v. FCA US LLC (9th Cir., June 12, 2020, No. 

19-55679) 2020 U.S. Lexis 18707.) The Ninth Circuit opinion made no effort to 

highlight the evidence that the court felt was substantial, and thus we do not find it 

persuasive.
13

Because we reverse the judgment as to the fraud cause of action, the 

compensatory damage award for fraud, the noneconomic damages, and punitive damages 

(all of which were predicated on fraud) must also be reversed.

Willful Violation of the Song-Beverly Act

Next, Chrysler contends there was no substantial evidence to support the 

jury’s finding that it willfully violated the Song-Beverly Act. To be clear, Chrysler does 

not dispute the jury’s finding that it violated the Song-Beverly Act. It disputes only the 

jury’s finding that it did so willfully. “Whether a manufacturer willfully violated its 

obligation to repair the car or refund the purchase price is a factual question for the jury 

that will not be disturbed on appeal if supported by substantial evidence.” (Oregel v. 

American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1104.) We conclude the 

evidence supports the verdict. 

“The [Song-Beverly Act] provides enhanced remedies to consumers who 

buy new consumer goods accompanied by a manufacturer’s express warranty.” (Kiluk v. 

Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 336.) “Where . . . service or 

repair of the goods is necessary because they do not conform with the applicable express 

warranties, service and repair shall be commenced within a reasonable time by the 

manufacturer . . . .” (Civ. Code, § 1793.2, subd. (b).) “If the 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 . . . or promptly make restitution to the buyer . . . .” 

(Id., subd. (d)(2).) “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.” (§ 1794, subd. 

(c).)
14

There is a critical difference between Santana’s fraud claim and his claim 

for a willful violation of the Song-Beverly Act: the relevant time frame. Whereas the 

fraud claim depended on evidence prior to Santana’s purchase, the Song-Beverly Act 

claim depends on evidence during the warranty period.

Here, there was evidence to support a finding that Chrysler’s “repair” of the 

faulty fuel pump relay was intentionally inadequate during the warranty period. 

Specifically, the bridge operation solved one problem—stalling or failing to start—only 

to introduce a new defect: the inability of the fuel pump to shut off in the event of an 

accident. Contemporaneous internal e-mails demonstrated that Chrysler was aware of the 

problem. And Santana’s expert testified there was no evidence that Chrysler’s recall 

procedure ever accounted for the new risk, and that, in fact, Santana’s vehicle was left 

with the new defect after the bridge operation. Although Chrysler did not include the 

actual warranty in our record, presumably it requires a repair that restores full 

functionality, not a “MacGyver” half measure that simply swaps defects. From this 

evidence, the jury could infer that Chrysler intentionally chose not fully to honor the 

express warranty, which is sufficient to support a civil penalty under Civil Code section 

1794, subdivision (c).5

Chrysler offers two arguments for why it should not be subject to a civil 

penalty. 

5

There was some evidence that an engineer working on a temporary fix for 

the fuel pump relay was aware of the need to wire the relay in such a way as to ensure 

safety features were maintained. But there was no evidence that this was actually 

implemented, and substantial evidence supported the conclusion that the bridge operation 

did not mitigate the safety risk. Because we must resolve any factual conflicts in favor of 

the judgment, we conclude the safety feature was not implemented in the repair of 

Santana’s vehicle. 
15

First, it asserts that because Santana requested repurchase after the 

expiration of his three-year, 36,000 mile warranty, and because Chrysler refused to 

purchase his vehicle on that ground, the refusal was in good faith. Chrysler cites an 

unpublished federal district court case that agreed with this argument. The argument is 

easily met, however. A manufacturer’s duty to repurchase a vehicle does not depend on a 

consumer’s request, but instead arises as soon as the manufacturer fails to comply with 

the warranty within a reasonable time. (Krotin v. Porsche Cars North America, 

Inc. (1995) 38 Cal.App.4th 294, 301-302.) Chrysler performed the bridge operation on 

Santana’s vehicle in August 2014 with 30,262 miles on the odometer—within the threeyear, 36,000 mile warranty. The internal e-mails demonstrating Chrysler’s awareness of 

the safety risks inherent in the bridge operation were sent in September 2013, and thus 

Chrysler was well aware of the problem when it performed the bridge operation on 

Santana’s vehicle. Thus, Chrysler’s duty to repurchase or provide restitution arose prior 

to the expiration of the three-year, 36,000 mile warranty. Moreover, although we do not 

have the actual five-year, 100,000 mile power train warranty in our record, Santana’s 

expert testified that the no-start/stalling issues Santana experienced were within the scope 

of the power train warranty, which was still active when Santana requested repurchase in 

approximately January 2016, at 44,467 miles. Thus the premise of Chrysler’s 

argument—that Santana’s request for repurchase was outside the relevant warranty—is 

not only irrelevant, but wrong.

Chrysler’s second argument is that its Code of Civil Procedure section 998 

settlement offers in this litigation, in February 2017 and again in February 2018, satisfy 

its obligation to offer a repurchase. In light of our conclusion that Chrysler’s decision not 

fully to honor the warranty occurred as early as 2013, however, a settlement offer in 2017 

falls well short. Upon a vehicle manufacturer’s failure to honor a warranty, the 

manufacturer must “promptly” make an offer of repurchase or restitution. (Civ. Code, 

§ 1793.2, subd. (d)(2).) Not years later during litigation. In any event, the Code of Civil 
16

Procedure section 998 offers were not in evidence before the jury, and thus Chrysler 

cannot rely on them here.6 

Attorney Fees

Chrysler’s final contention is that the court erred in two ways in making its 

award of attorney fees. First, the court did not apportion fees between the fee claim 

(Song-Beverly Act) and the non-fee claim (fraud). Second, the court erred in doubling 

Santana’s lodestar calculation by double counting the contingent nature of Santana’s 

representation (i.e., using that factor both to increase counsel’s hourly rate and also to 

justify a multiplier), and by improperly relying on Santana’s “excellent outcome.” On 

both counts, we review the court’s order for abuse of discretion. (Bell v. Vista Unified 

School Dist. (2000) 82 Cal.App.4th 672, 687 (Bell); Graham v DaimlerChrysler Corp.

(2004) 34 Cal.4th 553, 581.) “‘“A trial court’s exercise of discretion is abused only when 

its ruling ‘“exceeds the bounds of reason, all of the circumstances before it being 

considered.”’”’” (Bell, at p. 687.) Here, the court did not abuse its discretion.

At trial, Santana sought a lodestar amount of $235,553.50, based on an 

hourly rate of $650 per hour. Santana sought a 2.5 multiplier. The court accepted 

Santana’s lodestar figure and granted a multiplier of 2.0. The court refused to apportion 

fees between the Song-Beverly Act and the fraud causes of action, commenting, “This 

was one set of facts. . . . The fact that there were two causes of action, . . . that’s a tactic.”

6

There is a line of federal district court cases that have accepted the 

argument that an offer to settle litigation can negate a finding of willfulness. In those 

cases, however, the manufacturer was continuing to attempt to repair the vehicle when 

litigation started, and thus the offers were, arguably, prompt. (Hatami v. Kia Motors 

America, Inc. (C.D.Cal., Apr. 20, 2009, No. SA CV 08-0226 DOC) 2009 U.S. Dist. Lexis 

45514; Base v. FCA US LLC (N.D.Cal., Mar. 11, 2019, No. 17-CV-01532-JCS) 2019 

U.S. Dist. Lexis 38895.) We offer no opinion on whether those cases were correctly 

decided. Here, the settlement offers came years after Chrysler made the decision to 

implement an inadequate repair of Santana’s vehicle. 
17

1. Apportionment 

“When a cause of action for which attorney fees are provided by statute is 

joined with other causes of action for which attorney fees are not permitted, the 

prevailing party may recover only on the statutory cause of action.” (Akins v. Enterprise 

Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1133.) However, “[s]uch fees need not be 

apportioned when incurred for representation on an issue common to both causes of 

action in which fees are proper and those in which they are not.” (Bell, supra, 82 

Cal.App.4th at p. 687.) Moreover, “[a]pportionment is not required when the claims for 

relief are so intertwined that it would be impracticable, if not impossible, to separate the 

attorney’s time into compensable and noncompensable units.” (Ibid.) The trial court 

found the latter exception applied, describing the two causes of action—fraud and SongBeverly Act—as encompassing “one set of facts.” We agree.

As we have already pointed out, the principal distinction between the two 

causes of action was that the fraud claim required proof of what Chrysler knew prior to 

the sale of Santana’s vehicle. But as we concluded above, there was very little evidence 

on that front. Instead, most of the evidence focused on whether there was a defect at all, 

and whether Chrysler knew about the defect—issues that are equally relevant to the fraud 

and Song-Beverly Act claim. 

Chrysler makes no attempt to directly confront the trial court’s conclusion 

that the two causes of action stem from a common set of facts. Instead, it contends 

Santana should be judicially estopped from arguing the two causes of action shared a 

common core of facts because, in a previous stage of the litigation, Santana insisted the 

causes of action were different. Specifically, when the parties were arguing over whether 

Chrysler could be subject to both a civil penalty and punitive damages, Santana argued, 

successfully, that “[t]he damages stem from two separate and distinct causes of action 

which are based upon different conduct, different facts and governed by different statutes, 
18

laws, and legal standards. Two distinct duties are separately punishable arising from 

different conduct.” 

“The elements of judicial estoppel are ‘(1) the same party has taken two 

positions; (2) the positions were taken in judicial or quasi-judicial administrative 

proceedings; (3) the party was 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.’” 

(Owens v. County of Los Angeles (2013) 220 Cal.App.4th 107, 121 (Owens).)

We decline to impose an estoppel. As a purely technical matter, arguing 

that the causes of action stem from different sorts of harm is a different matter than 

whether the causes of action share a common set of facts. In this case, for example, the 

existence of the TIPM defect is at the core of both causes of action, but neither harm 

stems from the defect per se. In the case of fraud, the harm stems from a deception. And 

in the case of the Song-Beverly Act, it stems from the failure to honor the warranty. 

Same essential facts. Different conduct gives rise to the harm.

But even if the elements of judicial estoppel were technically satisfied, the 

doctrine is, in the final analysis, an equitable one. (Owens, supra, 220 Cal.App.4th at p. 

121.) And given that we are reversing the punitive damages award, we deem it to be 

inequitable to punish Santana for an argument he made—which has now been rendered 

unsuccessful—in favor of punitive damages. 

Beyond the estoppel argument, Chrysler has not proposed any practical 

method of apportioning fees in this case. It has not, for example, identified any discrete 

portion of the litigation that was solely focused on fraud. Moreover, Chrysler’s only 

proposals for how to apportion fees are unpersuasive: a 50 percent reduction in fees, 

calculated simply attributing half of the fees to each of two causes of action; or a 92 

percent reduction in fees to reflect the fact that 92 percent of the damages were 

attributable to fraud. Unsurprisingly, Chrysler does not cite any authority for those 
19

approaches, both of which are completely out of keeping with the principle of ensuring 

the prevailing party receives a full recovery of attorney fees on the fee-shifting cause of 

action. (Akins v. Enterprise Rent–A–Car Co., supra, 79 Cal.App.4th at p. 1133.) 

Consequently, the court did not err in refusing to apportion fees.

2. Multiplier

Finally, Chrysler contends the court erred in two ways in applying a 2.0 

multiplier to the lodestar. First, Chrysler contends the court relied on the contingent 

nature of the representation both in setting the lodestar hourly rate, and in justifying a 

multiplier—a prohibited double counting of the same factor. Second, the court relied in 

part on the excellent results Santana’s counsel obtained, which, Chrysler contends, is 

only relevant in public-interest litigation. 

The process of calculating attorney fees involves two steps. The first is to 

determine the lodestar: the number of hours reasonably expended multiplied by a 

reasonable hourly rate. (Serrano v Priest (1977) 20 Cal.3d 25, 48 (Serrano III).) Once 

the lodestar has been calculated, the second step is to apply any positive or negative 

multipliers. “The purpose of such adjustment is to fix a fee at the fair market value for 

the particular action. In effect, the court determines, retrospectively, whether the 

litigation involved a contingent risk or required extraordinary legal skill justifying 

augmentation of the unadorned lodestar in order to approximate the fair market rate for 

such services. The ‘“experienced trial judge is the best judge of the value of professional 

services rendered in his court, and while his judgment is of course subject to review, it 

will not be disturbed unless the appellate court is convinced that it is clearly wrong.”’” 

(Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).)
20

Perhaps the most common multiplier applied, at least where a plaintiff 

prevails, is a modifier for the contingent nature of the representation. “Under our 

precedents, the unadorned lodestar reflects the general local hourly rate for a fee-bearing 

case; it does not include any compensation for contingent risk, extraordinary skill, or any 

other factors a trial court may consider under Serrano III. The adjustment to the lodestar 

figure, e.g., to provide a fee enhancement reflecting the risk that the attorney will not 

receive payment if the suit does not succeed, constitutes earned compensation; unlike a 

windfall, it is neither unexpected nor fortuitous. Rather, it is intended to approximate 

market-level compensation for such services, which typically includes a premium for the 

risk of nonpayment or delay in payment of attorney fees. In this case, for example, the 

lodestar was expressly based on the general local rate for legal services in a 

noncontingent matter, where a payment is certain regardless of outcome.” (Ketchum, 

supra, 24 Cal.4th at p. 1138.)

This description of the rationale for a contingency modifier points to one of 

its principal restrictions: a court cannot rely on the contingent nature of the 

representation in both setting the lodestar amount and in later modifying the lodestar. 

(Ketchum, supra, 24 Cal.4th at p. 1138 [“We emphasize that when determining the 

appropriate enhancement, a trial court should not consider these factors to the extent they 

are already encompassed within the lodestar”].) This restriction applies to a contingency 

modifier the same as any other modifier. Thus in Robertson v. Fleetwood Travel Trailers 

of California, Inc. (2006) 144 Cal.App.4th 785 the court reversed a fee award where the 

court relied on the risk arising from a contingency arrangement in both setting the hourly 

rate and in subsequently modifying the lodestar. (Id. at p. 822.)

Chrysler contends the court committed the same error here, citing Santana’s 

fee motion where his counsel argued for an hourly rate of $650, justifying that rate, in 

part, based on the risk of nonpayment arising from the contingent nature of the 

representation. But Chrysler fails to connect the dots. The court did not accept that 
21

premise, but instead expressly rejected it. In commenting on the multiplier, the court 

stated, “This case was a very complex case, and, of course, there’s the contingency 

element in this, too. To say that all those issues are swept up in a basic hourly fee, which 

is not an extraordinary, high hourly fee, certainly I think that would be wrong.” (Italics 

added.) Elsewhere the court described the hourly rate as one “we see somewhat 

routinely.” Thus the court did not include the contingency factor in setting the lodestar 

and was free to include it in setting the multiplier. 

Next, Chrysler’s argues the court erred in basing the 2.0 multiplier, in part, 

on the results Santana obtained because, according to Chrysler, results are only relevant 

in public-interest litigation. Chrysler points to the following comment by the court: “It 

was an excellent outcome, and that’s part of it. But I really think the complexity of it and 

the fact that it’s contingent, I think . . . it warrants a multiplier.”

In support of its argument that only public-interest litigation can support a 

multiplier based on excellent results, Chrysler cites a series of cases in which courts 

awarded fees based on excellent results in public-interest litigation. (E.g. Hogar Dulce 

Hogar v. Community. Development Com. of City of Escondido (2007) 157 Cal.App.4th 

1358 [nonprofit association awarded fees where it obtained long-term relief in its 

challenge to the manner in which redevelopment agency calculated its payment to 

housing fund for low- and moderate-income families]; Feminist Women’s Health Center 

v. Blythe (1995) 32 Cal.App.4th 1641 [reproductive clinic secured an injunction to 

protect citizens’ constitutional right to abortion].) The cases Chrysler cites, however, are 

inapposite, as none of them deal with a multiplier. Instead, they all address whether the 

plaintiff was entitled to fees under the private attorney general doctrine codified in Code 

of Civil Procedure section 1021.5, which permits fees where, inter alia, “a significant 

benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a 

large class of persons.” Naturally, in that context, the benefits the plaintiff conferred on 

the public is of primary concern. But Santana did not seek fees under the private attorney 
22

general doctrine and thus those cases have no application here. There is simply no 

authority for the proposition that excellent results may result in a multiplier only in 

public-interest cases.

Nor is there any good reason for such a restriction. The rationale for taking 

excellent results into account is that it tends to reflect a superior quality of representation. 

(Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at p. 582 [“‘The “results obtained”

factor can properly be used to enhance a lodestar calculation where an exceptional effort 

produced an exceptional benefit’”].) Better attorneys command higher rates, which 

means a multiplier may be required accurately to compensate the attorney for the quality 

of work performed. (See Perdue v. Kenny A. ex rel. Winn (2010) 559 U.S. 542, 554 

[“superior results are relevant only to the extent it can be shown that they are the result of 

superior attorney performance”].) That rationale applies to all manner of cases, not just 

public-interest litigation. The purpose of a multiplier is to capture the market value of the 

attorney’s services, not the moral value. (See PLCM Group, Inc. v Drexler (2000) 22 

Cal.4th 1084, 1095.) Accordingly, results obtained was a relevant consideration.

It is clear from the court’s brief comments that the results played only a 

minor role in the court’s decision to apply a multiplier; much greater emphasis was given 

to the complexity of the matter and the skill of the attorneys in mastering the technology. 

The court gave the appropriate weight to the excellent results obtained. We follow the 

counsel of our Supreme Court. The trial judge is in the best position to evaluate the value 

of Santana’s counsel’s services. (Ketchum, supra, 24 Cal.4th 1122, 1131-1132.) We are 

not convinced the trial court was clearly wrong, i.e., that its ruling exceeds the bounds of 

reason. Accordingly, there was no abuse of discretion.
23

DISPOSITION

The judgment is reversed as to the fraud cause of action and the punitive 

damages. The court is directed to enter judgment in favor of Chrysler on the fraud cause 

of action, thereby striking the additional economic damages of $33,839.91, the 

noneconomic damages of $100,000, and the punitive damages of $1 million. In all other 

respects, the judgment is affirmed. Chrysler shall recover its costs incurred on appeal.

IKOLA, J.

WE CONCUR:

MOORE, ACTING P. J.

ARONSON, J.
Filed 10/23/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

JOSE SANTANA,

 Plaintiff and Respondent,

v.

FCA US, LLC,

 Defendant and Appellant.

 G057244, G058020

 (Super. Ct. No. 30-2016-00882680)

 O R D E R 

Nonparties Strategic Legal Practices and the Veracis Law Corporation have 

requested that our opinion filed on September 29, 2020, be certified for publication. It 

appears that our opinion meets the standards set forth in California Rules of Court, rule 

8.1105(c). The requests are GRANTED. 

The opinion is ordered published in the Official Reports.

IKOLA, J.

WE CONCUR:

MOORE, ACTING P. J.

ARONSON, J.