Wright v. General Motors Acceptance Corporation et al

Filing 97

ORDER Denying Defendant's 85 Motion for Attorney's Fees. Signed by Judge Jeffrey T. Miller on 4/23/2012. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RODERICK WRIGHT,

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CASE NO. 09cv2666 JM(AJB)
Plaintiff,

ORDER DENYING DEFENDANT’S
MOTION FOR ATTORNEY’S FEES

vs.
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GENERAL MOTORS ACCEPTANCE
CORPORATION,
Defendant.

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Defendant Ally Financial Inc., formerly known as GMAC, erroneously sued as General Motors

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Acceptance Corporation (“Ally” or “GMAC”), moves for an award of attorney’s fees and costs.

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Plaintiff Roderick Wright (“Wright” or “Plaintiff”) opposes the motion. Pursuant to Local Rule

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7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth

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below, the court denies the motion for attorney’s fees.

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BACKGROUND

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On November 25, 2009, Ally removed this action from the Superior Court of California,

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County of San Diego, pursuant to the Class Action Fairness Act, 28 U.S.C. §§1332(d)(1453(b). (Ct.

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Dkt No. 1). Ally, the successor in interest to GMAC, is in the business of purchasing and servicing

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retail installment sales contracts (“RISCs”) for motor vehicles that it acquires from dealers in

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California.” (Compl. ¶2). Plaintiff purchased a motor vehicle pursuant to a RISC.1

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The court incorporates its previous orders herein. (Ct. Dkt. 51, 83).
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On January 25, 2012, the court granted GMAC’s motion for summary, denied Plaintiff’s

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motion for summary judgment, and closed the file. (Ct. Dkt. 83). As noted in the order on the cross-

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motions for summary judgment, Plaintiff brought a single claim under the UCL, seeking only equitable

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relief, and using Rees-Levering to establish the predicate for the UCL claim. Ally now contends that

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it is entitled to an award of attorney’s fees based upon the attorney’s fees provision contained in the

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RISC or, alternatively, pursuant to the attorney’s fees provision of Rees-Levering.

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DISCUSSION
The Contractual Attorney’s Fees Provision

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GMAC contends that it is entitled to its attorney’s fees pursuant to the contractual attorney’s

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fees provision contained in the RISC and by operation of Cal. Code Civ. Proc. §1717. Before

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addressing §1717, the court first turns to the alleged attorney’s fees provision. GMAC represents that

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the attorney’s fees provision can be found at two different locations in the record. (Ct. Dkt. 65-3, Exh.

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A ¶3(c); 68-2, Exh. A ¶3(c)). The cited portions of the record are simply not legible. The court has

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magnified the alleged attorney’s fees provision by 400% and it is still not legible. Consequently,

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GMAC fails to meet its burden of showing that there is a contractual provision permitting the court

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to award attorney’s fees.2

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In sum, the court declines to award attorney’s fees because GMAC fails to meet its burden to

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show that there is an attorney’s fees provision in the RISC.

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Rees-Levering

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Alternatively, GMAC contends that it is entitled to a fee award under Civil Code

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Section 2983.4. That provision provides that “[r]easonable attorney’s fees and costs shall be awarded

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to the prevailing party in any action on a contract or purchase order subject to the provisions of this

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chapter regardless of whether the action is instituted by the seller, holder or buyer.” Cal. Civ. Code

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§2983.4. “Under section 2983.4 th[e] action need only be on a contract subject to the Rees-Levering

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Act, not an action to enforce such a contract.” Cobian v. Ordonez, 103 Cal.App.3d 718 (1987).

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In Davis v. Ford Motor Company, 179 Cal.App.4th (2009), the plaintiff alleged that

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The court notes that Plaintiff submits an exemplar of a portion of a RISC. (93-1, Exh. 1
¶3(c)). However, there is no evidence before the court that this is the same RISC entered into by
Plaintiff and GMAC.
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defendant’s practice of charging late fees was prohibited by Rees-Levering and actionable under the

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UCL. The plaintiff, like the Plaintiff here, alleged a claim under the UCL with the alleged Rees-

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Levering violation serving as a predicate for the UCL claim. Under these circumstances, Davis held

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that the prevailing party could not recover attorney’s fees:

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[A]lthough the underlying transaction was subject to the provisions of Rees-Levering,
the action was not prosecuted under Rees-Levering. Davis did not sue directly under
Rees-Levering - rather, the alleged Rees-Levering violation was merely a predicate to
the complaint’s UCL claims. We hold Rees-Levering’s reciprocal fee provision is
inapplicable when an alleged Rees-Levering violation is merely a predicate to a UCL
claim, in that the public policy underlying the UCL must prevail over the reciprocal fee
provision of Rees-Levering.

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Id. at 601. Accordingly, the court declines to award attorney’s fees under Rees-Levering.

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GMAC argues that Davis was wrongly decided and should be disregarded because (1) Cal. Civ.

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Proc. §2983.4 provides for an award of attorney’s fee pursuant to any action on a contract and (2) the

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California Supreme Court rejected a similar argument to that raised in Davis. The court rejects

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GMAC’s arguments because Davis is factually and legally similar to the case at bar and the California

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Supreme Court has not overruled Davis.

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In sum, the court denies the motion for attorney’s fees and costs.

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IT IS SO ORDERED.

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DATED: April 23, 2012

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Hon. Jeffrey T. Miller
United States District Judge

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cc:

All parties

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