Golden West Credit Corp. v. Maury

WONG, J.—I dissent.

In the present action the respondent, who was a buyer of an automobile under a conditional sales contract, was resisting a suit brought by the holder of the contract. Respondent filed an answer denying that he owed any money and praying “that plaintiff take nothing by his complaint on file herein, that he recover the costs of suit incurred and for such other and further relief as this Court deems just and proper.” He did not ask for an award of reasonable attorney’s fees from the plaintiff. Instead he filed a cross-complaint for attorney’s fees and costs against the appellant, ivho originally sold the automobile, but who no longer had any interest in the contract.

The trial court ruled that the “holder” pay costs, but that the “seller” pay attorney’s fees. I believe that the “holder” should have been held responsible for both, and that the “seller” should have been liable for neither. It was both unnecessary and illogical to hold the “seller” responsible. It was unnecessary because the “prevailing party” can look to the “holder” who instituted the action for payment. It is illogical because it was the “holder,” not the “seller,” who had the controversy with the “prevailing party” and who brought the unmeritorious lawsuit. It was the “holder,” and not the “seller” who had control of the case, who made the decision to settle or to try the ease, and who exercised some degree of control with respect to the possible expenditure of funds for depositions, jury fees, witness fees, and other related court costs. On the other hand, the “seller” had no interest in the conditional sales contract which was the' subject matter of the lawsuit, had no controversy with either party with respect to the original sale or the subsequent assignment, and was not a party to the original lawsuit.

In my opinion the ruling of the trial court was contrary to the intent of the Legislature as expressed in Civil Code section 2983.4 which reads: “Reasonable attorney’s fees and costs shall be awarded to the prevailing party in any action on a conditional sale contract subject to the provisions of this chapter regardless of whether the action is instituted by the seller, holder or buyer. Where the defendant alleges in his answer that he tendered to the plaintiff the full amount to which he was entitled, and thereupon deposits in court, for the plaintiff, the amount so tendered, and the allegation is found to be true, then the defendant is deemed to be a prevailing party within the meaning of this section.” (Italics added.)

It is to be noted that section 2983.4 speaks in terms of “prevailing party,” “plaintiff,” and “defendant.” The only reference to “seller” is contained in the phrase “regardless of whether the action is instituted by the seller, holder, or buyer.” Thus it would appear that the Legislature intended to authorize the prevailing party to recover his attorney’s fees and costs from the losing party, i.e., the person who instituted an unmeritorious lawsuit, or a defendant who interposed an unmeritorious defense. Such a construction would tend to discourage litigants from adhering to their unmeritorious positions and encourage the settlement of doubtful claims.

The construction above suggested is not inconsistent with the recent case of Morgan v. Beasor Corp. (1968) 69 Cal.2d 881 [73 Cal.Rptr. 398, 447 P.2d 638], In that case there was a controversy among the parties to the declaratory relief action, and the court merely awarded attorney’s fees and costs to the prevailing party and against the losing parties.

One additional point is deserving of comment. On appeal the respondent states in his brief that the appellant did not give notice to respondent of the assignment of the contract as provided for in Civil Code section 2983.5. This issue was not raised by the pleadings and there is no indication in the record that it was considered by the trial court. It is well settled that statements of alleged fact in the briefs on appeal which are not contained in the record and were never called to the attention of the trial court will be disregarded on appeal. (Knapp v. City of Newport Beach (1960) 186 Cal.App.2d 669, 679 [9 Cal.Rptr. 90].)

Moreover, even if the point had been raised by the respondent, section 2983.5 is of no assistance to him for the reason that the section requires that the assignee give notice of assignment to the buyer, not the assignor.

I would reverse the judgment.