Court of Appeal (Cal.) Says CLRA Plaintiff Who Sought Injunctive Relief Only, and Disclaimed Prayer for Damages, in Order to Avoid CLRA 30-day Pre-Suit Notice Requirement Could Not Recover Attorneys’ Fees under CLRA Due to Absence of Damages

It’s a bit convoluted, but in Mikki v. Lifemark Grp., No. D076885, 2021 Cal. App. Unpub. LEXIS 309 (Jan. 20, 2021), the Court of Appeal, in an unpublished opinion, denied any attorneys’ fees to a CLRA Plaintiff.  The facts were as follows:

Mikki’s operative complaint sought solely injunctive relief under the CLRA. After accepting Lifemark’s Code of Civil Procedure section 998 (section 998) offer to compromise and dismissing her case with prejudice, Mikki moved for $67,000 in attorney fees. The trial court granted Mikki’s motion in part, awarding $38,300 in fees after reducing the requested sum by $11,400 for fees incurred after the section 998 offer, allowing $2,700 for fees incurred for bringing the motion, and further reducing the sum by $20,000 based on apportionment. The trial court reasoned that as a practical matter, if the case had progressed Mikki would have amended her complaint to seek damages so as to permit the award of CLRA attorney fees. Lifemark contends Mikki is not entitled to an attorney fee award under the CLRA because she did not satisfy its statutory conditions, namely, its requirement that a plaintiff make a pre-lawsuit demand for correction or amend her pleading to seek damages. It further contends Mikki is not a prevailing party because she did not obtain her requested relief under the CLRA or state any other claim. Finally, Lifemark contends that even if Mikki were entitled to a fee award, the court abused its discretion by awarding more than half of the fees she incurred. We hold that Mikki, who sued under the CLRA for solely injunctive relief and whose section 998 compromise offer was silent on the question of damage, is as a matter of law precluded from qualifying as a prevailing party for purposes of recovering CLRA attorney fees. She cannot establish she suffered some damage within the meaning of the CLRA and Meyer v. Sprint 2 Spectrum L.P. (2009) 45 Cal.4th 634, which requires that she do so in order to obtain CLRA attorney fees. We reverse the order.

The Court of Appeal held that since Plaintiff disclaimed any request for damages (in order to avoid the CLRA’s 30-day notice requirement), the Plaintiff could have stated no claim for injunctive relief under the Supreme Court’s interpretation of the CLRA in Meyer.  Accordingly, the Plaintiff could not have been the prevailing party permitting an award of attorneys’ fees.

Even if Meyer’s discussion of CLRA attorney fees can be characterized as dictum, it is persuasive and generally speaking, we should follow it. (Aviles-Rodriguez v. Los Angeles Community College Dist. (2017) 14 Cal.App.5th 981, 990.) We agree Mikki cannot recover attorney fees on her CLRA cause of action because she has not shown it meets the requirement of section 1780 that she suffer some damage as a result of unlawful practices. Mikki did not allege she suffered a tangible loss of money or property, nor do her allegations reflect some other transaction or opportunity costs as a result of Lifemark’s alleged misconduct. (Meyer v. Sprint Spectrum L.P., supra, 45 Cal.4th at p. 640.) To the contrary, she expressly disclaimed damages in connection with her CLRA claim.