Maury
Golden West Credit Corp. v. Maury
Opinion
Dissenting Opinion
Wong, J.
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”…
Lead Opinion
Vasey, J.
Action by assignee of a conditional sales contract for a motor vehicle against the buyer for a deficiency and cross-complaint by the buyer against the assignor-seller, for attorney fees under section 2983.4 of the Civil Code. Judgment for cross-complainant for attorney fees affirmed.
This case presents the question of the right of a buyer under a motor vehicle conditional sales contract who successfully defends an action by an assignee of the contract for a deficiency after repossession and sale of the car, to recover attorney fees on a cross-complaint against the assignor-seller of the car.
The question arises under section 2983.4 of the Civil Code adopted in 1961 and as a part of an act designated as the ReesLevering Motor Vehicle Sales and Finance Act. That section reads in part: “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. ...”
Obviously, in our case, the defendant and cross-complainant was the prevailing party. Obviously, under this section he is to be allowed attorney fees…