A defendant may tender the amount it estimates the plaintiff is entitled to under the Automobile Sales Finance Act without admitting liability, and may recover the tendered sum plus costs and attorney fees if the plaintiff recovers less at trial. Civ. Code 2983.4 allows a defendant to be deemed a prevailing party entitled to a fee and cost award under the Rees-Levering Act if the defendant tenders to plaintiff the full amount to which the plaintiff is entitled and deposits that sum in court—and the defendant alleges those facts in its answer and the allegation is found to be true. This decision holds that a “tender” under this section is not an admission of liability but instead only an estimate of the amount to which the plaintiff may be entitled. It also holds that the plaintiff is not entitled to recover the amount of the tender if the plaintiff fails to prove it is entitled to the tendered sum or more. Here, the jury entered verdicts against the plaintiff and in favor of the defendant dealer on all claims. The finance company which was only vicariously liable under the Holder Rule was therefore entitled to judgment as a matter of law. So plaintiff could not recover the amount tendered, and defendant was the prevailing party for purposes of the award of costs and fees.
California Court of Appeal, Fourth District, Division 1 (Benke, J.); November 7, 2016; 2016 WL 6576523