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Stuppy v. World Gym International3/7/2003
to deceive the public that I should issue an injunction."
Plaintiffs contend the trial court abused its discretion in making this decision because the evidence showed that World Gym had not complied with the Unfair Trade Practices Act, and the evidence did not show that World Gym intended to comply with the Act in the future. They again rely on People v. Arthur Murray, Inc., supra, 238 Cal.App.2d 333. The court specifically stated: " e think that the statute was enacted for a public purpose and that the accomplishment of that end justifies injunctive relief in the name of, and on behalf of, the People. . . . Prevention by injunction is a more effective remedy than retroactive relief in damages. And prevention is the essence of the public benefit which the statute before us seeks." (Id. at p. 349.)
We agree with World Gym that the trial court did not abuse its discretion in refusing injunctive relief. A continuing course of deceptive conduct by World Gym was not found and the need for an injunction was not apparent. Although we agree with plaintiffs that the trial court had the power to issue an injunction, the denial of relief was also within its discretion.
ATTORNEY FEES ON APPEAL
Finally, plaintiffs seek an award of their attorney fees on appeal under Civil Code section 1812.94. That section provides: "Judgment may be entered for three times the amount at which the actual damages are assessed plus reasonable attorney fees."
Plaintiffs cite Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127. In that case, the court said: "Statutory authorization for the recovery of attorney fees incurred at trial necessarily includes attorney fees incurred on appeal unless the statute specifically provides otherwise. [Citation.] Thus, we grant the motion for attorney fees on appeal. Although we have the power to appraise and fix attorney fees on appeal, we deem it the better practice to remand the cause to the trial court to determine the appropriate amount of such fees. [Citation.]" (Id. at p. 1134.)
World Gym cites Morcos v. Board of Retirement (1990) 51 Cal.3d 924. In that case, our Supreme Court said: " ppellate courts have consistently permitted a successful party to recover attorney fees incurred on appeal when a statute expressly permits such an award in the trial court or other lower tribunal." (Id. at p. 927.) Accordingly, "since attorney fees are properly recoverable in the trial court for petitioner's success there, they should be recoverable for his continued success on appeal. [Citations.]" (Id. at pp. 929-930.)
We agree that Civil Code section 1812.94, the statutory authorization for attorney fees applicable here, allows an additional award of reasonable attorney fees on appeal. But, in this case, since World Gym's appeal has been substantially and partially successful, we will order the case remanded to the trial court for a determination of the amount of reasonable attorney fees and costs to be awarded to plaintiffs.
DISPOSITION
The judgment is modified by striking the award of $301,346 to class members who received refunds only after the court certified the class. The judgment is affirmed as so modified. The case is remanded for a determination of the amount of reasonable attorney fees and costs on appeal to be awarded to plaintiffs under Civil Code section 1812.94.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur:
RAMIREZ P. J.
RICHLI J.
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