September 7, 2017
Man Who Sued Under ‘Lemon Law’ Must Pay BMW $19,129
C.A. Says Statutory Scheme Does Not Permit Striking Victorious
Defendant’s Cost Bill Pursuant To
Public Policy Argument That Such an Award Would Deter Resort to Pro-Consumers
By a MetNews
A man who sued
BMW of North America under the “lemon law,” but failed to persuade a jury that
there was anything wrong with his vehicle, will have pay the car-maker $19,129
in costs, under a decision of this district’s Court of Appeal.
Three, in Tuesday’s unpublished opinion by Justice Brian M. Hoffstadt, rejected
policy arguments put forth by plaintiff Samir Haroun against a cost award being
imposed on persons such as he who have sued under the Song-Beverly Consumer
Warranty Act, Civil Code §1790 et. seq.
Hoffstadt phrased Haroun’s contention, the award should be stricken in its
entirety because the size of it “stands as a disincentive for plaintiffs to sue
under the Song-Beverly Act, an Act that is specifically aimed at protecting
consumers.” Failing that, the jurist recited, the plaintiff wants the award
scaled down, like expert witness fee awards in Fair Employment and Housing Act
cases, “to avoid deterring meritorious lawsuits under the Act.”
responded that the panel will decline the plaintiff’s “invitation to implicitly
repeal or rewrite” Code of Civil Procedure §1033.5, the general costs statute,
to set forth special rules for lemon law cases where the defendant wins.
repeals are disfavored,” Hoffstadt said.
remarked that this is “especially true where, as here,” the Legislature
specifically rendered the lemon law more favorable to a prevailing plaintiff
than to a victorious defendant—by providing for attorney fees only to the
former—but did not provide more favorable treatment to the consumer with
respect to costs.
added that there is “no opening for us to rewrite section 1033.5 to impose a ‘scaling
down’ mandate for costs where such a mandate appears nowhere in the statute
opinion affirms each of Los Angeles Superior Court Judge Rita J. Miller’s calls
with respect to cost items, except for one math boner. She added the $4,200
deposited with a private court reporter to the final bill of $6,249 rather than
applying the deposit to the total.
$23,329 award was reduced by $4,200.
connection with the court reporter fees, Haroun complained that they exceeded the
$55-a-day limit set by Government Code §69948.
Government Code section 69948 and its cap only apply to ‘official superior
court reporters,’ not private court reporters hired by a litigant. Because the
court reporter here was privately hired, the cap plaintiff seeks to impose does
had noted that “a private court reporter was used” and observed that such a
reporter “is necessary to preserve a party’s rights on appeal in this day and
age where reporters no longer are provided by the court.” She also found that
the fee that was charged was in a reasonable amount—a finding which Hoffstadt
said was “supported by substantial evidence.”
contention was that his 2008 BMW made a strange sound when started up in the
case is Haroun
v. BMW of North America, B272279.
plaintiff was represented by Thomas E. Solmer and René Korper of the Law
Offices of René Korper, and Kate S. Lehrman and Robert A. Philipson of the
Lehrman Law Group acted for BMW.
commented that the outcome is “a huge disappointment.” He asserted:
purpose in seeking such high costs is to punish the consumer who takes his case
to trial and discourage others from doing the same. And the court approved
was given costs for thousands of pages of copies, far in excess of the trial
exhibits, without providing any evidence of why so many were made. It claimed
to the trial court that it spent over $10,000 on daily trial transcripts, but
then changed this factual contention on appeal, with the court ignoring the
the court blatantly mischaracterized our policy argument, which was simply that
‘reasonable’ costs should take into account the nature of the action and the
financial resources of the parties—it was a request for proper application of
section 1033.5 rather than a plea to rewrite or repeal it. Although this was
specifically clarified in oral argument, the court instead addressed only a
straw-man version of our position and made no comment on the argument we
a Valencia attorney who specializes in lemon law and consumer fraud litigation,
distressingly, the court seemed to endorse BMW’s position that if a party loses
at trial, the loser’s position must have been unmeritorious. The court’s
summary, “A jury ultimately found nothing wrong with the car,” shows disregard
and ignorance of the Song-Beverly Act and the burden of proof at trials in
general. This was a tough case and a close case—not a frivolous one. But
someone has to win and someone has to lose. The imposition of costs must be
fair and reasonable, not punitive. And costs claimed must be supported by
substantial evidence. The costs affirmed by this court were excessive, punitive,
2017, Metropolitan News Company
This article was not written by Michigan Lemon Law.
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