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Man Who Sued Under 'Lemon Law' Must Pay BMW $19129 – Metropolitan News-Enterprise

Metropolitan News-Enterprise

 

Thursday,
September 7, 2017

 

Page 1

 

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
Remedy

 

By a MetNews
Staff Writer

 

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.

Div.
Three, in Tuesday’s unpublished opinion by Justice Brian M. Hoffstadt, rejected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.

As
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.”

He
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.

“Implied
repeals are disfavored,” Hoffstadt said.

He
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.

Hoffstadt
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
itself.”

Judge Miller
Affirmed

The
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.

The
$23,329 award was reduced by $4,200.

In
connection with the court reporter fees, Haroun complained that they exceeded the
$55-a-day limit set by Government Code §69948.

“However,
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
not apply.”

Miller
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.”

Haroun’s
contention was that his 2008 BMW made a strange sound when started up in the
morning.

The
case is
Haroun
v. BMW of North Ameri
ca, B272279.

Haroun’s Lawyer
Comments

The
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.

Solmer
commented that the outcome is “a huge disappointment.” He asserted:

“BMW’s
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
this.”

The
lawyer continued:

“BMW
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
discrepancy.

“And
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
actually presented.”

Solmer,
a Valencia attorney who specializes in lemon law and consumer fraud litigation,
added:

“Most
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,
and unsubstantiated.”

 

Copyright
2017, Metropolitan News Company

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Chasing the Truth Behind the $100,000, 676-Mile 1997 Nissan … – The Drive

He allowed that he hadn’t seen any documents related to the car’s extensive backstory, but he believed it was true (“He would have to have the most vivid imagination ever to make all this up”) and offered to connect us to the owner himself, a “real nice guy” named Bruno in his mid-sixties. Collins added that Bruno seemed “very emotional” and had tears in his eyes when he dropped the car off for what could be the last time should it sell. When asked if anyone from Nissan had reached out, he mentioned that a former employee and self-professed 240SX fanatic had emailed him, asking for the VIN so he could run down some more details on what appeared to be a very special car.

It was prescient moment, as it turns out. Less than 10 minutes after hanging up, Collins called us back to say he had just received an alarming set of text messages from the former Nissan employee. The story was likely bogus, the man wrote, as a base-model 240SX would never be used as a show car. The detail about the mahogany crate just made no sense. The VIN didn’t line up with the tale, and he questioned why the car has what appears to be a Jaguar badge on the rear instead of the Nissan logo. 

And when you stop to think about it, there are a number of apparent gaps in the story. A judge really said “Five of you to fight one honest customer?” to Nissan’s lawyers and ordered the company to turn over a valuable display car? The dealership really tried to pass off a muddy-bottomed, flood-damaged 240SX as brand new after the negative publicity of the first case? The whole saga really forced a top executive to resign?

“It’s a very strange situation,” Collins admitted.

Further muddying the waters is the owner’s reaction to all the attention, something you kind of have to expect when selling a six-figure time capsule with a Hollywood-caliber past. After speaking with us the first time but before getting those fateful texts, Collins called him up to let him know The Drive was interested in speaking with him about his story. He was, in Collins’s words, “reluctant.”

“He goes, ‘I don’t want to talk about it. I’m having a hard enough time dealing with getting rid of the thing, you know? I don’t want to talk about it. I don’t want to talk about all the legal shit, I don’t want names thrown around.’ It was stuff like that,” Collins said. 

He said he understood, remembering how the guy “had a hard time leaving the building” when he first dropped it off, but the texts from the former Nissan employee added a new layer to Bruno’s reticence. When we spoke again on Friday, Collins told us the owner had basically settled on not talking to anyone about the car and passed along a message. 

“He’s like, ‘Look, you wanna dig around and find the legal stuff for it? Be my guest. I’ll release whatever information you can dig up, but I’m not gonna start unearthing files from the past. And I’m definitely not going to talk about it,'” Collins said. “If the story is not true, this guy has the most vivid imagination ever. If the story is true, it adds a little coolness to the value of the car, but I don’t think it changes the fact that it’s still a 600-mile 240SX.”

Collins talks like he’s suspicious of the story, but wants like hell for it to be true, and for the “nice guy” he’s been dealing with to not turn out to be a liar. And the ads—both on Craigslist and Hemmings—remain live, because as he put it, “none of this changes the fact that it’s still a 600-mile 240SX.” He’s also not sure that the former Nissan guy is as connected as he says he is, having never met him in real life. 

There is one more avenue that might yield some information, of course: Nissan itself. But alas, after repeated requests, the company emailed The Drive a short statement declining to comment. 

So at the end, we’re simply left with more questions than answers—the biggest one being, is a 676-mile 1997 Nissan 240SX worth $100,000? Depends on if you want to believe.

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New Car Breakdown Leads to Replacement Under Lemon Law – NBC 7 San Diego

“I just got a new job and I wanted a new car,” Taggart Plain said. 

In March, after months of research, Taggart said he went to Westcott Mazda in National City to buy what he thought would be the perfect car. For six days after the purchase, everything was going great for Taggart’s dark blue Mazda 3, until something unexpected happened. 

“All of a sudden the car started sputtering,” Taggart said. “All the lights on the dash came on, check engine and everything, and it just died.” 

Taggart had the car towed back to Westcott Mazda where he said it stayed for four weeks. From the ignition coil to the onboard computer, he said the technicians, continued to tell him the problem was something else. Taggart said nothing seemed to work. 

“I never thought it would take this long,” he said. 

When the repairs didn’t work, Taggart asked for a new car. He said the dealership agreed but only if he paid them $1,600 for taxes and a license fee. Taggart said he didn’t think that was fair. 

“I would like a new car, a replacement car, not that car because I’m not sure it’s reliable,” Taggart said. “I think it’s a lemon.” 

According to California lemon law standards, if a newly purchased car breaks down, the dealership has thirty days to make the repair. In Taggart’s case, the dealership’s repair took over a month to complete. 

Taggart contacted NBC 7 Responds and we reached out to Westcott Mazda. When the dealership wouldn’t respond to our calls, we turned to Mazda’s U.S. Corporate Headquarters. 

Mazda acknowledged Taggart’s car was covered by California’s Lemon Law and found him the replacement car he was looking for. 

“Same one I had before except this one actually runs properly and the check engine light doesn’t come on,” Taggart said. 

In a statement, Jacob Brown with Mazda’s U.S. Corporate Headquarters said, “it is our goal to delight customer with our Mazda cars and crossovers and throughout their ownership experiences. We’re glad Mr. Plain’s situation was resolved with a positive outcome, and we hope he enjoys his new Mazda3 for many years to come.”

To read more from the Department of Consumer Affairs on California’s lemon law, click here.

Published at 4:22 PM PDT on Jul 11, 2017 | Updated at 8:43 PM PDT on Jul 11, 2017

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Hidden camera pet store investigation reveals sick puppies, duped consumers at high-end Manhattan store – HSUS News

July 25, 2017

MEDIA DOWNLOADS

The Humane Society of the United States reveals that a boutique Manhattan puppy store is hiding illnesses among its high-priced puppies and failing to reveal full health information to buyers. An undercover investigator who wore a hidden camera while employed by the store documented these and other findings, which have been shared with law enforcement officials responsible for enforcing city and state laws.

An HSUS undercover investigator worked at the Chelsea Kennel Club for two months in what is HSUS’ longest-running, employment-based pet store investigation. She documented puppies with fevers, infections and illnesses who weren’t immediately taken to a veterinarian, in many cases only getting sicker as cost-cutting measures delayed their care. The investigator also witnessed pet store staff bullying some of the puppies. One employee smacked puppies with towels and roughly grabbed them by their scruffs. Several staff members held puppies down with their muzzles shut as part of what some of the staff called “dominance” training.

“From puppies with open surgical wounds on their bellies to a dog who could barely breathe because she was suffering from pneumonia, our investigator witnessed shocking disregard for the care these puppies need,” said John Goodwin, senior director for The HSUS’ Stop Puppy Mills campaign. “The retail pet industry has a system-wide problem that begins with cruel puppy mills, continues with the way they ship baby animals across the country in cramped quarters, and ends with consumers often being sold sick animals at an inflated price.”

Some of the dozens of problems documented in video footage and detailed log notes include:

  • The store’s “isolation” room filled with sick puppies – puppies with breathing problems, bloody diarrhea, painful infections, high fevers and more.
  • A few of the many dogs who were sick in the store include a Pomeranian whose eyes were swollen shut with conjunctivitis, a French bulldog puppy whose weight plummeted from 4.12 pounds to 3.08, an English bulldog puppy with severe pneumonia and a shiba inu with bronchitis.
  • Pet store staff removed paperwork detailing abnormal veterinary findings from several puppies’ folders before the animals were sold to unsuspecting buyers. Sales staff told the investigator that the store owner had instructed them to do this in contravention of New York State’s pet lemon law, which requires pet sellers to disclose puppies’ physical abnormalities or illnesses at the time of the sale.
  • The HSUS sent “secret shoppers” to the store to purchase two puppies identified by the investigator as sick and/or behaviorally troubled.
    • One puppy sold to the secret shoppers had reportedly bitten her former buyer, who then returned her to the store. The store’s salesperson did not reveal the puppy’s bite history to our secret shopper at the time of purchase. The puppy also had a congenital eye malformation and came from an address linked to a breeder in a former HSUS Horrible Hundred report – an annual report of problematic puppy breeding and/or puppy brokering facilities that demonstrates the scope of the puppy mill problem in America.
    • Regarding the other puppy, two different sales people told an HSUS secret shopper she had “a normal” or “typical” cough, and one stated that the puppy had “just got it a few days ago.” However, she had actually been sick in the store for weeks, according to the undercover investigator. The HSUS took her to a veterinarian within 24 hours, who diagnosed her with bronchitis and later pneumonia. She may now have permanent lung scarring, according to her new veterinarian.

The investigation report, b-roll footage, photos and a diary kept by the investigator are available here.

The HSUS encourages anyone who has bought a sick puppy from a pet store to contact the organization at humanesociety.org/puppycomplaint. New York residents or pet store employees may also contact the New York State Attorney General’s office to report consumer fraud or pet lemon law violations online or via its helpline at 1-866-697-3444. Individuals who have witnessed potential animal cruelty at a puppy mill can also call 1-877-MILL-TIP.

The HSUS encourages consumers to adopt from animal shelters and rescue groups, and to seek out responsible breeders. Tips on where to get a puppy are available at humanesociety.org/puppy.

Media contact: Samantha Miller: smiller@humanesociety.org; 301-258-1466 

Donate now to support the work of our Puppy Mills campaign»

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Dennis Horton: Debunking consumer myths – Rockford Register Star


By Dennis HortonBetter Business Bureau

At the Better Business Bureau, we get phone calls daily from consumers who want to cancel a contract, return a recently purchased vehicle, or think there is a “lemon law” for everything. So, I think it’s important to take a look at … let’s call them consumer myths.

Here are the types calls we get most frequently:

• Myth No. 1 – I have a three-day right to cancel any purchase.

Fact: In Illinois, there are situations where you can cancel a purchase agreement or contract — but not very many. For the most part the three-day right to cancel applies to transactions of $25 dollars or more that were initiated away from the seller’s regular place of business; such as door-to-door sales. The other is when your house is collateral for a loan. When it applies, the seller must give you two copies of a cancellation form (one to keep and one to send if you decide to cancel your purchase) and a copy of your contract or receipt.

• Myth No. 2 – I have five days to give the car back to the dealer and walk away.

Fact: You can’t. Whether you purchased a car that you can’t afford or you just have buyer’s remorse, the car is yours along with the payments. In some cases, a dealer might put you in a more affordable vehicle but they are under no obligation either legally or morally to do so.

• Myth No. 3 – A store has to give me a refund if I ask for one.

Fact: There are no state or federal laws that regulate refund and return policies. Each retailer is free to set their own policies.

• Myth No. 4 – There is a “lemon law” that protects you on all your purchases.

Fact: Illinois’ lemon law applies to only to new cars and even then, specific guidelines also must be met. There is no universal lemon law for big-ticket items or any other purchase. The law also does not apply to used cars purchased “as is” without a warranty.

• Myth No. 5 – Businesses must honor the advertised prices that you see or hear on TV, radio, newspapers, or magazines.

Fact: In general, there’s no law that requires a business to honor an advertised price if that price is wrong. Typographical errors, miscommunication and other glitches can result in items being offered at what appears to be a super deal. Typically, there is a disclaimer in the ad that states they are not responsible for errors. However, if not too costly, sometimes the business will honor the price but that’s usually for customer goodwill.

So, if none of these things are true what do I do? Think, before you act and do your homework before you sign the deal. Visit bbb.org or call us at 815-963-2222 so that you can check out the business and have knowledge of its marketplace conduct.

Dennis Horton is regional director of the Rockford Better Business Bureau, which covers Winnebago, Boone and Stephenson counties among others.

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Consumers question Florida's Lemon Law following buy of new, defective Samsung fridge – First Coast News

JACKSONVILLE, Fla. – Ken and Lili Kuntz are very frustrated by the recent purchase of a Samsung refrigerator.

“We got sick of tired of waiting and waiting,” Ken Kuntz said. “So we went out and bought a new refrigerator.”

The new refrigerator is suppose to replace the other one that is now being stored in his garage.

“It is nice, but if it doesn’t work, it doesn’t do you any good,” he said.

Last November, they purchased the 24-cubit feet Samsung refrigerator from Lowes. Two months later in January, it stopped working.

“I sat in Lowes for two hours crying saying I want a refrigerator that works,” Lili Kuntz said.

The retailer told them it was beyond 30 days and they need to call the manufacturer, which they did. Samsung responded, dispatching a technician to their home more than once.

“They changed the whole compressor and they had it running for a week, nothing,” Ken Kuntz said.

His level of frustration went from cool to hot, just like his defective fridge.

“I said when are you guys going to get it fix,” he said. “Why don’t you just say it is a lemon and admit it.”

He was told as long as they can fit it, they will try to fix it.

“Well after a fifth time or sixth time, they finally said you are going to have to call Samsung and good Luck,” he said.

In February, they filed a claim and has been trying to get a $1,400 refund ever since.

“We keep making phone calls and sending emails,” he said.

It made us wonder why did he not file a lemon law claim? It turns out that Florida’s Lemon Law does not apply to appliances.

However, under the federal Magnuson-Moss Act a consumer might find some remedy.

Right now, all the Kuntz family wants is for Samsung to refund their money and remove the defective fridge that is still parked in their garage.

“Every time we do something, they always have another excuse to get nothing done,” he said.

Their problem is not an indictment of all Samsung refrigerators, but it speaks to customer service.

On Your Side reached out to Samsung and a spokesperson gave us this response via email:

“At Samsung, consumer satisfaction is core to our business and we aim to deliver the best possible experience. We are sorry to hear about Mr. and Mrs. Kuntz’s experience and have followed up with them to resolve the matter to their satisfaction. We encourage any Samsung consumers who have questions or concerns to contact us directly at 1-800-SAMSUNG.”       

As stated, Florida’s Lemon Law does not cover appliances, so what do you do?

Here is the best practice: File a complaint with the manufacturer in writing; state the problem and desired resolution and give them 30 days to respond. Or file a complaint with the state consumer services at 1-800-HELP-FLA (435-7352)
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Plaintiff says GM violated Lemon Law and UTPCPL, among other … – The Pennsylvania Record

PHILADELPHIA – A Perkiomenville man alleges General Motors violated federal and state laws when it sold him an automobile he alleges was prone to a number of mechanical problems and defects.

John Ronald Burbich filed suit in the Philadelphia County Court of Common Pleas on June 16 versus General Motors, LLC c/o CSC of Wilmington, Del.

Per the litigation, on March 29, 2016, Burbich leased a new 2016 Buick Encore, manufactured and warranted by the defendant, and both purchased and registered in Pennsylvania. The price of the vehicle was in excess of $29,167.00, including registration charges, document fees, sales tax, finance and bank charges, but excluding other collateral charges not specified yet defined by the Lemon Law.

Burbich soon learned the vehicle’s defects included power loss and a defective engine. Burbich added the defendant’s authorized service facility had made three attempts to comply with its express warranties, but the attempts were ineffective or not performed within a reasonable amount of time.

For alleged violation of the Lemon Law, Magnuson-Moss Warranty Act, breach of warranty, violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) and revocation of acceptance of contract, the plaintiff is seeking damages in an amount equal to the purchase price of the subject vehicle, collateral charges and attorney’s fees, not in excess of $50,000.

The plaintiff is represented by Michael Power of Power & Associates, in Glen Mills.

Philadelphia County Court of Common Pleas case 170601750

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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Motorcycles could be added to Pa Lemon Law under new measure – FOX43.com

bikers

Motorcycles could be added to Pa Lemon Law under new measure

bikers

HARRISBURG, PA – State Rep. Pam Snyder, D-Greene/Fayette/Washington, said the House Consumer Affairs Committee today approved her measure that would cover motorcycles under Pennsylvania’s Automobile Lemon Law.

“If you buy or lease a new motorcycle with defects affecting its safety, value and use, the manufacturer should fix it – the same as with cars and trucks,” Snyder said. “That’s what my House Bill 74 would ensure.”

Snyder said H.B. 74 would include motorcycles in the definition of a “new motor vehicle” and require manufacturers to correct any defect that substantially impairs the use, value or safety of the vehicle and occurs within one year following delivery, within the first 12,000 miles of use or during the term of the warranty, whichever may first occur.

“Motorcycles are major investments, not toys,” said Snyder, a member of the Consumer Affairs panel. “If serious defects are found, motorcyclists deserve protection of their investments. It’s a matter of fairness and common sense.”

Snyder said the measure, now facing consideration by the full House, has bipartisan support in the General Assembly and widespread backing by motorcycle enthusiasts.

“It’s time to get this done once and for all,” said Snyder, who said her similar measures failed to make it to the finish line despite her best efforts.

SOURCE: House Democratic Communications Office

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