Metropolitan News-Enterprise


Tuesday, April 3, 2007


Page 1


C.A.: Settlement No Bar to ‘Prevailing Plaintiff’ Finding


By a MetNews Staff Writer


The fact that a car buyer settled his lawsuit against the vehicle’s dealer did not preclude him from a “prevailing plaintiff” determination for the purpose of an attorney’s fee award, this district’s Court of Appeal ruled yesterday.

Div. Eight reversed an order by Los Angeles Superior Court Judge Susan Bryant-Deason, who found there was no prevailing party in lemon law action because the suit ended by means of a settlement agreement.

Bryant-Deason denied a motion for attorney’s fees brought by Richard Sang Kim after he had entered a written agreement to settle his lawsuit against Euromotors West/The Auto Gallery. 

Kim sued Euromotors over an allegedly defective Porsche 996 Turbo he leased from the dealer in 2003 under a contract requiring $10,000 on signing, plus taxes and fees, and a total of $66,844 by the end of a 4-year term. Kim received a written warranty with the lease.

Within the first year of the lease, Kim encountered malfunctions with his vehicle that required him to take the car back to Euromotors for repairs, resulting in the car being out of service for over 78 days.

In September 2004, Kim notified Euromotors through his attorney that he was revoking his acceptance of the vehicle under the Song-Beverly Act, or “lemon” law, and demanding a refund pursuant to the Consumer Legal Remedies Act.

The parties eventually reached a settlement in 2005 under which Kim agreed to transfer his interest in the Porsche to Euromotors in exchange for the dealer’s payment of an amount equal to the remaining lease obligation—$69,818.78-and a lump sum settlement amount of $10,000 that covered all claims except those for attorney’s fees and costs.

One paragraph of the settlement agreement, titled “No Admissions,” provided that neither party was admitting liability and “neither party agrees that the other is the prevailing party.”

In November 2005, Kim moved to request attorney’s fees and costs under Sec. 1780(d) of the Consumer Legal Remedies Act, which requires a court to award fees and costs to a “prevailing plaintiff” in litigation filed pursuant to the act.

Bryant-Deason denied the motion on the basis that it was an “antithetical request” and “non sequitur” not permitted by the law.  Because the case was resolved prior to trial through a settlement agreement, the judge reasoned, the law did not permit her to find Kim was the prevailing party.

But Div. Eight said that Sec. 1789(d) did not define the term “prevailing plaintiff,” and thus a request for attorney’s fees under that statute was not inherently antithetical to a pre-trial settlement agreement.

Writing for the court, Justice Laurence D. Rubin said:

“Determinations of whether Kim is a ‘prevailing plaintiff’ and the amount to be awarded, if any, are matters to be made, in the first instance, by the trial court in the sound exercise of discretion.  This is because, while TAG obtained a dismissal in the settlement agreement, Kim obtained many of his litigation objectives including return of the car, cancellation of the lease and a monetary recovery.”

Presiding Justice Candace Cooper and Justice Paul Boland concurred in the opinion.

The case is Kim v. Euromotors West/The Auto Gallery, B189277.


Copyright 2007, Metropolitan News Company