Thursday, September 7, 2017
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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 Three, in Tuesday’s unpublished opinion by Justice Brian M. Hoffstadt, rejected policy arguments put forth by plaintiff Samir Haroun against a cost award being imposed on persons such as he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 America, 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.”
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