Not-So-Sour Lemon Law: California Court of Appeal Affirms an Award of Costs to a Prevailing Vehicle Manufacturer

Oct 31, 2017

The California Court of Appeal recently provided some relief to automobile manufacturers in the notoriously pro-consumer California “lemon law” field.  In Haroun v. BMW of North America, LLC, 2017 Cal.App.Unpub. LEXIS 6089, the plaintiff sued BMW of North America, LLC (“BMW”) for violation of the Song-Beverly Consumer Warranty Act in connection with his purchase of a used BMW vehicle.  The plaintiff alleged the vehicle was a “lemon” because it made an odd noise when he first started it every morning.  A jury disagreed with the plaintiff, and the trial court entered a judgment for BMW that allowed BMW, as the prevailing party, to recover its “costs of suit.”  BMW filed a memorandum of costs seeking about $23,000.  The plaintiff moved to tax costs, challenging various expenses claimed by BMW, including BMW’s court reporter fees and photocopy costs.  The plaintiff also challenged the entire cost award was excessive.  The trial court overruled the plaintiff’s objections and awarded costs to BMW. 

On appeal, the plaintiff raised the same issues he argued at the trial court level and challenged the costs associated with the technical PowerPoint assistance BMW received during trial.  To determine if the trial court’s cost award constitutes an abuse of discretion, the Court of Appeal evaluated Code of Civil Procedure Section 1033.5—a statute that delineates items that are recoverable as costs. 

As for the photocopying costs, the Court of Appeal noted that the Code expressly allows for the recovery of costs for photocopies “reasonably helpful to aid the trier of fact.”  Cal. Civ. Proc. Code § 1033.5(a)(13).  Case law further establishes that this section allows for the recovery of costs for photocopies of not only exhibits admitted into evidence, but also exhibits that were prepared for trial but not admitted into evidence if they were “reasonably helpful to the trier of fact.”  Because the trial court found that all of the exhibits prepared by BMW were relevant and therefore helpful to the trier of fact, the cost award for BMW’s photocopies was not an abuse of discretion. 

As for the costs of PowerPoint assistance, the Court of Appeal noted several courts have interpreted Section 1033.5(a)(13) to allow for the recovery of costs for equipment rental and technical assistance during trial.  In addition, Section 1033.5(a)(11) specifically provides for the recovery of “court reporter fees as established by statute.”  As such, BMW’s costs for PowerPoint assistance and court reporter fees were recoverable. 

In a final effort to avoid BMW’s recovery of costs, the plaintiff asserted that BMW’s entire cost award should be invalidated because it creates a “disincentive for plaintiffs to sue under the Song-Beverly Act.”  The Court of Appeal, however, disagreed with the plaintiff.  In support of its decision, the Court noted that the Song-Beverly Act specifically provides for the recovery of attorney’s fees by prevailing plaintiffs, while not providing the same recovery to prevailing manufacturers.  The Song-Beverly Act does not, however, provide more favorable treatment to prevailing plaintiffs with respect to costs.  Because the Legislature addressed one aspect of recovery (attorney’s fees) but not the other (costs) in the Song-Beverly Act, the Court of Appeal upheld the trial court’s award of costs to BMW.