Lemon Law Aid attorney Joe Kaufman was published in the Daily Journal legal newspaper, responding to a recent out-of-state critique of California’s pro-consumer lemon law. The original piece, by an author hailing from Colorado and not licensed to practice law in California, took issue with attorneys’ fees – costs borne by manufacturers, not lemon law plaintiffs:
An Attack on Lemon Law Fees is an Attack on Consumers
A recent guest column by Colorado attorney Lee Mickus purports to offer a broad critique of California’s lemon law by lamenting that it has moved away from its original purpose of helping consumers and morphed into a mechanism for maximizing recovery of attorney fees – a state of affairs for which the piece (somewhat predictably) castigates California consumer rights attorneys.
Although the article ostensibly deals with the efforts seeking depublication of the California Court of Appeal’s recent decision in Morris v. Hyundai Motor America – a decision that did no more than affirm a discretionary fee ruling by a trial court – it does little to conceal its true purpose, namely, to attack the plaintiffs’ bar and urge the emasculation of the fee shifting provision of the lemon law.
California lemon law litigation is specific to well, California. One can surmise that the only real reason why a Colorado attorney would offer a critique is that there is currently a nationwide, systematic initiative underway to strengthen car manufacturers footing with respect to lemon laws. And, while perhaps not perfect, California’s lemon law is decidedly pro-consumer, with a big industry target on its back. It seems unlikely that a Denver denizen would devote energy to “fighting” for consumer rights in California.
Mickus’ piece contends that plaintiff lemon law firms assign too many attorneys to handle lemon law claims while ignoring that those defending the very same matters often rely on multiple law firms to handle discrete aspects of each, with out-of-state law firms in New York, Ohio, Michigan and elsewhere often handling discovery issues or settlement analysis, while local California counsel handle day to day litigation, and third-party vendors are brought in to complete the settlement terms – all managed by a team of in-house counsel based still elsewhere.
While car companies can and do utilize teams of attorneys and staff in multiple firms across the country, Mickus critiques the very few plaintiff firms who adopt a similar approach.
It should be noted of course that the overwhelming majority of plaintiff lemon law practitioners are solo attorneys or attorneys who are based in California and work at very small firms (like myself); so, the article’s critique of larger plaintiff lemon law firms is directed at an extremely narrow audience and inapplicable to most lemon law attorneys – a key distinction likely lost on the portion of the populace who champion so-called “deregulation” and find the plaintiff’s bar, broadly, a meddlesome nuisance in the way of business progress.
Noticeably absent from the article also is any mention that the defense bar itself launched a concerted effort seeking publication of the very same opinion. Why did Mickus fail to call out the Association of Southern California Defense Counsel for seeking to publish the same opinion? (Of course, he probably isn’t up-to-speed on California legal developments, as he is not admitted to practice in the state.)
The reality is that Mickus’ argument is rather hollow. He offers virtually nothing by way of legal analysis regarding the merits of the depublication request. There is no discussion about the standards for publication of appellate opinions or how those standards apply or do not apply to Morris. Instead, he devotes his article to impugning the motives of the attorneys who sought depublication, going as far as to accuse them of “failing to disclose” to the Supreme Court of California the details of their business operations and office arrangements – obviously matters that are not remotely relevant to the question whether this particular decision should or should not have been published. The opinion piece also offers no valuable insight or information to practitioners on either side of lemon law cases about issues concerning the lemon law in general or publication of appellate opinions in particular. A long-form gripe is not an informed call for reform.
Mickus’ article is really nothing more than an ad hominem attack on attorneys who represent consumers in lemon law cases, and, by extension, their clients who benefit from strong protections and are often the most economically challenged in society. The column is another example of the ongoing, coordinated attack on consumer rights here in California – evidenced by the claim that attorney fees and costs paid in consumer cases should be taxable as income to consumers. Such a move would greatly disincentivize lemon owners from seeking legal recourse and would bully them into accepting terms and settlements that fall short of true justice. Mickus may not know Californians very well: we believe in and fight for individual rights.
Although Mickus accuses plaintiffs’ attorneys of subverting the lemon law’s purpose, the reality is that those attorneys, and the fee shifting provision of the law, are what make the realization of the lemon law’s purpose possible. “The Song-Beverly Act is a remedial statute designed to protect consumers who have purchased products covered by an express warranty.” Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 798.
The Supreme Court of California has addressed the issue of attorney’s fees and costs under Song-Beverly, holding that the act is manifestly a remedial measure intended to protect the consumer, and it should be given a construction calculated to bring its benefits into action. Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 990. The court endorsed the central role that the payment of attorney’s fees and costs play in achieving the purposes of the act: “By permitting prevailing buyers to recover their attorney’s fees in addition to costs and expenses our legislature has provided injured consumers strong encouragement to seek legal redress in a situation in which a lawsuit might not otherwise have been economically feasible.” Id. at 994.
Mickus’ conclusion that the focus on fees harms consumers is not borne out in the reality I, and my fellow solo and small lemon law practitioners have experienced. The evidence suggests that the truth is exactly the opposite.
While there are some car companies who do indeed emphasize early resolution, the overwhelming majority refuse to settle lemon law claims until the eve of trial, instead choosing to escalate these cases with scorched earth defense tactics. Car companies often refuse to comply with the Song-Beverly Act’s mandate to repurchase defective vehicles, even when the defect is so grievous that it threatens the consumer’s life and limb. In many of these cases plaintiffs send pre-litigation demand letters or go through pre-litigation dispute solution programs regulated by California’s Arbitration Certification Program.
Time and time again car companies simply refuse to comply with California’s lemon law, necessitating litigation. Even in cases where plaintiffs obtain binding repurchase awards that car companies are required to complete within 30 days, it is the sadly the norm that car companies refuse to comply with the law. But yes, it’s the fees – not borne by affected consumers – that are the real aspect of lemon law that call out for reform.
A party cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response. Serrano v. Unruh (1982) 32 Cal.3d 621, at 638. The remedy for car companies who object to paying attorney’s fees and costs to the successful consumer is not to complain about it and encourage California to limit a consumer’s right to access justice. The solution, instead, is for those companies to simply comply with the law in the first place.
When it comes to attorney’s fees, therefore, the fate of car companies is in their own hands. And, the issue of California lemon law reform belongs in California – not Colorado.
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