This case was last updated from Los Angeles County Superior Courts on 05/27/2019 at 16:43:37 (UTC).

DONALD L HARBERT ET AL VS FCA US LLC ET AL

Case Summary

On 06/13/2016 DONALD L HARBERT filed a Contract - Other Contract lawsuit against FCA US LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is TERESA A. BEAUDET. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3621

  • Filing Date:

    06/13/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

TERESA A. BEAUDET

 

Party Details

Plaintiffs and Petitioners

HARBERT DONALD L

HARBERT VICKI L

Defendants and Respondents

DOES 1-10

EXTREEME AUTOMOTIVE GROUP

FCA US LLC

DON-A-VEE CHRYSLER JEEP

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

O'CONNOR & MIKHOV LLP

SMITH AMY REBECCA

MIKHOV STEVE BORISLAV

Defendant Attorney

YASUZAWA BRIAN TAKEYA

 

Court Documents

PLAINTIFFS' MOTION IN LIMINE NO.3 NOTICE OF MOTION AND MOTION IN LIMINE TO PROHIBIT REFERENCE TO ATTORNEY'S FEES

1/12/2018: PLAINTIFFS' MOTION IN LIMINE NO.3 NOTICE OF MOTION AND MOTION IN LIMINE TO PROHIBIT REFERENCE TO ATTORNEY'S FEES

EX PARTE APPLICATION

3/14/2018: EX PARTE APPLICATION

Minute Order

3/21/2018: Minute Order

INFORMAL DISCOVERY CONFERENCE (?IDC?) STATEMENT*

3/21/2018: INFORMAL DISCOVERY CONFERENCE (?IDC?) STATEMENT*

DEFENDANT FCA US LLC'S NOTICE AND MOTION TO COMPEL TILE INSPECTION OF THE SUBJECT VEHICLE AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $4,286; DECLARATION OF BRIAN YASUZAWA

3/28/2018: DEFENDANT FCA US LLC'S NOTICE AND MOTION TO COMPEL TILE INSPECTION OF THE SUBJECT VEHICLE AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $4,286; DECLARATION OF BRIAN YASUZAWA

DEFENDANT FCA US LLC'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO.7 TO PROHIBIT TESTIMONY OR EVIDENCE RELATING TO PLAINTIFFS' FINANCIAL CONDITION

4/9/2018: DEFENDANT FCA US LLC'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO.7 TO PROHIBIT TESTIMONY OR EVIDENCE RELATING TO PLAINTIFFS' FINANCIAL CONDITION

DEFENDANT FCA US LLC'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO.14 TO EXCLUDE EVIDENCE OR TESTIMONY REGARDING SUBJECT VEHICLE'S MILEAGE

4/9/2018: DEFENDANT FCA US LLC'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO.14 TO EXCLUDE EVIDENCE OR TESTIMONY REGARDING SUBJECT VEHICLE'S MILEAGE

DEFENDANT FCA US LLC'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO.4 TO PROHIBIT TESTIMONY OR REFERENCE TO INCREASED COSTS OF VEHICLES

4/9/2018: DEFENDANT FCA US LLC'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO.4 TO PROHIBIT TESTIMONY OR REFERENCE TO INCREASED COSTS OF VEHICLES

JOINT [PROPOSED] CACI JURY INSTRUCTIONS

4/13/2018: JOINT [PROPOSED] CACI JURY INSTRUCTIONS

PLAINTIFFS' TRIAL BRIEF RE: CLAIMS AND RELIEF SOUGHT

4/13/2018: PLAINTIFFS' TRIAL BRIEF RE: CLAIMS AND RELIEF SOUGHT

Proof of Service

4/13/2018: Proof of Service

ORDER RE: DEFENDANT FCA US LLC'S MOTION TO COMPEL THE INSPECTION OF THE SUBJECT VEHICLE AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $4,286 AND TRIAL & FSC DATES

5/2/2018: ORDER RE: DEFENDANT FCA US LLC'S MOTION TO COMPEL THE INSPECTION OF THE SUBJECT VEHICLE AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $4,286 AND TRIAL & FSC DATES

DEFENDANT FCA US LLCS' EX PARTE APPLICATION FOR AN ORDER COMPELLING THE VEHICLE INSPECTION; ETC.

6/20/2018: DEFENDANT FCA US LLCS' EX PARTE APPLICATION FOR AN ORDER COMPELLING THE VEHICLE INSPECTION; ETC.

Case Management Statement

10/15/2018: Case Management Statement

Unknown

2/28/2019: Unknown

Stipulation and Order

3/1/2019: Stipulation and Order

Unknown

10/12/2016: Unknown

Minute Order

7/20/2017: Minute Order

137 More Documents Available

 

Docket Entries

  • 05/24/2019
  • at 4:00 PM in Department 50, Teresa A. Beaudet, Presiding; Non-Appearance Case Review (re lodge trial readiness and exhbiit binders) - Not Held - Advanced and Vacated

    Read MoreRead Less
  • 05/20/2019
  • at 10:12 AM in Department 50, Teresa A. Beaudet, Presiding; Court Order

    Read MoreRead Less
  • 05/20/2019
  • Certificate of Mailing for (Minute Order (Court Order) of 05/20/2019); Filed by Clerk

    Read MoreRead Less
  • 05/20/2019
  • Minute Order ( (Court Order)); Filed by Clerk

    Read MoreRead Less
  • 05/20/2019
  • Notice of Settlement; Filed by Donald L Harbert (Plaintiff); Vicki L Harbert (Plaintiff)

    Read MoreRead Less
  • 03/06/2019
  • at 09:30 AM in Department 50, Teresa A. Beaudet, Presiding; Final Status Conference - Held - Continued

    Read MoreRead Less
  • 03/06/2019
  • at 09:30 AM in Department 50, Teresa A. Beaudet, Presiding; Jury Trial - Held - Continued

    Read MoreRead Less
  • 03/04/2019
  • Ex Parte Application (to Continue Trial); Filed by Donald L Harbert (Plaintiff); Vicki L Harbert (Plaintiff)

    Read MoreRead Less
  • 03/01/2019
  • at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Ex Parte Application (to Continue Trial) - Held

    Read MoreRead Less
  • 03/01/2019
  • Minute Order ( (Hearing on Ex Parte Application to Continue Trial)); Filed by Clerk

    Read MoreRead Less
270 More Docket Entries
  • 07/14/2016
  • Answer; Filed by FCA US, LLC (Defendant)

    Read MoreRead Less
  • 07/14/2016
  • DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT

    Read MoreRead Less
  • 07/11/2016
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 07/11/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 06/27/2016
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 06/27/2016
  • Proof-Service/Summons; Filed by Donald L Harbert (Plaintiff); Vicki L Harbert (Plaintiff)

    Read MoreRead Less
  • 06/13/2016
  • COMPLAINT 1. BREACH. OF EXPRESS WARRANTY - VIOLATION OF SONG-BEVERLY ACT 2. BREACH OF IMPLIED WARRANTY - VIOLATION OF SONG-BEVERLY ACT; ETC.

    Read MoreRead Less
  • 06/13/2016
  • SUMMONS

    Read MoreRead Less
  • 06/13/2016
  • Complaint; Filed by Donald L Harbert (Plaintiff); Vicki L Harbert (Plaintiff)

    Read MoreRead Less
  • 12/30/2015
  • Proof of Service

    Read MoreRead Less

Tentative Rulings

Case Number: BC623621    Hearing Date: February 10, 2020    Dept: 50

 

 

Superior Court of California

County of Los Angeles

Department 50

donald l. harbert, et al.,

Plaintiffs,

vs.

fca us llc, et al.

Defendants.

Case No.:

BC 623621

Hearing Date:

February 10, 2020

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES, COSTS, AND EXPENSES;

DEFENDANTS’ MOTION TO TAX COSTS

Motion for Attorney Fees

The motion for attorney fees filed by Plaintiffs Donald L. Harbert and Vicki L. Harbert (jointly, “Plaintiffs”) is continued to ______________, at 8:30 a.m., in Department 50.

On January 22, 2020, the Court ordered Plaintiffs and Defendant FCA US LLC (“Defendant”) to provide courtesy copies of their papers in support and in opposition to the motion for attorney fees. Although the Court has since received Defendant’s courtesy copies, Plaintiff’s courtesy copies are still missing, including courtesy copies of the Declaration of Steve Mikhov (218 pages including multiple exhibits) and the Declaration of Richard M. Wirtz (87 pages including multiple exhibits).

Accordingly, the Court orders Plaintiffs to lodge tabbed courtesy copies of their motion for attorney fees and all supporting documents directly in Department 50 at least 5 court days prior to the date of the continued hearing.

Motion to Tax Costs

Evidentiary Objections

The Court rules on Plaintiffs’ evidentiary objections as follows:

Objection 1: overruled

Objection 2: sustained

Objection 3: sustained

Objection 4: overruled

Discussion

This Lemon Law action was filed on June 13, 2016. A Notice of Settlement was filed on May 20, 2019. Here, in their Memorandum of Costs filed December 20, 2019, Plaintiffs seek recovery of costs totaling $38,950.38. Defendant moves to strike two items of costs: (1) all costs incurred by Plaintiffs’ expert witness, Dr. Barbara Luna; and (2) some of the costs incurred by Plaintiffs’ expert witness, Anthony Micale.

Civil Code section 1794, subdivision (d) provides: “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.”

“A ‘verified memorandum of costs is prima facie evidence of [the] propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.” ((Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486-1487 [italics and brackets omitted].) “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” ((Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Costs otherwise allowable as a matter of right may be disallowed if the court determines they were not reasonably necessary, and the court has power to reduce the amount of any cost item to an amount that is reasonable. (See Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245 [finding that “the intent and effect of section 1033.5, subdivision (c)(2) is to authorize a trial court to disallow recovery of costs, including filing fees, when it determines the costs were incurred unnecessarily”].)

Defendant argues that Dr. Luna’s expert witness fees are not allowable because she was designated as an expert to testify regarding Plaintiffs’ fraudulent concealment claim. It is undisputed that a prevailing plaintiff in a Lemon Law action is entitled to recovery of expert witness fees under Civil Code section 1794, subdivision (d). ((Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 138.) Nevertheless, Defendant contends that recovery for expert witness fees are limited to those relating to a plaintiff’s Song-Beverly Act causes of action, and because Dr. Luna did not provide any expert testimony related to Plaintiffs’ Song-Beverly Act causes of action, her fees are disallowed. Plaintiffs counter that Dr. Luna’s testimony was relevant to both the fraud claim and the Song-Beverly claim. Plaintiffs also contend that

Dr. Luna’s testimony was relevant for damages calculation purposes. According to Plaintiffs, costs need not be apportioned when incurred in representation for an issue common to both a cause of action for which costs are permitted and one for which they are not. ((See Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1133 [“When a cause of action for which attorney fees are provided by statute is joined with other causes of action for which attorney fees are not permitted, the prevailing party may recover only on the statutory cause of action. However, the joinder of causes of action should not dilute the right to attorney fees. Such fees need not be apportioned when incurred for representation of an issue common to both a cause of action for which fees are permitted and one for which they are not. All expenses incurred on the common issues qualify for an award.”].)

In Plaintiffs’ expert designation for Dr. Luna, Plaintiffs state that Dr. Luna is expected to testify “as to matters including, but not limited to, indicia of fraud, corporate business culture, customs and practices, industry standards of concealing or omitting material information, the materiality of such information, repeated intentional omissions, and corporate philosophy and risk management strategy.” (Yasuzawa Decl., ¶ 2, Ex. A, ¶ 3.) Plaintiffs further state that

Dr. Luna is expected to testify “as to the valuation of damages based on the financial impact of omissions, the quantification of culpability of the defendant, the quantification of the reprehensibility of Ford’s conduct including, but not limited to, the repeated wrongdoing, and profitability of the scheme.” (Yasuzawa Decl., ¶ 2, Ex. A, ¶ 4.) Dr. Luna’s declaration regarding her retention also sets forth that her testimony in this case relates to fraudulent conduct and to the calculation of damages. (Yasuzawa Decl., ¶ 3, Ex. B, ¶¶ 6-8, 66-77.) To the extent that Dr. Luna’s testimony regarding damages is related to the Song-Beverly Act claims, Defendant argues that it is unreasonable to retain an expert for that purpose. Defendant points to Plaintiffs’ proposed special verdict form which contains the specific calculations the jury would perform to determine damages under the Song-Beverly Act. (Yasuzawa Decl., ¶ 10, Ex. I, pp. 3-4.)

Plaintiffs argue that it is common practice for plaintiffs to utilize damages experts to present and explain damages calculations to the jury, and that an expert would have walked the jury through the calculations notwithstanding that the special verdict form provides those same calculations. Plaintiffs also argue that Dr. Luna’s testimony regarding fraud is relevant to determining whether Defendant “willfully” failed to buy back Plaintiffs’ vehicle, which is an element of the Song-Beverly Act claim for civil penalties. Therefore, because her testimony was relevant to both the fraud claim and the Song-Beverly Act claim, her fees cannot be apportioned. Based on the evidence and argument presented, and the case law, the Court finds that Dr. Luna’s fees are recoverable.

Next, as to Mr. Micale’s fees, Defendant argues that Mr. Micale’s costs are unreasonable and overstated. Defendant contends that Mr. Micale’s bills in this matter are exorbitant compared to other cases in which he has ben retained and testified at trial. Because Mr. Micale did not testify at trial in this case, Defendant concludes that Mr. Micale’s bills are inflated. But as noted by Plaintiffs (and acknowledged by Defendant), Mr. Micale attended to two sessions of deposition and appeared at two vehicle inspections. The Court does not find that Mr. Micale’s costs are unreasonable and therefore, they are recoverable.

Conclusion

Based on the foregoing, the Court denies Defendant’s motion to tax costs in its entirety.

Plaintiffs are ordered to give notice of this Order.

DATED: February 10, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

Case Number: BC623621    Hearing Date: January 22, 2020    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

donald l. harbert, et al.,

Plaintiffs,

vs.

fca us llc, et al.

Defendants.

Case No.:

BC 623621

Hearing Date:

January 22, 2020

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES, COSTS, AND EXPENSES

The motion for attorneys’ fees filed by Plaintiffs Donald L. Harbert and Vicki L. Harbert (jointly, “Plaintiffs”) will be continued. Plaintiffs’ motion is supported by a memorandum of points and authorities, a Declaration of Steve Mikhov (218 pages including multiple exhibits), and a Declaration of Richard M. Wirtz (87 pages including multiple exhibits). The opposition brief by Defendant FCA US LLC (“Defendant”) is 163 pages, including multiple exhibits. Neither Plaintiffs nor Defendant provided courtesy copies of the moving papers or the opposition papers.

Pursuant to the November 5, 2018 General Order re Mandatory Electronic Filing for Civil, litigants are required to provide printed courtesy copies of filings of motions that include points and authorities and motions that are 26 pages or more. Additionally, as counsel for the parties are well aware, pursuant to the courtroom instructions for Department 50, all declarations and exhibits to motions must be tabbed. Motions may be rejected for failure to comply with this Court’s rules regarding tabbing. Because the Court did not receive printed and tabbed courtesy copies of the voluminous documents filed by both Plaintiffs and Defendant, the Court continues the hearing on Plaintiffs’ motion for attorneys’ fees to ______________, 2020, at 8:30 a.m., in Department 50. Plaintiffs and Defendant are ordered to lodge tabbed courtesy copies of their moving and opposing papers directly in Department 50 at least 5 court days prior to the date of the continued hearing.

Plaintiffs are ordered to give notice of this Order.

DATED: January 22, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court