Filed 9/21/20 Kirzhner v. Mercedez-Benz USA CA4/3

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ALLEN KIRZHNER,

Plaintiff and Appellant,

v.

MERCEDEZ-BENZ USA, LLC,

Defendant and Respondent.

G052551

(Super. Ct. No. 30-2014-00744604)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, James Di Cesare, Judge. Reversed.

Anderson Law Firm and Martin W. Anderson; Law Office of Jeffrey Kane and Jeffrey Kane for Plaintiff and Appellant.

Universal & Shannon, Jon D. Universal, Marie L. Wrighten-Douglass, Jay C. Patterson and James P. Mayo, for Defendant and Respondent.

After the parties agreed to a settlement pursuant to Code of Civil Procedure section 998 of this so-called “lemon law” case, brought under the Song-Beverly Consumer Warranty Act, Civil Code section 1790, et seq., plaintiff Allen Kirzhner filed a postjudgment motion asking the trial court to determine the amount of restitution owed to him by defendant Mercedez-Benz USA, LLC. The trial court excluded from the restitution amount two vehicle registration renewal fees and a nonoperation fee paid by Kirzhner, totaling $680. Kirzhner appealed the denial and we affirmed.

The California Supreme Court reversed our judgment and directed us to remand the case to the trial court for proceedings consistent with the Supreme Court’s opinion, which may permit plaintiff to recover these fees, depending on whether they “were incurred and paid as a result of a manufacturer’s failure to promptly provide a replacement vehicle or restitution under [Civil Code] section 1793.2, subdivision (d)(2).” (Kirzhner v. Mercedez-Benz USA, LLC (2020) 9 Cal.5th 966, 987-988.) Per the Supreme Court’s opinion, on remand the trial court is to determine this “issue of causation.” (Ibid.)

Because neither the Supreme Court’s decision nor our decision finally resolves the case, we do not award costs now. On remand, the trial court will have discretion to award the costs of this appellate proceeding to the ultimately prevailing party on the issues raised in this appeal after it determines the causation issue.

THOMPSON, J.

WE CONCUR:

FYBEL, ACTING P. J.

IKOLA, J.