Pasquale Venezia v. Bentley Motors, Inc. ( 2010 )

FILED
NOT FOR PUBLICATION APR 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PASQUALE VENEZIA, No. 09-15930
Plaintiff - Appellee, D.C. No. 2:07-cv-01511-SMM
v.
MEMORANDUM *
BENTLEY MOTORS, INC.,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted March 10, 2010
San Francisco, California
Before: B. FLETCHER and CLIFTON, Circuit Judges, and ANELLO,** District
Judge.
Bentley raises several issues in its appeal from a judgment based on a jury
verdict in Venezia’s favor under Arizona’s lemon law. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Michael M. Anello, United States District Judge for
the Southern District of California, sitting by designation.
Bentley first argues that it is entitled to judgment as a matter of law. We
review the district court’s ruling de novo, considering whether “the evidence,
construed in the light most favorable to the nonmoving party, permits only one
reasonable conclusion, and that conclusion is contrary to the jury’s verdict.” Pavao
v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002).
Liability under Arizona’s lemon law arises if a vehicle fails to conform to its
warranty after a “reasonable number of attempts.” Ariz. Rev. Stat. Ann. § 44-
1263(A); see also Hull v. DaimlerChrysler Corp., 99 P.3d 1026, 1027–28 (Ariz.
Ct. App. 2004) (“[I]f the vehicle cannot be timely repaired, the consumer is entitled
to either a replacement vehicle or a refund of the purchase price.”). The number of
attempts that is reasonable is for the jury to decide; the statute neither allows for
strict liability after a given number of attempts or days out of service nor precludes
liability if a vehicle finally conforms to its warranty at the end of the lemon-law
period. Cf. Milicevic v. Fletcher Jones Imps., Ltd., 402 F.3d 912, 916 (9th Cir.
2005) (interpreting Nevada’s lemon law, which contains a presumption very
similar to the one in Arizona’s lemon law).
Venezia had to take his car to the shop eleven times in the first two years,
including as many as three trips for scheduled maintenance. The car was out of
service for between thirty-eight and ninety-nine days, depending on which
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evidence the jury believed. Viewed in the light most favorable to Venezia, the
evidence provided sufficient support for the jury to conclude that at some point in
those two years, Venezia’s car still failed to conform to its warranty even though a
reasonable number of repair attempts had been made. The evidence permits the
jury’s finding of liability, so we affirm the district court’s ruling that Bentley is not
entitled to judgment as a matter of law.
Bentley next argues that there should be a new trial because the district court
gave incorrect instructions to the jury. We conclude that the instructions did
include an error, but that the error was not prejudicial. In certain circumstances,
Arizona’s lemon law gives rise to a presumption that a “reasonable number of
attempts have been made to conform a motor vehicle to the applicable express
warranties.” Ariz. Rev. Stat. Ann. § 44-1264. We agree with Bentley that the
district court should have instructed the jury that this presumption applies against a
manufacturer only if there has been “prior direct notification” and “an opportunity
to cure the alleged defect.” Id. § 44-1264(C). While Bentley did receive notice,
whether it also had an opportunity to cure was a matter in dispute.
The error in instructions was harmless because, more likely than not, it had
no effect on the verdict. See Swinton v. Potomac Corp., 270 F.3d 794, 805–06 (9th
Cir. 2001). An opportunity to cure is not required for a manufacturer to be held
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liable under section 44-1263; that opportunity is required only for the presumption
under section 44-1264 to apply. The jury did not indicate whether the presumption
was a basis for liability. Given the evidence in this case, we conclude that the jury
probably would have determined that a reasonable number of attempts had been
made even if it determined that the presumption did not apply.
Venezia also made a claim under the Magnuson-Moss Warranty Act, for
which the jury found Bentley liable but awarded no damages. Bentley contends
that the jury’s verdicts on the state and federal claims were inconsistent. Bentley’s
argument ignores the subjective element of the Arizona lemon law. See Ariz. Rev.
Stat. Ann. § 44-1263(A). But even if the verdicts were inconsistent, inconsistencies
between general verdicts on different claims do not merit new trials. See Zhang v.
Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). A damages
award—which is all the jury’s verdict included—does not convert a general verdict
into a special verdict or a general verdict with interrogatories. See id. at 1031. Nor
is a finding of liability accompanied by no award of damages necessarily
inconsistent. See id. at 1036.
Finally, none of the evidentiary rulings that Bentley raises merit reversal or
remand. The number of days the vehicle had been in service was in dispute only
because the dealer switched from a form that had both “invoice” and “ready” dates
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to one that had only an “invoice” date. The “invoice” and “ready” dates were
consistently identical when both appeared on a form, so it was no abuse of
discretion for the district court to allow testimony that assumed those dates might
continue to be identical. Moreover, Venezia’s testimony was based in part on his
personal experience, and the district court specifically instructed the jury that it
could disregard the assumption underlying Venezia’s expert’s testimony.
Venezia’s testimony concerning the car’s loss in value was relevant, among
other things, to his subjective valuation of the car. See Ariz. Rev. Stat. Ann. § 44-
1263(A). We agree that Venezia’s expert’s formula appears to lack foundation, but
any error in its admission was harmless because the jury awarded no damages for
objective loss in value under the Magnuson-Moss Warranty Act and because there
was other evidence from which the jury could have determined liability under
Arizona’s lemon law. We reject the contention that the jury should have been
compelled to accept Bentley’s expert’s implausible opinion that the repair history
of the car had no impact on the car’s resale value.
The evidence that Venezia elicited concerning other customers’ complaints
was valid impeachment that tended to show the bias of Bentley’s witness. See, e.g.,
United States v. Hankey, 203 F.3d 1160, 1171 (9th Cir. 2000). A pretrial order
concerning a motion in limine does not bar a district court from deciding to admit
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testimony once the trial is underway. See, e.g., Luce v. United States, 469 U.S. 38,
41–42 (1984). It was no abuse of discretion to allow the cross-examination.
Nor did the district court abuse its discretion by excluding documentary
evidence that Venezia refused to allow additional repairs to the car for one month
after the lemon-law period had ended. The district court allowed testimony about
the same period and ordered that Venezia could not argue that Bentley had notice
and failed to make repairs during that period. Also, Venezia stipulated that he
would not be entitled to any Magnuson-Moss damages during the period. Finally,
the inference that Bentley intends to raise, that Venezia might also have refused to
allow repairs during the lemon-law period, is flatly contradicted by the car’s actual
repair history.
AFFIRMED.
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