Kiluk v. Mercedes-Benz USA, LLC ( 2019 )


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  • Filed 12/12/19
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FOURTH APPELLATE DISTRICT
    DIVISION THREE
    JUSTIN KILUK,
    Plaintiff and Respondent,                       G056344
    v.                                        (Super. Ct. No. 30-2016-00866822)
    MERCEDES-BENZ USA, LLC,                             OPINION
    Defendant and Appellant,
    Appeal from a judgment of the Superior Court of Orange County, Melissa
    R. McCormick, Judge. Affirmed.
    Universal & Shannon, Jon D. Universal and James P. Mayo for Defendant
    and Appellant.
    Rosner Barry & Babbitt, Hallen D. Rosner and Arlyn L. Escalante;
    Consumer Law Experts, Jessica Anvar and Michael M. Ouziel for Plaintiff and
    Respondent.
    *          *         *
    The Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.; the
    Song-Beverly Act) provides enhanced remedies to consumers who buy new consumer
    1
    goods accompanied by a manufacturer’s express warranty. (§ 1793.2.) It also provides
    for an implied warranty of merchantability. (§§ 1791.1, subd. (c), 1792.) The same
    protections generally apply to sale of used goods accompanied by an express warranty,
    except that the distributor or retail seller is bound, as opposed to the manufacturer, and
    the duration of the implied warranty of merchantability is much shorter. (§ 1795.5.)
    This case involves the sale of a certified preowned Mercedes Benz that still
    had a portion of the new vehicle warranty remaining, and which was accompanied by an
    additional used vehicle warranty issued by the manufacturer. An uncurable defect
    manifested after the expiration of the new vehicle warranty, but during the duration of the
    used vehicle warranty. Mercedes Benz refused to repurchase the vehicle, and the
    plaintiff sued. A jury found Mercedes Benz liable under the Song-Beverly Act for breach
    of both the express warranty and the implied warranty of merchantability, and, pursuant
    to the stipulation of the parties as to the amount of damage, awarded the same
    compensatory damages on both causes of action. The court entered judgment on the
    jury’s special verdict after striking the damages for breach of the implied warranty,
    2
    presumably to avoid a double recovery. Mercedes Benz appealed.
    We conclude the jury’s verdict on the breach of express warranty was
    sound. Although the Song-Beverly Act generally binds only distributors and retail sellers
    in the sale of used goods, we conclude Mercedes Benz stepped into that role by issuing
    an express warranty on the sale of a used vehicle. Accordingly, we affirm the judgment.
    1
    All statutory references are to the Civil Code unless otherwise stated.
    2
    Because we will affirm the judgment as entered on the verdict for breach of
    the express warranty, it becomes unnecessary to discuss the verdict on the alternate
    theory of breach of the implied warranty.
    2
    FACTS
    In May 2014 plaintiff Justin Kiluk bought a certified pre-owned Mercedes-
    Benz vehicle for an out-the-door price of $121,922.23. The vehicle had 9,568 miles on it.
    It was purchased from Fletcher Jones Motorcars (which is not a party to this lawsuit).
    The vehicle had originally been sold new in either August 2011 or October
    3
    2011 with a 4-year or 50,000 mile new car warranty. Because plaintiff purchased the
    vehicle prior to the expiration of the new car warranty, he was entitled to its benefits until
    it expired in either August 2015 or October 2015. Additionally, defendant Mercedes-
    Benz USA, LLC (Mercedes Benz) issued a certified pre-owned warranty that would last
    for one year from the end of the new car warranty (either August 2015 or October 2015
    through either August 2016 or October 2016).
    Starting in December 2015, which was during the period of the certified
    pre-owned warranty, the vehicle began making a loud screeching noise every time
    plaintiff turned the steering wheel. Plaintiff brought the vehicle in for repairs multiple
    times, but the problem was never fixed, and ultimately Mercedes Benz took the position
    that the noise was “normal.” Mercedes Benz refused to repurchase the car.
    In August 2016 plaintiff filed the present lawsuit for breach of warranty and
    a violation of the Song-Beverly Act. This appeal principally concerns four motions in
    limine, one by plaintiff and three by Mercedes Benz. The court accurately described the
    three Mercedes Benz motions as essentially “untimely motions for summary
    adjudication.” The one by plaintiff is entitled “Plaintiff’s Motion in Limine No. 10 to
    Exclude Any Statement, Argument, or Testimony that The Mercedes-Benz Certified Pre-
    3
    Mercedes Benz states in its briefs on appeal that the original sale date of the
    new vehicle was both August 2011 and October 2011. Plaintiff’s brief on appeal does
    not state the original sale date. The record on appeal does not otherwise clarify the date.
    Fortunately, the difference in dates is not dispositive.
    3
    Owned Warranty is Not an ‘Applicable Express Warranty.’” Mercedes Benz filed a
    reciprocal motion entitled, “Motion in Limine No. 10 By Defendant Mercedes-Benz
    USA, LLC to Exclude Repairs or Customer Concerns After the Expiration of the Express
    Warranty” (by which it meant the express new vehicle warranty). In a similar vein,
    Mercedes Benz filed a motion targeting evidence of damages: “Motion in Limine No. 7
    By Defendant to Restrict Plaintiff’s Damages to the Remedies Available Under
    Commercial Code § 2-714” (the gist of which was that plaintiff’s only remedy was for
    breach of contract, not the remedies available under the Song-Beverly Act). These
    motions all turned on Mercedes Benz’s legal position that the Song-Beverly Act does not
    apply to an express warranty issued by a manufacturer with respect to a used vehicle.
    Mercedes Benz also filed a motion in limine targeting plaintiff’s claim for breach of
    implied warranty based on Mercedes Benz’s claim that the implied warranty expired over
    a year before plaintiff started experiencing the steering wheel defect. We need not
    address the court’s ruling on the implied warranty motion in light of our resolution of the
    express warranty issue. (See fn. 2, ante.)
    The court found in plaintiff’s favor on the express warranty issue, finding
    that the Song-Beverly Act applied to the used car warranty issued by Mercedes Benz and
    thus granted plaintiff’s motion, and denied Mercedes Benz’s two motions. The court also
    found in favor of plaintiff on the implied warranty motion.
    A jury found in favor of plaintiff on his causes of action for breach of
    express warranty and breach of the implied warranty of merchantability. It awarded
    $112,149.86 in stipulated damages, plus a penalty of $25,000 on the breach of express
    warranty. It awarded the same damages (without the penalty) on the breach of implied
    warranty claim. The court entered judgment on the jury’s special verdict after striking
    the damages for breach of the implied warranty, presumably to avoid a double recovery.
    Mercedes Benz appealed from the ensuing judgment.
    4
    DISCUSSION
    Mercedes Benz contends the judgment must be reversed. On the express
    warranty claim, Mercedes Benz contends the Song-Beverly Act does not apply to an
    express warranty issued by a manufacturer on a used vehicle. We disagree.
    The Song-Beverly Act requires that where a manufacturer sells “consumer
    goods” accompanied by an express warranty, it must maintain local repair facilities “to
    carry out the terms of those warranties.” (§ 1793.2, subd. (a)(1).) “‘Consumer goods’
    means any new product or part thereof that is used, bought, or leased for use primarily for
    personal, family, or household purposes, except for clothing and consumables.” (§ 1791,
    italics added.)
    “Except as provided in paragraph (2),” where a manufacturer does not
    “repair the goods to conform to the applicable express warranties after a reasonable
    number of attempts, the manufacturer shall either replace the goods or reimburse the
    buyer in an amount equal to the purchase price paid by the buyer, less that amount
    directly attributable to use by the buyer prior to the discovery of the nonconformity.”
    (§ 1793.2, subd. (d)(1).) Paragraph 2 provides a more specific process for new motor
    vehicles: “If the manufacturer or its representative in this state is unable to service or
    repair a new motor vehicle, as that term is defined in paragraph (2) of subdivision (e) of
    Section 1793.22, to conform to the applicable express warranties after a reasonable
    number of attempts, the manufacturer shall either promptly replace the new motor vehicle
    in accordance with subparagraph (A) or promptly make restitution to the buyer in
    accordance with subparagraph (B). However, the buyer shall be free to elect restitution in
    lieu of replacement, and in no event shall the buyer be required by the manufacturer to
    accept a replacement vehicle.” (Id., subd (d)(2).) It then goes on to provide more specific
    procedures for replacement and restitution. (Id., subds. (d)(2)(B)-(C).)
    5
    The Song-Beverly Act provides similar remedies in the context of the sale
    of used goods, except that the manufacturer is generally off the hook: “Notwithstanding
    the provisions of subdivision (a) of Section 1791 defining consumer goods to mean ‘new’
    goods, the obligation of a distributor or retail seller of used consumer goods in a sale in
    which an express warranty is given shall be the same as that imposed on manufacturers
    under this chapter except: [¶] (a) It shall be the obligation of the distributor or retail
    seller making express warranties with respect to used consumer goods (and not the
    original manufacturer, distributor, or retail seller making express warranties with respect
    to such goods when new) to maintain sufficient service and repair facilities within this
    state to carry out the terms of such express warranties.” (§ 1795.5, subd. (a).)
    Here, the parties dispute whether the subject vehicle was a “new motor
    vehicle” or a used good under the Song-Beverly Act. In Jensen v. BMW of North
    America, Inc. (1995) 
    35 Cal. App. 4th 112
    (Jensen) the court held that a used vehicle sold
    during the period of a transferrable new vehicle warranty is a “new motor vehicle” for
    4
    purposes of the Song-Beverly Act. While we have some reservations about that holding,
    4
    Would a car accompanied by a 20-year warranty still be a “new motor
    vehicle” under the Song-Beverly Act on year 18? That would seem to follow from the
    holding in Jensen. The Jensen court relied on the definition of “new motor vehicle” in
    section 1793.22 
    (Jensen, supra
    , 35 Cal.App.4th at pp. 121-122), which includes “a
    dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a
    manufacturer’s new car warranty,” and concluded that every car sold with any portion of
    a new-vehicle warranty remaining is a new motor vehicle. (§ 1793.22, subd. (e)(2).) But
    arguably that language refers to cars originally sold with a new motor vehicle warranty,
    not subsequent sales. (See Veh. Code, § 430 [“A ‘new vehicle’ is a vehicle constructed
    entirely from new parts that has never been the subject of a retail sale”].) The Jensen
    court’s approach creates a potential problem with the implied warranty of
    merchantability, in that a one-year implied warranty automatically attaches to any new
    consumer good sold in this state. (§ 1792.) Arguably, if a used vehicle is a “new motor
    vehicle,” then the one-year implied warranty attaches to every subsequent sale during the
    warranty period, even if the manufacturer has no knowledge of the sale, and even though
    the Song-Beverly Act provides that “in no event shall such implied warranty have a
    duration of . . . more than one year following the sale of new consumer goods to a retail
    buyer.” (§ 1791.1, subd. (c).) An alternative approach would be to hold that purchasers
    6
    ultimately we need not decide whether Jensen was correctly decided because, even if the
    vehicle was not a “new motor vehicle” under Song-Beverly Act, Mercedes Benz was still
    liable under the used goods provisions of section 1795.5.
    Mercedes Benz argues section 1795.5 does not apply here because that
    section specifically exempts manufacturers, instead imposing obligations only on the
    retailer or distributor. But the assumption baked into section 1795.5 is that the
    manufacturer and the distributor/retailer are distinct entities. Where the manufacturer
    sells directly to the public, however, it takes on the role of a retailer. (See § 1791, subd.
    (l ) [“‘Retail seller,’ ‘seller,’ or ‘retailer’ means any individual, partnership, corporation,
    association, or other legal relationship that engages in the business of selling or leasing
    consumer goods to retail buyers”].) Nothing about the text of section 1795.5 suggests
    that where a manufacturer acts in the capacity of a retailer, it is exempt from the Song-
    Beverly Act. Here, Mercedes Benz partnered with a dealership to sell used vehicles
    directly to the public by offering an express warranty as part of the sales package, which
    is a crucial incentive for buyers like plaintiff. By partnering with the dealership,
    Mercedes Benz stepped into the role of a retailer and was subject to the obligations of a
    retailer under section 1795.5. That section provides that a retailer’s obligations are the
    “same” as a manufacturer under section 1793.2. Accordingly, it was entirely proper to
    permit the jury to analyze Mercedes Benz’s liability under section 1793.2.
    of used vehicles during the period of a transferable new motor vehicle warranty have
    standing under the Song-Beverly Act because the original sale was of a new motor
    vehicle, and manufacturers have an ongoing duty under the Song-Beverly Act to “carry
    out the terms of those warranties.” (§ 1793.2, subd. (a)(1).) If a term of the warranty is
    that it is transferrable, then the manufacturer’s duties under the Song-Beverly Act
    continue post-transfer. This approach enforces the warranty while avoiding the problem
    of serial implied warranties.
    7
    DISPOSITION
    The judgment is affirmed. Plaintiff shall recover his costs incurred on
    appeal.
    IKOLA, J.
    WE CONCUR:
    BEDSWORTH, ACTING P. J.
    MOORE, J.
    8
    

Document Info

Docket Number: G056344

Filed Date: 12/12/2019

Precedential Status: Precedential

Modified Date: 12/13/2019