Anderson v. Ford Motor Co.

Filed 2/8/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
SHELBY ANDERSON et al., C089603
Plaintiffs and Appellants, (Super. Ct. No.
STKCVUBC20130007198)
v.
FORD MOTOR COMPANY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Joaquin County,
W. Stephen Scott, Judge. Affirmed.
Knight Law Group, Lauren A. Ungs and Roger Kirnos; The Altman Law Group,
Bryan C. Altman and Christopher Urner; Greines, Martin, Stein & Richland, Cynthia E.
Tobisman and Gary J. Wax for Plaintiffs and Appellants.
Greenberg Traurig and Jeff Eric Scott; Jones Day, Nathaniel P. Garrett, David J.
Feder, Emily F. Knox and Margaret A. Maloy for Defendant and Appellant.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts I and III of the Discussion.
1
In October 2004, plaintiff Shelby Anderson (individually, plaintiff) and his wife,
plaintiff Tammy Anderson (Tammy), bought a Ford Super Duty F-250 6.0 liter diesel
pickup truck containing an engine sourced from nonparty ITEC, also known as Navistar
(Navistar). Plaintiff intended to use the truck into his retirement for hunting and fishing
trips as well as camping trips with his wife. He intended to tow a camping trailer, a horse
trailer, and his boat. Plaintiff chose the Ford for its power, towing capacity, and other
qualities as represented by defendant Ford Motor Company (Ford) in brochures and
advertisements and by Ford dealership sales agents. Unbeknownst to plaintiffs, prior to
and following launch, the vehicle line containing the 6.0 liter Navistar diesel engine was
plagued with numerous problems with its air management system including the turbo,
fuel injectors, and other components. Plaintiff began experiencing issues with the truck
during his second year of ownership. After numerous attempts to have the vehicle
repaired so it could perform the functions for which they purchased it, plaintiffs
effectively gave up, rendering the truck a “driveway ornament.”
After opting out as putative members of a class action involving the 6.0 liter diesel
engine, plaintiffs sued Ford. The jury found in favor of plaintiffs on their cause of action
pursuant to the Song-Beverly Consumer Warranty Act (Song-Beverly Act), popularly
known as the “lemon law” (Civ. Code, § 1790 et seq.),1 their cause of action pursuant to
the Consumers Legal Remedies Act (CLRA) (§ 1750 et seq.), and their fraud in the
inducement–concealment cause of action. The jury awarded plaintiffs $47,715.60 in
actual damages, which was the original purchase price of the truck, $30,000 in statutory
civil penalties under the Song-Beverly Act, and $150,000 in punitive damages. The trial
court granted plaintiffs’ motion for attorney fees in the amount of $643,615.00.
1 Further undesignated statutory references are to the Civil Code.
2
Ford appeals, asserting (1) plaintiffs’ compensatory damages award must be
reversed because they failed to produce any evidence to establish the actual value of the
truck at the time of purchase, (2) plaintiffs cannot recover both a statutory civil penalty
under the Song-Beverly Act and punitive damages for what Ford maintains was
“substantially the same conduct,” and (3) the trial court’s attorney fee award “falls with
the judgment.”
Plaintiffs filed a cross-appeal raising three issues, although they note that, if we
affirm the judgment, we need not reach the issues raised in their cross-appeal.
We affirm the judgment and damages awards. Because we do so, we do not reach
the issues raised in plaintiffs’ cross-appeal. Accordingly, we dismiss the cross-appeal as
moot.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs asserted six causes of action in the operative complaint: fraud in the
inducement—intentional misrepresentation; fraud in the inducement—concealment;
negligent misrepresentation;2 fraud in the performance of a contract—intentional
misrepresentation; violation of the CLRA; and violation of the Song-Beverly Act.
Plaintiffs’ Experiences with the Ford Truck and Attempts to Repair
Planning for his retirement, plaintiff decided he was going to buy a new vehicle.
Being an “outdoor kind of guy” who enjoyed fishing and hunting, he wanted a new truck.
Based on his needs, as well as a bad experience he had with a smaller vehicle, plaintiff
decided he “needed something big.” Plaintiff wanted a “big strong powerful truck.” He
wanted something that could tow whatever camping trailer he acquired. He also intended
to use the truck to tow his boat and a horse trailer.
2 During trial, plaintiffs voluntarily dismissed the negligent misrepresentation cause of
action as well as an implied warranty claim.
3
Considering different vehicles, he focused on “basic towing capacity, how strong
and how powerful these vehicles were.” Plaintiff was drawn to the Ford truck, as it was
touted as “best in class. It had the most horsepower at that time and the best towing
capacity and the most torque.” Plaintiff collected most of the information he used in
making his decision from a brochure and from television commercials. He believed the
information in the brochure. As for the Ford commercials: “Their advertisements really
showed the vehicle pulling and towing and the power and the torque and they would
show a horse trailer. They would show a camping trailer. They would show it going
through the mud over rough terrain in the dirt and it’s like, ‘That’s—that’s what I’m
looking for.’ ”
Plaintiff also spoke to Ford salespeople, who verified information in the brochure.
They reassured him the Ford truck was the best in its class, the best and most dependable
truck on the market. Plaintiff had no doubt the Ford was capable of towing, and the Ford
salespeople confirmed as much. Plaintiff relied on all of the information provided by
Ford and Ford salespeople.
Plaintiff considered a Chevy, but, “when it came down to . . . putting them side-
by-side the Ford was best in class, strongest motor, most horsepower, most torque,
longevity. This motor, you know, with the knowledge that I had at that particular time I
was expecting a very long time of ownership of this truck.” He was drawn to the diesel
version because it had a stronger motor, more power, more torque, and was more
economical and long-lasting.
On October 21, 2004, plaintiffs agreed to purchase a new 2005 Ford F-250 “Super
Duty” truck from Big Valley Ford in Stockton. The total sale price was $47,715.60. The
truck came with limited warranties, including a limited three-year/36,000 mile bumper-
to-bumper warranty, a limited five-year/100,000 mile 6.0L Powerstroke Diesel Engine
warranty, and an additional limited emissions warranty of “three years, 50,000 miles or
seven years, 70,000 miles . . . depending on the causal part that the failure is related to.”
4
Other than the home he shared with his wife, the Ford truck “was the most expensive
thing [plaintiff] had ever bought.”
Initially, plaintiff loved his new truck. “It was like a dream come true. It was like
‘Wow, this is really mine’. [He] was just very, very excited.” However, during the
second year that plaintiff owned the truck, the check engine light began to come on
intermittently. Plaintiff contacted Ford and was told that, if it happened again, he should
bring it in. Eventually, plaintiff brought the truck to the dealership. By this time, the
truck had been driven 44,067 miles. When plaintiff saw the repair order upon picking up
the truck, he was surprised about how much work had been performed. The repair
invoice (exhibit 10), dated August 2007, indicated that technicians replaced the turbo.
Anthony Micale, plaintiffs’ automotive forensic expert, characterized the turbo as the
“heart” of the engine and the “core of what makes this engine what it is.” Pursuant to a
recall, technicians changed the exhaust pressure sensor, which is one of the parts of the
air management system. Technicians also had to steam clean the engine, a necessary
measure when oil leaks result in “a lot of oil around the area” of the engine. Technicians
also recalibrated the engine software.
The first time plaintiff tried to tow anything heavy was in September 2007. He
and his wife rented a camping trailer to go to Gualala. As they drove on the coastal
highway, they started up a steep grade when “all of a sudden this truck started making
a—like it was barking at me like woof, woof, woof, woof . . . .” It also started
shimmying. Believing the truck was going to stall, plaintiff looked for a place to pull off
the road. He could not step on the gas; “[i]t couldn’t go anymore.” The truck just
coasted. Plaintiff kept the truck “going forward so that I wouldn’t cause an accident or I
wouldn’t disrupt the flow of traffic on the highway there and I tried to find a safe spot to
pull this thing off so that I can get an idea of what just happened.” Plaintiff’s wife was
“extremely scared.” At the top of the grade, there was a pullout, so plaintiff pulled over
and parked.
5
Plaintiff called the dealership after this experience. The dealership asked if the
check engine light was on, and, when plaintiff responded that it was not, the dealership
replied, “if it happens again, give us a call and we’ll take a look at it.”
Plaintiff brought the truck to the dealership in October 2008. At that time, the
truck had 51,860 miles. The repair invoice (exhibit 13) indicated an oil leak from the bed
plate gaskets. Additionally, the dealership again had to steam clean. Technicians
installed a new bed plate gasket, a new front and rear cover gasket and seal. The invoice
indicated plaintiff complained of a loud “chirp squeal” under the hood while towing a
trailer. However, other than a road test, the invoice did not indicate technicians did
anything to determine what the nature of the problem was. The invoice also did not
indicate the road test entailed going up a grade or pulling a load.
Plaintiffs brought the truck in again approximately two months later, in December
2008. The truck had 52,404 miles on it. The repair invoice indicated technicians thought
there was an oil leak at the rear of the engine. Additionally, there appeared to have been
a coolant leak. A leak was coming from the top of the oil cooler, and, again, they had to
replace gaskets. The mileage out, meaning the mileage when the vehicle left the
dealership, was the same as the mileage in. No test drive was performed.
Plaintiff brought the truck in again in October 2009 at 59,070 miles. Plaintiff
reported a loss of power when trying to go up a grade when towing and that the engine
made a squealing and a chirping noise. Micale testified this complaint was consistent
with the exhaust gas recirculation system (EGR), and the fuel injection system not
working. The invoice indicated “Self test no codes. Road test did not verified [sic] no
power.” (Some capitalization omitted.) Technicians also did not verify the chirping
sound. While the invoice indicated a road test was performed, the milage out was the
same as the mileage in. The invoice indicated a vehicle data recorder (VDR), was to be
installed to record data from the truck as it was being driven.
6
When plaintiff learned Ford wanted to install a VDR, he asked if it could be
installed prior to an upcoming three-week hunting trip to Wyoming so it could record
data for that entire trip. However, the dealership indicated that it could not have the VDR
off premises for that long. Plaintiff experienced “all kinds of problems” with the truck on
that trip.
A November 2009 invoice, when the truck had 61,910 miles, stated: “Client
reports when going up a grade turbo pressure gauge at 10 engine starts to hesitate until
about 20 psi. Trans down shifts. Turbo whistles. Then a surge of power. Install VDR.
Client to return to have VDR downloaded.” (Some capitalization omitted.) Plaintiff had
the VDR on the truck for three to five days, but, when he returned to the dealership with
the VDR, the technicians indicated it did not record any codes. Plaintiff wanted the VDR
on for longer, and wanted to drive the truck with a trailer attached while the VDR was
recording. The dealership told plaintiff its insurer would not allow that.
Plaintiff was never able to successfully tow a trailer with the truck. Every time he
tried, when he would go up a grade, the truck would shake and cough and squeal and
plaintiff would “back off” and “slow down and . . . let the truck do what I think the truck
can do to get me to where I need to go.”
Also, after his experience on the coastal highway, the truck would run rough even
when plaintiff was not towing anything. As “time went on it didn’t matter what [he] had
and any time it seemed like [he] started pulling grades or going up in the mountains,
altitude differences up in the high country, it would start doing it at a certain time when
that turbo pressure was getting to that one point . . . .”
On another occasion, plaintiff got off the freeway and was approximately two
miles from home. “All of a sudden everything in my dashboard went off, all of the lights,
the radio went off, my tachometer went down to zero. I had nothing to my dashboard but
I knew the truck was still running because I can hear it . . . .” At the time, plaintiff was
about 200 feet from a busy intersection. As plaintiff approached the intersection, the
7
traffic light turned yellow. When he was 20 feet from the intersection, the truck died.
The engine stopped and plaintiff lost his steering and brakes. Momentum carried the
truck through the intersection. After the intersection, plaintiff turned into a parking lot.
He had to stand on the brakes to stop the truck because he had no power. Plaintiff stood
on the brakes with both feet and the truck finally stopped. Plaintiff replaced the
alternator and had the batteries charged and was able to drive home.
On yet another occasion, the truck started shaking and lost power. Black smoke
billowed out of the exhaust pipe. The truck was not running well at all, there was no
power, and if plaintiff stepped on the accelerator, the truck would vibrate. Plaintiff called
the dealership which had the truck transported in for service.
At this point, the truck had 65,475 miles. Onboard diagnostics revealed problems
with the injectors. Discussing the inadequacy of the voltage supplied in relation to the
injectors, Micale testified that the problem was “very significant.” Technicians found the
fuel injection control module (FICM) to be defective and they changed it. According to
Micale, the FICM operates as the “brain of the injectors.” Micale testified that he did not
see that technicians performed any root cause analysis for why the FICM failed. He
testified there was a reason the FICM was failing, and the technicians were not finding it.
Testing revealed that two fuel injectors were failing.
Addressing the same service visit, another expert, Thomas Lepper, testified that
what was denominated “GCQIS” was an internal Ford communication between Ford and
the technician at the dealership about what was wrong with the vehicle. Ford directed the
dealership technician to check the fuel pressure and focus on the FICM. Ford pushed
replacement of the FICM. Ford’s communication with the dealership did not indicate
there were substandard injectors and substandard EGR valves, and did not set forth a
comprehensive repair strategy. Lepper opined Ford’s repair strategy was unreasonable.
Ford had changed the turbo but did not look for the underlying problem. When the
second turbo did not last, it was clear replacement of the turbo was not a solution, and the
8
repair strategy was thus unreasonable. Lepper also testified that it was inexcusable that
Ford did not perform test drives during repair visits to verify the repair work was done
properly.
When it returned the truck to plaintiff, the dealership told him they had fixed it.
Plaintiff “was so hopeful that all of those times I had experienced every time I towed it it
was finally fixed. I thought that it was finally fixed.” This repair occurred in April 2010.
In August 2010, plaintiff took a hunting trip and was towing a horse trailer. As he
drove the truck into the hills near Sonora, the truck started “barking” and “doing it all”
again, doing “the same thing that it has always done . . . .” With the truck having more
problems, plaintiff and his companions parked, saddled their horses, and rode the horses
to camp.
On another occasion, plaintiff was near Oakdale when the truck’s lights went off
and power in the dashboard went out. He was traveling at about 65 miles per hour in
traffic. Plaintiff warned the passengers in the truck that he was going to pull over, but
before he did, the engine shut off. The truck coasted and plaintiff pulled over as soon as
he could do so safely. Plaintiff again replaced the alternator and replaced both batteries.
Plaintiff was never able to use the Ford to tow heavy items. Eventually, he
decided he simply could not drive it anymore. He bought a used Chevy 2500 to do what
he had intended to do with the Ford. He previously had also bought a Toyota pickup for
commuting.
At some point, plaintiff discovered he was not the only person experiencing these
problems with a Ford truck. He called a phone number of a Dispute Settlement Board
listed in the truck’s owner’s manual. He was directed to the Better Business Bureau.
Plaintiff was sent a packet in the mail which he completed and submitted in January
2013. The relief he requested was: “I would like Ford to refund me all the money I spent
on this vehicle.” The Better Business Bureau responded that plaintiff’s complaint was
9
not within the jurisdiction of its program and specified his claim was not filed within six
months after expiration of applicable warranty periods.
As of the time of trial, plaintiff still had the truck. He still had the same problems
and it had not been fixed. The truck still had oil leaks and surging issues. He had not
driven the truck for more than two years other than ensuring the batteries were charged.
He continued to maintain the truck. He also began to carry a fire extinguisher in the truck
in case of fire and a toolkit to perform repairs. Plaintiff characterized his Ford truck as
nothing more than “a driveway ornament.” He had driven the truck approximately
120,000 miles.
Asked if he had ever tried to sell the truck, plaintiff responded he had not, and that
“I wouldn’t sell this truck to my worst enemy right now.” Asked about the value of the
truck, plaintiff responded: “There is really no value to it to me at all right now, none.”
Ford’s Awareness of the Issues with the 6.0 Liter Engine
Micale had reviewed documents Ford generated concerning the production and
sale of the 6.0 liter vehicle. With regard to Ford’s development of the 6.0 liter diesel
engine, Micale opined that there has been an “abridgment” or “circumvention” of Ford’s
standard development. According to Micale, that process “[h]as not been followed.”
Micale also testified about a number of internal Ford corporate communications
concerning the 6.0 liter engine. Some of them were sent prior to plaintiff’s October 21,
2004, purchase and some were dated after, but all exchanges occurred before plaintiff
brought the truck in for the first time in August 2007.
Micale testified about a September 7, 2004, e-mail from Ford’s Director of Service
Engine Operations, Frank Ligon, following the launch. This was a little more than a
month before plaintiff made his purchase. By this time, the truck line had been in
production for two years. In the e-mail, Ligon stated, in part: “We are seeing a new
group of concerns that range from chaffing of various wiring harnesses causing
drivability concerns, sensors that are failing at a high rate and turbo concerns. . . .
10
Bottom line is we are not ‘out of the woods’ on this 6.0 and in fact may experience repeat
symptoms once certain repairs are performed . . . . [¶] At this point we do not have a
definitive repair action or production parts to properly address the concern universe. The
best course of action is to have the Dealer contact the hotline. I strongly urge that this
information NOT be shared at this time until the ‘official’ action is announced.”
Characterizing this e-mail, Micale testified: “There is no repair action. . . . There is no
action. There is no plan. There is nothing out there they can do. There is nothing they
can go to.” Micale later testified this email indicated Ford was trying to bring the 6.0
liter engines up to standard two years after launch.
Micale testified about an October 8, 2004, e-mail, this one sent by Mike Berardi,
an Engineering Manager at Ford Customer Service Division. This was approximately
two weeks before plaintiffs’ purchase. The e-mail noted that the proposed initiatives
“will not eliminate the RAVs [reacquired vehicles],” meaning Ford was buying vehicles
back, “as customers will continue to come into the dealership multiple times until we can
honestly eliminate all the concerns with the 6.0L.” According to Micale, this email
indicated “[t]hey don’t have a resolution and they are worried about having to buy back
vehicles.”
In another internal communication, dated September 7, 2005, Scot G. McDonagh,
Powertrain Quality Leader, stated that “we are seeing a huge increase in early warranty
for the 6.0L engine from June 1st through current production.” The communication also
indicated Ford had not determined the root cause of the problems with the 6.0 liter
engines.
In a January 22, 2006, e-mail, John Koszewnik, Director of Diesel North
American at Ford, stated that “[i]njector warranty remains our higher warranty item and
last month went through the roof . . . $9.8 million for a single month.” Ligon and Berardi
were recipients of the e-mail, which was shared among people in “upper level positions”
at Ford. In a prior e-mail copied in the chain, Ligon stated: “To be honest I am very
11
concerned. The company is going to be in trouble if we keep replacing injectors at the
rate we’re doing it and it seems to be getting worse. If we advertise we have carte
blanche replacement it will surely get worse and we may never get beyond this.”
Micale further discussed an e-mail from Koszewnik dated February 5, 2006,
(exhibit 64), which stated, “we’re now running about $36 million a year, but we have
been as high as $5 million a month! A large part of this was driven by International’s use
of a 15 newton linear solenoid EGR valve versus the industry standard of a 200 newton
DC motor driven valve. . . .”
Another e-mail Micale discussed was sent by Mike Frommann, Warranty Program
Supervisor, on June 13, 2006. In this e-mail, Frommann notes: “We unfortunately
exceeded our own cylinder pressure specs in normally performing engines. We don’t
want to have our cylinder pressure specs published or documented by having them
subpoenaed or we might face a class action. When we have a defect, we have to honor
our warranty. The presence of aftermarket equipment doesn’t change the fact. I did
advise that we tell the customer a repeat failure will not be covered, as we have not seen
these come back when the head gasket is replaced. I recommend we delete these emails.”
Based on his review, Micale testified that the information concerning the 6.0 liter engines
exceeding cylinder pressure specs was not shared with consumers or potential buyers.
Another Ford document was titled: “6.0L Powerstroke Injector: December 2005
Warrant Claims” “Analysis of Warranty Claims to find the ‘Technical Contradictions’
which needs [sic] to be resolved, before the problem can be solved.” Dated January 31,
2006, this document showed that “[t]he warranty for 2003, 2004, 2005 and now 2006
[model year] show showing [sic] somewhat similar trends, a very high base warranty
with an increase in claims during the colder months.” According to Micale, “an engineer
would conclude from this that we have a consistent pervasive problem and I think this is
dealing with fuel injectors . . . .” The document reflected that there had been “many
12
changes made to ‘fix the Injector’ warranty issue, but none seem to have been effective at
reducing the base level of the warranty.”
Micale also reviewed an “In-Market CBG Quality Review” document dated
February 3, 2006, and prepared by Barb Samardzich, a Vice President at Ford. The
document indicated that, to date, $112.5 million had been expended on the 6.0 liter
warranty for fuel injectors, $42.3 million for EGR valve issues, $91.2 million for turbo
issues, and $19.4 million for head gasket issues.
Another document Micale reviewed, “ITEC and Large Diesel Strategy Review,”
dated February 3, 2006, indicated that the “diesel strategy is potentially the single most
important issue facing Ford.” It went on to state that “[o]ver $2 billion of annual Super
Duty profit is at risk,” that “[c]ommercial issues with ITEC” sourced from Navistar “now
exceed $1 billion,” and that “[i]nvestments required could easily exceed $1 billion.”
In addition to internal Ford corporate documents, Micale reviewed an affidavit
prepared for a lawsuit in state court in Michigan between Ford and Navistar, dated
February 28, 2007. In it, the affiant, Mina Shams, the 6.0L Diesel Systems Diagnostics
Supervisor at Ford, stated that “Navistar used a new, non-industry standard fuel injector
system for the 6.0L, which has resulted in a large number of warranty claims. Ford and
Navistar have worked together on several joint projects to address specific injector issues.
Despite improvements resulting from these efforts, total warranty repair costs on 6.0L
fuel injectors exceed $227 million.”
In an affidavit dated February 28, 2007, in the same Michigan lawsuit, Bob
Fascetti, Director of V-Engine and Diesel Engineering for the North American Engine
organization of Ford, stated that Ford had “experienced unprecedented repair rates with
the 6.0L engines. The 6.0L has had the largest R/1000 (repairs per thousand) rate ever
experienced by Ford for an engine in widespread production. In fact, the 6.0L, which
represents only 10% of Ford’s total engine volume, accounts for approximately 80% of
13
all of Ford’s warranty spending on engines. Additionally, warranty spending on the 6.0L
accounts for approximately 25% of Ford’s overall warranty spending.”
Micale opined that “Ford employees are aware of problems associated with the air
management system and that being all the components we went through on the air
management system, FICM, the injectors, the EGR valve, the EGR cooler, the oil cooler,
overboost, turbocharger, turbo veins, turbo vein control, injector control pressure, injector
pressure regulator, all of those pieces are what the employees are aware of that are failing
and causing problems on the 6.0 Liter engine.” He further opined that software updates
had caused a decrease in vehicle performance.
Micale repeatedly testified that the proposed solutions and repairs appeared to
address symptoms rather than the cause of the problems.
Asked if any of the information about the problems with the engine was
communicated to potential buyers, Micale responded, “None of this. None of this whole
story has been communicated to potential buyers, these buyers.”
Plaintiff himself testified no one revealed to him that Ford trucks had
unprecedented failure rates in their turbochargers, fuel injectors, EGR valves, FICMs, or
anything similar. Had anyone told him about these issues when he was considering
purchasing the truck, there was no doubt in his mind that he “would have got up and
walked out of the dealership.”
Impairment in the Use, Value, and Safety of Plaintiffs’ Truck3
Lepper was an expert in the automotive field including insurance work. He also
worked as an automotive expertise consultant and he had experience appraising cars.
3 “A defect or nonconformity for purposes of Song-Beverly is defined as ‘a
nonconformity which substantially impairs the use, value, or safety of the new motor
vehicle to the buyer or lessee.’ ” (Orichian v. BMW of North America, LLC (2014) 226
Cal.App.4th 1322, 1331, quoting § 1793.22, subd. (e)(1), fn. omitted; see also CACI No.
3204.)
14
Lepper testified he had inspected nearly 300 6.0 liter engine trucks involved in lawsuits
against Ford.
For this case, Lepper reviewed the repair orders, both plaintiffs’ deposition
testimony, the testimony of a Ford expert, technical service bulletins, and other Ford
materials. He also attended a vehicle inspection of plaintiffs’ truck performed by Ford.
At the inspection, Ford performed a test drive, although it did not involve a trailer.
Plaintiffs’ vehicle still had a check engine light lit at the inspection. The inspection
revealed a problem with the vehicle’s “boost.” The truck’s turbocharger veins were not
properly turning. There were also quite a few oil leaks. Lepper testified “I see a lot of oil
leaks on these. This is a common failure when we are running a boost problem, you push
out the seals and start leaking.” At this inspection the truck had 121,176 miles on it.
Lepper testified that Ford’s Super Duty diesel trucks are represented by the
dealership to last between 300,000 and 500,000 miles. The turbo is supposed to last
250,000, but plaintiffs’ turbo was replaced at 44,000 miles, and there remained turbo
issues at the vehicle inspection.
Lepper testified that, in his opinion, the 6.0 liter engine in plaintiffs’ truck had
affected the use, value, and safety of the vehicle.
Lepper testified he considered the impairment to the use of the truck significant
for two reasons. First, when a vehicle is being repaired frequently, it is not available to
the owner for use. In this regard, plaintiff testified he was without the use of the truck for
a total of 49 days due to repairs. Second, Lepper testified that people such as plaintiff
buy a truck to perform specific functions that plaintiffs’ truck was not able to perform.
Lepper next testified that the impairment of value had been significant. He opined
that, because “the truck has been so bad it’s got only just a little bit of use of it so he’s
had to shoulder a way unfair portion of the depreciation of that truck.” Asked whether
CarMax or Kelley Blue Book assign a value to a car that is a “lemon,” Lepper testified:
“That value is zero, no value assigned.” He testified he had “personal experience of
15
people who won’t buy a 6.0 diesel-powered truck.” He testified that a potential buyer
informed of the difficulties with the truck would either “walk away or substantially
reduce the amount they are willing to pay. If I was buying this truck, I would be worried
about having to reaccomplish all of these problems again.”
Finally, Lepper testified there had been a significant impairment to the truck’s
safety. He testified that the vehicle’s inability to maintain sufficient speed, such as going
uphill, particularly where there is no place to pull off the road, puts the vehicle occupants
in an unsafe position. He also testified that “[b]ad things are happening when you’re
leaking oil and losing power.” For example, if you are in an intersection and the “boost
doesn’t come up, the veins are stuck, you don’t have enough power to move out of the
intersection at an expected rate. Somebody is coming the other way, you are moving
across a two-lane highway. There is lots of two-lane roads out in the area where they
live. They are exposed to an unreasonable safety risk . . . .” Lepper indicated that all of
these engines he had seen had the same power loss problem. He further testified there is
no way for a driver to predict when such loss of power might happen; there are no
warning signs.
Verdict
The jury found in favor of Ford on plaintiffs’ fraud in the inducement—intentional
misrepresentation and fraud in the performance of a contract—intentional
misrepresentation causes of action.
The jury found in favor of plaintiffs on the Song-Beverly Act cause of action and
awarded them $30,318.30, representing the amount paid for the truck, $47,715.60, less
the value of use, as statutorily prescribed (§ 1793.2, subd. (d)(2)(C)), calculated as
$17,397.90.4 Further, because the jury found Ford willfully failed to repair the truck after
4 The $30,318.30 figure is off by $0.60. In any event, as plaintiffs note, Ford has not
challenged the jury’s computation, but, more significantly, for the compensatory damages
16
a reasonable number of attempts or make restitution, the jury imposed an additional
$30,000 civil penalty under the Song-Beverly Act. (§ 1794, subd. (c).)
The jury found in plaintiffs’ favor on their fraud in the inducement—concealment
cause of action and awarded damages in the amount of $47,715.60.
The jury also found in plaintiffs’ favor on their CLRA cause of action and
awarded damages in the amount of $47,715.60.
In phase 2, the jury awarded plaintiffs $150,000 in punitive damages.
Thus, the jury awarded plaintiffs $47,715.60 in actual damages, $30,000 as a
Song-Beverly Act civil penalty, and $150,000 in punitive damages for a total of
$227,715.60, with interest. The trial court granted plaintiffs’ motion for attorney fees in
the amount of $643,615.00, with interest.
DISCUSSION
I. Compensatory Damages Award
A. Additional Background
The trial court instructed the jury regarding damages as follows: “If you decide
that plaintiffs have proved their claim against Ford . . . you must also decide how much
money will reasonably compensate plaintiffs for their harm. This compensation is called
damages. [¶] Plaintiffs must prove the amount of their damages. However, plaintiffs do
not have to prove the exact amount of damages that will provide reasonable
compensation for the harm. You must not speculate or guess in awarding damages. [¶]
The following are the specific items of damages claimed by the plaintiffs: [¶] The
difference between the amount that plaintiffs paid and the fair market value of the
property at the time of sale . . . .” (Italics added.)
award, plaintiffs elected the CLRA damages over the Song-Beverly Act compensatory
damages.
17
B. Ford’s Contentions
Ford asserts that the compensatory damages award must be reversed because
plaintiffs produced no evidence of the actual value of the truck at the time of purchase.
Ford maintains that damages for fraud and for a violation of CLRA are both limited to the
difference between the purchase price and the actual value of the truck at the time of
purchase. Ford further asserts that, inasmuch as the jury awarded the full purchase price
of the truck, the jury necessarily impliedly found that the truck was worth $0 at the time
of purchase, a finding, Ford asserts, is not supported by substantial evidence because it is
refuted by other evidence. According to Ford, plaintiffs introduced no evidence to
support a factual finding that the truck was objectively worth $0 at the time of purchase.
Thus, there is no substantial evidence to support the jury’s award of compensatory
damages.
C. Standard of Review
“ ‘We review the jury’s damages award for substantial evidence, giving due
deference to the jury’s verdict . . . .’ ” (Johnson v. Monsanto Co. (2020) 52 Cal.App.5th
434, 449, quoting Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 300.)
“Substantial evidence means evidence of ponderable legal significance that is reasonable,
credible, and of solid value. [Citation.] Substantial evidence review is deferential to the
factfinder.” (Gillotti v. Stewart (2017) 11 Cal.App.5th 875, 899.) “Under the well-
established standard of review applicable to a claim that a judgment or finding is not
supported by the evidence in the record, ‘we must consider all of the evidence in the light
most favorable to the prevailing party, giving it the benefit of every reasonable inference,
and resolving conflicts in support of the judgment. [Citations.] [¶] It is not our task to
weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our
authority begins and ends with a determination as to whether, on the entire record, there
is any substantial evidence, contradicted or uncontradicted, in support of the judgment.
Even in cases where the evidence is undisputed or uncontradicted, if two or more
18
different inferences can reasonably be drawn from the evidence this court is without
power to substitute its own inferences or deductions for those of the trier of fact, which
must resolve such conflicting inferences in the absence of a rule of law specifying the
inference to be drawn. We must accept as true all evidence and all reasonable inferences
from the evidence tending to establish the correctness of the [trier of fact’s] findings and
decision, resolving every conflict in favor of the judgment.’ ” (Regalado v. Callaghan
(2016) 3 Cal.App.5th 582, 595-596 (Regalado), italics added, quoting Howard v. Owens
Corning (1999) 72 Cal.App.4th 621, 630-631.) “The ultimate test is whether it is
reasonable for a trier of fact to make the ruling in question in light of the whole record.”
(Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652.) Under the substantial
evidence test, reversal “ ‘ “is unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support’ ” the jury’s verdict.’ ”
(People v. Penunuri (2018) 5 Cal.5th 126, 142 (Penunuri), italics added.)
D. Measure of Damages
California law generally limits a defrauded party to recovering out-of-pocket
damages as provided in section 3343. (Alliance Mortgage Co. v. Rothwell (1995) 10
Cal.4th 1226, 1240.) Section 3343, subdivision (a) provides, in pertinent part, “[o]ne
defrauded in the purchase, sale or exchange of property is entitled to recover the
difference between the actual value of that with which the defrauded person parted and
the actual value of that which he received, together with any additional damage arising
from the particular transaction.” “[A]ctual value” within the meaning of section 3343,
subdivision (a) means “market value.” (Nece v. Bennett (1963) 212 Cal.App.2d 494, 497,
citing Bagdasarian v. Gragnon (1948) 31 Cal.2d 744, 753 (Bagdasarian).)
In Bagdasarian, on which both parties rely, the court referenced a definition of
“market value”: “in deceit cases the value of an article ‘is normally determined by the
price at which it could be resold in an open market or by private sale if its quality or other
characteristics which affect its value were known.’ ” (Bagdasarian, supra, 31 Cal.2d at
19
p. 753, italics added, citing Rest., Torts, § 549, com. c.) Thus, the market value of the
Ford truck at issue here would be the price at which it could be sold in an open market if
all of its defects and limitations were known at the time of sale.
It appears the same measure of damages is employed under the CLRA. Section
1780, part of the CLRA, authorizes an action, among other things, to recover “[a]ctual
damages.” (§ 1780, subd. (a)(1); see also Colgan v. Leatherman Tool Group, Inc. (2006)
135 Cal.App.4th 663, 675 [“To determine the amount of actual damages for a CLRA
award, the trial court applied a market approach as set forth in [§] 3343, [subd.] (a)”];
Nguyen v. Nissan North America, Inc. (9th Cir. 2019) 932 F.3d 811, 818 [“Plaintiff’s
proposed benefit-of-the-bargain measure of damages is both cognizable under the CLRA
and a reasonable basis of computation. Courts have viewed similar [market approach]
models of recovery favorably in the past,” citing Colgan].)
E. Analysis
The jury awarded plaintiffs $47,715.60 in compensatory damages. We must
determine whether this award is supported by substantial evidence.
Plaintiffs purchased the truck on October 21, 2004, for a total sale price of
$47,715.60, the precise amount the jury awarded in compensatory damages. The obvious
inference to be drawn is that the jury concluded the value of the truck at the time of
purchase was $0.
According to Ford, in opposing its motion for judgment notwithstanding the
verdict,5 plaintiffs “pointed to two buckets of evidence that they claim support the jury’s
finding that the truck they drove for 120,000 miles was worth $0.” The first of these
“buckets” was Lepper’s testimony that car valuation books do not assign a value to a
5 The trial court did not rule on this motion within the time statutorily prescribed. The
effect of the failure to rule within the time prescribed was “a denial of that motion
without further order of the court.” (Code Civ. Proc., § 629, subd. (b).)
20
vehicle that is a lemon. The second of these “buckets” was testimony, from both plaintiff
and Lepper,6 that some people will not purchase a truck with the issues this truck had.
Plaintiffs on appeal rely on the same two categories of evidence as constituting
substantial evidence supporting the jury’s compensatory damages award.
1. Lepper’s Testimony
Lepper had experience appraising vehicles. Asked, based on his experience
appraising vehicles, whether CarMax or Kelley Blue Book assign a value to a car that is a
“lemon,” Lepper testified: “That value is zero, no value assigned.” Lepper’s testimony
is fairly understood as the value of a lemon is $0.
In its reply brief, Ford asserts that, in context, Lepper’s statement amounted to him
“clarifying” his initial statement, “[t]hat value is zero,” by then stating, “no value
assigned.” Ford suggests the import of Lepper’s testimony, therefore, was not that the
value of a lemon is $0, but that the valuation books “choose not to assess what the market
value [of a lemon] is.” Ford asserts that “[t]aking no position regarding value is not the
same as taking the position that the value is zero.”
Ford’s interpretation arguably may be an interpretation of Lepper’s testimony.
However, another interpretation of his testimony, one apparently credited by the jury, is
that the “value [assigned to a lemon] is zero,” as in $0, and that, in further stating “no
value assigned,” Lepper was testifying that “no value,” as in no value whatsoever, zero
value, is assigned to such vehicles.
As stated ante, in reviewing the judgment to determine whether it is supported by
substantial evidence, “ ‘we must consider all of the evidence in the light most favorable
to the prevailing party, giving it the benefit of every reasonable inference, and resolving
conflicts in support of the judgment’ ”; “ ‘if two or more different inferences can
6 Ford inaccurately identifies this testimony as being that of Micale rather than Lepper.
21
reasonably be drawn from the evidence this court is without power to substitute its own
inferences or deductions for those of the trier of fact’ ”; and we “ ‘must accept as true all
evidence and all reasonable inferences from the evidence tending to establish the
correctness of the [trier of fact’s] findings and decision, resolving every conflict in favor
of the judgment.’ ” (Regalado, supra, 3 Cal.App.5th at pp. 595-596.) In light of these
principles, substantial evidence supports the conclusion that, according to Lepper, the
value assigned to a vehicle that is a lemon is $0.
Ford further asserts Lepper’s testimony was not evidence that plaintiffs’ truck
itself was worth $0 when plaintiffs purchased it. However, in light of all of the trial
evidence concerning plaintiffs’ truck, and the jury’s verdict, particularly in light of its
verdict on the Song-Beverly Act “lemon law” cause of action, we have no difficulty
inferring that the jury determined plaintiffs’ truck was, indeed, a “lemon.”
Thus, substantial evidence supports the conclusion that plaintiffs’ truck was a
lemon at the time they purchased it, and, as such, at that time, it had a value of $0.
Plaintiffs assert that the foregoing alone is sufficient substantial evidence supporting the
jury’s implied finding that the truck’s fair market value at the time plaintiffs purchased it
was $0. We agree.
Lepper also testified that a potential buyer informed of the difficulties with the
truck would either “walk away or substantially reduce the amount they are willing to
pay.” According to Ford, this testimony, that some will not buy a truck based on their
subjective intolerance for engine issues, was not objective evidence that the truck was
worth $0. In this context, we conclude Lepper’s testimony was relevant evidence also
supporting the judgment. Lepper’s testimony supports the conclusion that a reasonable
buyer, knowing the true condition of the truck and the nature, significance, and extent of
the vehicle’s defects, would not have purchased it, but instead would have “walk[ed]
away.” Indeed, he testified that “[i]f I was buying this truck, I would be worried about
having to reaccomplish all of these problems again.” While his testimony also suggested
22
that some buyers might purchase the truck knowing the nature and extent of its defects,
but at a “substantially reduce[d]” price, we conclude that at most, this evidence gave rise
to an internal conflict in Lepper’s testimony which the jury obviously resolved in favor of
a finding that no reasonable buyer would purchase the truck knowing the true nature and
extent of its defects, a finding supported by substantial evidence. Indeed, a reasonable
jury could have resolved this conflict and determined, that, especially in light of the
safety problems related to the truck’s defects, nobody would purchase the truck at any
price.
2. Ford’s Additional Contentions
Ford maintains that four items of evidence are probative of the conclusion that the
truck had “considerable value” at the time plaintiffs purchased it: (1) the value the jury
assigned for the use of the truck for purposes of plaintiffs’ Song-Beverly Act claim,
$17,397.90; (2) the fact that plaintiffs drove the truck more than 120,000 miles over
nearly 12 years and procuring a substitute vehicle to drive those miles would cost a
substantial sum of money; (3) plaintiff’s testimony that, during the early years of his
ownership of the truck, it had value to him; and (4) on an occasion when the truck was
stolen, plaintiff submitted an insurance claim, under penalty of perjury, representing that
the value of the truck was the full purchase price of $47,715.60.
a. The Song-Beverly Act Statutory Deduction
According to Ford, the statutorily required amount the jury found to be the value
of plaintiffs’ use of the truck at the time it was first brought in for repair was, at a
minimum, a finding under the Song-Beverly Act that the truck had some value at the time
of purchase. Plaintiffs counter that “the reason for the mileage offset was because it was
statutorily prescribed, not because the jury made a factual finding about the vehicle’s
value.” (Original italics.) We agree with plaintiffs.
Section 1793.2, subdivision (d)(2)(C), part of the Song-Beverly Act, governs
restitution and provides, in pertinent part: “When restitution is made pursuant to
23
subparagraph (B), the amount to be paid by the manufacturer to the buyer may be
reduced by the manufacturer by that amount directly attributable to use by the buyer prior
to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its
authorized service and repair facility for correction of the problem that gave rise to the
nonconformity. The amount directly attributable to use by the buyer shall be determined
by multiplying the actual price of the new motor vehicle paid or payable by the buyer,
including any charges for transportation and manufacturer-installed options, by a fraction
having as its denominator 120,000 and having as its numerator the number of miles
traveled by the new motor vehicle prior to the time the buyer first delivered the vehicle to
the manufacturer or distributor, or its authorized service and repair facility for correction
of the problem that gave rise to the nonconformity. Nothing in this paragraph shall in
any way limit the rights or remedies available to the buyer under any other law.” It was
pursuant to this provision the jury reduced the compensatory award under the Song-
Beverly Act by $17,397.90.
This does not constitute the jury’s factual finding that the vehicle had any
particular value at the time of purchase; it was merely an application of the statutory
mandate related to restitution.7
b. Mileage Plaintiffs Put on the Truck
Plaintiffs drove the truck more than 120,000 miles. Based on this, Ford asserts the
truck certainly had some value. Ford argues that procuring a substitute vehicle to drive
those miles would have cost a substantial sum of money. Notwithstanding the fact that
7 Ford contends that the “jury’s determination came as part of a legislative recognition
that the purchaser of a defective vehicle receives value from the vehicle’s use, at least
until it is taken in to be repaired.” Ford cites no authority for its supposition concerning
legislative intent. Regardless of the legislative intent behind this provision, we are not
persuaded that the jury’s dutiful following of the legislative formula, without more,
amounts to a factual finding by the jury that plaintiffs’ truck had a specific value at the
time of purchase.
24
plaintiff drove those miles on the Ford, that truck was utterly worthless for the purposes
for which plaintiffs purchased it. More importantly, we have concluded, that under the
fair market value approach, substantial evidence supports the conclusion that no
reasonable buyer, knowing the condition of the truck, the extent and significance of its
defects, and the safety risks associated with driving it would have purchased it, and thus
it had a market value of $0.
Ford also asserts that, at a minimum, the truck was worth “thousands of dollars in
scrap parts.” However, there is no evidence in the record on this point, so we reject the
argument.
c. Plaintiff’s Feeling About the Truck in the Beginning
Ford also points to plaintiff’s testimony that, during the early years of his
ownership of the truck, it had value to him as evidence establishing the truck had
considerable value at the time plaintiffs purchased it. This testimony—that plaintiff
initially loved his new truck, and that it “was like a dream come true. It was like ‘Wow,
this is really mine’. [He] was just very, very excited”—is precisely the type of subjective
owner valuation Ford elsewhere insists is not competent objective evidence of fair market
value.8 In any event, we conclude this evidence did not establish that the truck had any
particular objective market value at the time of purchase and at best, it provided
conflicting evidence to the substantial evidence establishing a $0 value.
d. The Insurance Form
Plaintiffs’ truck was stolen in 2008 and subsequently recovered. At the time,
plaintiff submitted an insurance claim form, denominated “Affidavit of Vehicle Theft,”
8 Elsewhere in its briefing, Ford argues: “[Plaintiff’s] own subjective valuation of the
truck is not sufficient evidence that his truck was objectively valueless on the date of sale.
Numerous cases have recognized that subjective valuations like those offered by the
[plaintiffs] do not suffice to meet their burden of proving the actual value of a product at
the time of purchase.”
25
under penalty of perjury. The form had a field for “Value of Vehicle?” Handwritten in
that field was the purchase price of the truck: $47,715.60. Plaintiff testified that he listed
the value of the truck as $47,000 “and change,” “what [he] paid for it . . . .”
We do not consider plaintiff’s representation on this May 19, 2008, insurance
form, indicating as the “Value of Vehicle,” the amount he paid for the truck on
October 21, 2004, to be competent evidence of the market value of this truck at the time
of purchase, or at the time of theft, so much as simply the amount plaintiff originally paid
for the truck. Again, at best, this evidence presented a conflict in the evidence that was
up to the jury—not us—to resolve.
3. Conclusion
We conclude that substantial evidence supports the jury’s implied finding that, at
the time plaintiffs purchased the truck, its value was $0. Certainly, we cannot say that
“ ‘ “ ‘upon no hypothesis whatever is there sufficient substantial evidence to support’ ”
the jury’s verdict.’ ” (Penunuri, supra, 5 Cal.5th at p. 142.) Therefore, we conclude
substantial evidence supports the jury’s compensatory damages award.9
II. Recovery of both Punitive Damages and the Song-Beverly Civil Penalty
A. Additional Background
Ford filed objections to the proposed judgment following the jury verdict,
asserting that the judgment could not award both punitive damages and Song-Beverly
civil penalties. Ford argued that both awards addressed the same issue: punishing Ford
for violation of plaintiffs’ primary right to a working vehicle in exchange for their
payment, “a right they simply alleged was violated in different ways.” Ford asserted that,
9 In light of our conclusion, we need not address plaintiffs’ alternative contention, in
effect, that reliance damages more than offset any value the truck had at the time of
purchase so as to constitute substantial evidence supporting the compensatory damages
award.
26
by seeking civil remedies under the Song-Beverly Act, plaintiffs elected their remedy and
were barred from recovering punitive damages. In the alternative, Ford asserted that,
because plaintiffs were not entitled to both civil penalties and punitive damages, they
were required to elect their punitive remedy.
Plaintiffs responded that the conduct punished by the fraud/CLRA punitive
damages award was not the same as the conduct addressed by the Song-Beverly Act civil
penalty. The former, plaintiffs argued, was based on pre-sale fraudulent conduct
inducing plaintiffs to buy the truck whereas the latter was based on failure to repair the
truck after a reasonable number of repair attempts, replace the truck, or make restitution
to plaintiffs. In responding to Ford’s primary right argument, plaintiffs asserted that
fraudulent inducement and Song-Beverly Act violation involved separate legal duties.
They further argued, “[f]raudulent inducement does not necessitate a Song-Beverly Act
violation, and a Song-Beverly Act violation does not necessitate fraudulent inducement.”
And they argued, “[t]he violations occurred over three-years apart (at a minimum) based
on different statutes and different wrongful actions.” Plaintiffs continued:
“Undoubtedly, some of the evidence at trial overlapped in support of many different
causes of action, for example, the internal emails presented at trial showed evidence of
Ford’s knowledge of its misrepresentations and concealment, but they were also
probative of willfulness for purposes of Plaintiffs’ Song-Beverly claim. The analysis for
election of remedies involves inquiry into what the wrongful conduct is, not what
evidence supports it, and indeed the issue is to avoid double punishment for the same
wrongful conduct. Here, the unlawful conduct for the pre-purchase fraud-based claims
awarding punitive damages is distinct from the Song-Beverly Act claim awarding civil
penalties because the wrongs for the former occurred before purchase while the wrongs
for the latter took place years after purchase.” (Original underlining.)
The trial court overruled Ford’s objection. Indicating that the answer to the
question presented was not clear, the court stated: “I’m persuaded by plaintiff’s counsel
27
on this matter. I’m going to overrule this objection. I think they are both separate and
stand-alone conduct, and I think the message being sent was directed to two different
types of conduct.”
B. Ford’s Contentions
Ford asserts plaintiffs cannot recover both punitive damages on their fraud/CLRA
claims and a statutory civil penalty under the Song-Beverly Act. Ford proposes a test for
what it calls the “no-double-punitives rule.” According to Ford, a plaintiff cannot
recover both a statutory penalty and punitive damages when (1) a statute creates a
“penalty or multiple damages” provision, (2) the statutory award is punitive in nature,
and (3) the punitive damages and the statutory penalty were based on “substantially the
same conduct.” Ford maintains that all three elements are satisfied here. We disagree.
The two awards were based on different conduct, occurring at different times.
C. Punitive Damages and Song-Beverly Act Civil Penalties
Section 3294, subdivision (a), governing punitive damages, provides: “In an
action for the breach of an obligation not arising from contract, where it is proven by
clear and convincing evidence that the defendant has been guilty of oppression, fraud, or
malice, the plaintiff, in addition to the actual damages, may recover damages for the sake
of example and by way of punishing the defendant.” “ ‘Oppression’ means despicable
conduct that subjects a person to cruel and unjust hardship in conscious disregard of that
person’s rights.” (§ 3294, subd. (c)(2).) “ ‘Fraud’ means an intentional
misrepresentation, deceit, or concealment of a material fact known to the defendant with
the intention on the part of the defendant of thereby depriving a person of property or
legal rights or otherwise causing injury.” (§ 3294, subd. (c)(3).) “ ‘Malice’ means
conduct which is intended by the defendant to cause injury to the plaintiff or despicable
conduct which is carried on by the defendant with a willful and conscious disregard of
the rights or safety of others.” (§ 3294, subd. (c)(1).)
28
“ ‘The [Song-Beverly Act] provides enhanced remedies to consumers who buy
new consumer goods accompanied by a manufacturer’s express warranty.’ ” (Santana v.
FCA US, LLC (2020) 56 Cal.App.5th 334, 346 (Santana).) “ ‘Where . . . service or repair
of the goods is necessary because they do not conform with the applicable express
warranties, service and repair shall be commenced within a reasonable time by the
manufacturer . . . .’ ” (Ibid., quoting § 1793.2, subd. (b).) “ ‘If the manufacturer . . . is
unable to service or repair a new motor vehicle . . . to conform to the applicable express
warranties after a reasonable number of attempts, the manufacturer shall either promptly
replace the new motor vehicle . . . or promptly make restitution to the buyer . . . .’ ”
(Santana, at p. 346, quoting § 1793.2, subd. (d)(2).) “Any buyer of consumer goods who
is damaged by a failure to comply with any obligation under this chapter or under an
implied or express warranty or service contract may bring an action for the recovery of
damages and other legal and equitable relief.” (§ 1794, subd. (a).) With exceptions not
relevant here, “[i]f the buyer establishes that the failure to comply was willful, the
judgment may include, in addition to the amounts recovered under subdivision (a), a civil
penalty which shall not exceed two times the amount of actual damages.” (§ 1794, subd.
(c), italics added.)
D. Analysis
Ford challenges the trial court’s ruling, arguing: “(1) it cannot be squared with
how precedent has defined ‘substantially the same’ conduct; (2) it disregards that punitive
damages for wrongful sale of a defective car and the penalties authorized under the Song-
Beverly Act serve the same purpose; and (3) it defies the realities of how the [plaintiffs]
presented and argued their case for punitive damages.”
Throughout its briefing, Ford primarily relies on Troensegaard v. Silvercrest
Industries, Inc. (1985) 175 Cal.App.3d 218 (Troensegaard). There, the subject of the
action was a mobile home that exuded formaldehyde fumes. (Id. at p. 221.) After
moving into the mobile home, the plaintiff noticed an unpleasant odor which soon made
29
her ill. (Id. at pp. 223-224.) The defendant manufacturer had the home tested, but
concealed from plaintiff the results showing unacceptably high levels of formaldehyde.
(Id. at p. 224.) And the defendant’s remedial efforts did not fix the problem. (Ibid.) The
jury awarded the plaintiff $55,000 in punitive damages and a civil penalty under section
1794, subdivision (c) in the amount of $90,000, both of which were based on conduct that
took place after the plaintiff purchased the motorhome—the intentional concealment of
the formaldehyde report and the failure to comply with the express warranty by taking
appropriate corrective action or otherwise making plaintiff whole. (Id. at pp. 221, 226.)
Discussing punitive damages, the Troensegaard court stated the following:
“Punitive damages impose a penalty and thus a forfeiture. ‘ “Forfeiture” imports “a
penalty” . . . , “a requirement to pay the sum mentioned as a mulct for a default or
wrong.” ’ [Citation.] ‘The law traditionally disfavors forfeitures and statutes imposing
them are to be strictly construed.’ ” (Troensegaard, supra, 175 Cal.App.3d at p. 227.)
The Troensegaard court relied on a federal district court case which held: “ ‘A defendant
has a due process right to be protected against unlimited multiple punishment for the
same act. A defendant in a civil action has a right to be protected against double
recoveries not because they violate “double jeopardy” but simply because overlapping
damage awards violate that sense of “fundamental fairness” which lies at the heart of
constitutional due process.’ ” (Ibid., italics added, quoting In re Northern Dist. of Cal.
“Dalkon Shield” IUD Products Liability Litigation (N.D.Cal. 1981) 526 F.Supp. 887,
899 (Dalkon Shield), vacated on other grounds by In re Northern Dist. of Cal. “Dalkon
Shield” IUD Prod. Liab. Litig. (9th Cir. 1982) 693 F.2d 847.)
In advancing its argument that the trial court’s ruling cannot be squared with how
precedent has purportedly defined “substantially the same conduct,” Ford relies on
language in Troensegaard where the court stated that the civil penalty and the punitive
damages award were “based upon substantially the same conduct of” the defendant and
thus plaintiff could not recover both punitive damages and the civil penalty.
30
(Troensegaard, supra, 175 Cal.App.3d at p. 226, italics added.) And as set forth ante,
Ford plugs the italicized language into its proposed test for what it calls the “no-double-
punitives rule” as the third of three elements.
In our view, the appropriate inquiry should be focused on the underlying conduct.
And as we discuss post, the conduct here was not substantially the same. Moreover, we
are not convinced that the appropriate test is whether the conduct is “substantially” the
same. The Troensegaard court employed that phrase including the word “substantially”
but once. (Troensegaard, supra, 175 Cal.App.3d at p. 226 [observing that “each of the
awards was based upon substantially the same conduct of” the defendant].) On the other
hand, the court also relied on a federal case stating a “ ‘defendant has a due process right
to be protected against unlimited multiple punishment for the same act.’ ” (Id. at p. 227,
italics added, quoting Dalkon Shield, supra, 526 F.Supp. at p. 899.) And the
Troensegaard court subsequently concluded: “We are of the opinion that had the
Legislature, by Civil Code sections 3294 (permitting punitive damages) and 1794
(permitting a civil penalty), intended a double recovery of punitive and penal damages for
the same willful, oppressive, malicious, and oppressive acts, it would in some appropriate
manner have said so.” (Troensegaard, at p. 228, original italics omitted, italics added.)
Our reading of Troensegaard is that the court’s holding was based on conduct that was
the same, i.e., identical, not just “substantially” the same.10 And that conduct took place
at the same time, post-sale during the warranty repair process.
10 The Troensegaard court’s description of the conduct underlying each award
demonstrates that the conduct was identical, not merely substantially the same. The court
wrote the following about the specific acts supporting punitive damages: “We are of the
opinion that [the defendant’s] intentional concealment from plaintiff of the high level of
formaldehyde fumes found in the mobilehome, and its failure substantially to comply
with its express warranty by taking appropriate corrective action or otherwise making
[the plaintiff] whole, was reasonably found by the jury to constitute ‘oppression, fraud, or
malice’ with a ‘conscious disregard of the plaintiff’s rights.’ . . . A punitive damage
31
Ford relies on a series of cases in arguing its proposed “no-double-punitives” rule,
all of which involved multiple causes of action grounded on the same conduct. (See
Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152
Cal.App.4th 720, 726, 730-731 (Fassberg) [cross-complainant alleging presentation of
false claims for payment was a violation of California False Claims Act, breach of
contract and constituted intentional and negligent misrepresentation]; De Anza Santa
Cruz Mobile Estates Homeowners Assn. v. De Anza Santa Cruz Mobile Estates (2001) 94
Cal.App.4th 890, 898, 907 (De Anza) [action by mobile home owners seeking damages
for excessive water charges]; Clauson v Superior Court (1998) 67 Cal.App.4th 1253,
1255 [complaint alleging two causes of action grounded on the allegation the defendants
installed eavesdropping devices in plaintiff employee’s office and wiretapped plaintiff’s
telephones]; Turnbull & Turnbull v. ARA Transportation, Inc. (1990) 219 Cal.App.3d
811, 814, 826-827 (Turnbull) [punitive damages and civil penalty awarded for single
cause of action under the Unfair Practices Act alleging defendant sold its bus
transportation services below the cost of providing the services with the purpose of
injuring competitors or destroying competition]; Marshall v. Brown (1983) 141
Cal.App.3d 408, 412 (Marshall) [plaintiff sought punitive and statutory penalties as to
two causes of action, both of which were based on false statements the defendant made
about the plaintiff, a former employee].)11
award was thus proper.” (Troensegaard, supra, 175 Cal.App.3d at p. 226, italics added.)
Regarding the acts underlying the civil penalty, the court wrote: “Surely, [the
defendant’s] refusal, after notice of the mobilehome’s defective condition, to make
[plaintiff] whole, and its concealment of the report of such condition, was substantial
evidence of such ‘willfulness’ ” under section 1794, subdivision (c). (Troensegaard, at
p. 226, italics added.) Thus, as can be seen, the post-sale conduct in Troensegaard
underlying the punitive damages and civil penalty was not merely “substantially” the
same; it was, in fact, the same.
11Each of these cases held that because the punitive damages award and civil penalties
were based on the same conduct, the plaintiff was required to make an election between
32
Here, unlike in the cases Ford relies upon, the punitive damages and statutory
penalties were based on different conduct that took place at different times. The punitive
damages were based on conduct underlying the fraud/CLRA causes of action and took
place before the sale. The civil penalty was based on defendant’s post-sale failure to
comply with its Song-Beverly Act obligations to replace the vehicle or make restitution
when reasonable attempts to repair had failed.
In the operative complaint, in the fraud in the inducement—concealment cause of
action upon which plaintiffs prevailed, plaintiffs alleged Ford induced them to enter into
the retail sales contract by concealing material information, including that “the 2005 F-
250 was equipped with a defective . . . 6.0-liter Navistar diesel engine, which Ford could
not repair under its express, written warranty, that the 2005 F-250 would exhibit defects
that would prevent the truck from being merchantable, that the 2005 F-250 would exhibit
defects that would substantially impair the use, value, or safety of the truck, and that the
2005 F-250’s defects could not be repaired and eliminated under the applicable
warranties.” Similarly, in their cause of action based on the CLRA, plaintiffs alleged
Ford made certain representations concerning the quality of the 6.0 liter Navistar diesel
engine knowing of the problems with that engine, that plaintiffs relied on Ford’s
representations in purchasing the truck, and that, as a result, they had been injured. They
asserted that Ford was guilty of oppression, fraud, or malice in connection with both of
these causes of action. (§ 3294, subd. (a).)
As for the Song-Beverly Act cause of action, plaintiffs alleged the truck was
delivered with serious defects and nonconformities to warranty, that the defects
manifested themselves within the applicable express warranty period, that they delivered
the two. (Fassberg, supra, 152 Cal.App.4th at pp. 759-760; De Anza, supra, 94
Cal.App.4th at pp. 907, 912; Clauson, supra, 67 Cal.App.4th at p. 1256; Turnbull, supra,
219 Cal.App.3d at pp. 826-827; Marshall, supra, 141 Cal.App.3d at pp. 419-420.) Given
our holding, no election is required here.
33
the truck to Ford for repair on no fewer than six occasions, that Ford refused and/or failed
to adequately repair the vehicle and/or honor the warranties, that Ford failed to replace
the truck or make restitution, and that Ford willfully failed to comply with their
responsibility to do so under the Song-Beverly Act.
Based on the pleadings and the trial evidence, plaintiffs’ fraud/CLRA claims, and
the punitive damages attached to them, were necessarily based on Ford’s conduct leading
up to and at the time of plaintiffs’ purchase of the truck. The theory of liability was that
Ford concealed the known substantial defects of the 6.0 liter Navistar diesel engine from
them. Plaintiffs’ resulting harm stemmed from that deception. (See Santana, supra, 56
Cal.App.5th at p. 350.)
Plaintiffs’ Song-Beverly Act cause of action, and the civil penalty imposed, were
necessarily based exclusively on post-sale conduct after plaintiff notified defendant of
problems he was having with the truck, three years after the purchase. To recover on that
cause of action, and to warrant the imposition of the civil penalty, plaintiffs had to prove
that Ford failed to repair the truck after making reasonable efforts to do so and thereafter
willfully failed to comply with its obligation to replace the truck or pay plaintiffs
restitution. Plaintiffs’ harm stemmed from the failure to honor the warranty and
subsequent failure to replace the vehicle or pay restitution. (See Santana, supra, 56
Cal.App.5th at p. 350.)
Ford contends that courts have prohibited awards of both punitive damages and
civil penalties in the same cause of action unless “expressly authorized” by the
Legislature. For this proposition, Ford cites Los Angeles County Metropolitan
Transportation Authority v. Superior Court (2004) 123 Cal.App.4th 261 (Los Angeles
County Metro.), which involved the Unruh Civil Rights Act (§ 51 et seq.), a statutory
scheme that expressly allows for both punitive damages and civil penalties for the same
conduct. (§ 52, subd. (b)(1), (2).) However, nowhere in the opinion does the court say
punitive damages and civil penalties are not permitted when different conduct underlies
34
each award or that the allowance of both awards must be expressly authorized by
statute.12
Ford appears to rely on Los Angeles County Metro., supra, 123 Cal.App.4th 261,
primarily because of the court’s reference to the term “cause of action.” That court
stated: “[W]here the social objectives pursued by two categories of damages sought in
one cause of action are the same, an award for both would create a double recovery,”
which is prohibited. (Id. at p. 268, italics added.) Ford then asserts that a cause of action
in California is identified under the primary right doctrine: “The cause of action is the
right to obtain redress for a harm suffered, regardless of the specific remedy sought or the
legal theory (common law or statutory) advanced.” (Boeken v. Philip Morris USA, Inc.
(2010) 48 Cal.4th 788, 798 (Boeken).) Thus, according to Ford’s reasoning, the punitive
damages award and the Song-Beverly Act penalty here both addressed plaintiffs’ primary
right to a working truck in exchange for their payment, “a right they simply alleged was
violated in different ways” and thus an award for both is prohibited.
Our high court has explained the primary right theory. “The primary right theory
is a theory of code pleading that has long been followed in California. It provides that a
‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding
‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a
breach of that duty. [Citation.] The most salient characteristic of a primary right is that it
is indivisible: the violation of a single primary right gives rise to but a single cause of
12We note, however, that both the CLRA and the Song-Beverly Act state the remedies
available for violations are nonexclusive. In pertinent part, the CLRA provides: “The
provisions of this title are not exclusive. The remedies provided herein for violation of
any section of this title or for conduct proscribed by any section of this title shall be in
addition to any other procedures or remedies for any violation or conduct provided for in
any other law.” (§ 1752.) The Song-Beverly Act provides in pertinent part: “The
remedies provided by this chapter are cumulative and shall not be construed as restricting
any remedy that is otherwise available.” (§ 1790.4.)
35
action. [Citation.] A pleading that states the violation of one primary right in two causes
of action contravenes the rule against ‘splitting’ a cause of action. [Citation.] [¶] As far
as its content is concerned, the primary right is simply the plaintiff’s right to be free from
the particular injury suffered. [Citation.] It must therefore be distinguished from the
legal theory on which liability for that injury is premised: ‘Even where there are multiple
legal theories upon which recovery might be predicated, one injury gives rise to only one
claim for relief.’ ” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681-682 (Crowley),
original italics omitted, italics added.)
Ford’s reliance on primary right theory here is misplaced. In its explication of the
primary right theory, our high court in Crawley was careful to point out the following:
“The primary right theory has a fairly narrow field of application. It is invoked most
often when a plaintiff attempts to divide a primary right and enforce it in two suits.”
(Crawley, supra, 8 Cal.4th at p. 682.) The narrow application of primary right theory is
illustrated in the cases Ford relies upon in advancing its primary right argument, all of
which apply the theory in the narrow context identified by the court in Crawley.
(Boeken, supra, 48 Cal.4th at p. 798 [“for purposes of applying the doctrine of res
judicata, the phrase ‘cause of action’ has a more precise meaning” than counts which
state the same cause of action according to different legal theories (italics added)];
Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904 [concluding that, based on
the application of the primary right theory, a second lawsuit was based on the same cause
of action as the first and therefore barred by res judicata]; In re Marriage of Garcia
(2017) 13 Cal.App.5th 1334, 1345 [“when a court applies the doctrine of claim
preclusion, ‘cause of action’ has a specific meaning—namely, ‘the right to obtain redress
for a harm suffered, regardless of the specific remedy sought or the legal theory (common
law or statutory) advanced’ ”]; Balasubramanian v. San Diego Community College Dist.,
(2000) 80 Cal.App.4th 977, 991 [“For purposes of res judicata, California applies the
primary right theory”].)
36
Moreover, not only has our high court said the primary right theory has a “narrow
field of application,” but it was also careful to note that “[t]he primary right must also be
distinguished from the remedy sought: ‘The violation of one primary right constitutes a
single cause of action, though it may entitle the injured party to many forms of relief, and
the relief is not to be confounded with the cause of action, one not being determinative of
the other.” (Crowley, supra, 8 Cal.4th at p. 682, original italics omitted, italics added.)
Thus, “[m]ultiple remedies may be available to vindicate a single primary right.” (People
ex rel. Feuer v. Superior Court (Cahuenga’s the Spot) (2015) 234 Cal.App.4th 1360,
1378 [noting that our high court in Crowley “has confirmed the distinction between
primary rights and the remedies available to vindicate those rights”].)
Primary right theory simply does not help Ford here. For purposes of avoiding
double punishment, what is at issue is the conduct underlying the punitive damages
award and the conduct underlying the civil penalties—here, pre-sale fraudulent
inducement and the post-sale noncompliance with the Song-Beverly Act.
Ford asserts that the trial court’s conclusion that the punitive damages and the
Song-Beverly Act civil penalty addressed “ ‘separate and stand-alone conduct,’ ” “defies
the realities of how the [plaintiffs] presented and argued their case for punitive damages.”
As Ford maintains, plaintiffs’ expert Micale provided extensive testimony concerning
internal communications at Ford. In this regard, Ford asserts on appeal that plaintiffs
“convinced the superior court that Micale could testify about these documents precisely
because their theory was that Ford’s purported fraud continued after October 2004.” But
in the trial court, Ford pointed out that counsel for plaintiffs asserted that the evidence
was relevant because “there is a fraud in the performance claim in this case . . . which
alleges that Ford and its dealerships—[its] authorized repair facilities, [its] agents, failed
to honestly represent what was going on with the engine every time [plaintiff] brought his
vehicle in for repair.” (Italics added.)
37
Ford’s trial counsel was correct. As counsel noted in the trial court, plaintiffs’
argument advocating for the admissibility of the corporate communications evidence
pertained to their fourth cause of action, fraud in the performance of a contract—
intentional misrepresentation, a separate claim concerning alleged post-sale fraudulent
misconduct. In closing argument at phase 1, plaintiffs’ attorney stated in connection with
that claim: “And so and then the purchase is on . . . October 21st, 2004. But the fraud
continues because, remember, we also have a continuing fraud claim so not only were
they misled and not only was material information concealed to them before they bought
the truck but once they had the truck every time they would bring it in Ford would advise
them it was fixed when Ford acting through its agent knew there is no way that our techs
could fix this because we know we can’t fix it.” However, as Ford has noted in its
appellate briefing, the jury found in favor of Ford on the fourth cause of action.
Consequently, the punitive damages later awarded by the jury necessarily related to
Ford’s pre-sale fraudulent inducement.
Ford also argues that “a defendant’s conduct is ‘substantially the same’ when it is
part of a ‘unified course of conduct,’ ” “even when multiple and distinct acts, giving rise
to claims under different legal theories, are involved.” And because the “facts”
developed from the evidence of its corporate communications overlap to show
reprehensibility for punitive damages and willfulness for the Song-Beverly Act violation,
both awards therefore address substantially the same conduct, or a unified course of
conduct, and therefore an award of punitive damages and a Song-Beverly Act civil
penalty amount to Ford being punished twice for the same conduct. We do not agree.
We have already rejected Ford’s assertion that the underlying conduct need only
be “substantially” the same to prohibit the recovery of both punitive damages and civil
penalties; rather, the recovery of both punitive damages and civil penalties is prohibited
when the underlying conduct for both remedies is the same conduct, i.e., identical
conduct. And as we have said, the punitive damages award based on fraud and violation
38
of the CLRA were based on Ford’s pre-sale fraudulent conduct leading up to and
culminating in the sale, where Ford concealed problems relating to the defective 6.0 liter
Navistar diesel engine. The Song-Beverly Act civil penalty related to Ford’s willful post-
sale conduct in failing to promptly replace the truck after a reasonable number of repair
attempts or make restitution to plaintiffs.
We also note that the timing of the communications does not lend any support to
Ford’s position that there was an overlap between the fraud/CLRA and Song-Beverly Act
causes of action. Two of the corporate communications in the record and discussed by
Micale were written before plaintiffs purchased the truck. The others were written before
plaintiff brought the vehicle in for its first repair. Thus, all the communications took
place before Ford had any obligations under the Song-Beverly Act.13 To be sure, the
corporate communications were probative of Ford’s culpability for its pre-sale conduct,
the level of reprehensibility of that conduct, and the amount of punitive damages to be
imposed. But the fact some of those communications may have also been probative of
the willfulness of Ford’s Song-Beverly Act non-compliance does not bar plaintiffs from
both an award of punitive damages and civil penalties. (See Santana, supra, 56
Cal.App.5th at p. 350 [“arguing that the causes of action stem from different sorts of
harm is a different matter than whether the causes of action share a common set of
facts”].) Again, punitive damages punished Ford for oppression, fraud, or malice related
to its pre-sale fraud and concealment. It separately received a penalty for willfully failing
to comply with its Song-Beverly Act obligations — a penalty that was based on conduct
that took place after the conduct underlying the pre-sale fraudulent concealment. That
the corporate communications were evidence providing proof of considerations pertinent
to punitive damages and also willfulness for the civil penalty is of no moment.
13We note that Ford’s obligation to replace the vehicle or make restitution did not ripen
until reasonable attempts were made to repair it. (§ 1793.2, subd. (d)(2).)
39
Ford appears to assert that plaintiff effectively combined the conduct underlying
the fraud/CRLA cause of action and the Song-Beverly Act cause of action by arguing
Ford engaged in a pattern and practice of misconduct and thus the two awards were based
on substantially the same conduct. But plaintiffs are not prohibited from receiving both
an award for punitive damages based on pre-sale fraudulent inducement and a post-sale
Song-Beverly Act penalty based on willful noncompliance because they argued pattern
and practice in the trial court. “A pattern or practice of wrongful conduct is often
introduced as evidence of malice or oppression to justify a punitive damage award.”
(George F. Hillenbrand, Inc. v. Insurance Co. of North America (2002) 104 Cal.App.4th
784, 820-821.) Thus, whether Ford’s conduct involved a pattern and practice of
misconduct as well as other factors, such as how reprehensible Ford’s conduct was and
whether Ford disregarded the safety of others were all express considerations for the jury
to weigh in deciding the amount of punitive damages. (CACI No. 3942.)14 And the
amount of punitive damages is not limited to consideration of a pattern and practice of
misconduct pre-sale. The jury could consider a pattern or practice that continued beyond
the date of the sale.15
14 The jury was appropriately instructed it could consider pattern and practice, among
other factors, in deciding the amount of punitive damages: “If you decide to award
punitive damages, you should consider all of the following factors in determining the
amount: [¶] How reprehensible was Ford[’s] . . . conduct. In deciding how
reprehensible Ford[’s] . . . conduct was you may consider among other factors whether
the conduct caused physical harm, whether Ford disregarded the health or safety of
others, whether [plaintiffs] were financially weak or vulnerable and whether Ford . . .
knew they were financially weak or vulnerable and took advantage of them, whether
Ford[’s] . . . conduct involved a pattern or practice and whether Ford . . . acted with
trickery or deceit.” (CACI No. 3942, as given, italics added.)
15We also note that, unlike punitive damages, the Song-Beverly Act penalty for willful
noncompliance does not require a showing of moral blameworthiness, malice, or a wrong
toward the other party. (Kwan v. Mercedes-Benz of North America, Inc. (1994) 23
Cal.App.4th 174, 181 [“[m]oral blameworthiness is not a necessary element of willful
40
Moreover, whether Ford engaged in an ongoing pattern or practice of misconduct
pertinent to the amount of punitive damages award does not become an impermissible
consideration by virtue of the fact that plaintiffs were also separately alleging, and
attempting to establish, that Ford willfully failed to comply with the requirements of the
Song-Beverly Act. Nor does the proper consideration of whether Ford engaged in such a
pattern or practice, including pre- and post-sale conduct, lead to the conclusion that the
fraud/CLRA claims and the Song-Beverly Act claim were based on the same conduct.
Plaintiffs did not argue to the jury that the failure to comply with the Song-Beverly Act
obligations to replace the vehicle or make restitution supported the punitive damages
award.16 In fact, in phase 2, plaintiffs’ attorney briefly discussed the Song-Beverly Act,
noting, “[y]ou can be an honest manufacturer and still have Song-Beverly issues, a
customer came in multiple times, there were defects, you didn’t fix them.” Counsel then
stated that the Song-Beverly Act and its civil penalties were “totally separate.”
Ford simply cannot escape liability for both awards by virtue of the fact that it
engaged in a pattern or practice of deceitful misconduct throughout the course of the
discrete events and conduct involved here.
We conclude that punitive damages and the Song-Beverly Act civil penalty were
both properly awarded to plaintiffs.
conduct under section 1794(c)”]; Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d
878, 894 [“ ‘In civil cases, the word “willful,” as ordinarily used in courts of law, does
not necessarily imply anything blamable, or any malice or wrong toward the other party,
or perverseness or moral delinquency, but merely that the thing done or omitted to be
done was done or omitted intentionally. It amounts to nothing more than this: That the
person knows what he is doing, intends to do what he is doing, and is a free agent’ ”].)
16 During the instruction conference, plaintiffs’ counsel made clear they were not going
to argue to the jury that punitive damages could be based on the Song-Beverly Act
violation. Counsel stated, “there is no indication on the verdict form or in any of the jury
instructions that we are seeking punitive damages for a violation of 1793.2. . . . We are
not trying to get punitive damages for Song-Beverly Act violation.”
41
III. Award of Attorney Fees
Ford asserts that the trial court’s attorney fee award “falls with the judgment.”
(Capitalization omitted.) (See Shirvanyan v. Los Angeles Community College Dist.
(2020) 59 Cal.App.5th 82, 107, quoting, parenthetically, Merced County Taxpayers’
Assn. v. Cardella (1990) 218 Cal.App.3d 396, 402 [“an order awarding attorney fees
‘falls with a reversal of the judgment on which it is based’ ”].) According to Ford,
because the judgment must be reversed, the trial court’s award of attorney fees falls with
the judgment and must also be reversed. Ford makes no other argument concerning the
attorney fee award. Because we affirm the judgment, we will leave the award of attorney
fees undisturbed.
*****
42
DISPOSITION
The judgment is affirmed. Plaintiffs’ cross-appeal is dismissed as moot.17
Plaintiffs shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) &
(2).)
/s/
MURRAY, J.
We concur:
/s/
RENNER, Acting P. J.
/s/
KRAUSE, J.
17Plaintiffs’ request for judicial notice related to their cross-appeal is also moot and is
denied on that basis.
 Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
43