Simgel Co., Inc. v. Jaguar Land Rover North America, LLC

Filed 10/1/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
SIMGEL CO., INC., et al., B292458
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC645632)
v.
JAGUAR LAND ROVER
NORTH AMERICA, LLC,
Defendant and Appellant.
APPEALS from a judgment and orders of the Superior
Court of Los Angeles County. Michael L. Stern, Judge. Affirmed.
Law Office Natan Davoodi, Natan Davoodi; Law Office of
Joseph S. Socher and Joseph S. Socher for Plaintiffs and
Appellants.
Bowman and Brooke, Brian Takahashi, Theodore
Dorenkamp III, and Jennifer T. Persky for Defendant and
Appellant.
__________________________
SUMMARY
The jury in a “lemon law” case answered special verdict
questions that determined a car manufacturer (defendant) had no
liability for breach of express warranty or for breach of the
implied warranty of merchantability. (Civ. Code, § 1790 et seq.,
the Song-Beverly Consumer Warranty Act). But there was a
mistake in the special verdict form that neither counsel nor the
court detected until long after the jury was discharged. The
verdict form did not tell the jury if they found no breach of
warranty, they should stop and answer no further questions. So
the jury went on to a subsequent question, which asked if
plaintiffs revoked acceptance within a reasonable time, and the
jury answered, “Yes.” The jury also went on to answer questions
about damages.
Judgment was entered on the special verdict, awarding
damages to plaintiffs. The clerk of the court served notice of
entry of the judgment, and 20 days later, defendant filed a
motion to vacate the judgment and enter a different judgment in
its favor, and alternatively for judgment notwithstanding the
verdict. The trial court granted defendant’s motion. Plaintiffs
appealed, and defendant filed a protective cross-appeal.
We affirm judgment for defendant.
FACTS
In May 2014, Emanuel Sasoones and his business, Simgel
Co., Inc. (plaintiffs), leased a new convertible 2014 Jaguar F-Type
automobile from Galpin Jaguar Lincoln, Inc. for use by
Mr. Sasoones’s son, Jonathan. The lease was for three years,
with a mileage allowance of 15,000 miles.
Two years later, on May 23, 2016, after about 10,000 miles,
Jonathan had the car towed to the dealer because of water
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leaking in through the roof after a carwash. (The dealer provided
a free towing service, so Jonathan did not personally take the car
to the dealer.) Jonathan also complained that, when rolling up
the driver’s and passenger’s windows, they bounced back open.
(This refers to the car’s “one-touch” feature, allowing the user to
open or close the windows by pressing and immediately releasing
the window switch, rather than pressing and holding the switch
for the entire time the window is being opened or closed.)
With respect to the convertible roof leak, the technician,
John Naylor, found the window seals were deformed, and the
bolts in the brackets that held the seals in place were “lock[ed]
too tight” at the manufacturer. He replaced the seals and, after
doing so, confirmed no leak.
With respect to the “one-touch” feature, Mr. Naylor could
not duplicate Jonathan’s complaint. But because there were now
new seals, he “just reset the windows,” recalibrating them by
holding the switch, and found “no fault afterwards. It was still
working correctly.”
According to Jonathan, after the May 2016 replacement of
the window seals, “there was no leak after that.”
In August 2016, at over 11,000 miles, Jonathan had the car
towed to the dealer a second time, again complaining the
windows bounced open when he tried to close them with the one-
touch feature. The technician, Braulio Contreras, tried verifying
the complaint several times, but the windows were “operating
fully every time.” He “just cleaned up the glass, the channel,
lubed it a little bit and checked it again. Everything was good.”
Mr. Contreras testified that one can “still manually close the
window even if there is a complaint of a one-touch bounce issue.”
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Two months later, in November 2016, at almost
13,000 miles, Jonathan had the car towed in again for the same
complaint. This time, the repair order shows the technician
verified the complaint. He connected a diagnostic computer to
look for fault codes but found none. He removed the door panel,
to make sure internally everything was working properly, and
updated and programed the door modules. All electrical
connections and regular cables were operating smoothly. He
inspected and lubricated the regulators, and recalibrated the
windows. According to the repair order, the windows “work[ed]
to specs after repair.”
Four months later, in March 2017, at almost 14,000 miles,
Jonathan had the car towed in again for the same complaint.
The technician replaced the window regulators, updated the door
module software, and adjusted the glass. He verified the
windows were operating properly after he replaced the
regulators, and the shop foreman verified it as well.
In May 2017, at the end of the lease term, plaintiffs
returned the car, with mileage of 14,663.
Meanwhile, on January 4, 2017, between the third and
fourth visits to the dealer, plaintiffs filed this lawsuit. The
operative first amended complaint filed in February 2017 alleged
violations of the lemon law against defendant Jaguar Land Rover
North America, LLC. The first cause of action was based on
defendant’s failure to conform the car to express warranties and
failure to issue a refund or replacement. The second alleged a
breach of the implied warranty of merchantability, asserting the
defect “substantially reduces [the vehicle’s] safety and
performance,” and plaintiffs were entitled under the lemon law to
rescind the purchase contract. Plaintiffs alleged they were
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entitled to restitution of all money paid, and that by the
complaint they again “hereby reject[] and revoke[] acceptance of
the automobile.” Plaintiffs alleged a third cause of action against
the dealer, Galpin Jaguar Lincoln-Mercury, Inc., for negligence.
(At trial, the court granted a motion for nonsuit on the negligence
claim.)
A jury trial resulted in a special verdict finding the car did
not have a window defect covered by the written warranty that
substantially impaired use, value or safety. The verdict form
then instructed the jury to answer question 10, which asked
whether the car had a window defect in the first year of plaintiffs’
ownership that rendered it not fit for the ordinary purpose of
providing transportation. The jury answered, “No.”
After these findings, because of a mistake in the
instructions in the special verdict form following the “no” answer
to question 10 (as we will discuss, post), the jury went on to
answer other questions that concerned damages for breach of the
implied warranty of merchantability. Specifically, the jury was
asked if plaintiffs “revoke[d] acceptance within a reasonable time
after they discovered or could have discovered, the window
defect,” and answered “Yes.” The jury then answered the
question, “What are plaintiff’s recission damages?” and found
those damages were $26,023.68.
The special verdict was read and handed to counsel to
examine. Both said they had an adequate time to review the
verdict form. Plaintiffs’ counsel requested the jury be polled.
This was done. On the revocation of acceptance question, only
eight jurors confirmed their answer was “yes”; three said “no” and
one juror did not know what his or her verdict was. The court
sent the jury back to the jury room. When they returned, counsel
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examined the verdict form again and confirmed it was
unchanged. The jury was again polled on the revocation of
acceptance question, and this time all 12 confirmed that was
their verdict. After the jury was dismissed, the court asked
counsel if the clerk could enter the judgment on the verdict, and
whether counsel had “anything further on the verdict form or
otherwise by written Motion or appropriate proceeding.” Neither
counsel offered any objections.
The next day, June 8, 2018, judgment on the special verdict
was entered, awarding plaintiffs $26,023.68. That same day, the
clerk served notice of entry of judgment on the parties.
On June 28, 2018, defendant filed a motion to vacate the
judgment or, in the alternative, for judgment notwithstanding
the verdict (JNOV). Defendant argued, among other things,
there was no legal basis for the judgment because of the jury’s
factual findings that there was no window defect substantially
impairing the car’s use, value or safety, and no window defect in
the first year of ownership that rendered the car not fit for the
ordinary purpose of providing transportation. Alternatively,
JNOV was proper, defendant argued, because plaintiffs
presented no evidence the window defect existed during the first
year of the lease, so defendant’s nonsuit motion should have been
granted on the breach of implied warranty question.
Plaintiffs’ opposition contended an implied warranty is not
limited to one year; there was substantial evidence the car had
defects during the implied warranty period; a breach of implied
warranty does not require a car to be unfit for the ordinary
purpose of providing transportation; there was substantial
evidence the car did not measure up to promises made by the
manufacturer or dealer; and defendant waived any defect in the
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verdict. (There is no dispute over the jury’s verdict for the
defense on the express warranty claim.)
A few weeks later, on July 25, 2018, defendant filed an ex
parte application for relief under Code of Civil Procedure
section 473, concerned that its motion to vacate the judgment and
for JNOV had been filed a few days late. Defendant also filed an
ex parte application to shorten time for hearing on the motion to
vacate. The trial court granted both motions the same day, and
set a hearing date for August 2, 2018.
After the hearing, the trial court took the matter under
submission and later that day granted defendant’s motion, on
both alternative bases. The court found the legal basis for the
decision was “erroneous in that it is not supported by the facts of
the case because the jury did not find any substantially impairing
nonconformity and/or any defect rendering the subject vehicle
unfit for its ordinary purpose. Because of this finding, there is no
legal basis for jury to then find that the revocation had been
timely.” The court also found the original judgment was not
consistent with the special verdict, and the jury had “mistakenly
awarded damages to plaintiffs after finding no liability, for which
this Court has the authority to correct said mistake.” The court
vacated the original judgment and ordered entry of judgment for
defendant. The court also found, after viewing the evidence in
the light most favorable to plaintiffs, “there is no substantial
evidence to support the jury’s verdict in plaintiffs’ favor,” and
ordered judgment be entered in favor of defendant
notwithstanding the verdict.
Defendant served notice of entry of judgment, and plaintiffs
filed a timely notice of appeal. Defendant filed a protective cross-
appeal from the court’s failure to grant defendant’s motion for
7
partial nonsuit on the implied warranty claim and from the
original judgment in plaintiffs’ favor. We do not need to consider
the cross-appeal since we affirm the judgment for defendant.
DISCUSSION
Plaintiffs contend the judgment for defendant must be
reversed because (1) defendant’s motion to vacate was filed
beyond the applicable jurisdictional deadlines; (2) the jury’s
verdict was not inconsistent with the original judgment; and
(3) there was substantial evidence supporting the original
judgment. None of these contentions is correct.
1. The Jurisdictional Issue
A motion to vacate the judgment and enter a different
judgment (Code Civ. Proc., § 663) must be filed “[w]ithin 15 days
of the date of mailing of notice of entry of judgment by the clerk
of the court pursuant to Section 664.5, or service upon him or her
by any party of written notice of entry of judgment, or within
180 days after the entry of judgment, whichever is earliest.”
(§ 663a, subd. (a)(2), italics added.) The phrase we emphasize,
“pursuant to Section 664.5,” is the key to our decision that
defendant’s motion was timely. We find the clerk did not serve
notice of entry of judgment pursuant to section 664.5. (Further
undesignated statutory references are to the Code of Civil
Procedure.)
The same time deadlines to file a motion to vacate the
judgment also apply to a JNOV motion (§ 629, subd. (b), § 659,
subd. (a)(2)), and a new trial motion (§ 659, subd. (a)(2)). In the
case of a new trial motion, these time limits are jurisdictional
(Maynard v. Brandon (2005) 36 Cal. 4th 364, 372), and
section 473 “does not offer relief from mandatory deadlines
deemed jurisdictional in nature.” (Maynard, at p. 372 [new trial
8
motion].) This “jurisdictional in nature” principle has also been
applied to a motion to vacate a judgment under sections 663 and
663a. (Advanced Building Maintenance v. State Comp. Ins. Fund
(1996) 49 Cal. App. 4th 1388, 1392-1394.)
Here, the clerk of the court served a notice of entry of
judgment, and defendant did not file its motion to vacate the
judgment or for JNOV within 15 days. But the clerk’s notice of
entry of judgment did not start the 15-day period running,
because the clerk’s notice did not comply with explicit directions
from our Supreme Court in Van Beurden Ins. Services, Inc. v
Customized Worldwide Weather Ins. Agency, Inc. (1997)
15 Cal. 4th 51 (Van Beurden).
Van Beurden held that “to qualify as a notice of entry of
judgment under Code of Civil Procedure section 664.5, the clerk’s
mailed notice must affirmatively state that it was given ‘upon
order by the court’ or ‘under section 664.5,’ and a certificate of
mailing the notice must be executed and placed in the file.” (Van
Beurden, supra, 15 Cal.4th at p. 64; ibid. [“To avoid uncertainty,
we clarify that—subject to the specified exceptions under Code of
Civil Procedure section 664.5, subdivisions (a) and (b), which
make notice by the clerk mandatory—when the clerk of the court
mails a file-stamped copy of the judgment, it will shorten the
time for ruling on the motion for a new trial only when the order
itself indicates that the court directed the clerk to mail ‘notice of
entry’ of judgment.”].)
The Van Beurden principle is recited again in Palmer v.
GTE California, Inc. (2003) 30 Cal. 4th 1265, 1277 (“To be service
‘pursuant to Section 664.5’ (§§ 659, 660) the notice of entry of
judgment mailed by the clerk must ‘affirmatively state’ it is given
‘ “upon order by the court” or “under section 664.5” ’ ”;
9
“[o]therwise, the time limits . . . are triggered by service on the
moving party of ‘written notice’ of the ‘entry of judgment.’
(§§ 659, 660.)”). This means a clerk’s notice of entry of judgment
must state, in so many words, that it is given “upon order of the
court” or “under section 664.5” in order to trigger the time to file
a motion to vacate the judgment or for JNOV.
Here, the clerk’s notice of entry of judgment did not
affirmatively state it was given “upon order by the court,” or
“under section 664.5.” The form served by the clerk is a Los
Angeles Superior Court multi-purpose form used for notice of
entry of judgment or dismissal or other order. In the lower right-
hand corner, in tiny font, there are references to section 664.5,
section 1013a (on proof of service by mail), and two court rules
(rule 8.104 on the time to appeal and another rule that has been
repealed). The citation to section 664.5 may be on the form, for
all we know, to reflect instances where notice of entry of
judgment by the clerk is mandatory, as mentioned in Van
Beurden. Whatever the reason, because the notice does not
affirmatively state it was given “upon order of the court,” or
“under section 664.5,” or anything similar, and because the
record nowhere reflects that the court ordered the clerk to serve
notice of entry of judgment, we cannot assume the court did so.
We cannot guess whether the reference to section 664.5 on
the form is meant to imply the court ordered the clerk to serve
notice of entry of judgment. “[I]n a matter involving
jurisdictional restrictions on the right to appeal, we should not
engage in ‘guesswork’ concerning whether the trial court actually
ordered the clerk to mail notice of entry of judgment.” (Van
Beurden, supra, 15 Cal.4th at pp. 62-63.) And, since neither
10
party served a notice of entry of judgment, defendant’s motion to
vacate was timely.
2. The Inconsistent Verdict Issue
Plaintiffs contend the jury’s verdict was consistent with the
judgment of liability for breach of implied warranty. We do not
agree.
A judgment may be set aside, and another judgment
entered, when there is an “[i]ncorrect or erroneous legal basis for
the decision, not consistent with or not supported by the facts,” or
when a judgment is “not consistent with or not supported by the
special verdict.” (§ 663.) Under either formulation, that is what
happened here. The original judgment rests on an erroneous
legal basis, and it is not consistent with the facts found by the
jury.
We begin with a few basic principles.
Under the lemon law, the implied warranty of
merchantability means that consumer goods “(1) Pass without
objection in the trade under the contract description. [¶] (2) Are
fit for the ordinary purposes for which such goods are
used. [¶] (3) Are adequately contained, packaged, and labeled.
[¶] (4) Conform to the promises or affirmations of fact made on
the container or label.” (Civ. Code, § 1791.1, subd. (a).) “[I]n no
event shall such implied warranty have a duration of less than
60 days nor more than one year following the sale of new
consumer goods to a retail buyer.” (Id., subd. (c), italics added.)
A buyer who is damaged by a breach of implied warranty
has two possible measures of those damages: one where the
buyer has rightfully rejected or “justifiably revoked acceptance” of
the goods (Civ. Code, § 1794, subd. (b)(1) & Cal. U. Com. Code,
§ 2711), and one where the buyer has accepted the goods
11
(Civ. Code, § 1794, subd. (b)(2) & Cal. U. Com. Code, § 2714). If
the buyer has “justifiably revoke[d] acceptance,” he may
“recover[] so much of the price as has been paid,” among other
remedies not relevant here. (Cal. U. Com. Code, § 2711,
subd. (1).) A buyer who has accepted goods may revoke
acceptance of a commercial unit “whose nonconformity
substantially impairs its value to him.” (Id., § 2608, subd. (1).) If
the buyer has accepted the goods, the measure of damages for
breach of warranty “is the difference . . . between the value of the
goods accepted and the value they would have had if they had
been as warranted, unless special circumstances show proximate
damages of a different amount” (Cal. U. Com. Code, § 2714,
subd. (2)), and incidental and consequential damages also may be
recovered (id., subd. (3)).
In this case, the jury answered the only question
(question 10) concerning defendant’s liability for breach of
implied warranty in defendant’s favor—that is, the 2014 Jaguar
did not have “a window defect in the first year of plaintiffs’
ownership which rendered it not fit for the ordinary purpose of
providing transportation.” There was no other question on the
verdict form relating to whether the implied warranty was
breached. The ensuing questions related to the damages
plaintiffs would be entitled to recover if defendant had breached
the implied warranty. If defendant had breached the implied
warranty of merchantability, damages could be measured in one
of the two ways we have just described, depending on whether
plaintiffs justifiably revoked acceptance.
It is apparent to us that, after answering the question on
liability in the negative, the special verdict form should have
instructed the jury to “stop here,” and have the presiding juror
12
sign and date the verdict form. Instead, since the verdict form
did not instruct the jurors to stop, they continued, answering the
questions directed at determining damages. But there can be no
damages where there is no liability. This was a mistake that
neither counsel nor the court noticed before the jury was
discharged.
Section 663 authorizes a trial court to vacate “[a] judgment
or decree not consistent with or not supported by the special
verdict,” and enter a different judgment. (§ 663, subd. 2.) That is
what the court did here. “A trial court has the authority to
correct a mistaken verdict under section 663.” (Shapiro v.
Prudential Property & Casualty Co. (1997) 52 Cal. App. 4th 722,
728-729, citing Woodcock v. Fontana Scaffolding & Equip. Co.
(1968) 69 Cal. 2d 452, 456-457 (Woodcock).) “The judge has the
responsibility to interpret the verdict ‘ “from its language
considered in connection with the pleadings, evidence and
instructions.” ’ ” (Shapiro, at p. 729, quoting Woodcock, at
p. 456.)
Plaintiffs argue on appeal that question 10 “was improper
and irrelevant to the determination of liability” because, they say,
the language does not reflect the correct legal standard. They say
the appropriate question was whether the vehicle was in a “safe
condition and substantially free of defects,” a standard used in a
jury instruction given in Isip v. Mercedes-Benz USA, LLC (2007)
155 Cal. App. 4th 19, 27 (Isip).) Plaintiffs say the jury’s answer to
question 10 “should be disregarded” and cannot be the basis for
setting aside the original judgment. Plaintiffs are wrong for
many reasons.
In the trial court, plaintiffs never proposed the language
they now say should have been used in the verdict form. The
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language plaintiffs proposed to use in the special verdict form,
which the trial court rejected, had no support in the evidence.
Plaintiffs objected to question 10, proposing instead that
question 10 ask, “Was the 2014 Jaguar F-Type of the same
quality as those generally acceptable in the trade?” The trial
court rejected that request for lack of any evidence on the point,
stating, among other things, that “there is no expert testimony or
other admitted or admissible testimony regarding the quality of
the subject window versus another comparison.” On appeal,
plaintiffs cite to no evidence to suggest the trial court was
mistaken on this point.
After that, plaintiffs told the court that question 10 should
ask, “Did the Jaguar F-Type measure up to the promises or facts
by the manufacturer and-or dealer?” The court rejected that
request, stating: “We don’t have a container or label, we don’t
have a comparison between this automobile window system and
any other for this model. There is no testimony regarding the
same.” Further, “We don’t have the promises or facts. That is
what I keep saying. I said it at least ten times in the last half
hour.” And, “Absolutely no testimony, to my recollection . . .
regarding [Jonathan Sasoones] testifying regarding any other
representation regarding the windows prior to lease of the
automobile or any comparison between the window system on
this particular automobile and any other of the same model year
by this manufacturer.”
And finally, plaintiffs asked that question 10 read, “Did the
2014 Jaguar F-Type have a window defect in the first year of
plaintiffs’ ownership?”—that is, omitting “which rendered it not
fit for the ordinary purpose of providing transportation.” That, of
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course, would have been a meaningless question, completely
devoid of a standard.
In short, plaintiffs did not propose the question they now
say should have been asked, and on this record, there was no
evidence or law to support the questions they did propose.
Further, plaintiffs’ reliance on Isip for the proposition that
question 10 reflected an incorrect legal standard is misplaced.
Isip involved the defendant’s challenge to the trial court’s jury
instruction that “ ‘[f]itness for the ordinary purpose of a vehicle
means that the vehicle should be in safe condition and
substantially free of defects.’ ” (Isip, supra, 155 Cal.App.4th at
p. 23.) The defendant challenged that instruction, saying the
trial court should have instructed that the implied warranty for a
vehicle can be breached “only if [the vehicle] does not provide
transportation.” (Id. at p. 27, italics added.) Isip rejected that
contention, finding that a car in a “ ‘safe condition and
substantially free of defects’ ” was “consistent with the notion
that the vehicle is fit for the ordinary purpose for which a vehicle
is used.” (Id. at p. 27.)
Thus Isip stated: “We reject the notion that merely because
a vehicle provides transportation from point A to point B, it
necessarily does not violate the implied warranty of
merchantability. A vehicle that smells, lurches, clanks, and
emits smoke over an extended period of time is not fit for its
intended purpose.” (Isip, supra, 155 Cal.App.4th at p. 27.) The
court further pointed out the plaintiff had presented evidence the
car would not “ ‘pass without objection in the trade,’ ” adducing
evidence “that malodorous air-conditioning, a leaking
transmission, transmission hesitation, and [the plaintiff’s]
clanking brake problem were not normal for a car.” (Ibid.)
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This case is nothing like Isip. Here, unlike in Isip,
plaintiffs presented no evidence that the Jaguar was not of the
same quality as those generally acceptable in the trade. Nor was
there an evidentiary basis for asking the jury whether the car
“measure[d] up to the promises or facts by the manufacturer
and/or dealer,” as the trial court likewise found (and as we
discuss further post, in connection with the court’s JNOV ruling).
As Woodcock tells us, we interpret a special verdict “ ‘from
its language considered in connection with the pleadings,
evidence and instructions.’ ” (Woodcock, supra, 69 Cal.2d at
p. 456.) The only conceivable formulation was the one the court
used: whether the car had a window defect that rendered it “not
fit for the ordinary purpose of providing transportation.” While
that formulation might have been inadequate under other
evidentiary circumstances, such as those in Isip, there is no basis
for finding it inappropriate in this case.
Next, plaintiffs assert that when the jury went on to find
plaintiffs “revoke[d] acceptance within a reasonable time after
they discovered or could have discovered, the window defect,”
they necessarily found there was a defect that breached the
implied warranty of merchantability. That is not correct. That is
not only sheer speculation, it is contrary to the jury’s express
finding the car did not have a window defect in the first year of
plaintiffs’ ownership that rendered it not fit for the ordinary
purpose of providing transportation. (Cf. Zagami, Inc. v.
James A. Crone, Inc. (2008) 160 Cal. App. 4th 1083, 1092 (Zagami)
[“[a] court reviewing a special verdict does not infer findings in
favor of the prevailing party”].) In any event, the mere existence
of a defect does not equate to a breach of the implied warranty of
merchantability. (See Brand v. Hyundai Motor America (2014)
16
226 Cal. App. 4th 1538, 1546 (Brand) [“a new car need not ‘be
perfect in every detail’; rather, its implied merchantability
‘requires only that a vehicle be reasonably suited for ordinary
use’ ”].)
Finally, plaintiffs assert that defendant prepared the
special verdict form and failed to object before discharge of the
jury, so defendant “has waived any objection to any alleged
ambiguity in the verdict.” But defendant does not claim the
special verdict was ambiguous. Defendant claims the original
judgment was not consistent with the special verdict. In any
event, “[w]aiver is not found where the record indicates that the
failure to object was not the result of a desire to reap a ‘technical
advantage’ or engage in a ‘litigious strategy.’ ” (Woodcock, supra,
69 Cal.2d at p. 456, fn. 2.)
The mistake in the verdict form was inadvertent and went
unnoticed by both counsel and the court, despite the efforts of all
to carefully consider the verdict form before it was submitted to
the jury and to poll the jury on their verdict before they were
discharged. That it was an inadvertent mistake is evidenced by
the fact that even plaintiffs’ own proposed special verdict form,
after asking the question on liability for implied warranty
(whether the car was “of the same quality as those generally
acceptable in the trade”) told the jury, “If you answered yes, stop
here, answer no further questions, and have the presiding juror
sign and date this form.”
3. The JNOV Issue
Defendant sought JNOV in the alternative, arguing that
even if the verdict could be construed in plaintiffs’ favor, JNOV
should be entered because plaintiffs failed to produce substantial
evidence that the window defect existed during the first year of
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the lease. The trial court ordered judgment entered for defendant
on this basis as well, finding “there is no substantial evidence to
support the jury’s verdict in plaintiffs’ favor.” That ruling was
also correct.
A judgment notwithstanding the verdict must be rendered
“whenever a motion for a directed verdict for the aggrieved party
should have been granted had a previous motion been made.”
(§ 629, subd. (a).) That is the case here. Plaintiffs insist
otherwise, proffering two arguments, both incorrect.
Plaintiffs’ first argument involves the fourth factor
required under Civil Code section 1791.1 for consumer goods to
be merchantable: the goods must “[c]onform to the promises or
affirmations of fact made on the container or label.” (§ 1791.1,
subd. (a)(4).) This language is reflected in the CACI form
instruction. In this case, the instruction was modified to state
that breach of implied warranty could be established if plaintiffs
proved the Jaguar “did not measure up to the promises or facts by
the manufacturer and/or dealer.” (Italics added.) But—as we
have already seen—the trial court rejected plaintiffs’ proposal to
ask the jury that question, because there was no evidence to
support it: “no testimony regarding the same,” and “[w]e don’t
have the promises or facts.”
Plaintiffs insist there is such evidence, and point to
“promises” that Jonathan Sasoones testified about, in the form of
the owner’s manual. (The manual explains on page 55 how the
one-touch window function works (“press (or pull) the switch
briefly to open (or close) a window. Window travel can be stopped
at any time by operating the switch again”). Plaintiffs also cite
Jonathan’s testimony that the “specs” sticker on the car (listing
its features and suggested retail price) did not tell him, and
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nobody at the dealer told him, “that the windows would not
work.” This is not evidence of promises or affirmations of fact
made on a container or label.
An owner’s manual or a “specs” sticker may be relevant to
express warranty claims, but neither has anything to do with
“promises or affirmations of fact made on the container or label”
(Civ. Code, § 1791.1, subd. (a)(4)), or with “promises or facts by
the manufacturer and/or dealer,” for purposes of establishing a
breach of implied warranty. For one thing, Jonathan “never
looked at the owner’s manual regarding window operation.” For
another, we cannot comprehend how a dealer’s failure to tell him
“the windows would not work” can be characterized as a
“promise[] or affirmation[] of fact.” (Ibid.) The implied warranty
of merchantability arises by operation of law and is a “bulwark
against fundamental defects.” (Brand, supra, 226 Cal.App.4th at
pp. 1545, 1550 [dangerous safety flaw].) It does not arise from an
owner’s manual describing how car windows work, or from
something a dealer has not said.
Plaintiffs’ second contention is that, although it is
undisputed the window defect did not manifest itself until
two years after the lease began, there was evidence the window
defect was “latent” and existed at the time of manufacture, so
that the one-year maximum duration of the implied warranty of
merchantability (Civ. Code, § 1791.1, subd. (c)) does not apply.
(See Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal. App. 4th 1297,
1304 [“The implied warranty of merchantability may be breached
by a latent defect undiscoverable at the time of sale.”].)1
1 Defendant asks us to take judicial notice of the legislative
history of Civil Code section 1791.1. Defendant contends it shows
the Legislature intended the one-year maximum duration to be a
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The evidence plaintiffs cite does not support this second
contention. They are referring to Mr. Naylor’s testimony
concerning the successful repair of Jonathan’s first complaint of a
roof leak, during the car’s first visit to the dealer, not repair of
Jonathan’s complaint about the one-touch feature (a complaint
Mr. Naylor could not duplicate). In correcting the roof leak,
Mr. Naylor found the window seals were deformed, and said the
bolts in the brackets that held the seals in place were “lock[ed]
too tight” at the manufacturer, so he “had trouble getting the
bolts out from the—whatever holds the seals in place, the . . .
bracket.” But he did so, and that repair corrected the leaking,
which never occurred again.
In short, Mr. Naylor did not testify that the tight bolts
holding the seals in place caused or could cause a defect in the
one-touch mechanism. He was asked: “And if the seals are not
put in properly, can that cause an obstruction for the windows to
bounce back down?” He replied, “It [the repair order] doesn’t say
that the seals weren’t put in properly. It says that the seals were
limitation on the time in which a latent defect may surface and
create liability, and after that period, the warrantor is no longer
responsible. We deny the request. The document defendant cites
is a letter from the staff of the bill’s sponsor, responding to a
letter from an attorney for a dealers’ association. There is no
indication the letter was communicated to the Legislature as a
whole. For that reason, it does not constitute cognizable
legislative history. (Kaufman & Broad Communities, Inc. v.
Performance Plastering, Inc. (2005) 133 Cal. App. 4th 26, 30; see
id. at p. 37 [authoring legislator’s files and letters not
communicated to the Legislature as a whole do not constitute
legislative history].)
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deformed and that the bolts that hold the bracket that hold the
seal were locked tighted [sic].”
Plaintiffs nonetheless assert that Mr. Naylor testified the
deformed seals and brackets locked too tight at manufacture
“could cause the problem with the window.” Mr. Naylor did not
testify to that. Mr. Naylor was asked, “So once the new seals are
put in and the windows are recalibrated, if they are not
calibrated correctly, would that make the window bounce back
down?” and he answered, “It’s possible, yes.” In other words, an
incorrect recalibration during a repair could cause the problem—
not deformed seals or their brackets.
In sum, the defect in the one-touch mechanism did not
occur until two years after plaintiffs leased the car, and there is
no evidence it was caused by some other defect present when the
car was manufactured. The alternative JNOV ruling was correct.
DISPOSITION
The judgment is affirmed. Defendant shall recover costs of
appeal.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.
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