Ruiz Nunez v. FCA US LLC

Filed 2/26/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ANABELL RUIZ NUNEZ, B297453
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. BC644827)
FCA US LLC,
Defendant and Appellant.
ANABELL RUIZ NUNEZ, B299208
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC644827)
v.
FCA US LLC,
Defendant and Appellant.
APPEALS from a judgment and orders of the Superior
Court of Los Angeles County. Daniel S. Murphy, Judge.
Judgment and postjudgment order reversed and remanded;
nonsuit order affirmed.
Rosner, Barry & Babbitt, Hallen D. Rosner, Michelle A.
Cook; Strategic Legal Practices and Payam Shahian for Plaintiff
and Appellant in No. B297453 and for Plaintiff and Respondent
in No. B299208.
Gates, Gonter, Guy, Proudfoot & Muench, Matthew M.
Proudfoot; Horvitz & Levy, Lisa Perrochet, John A. Taylor, Jr.,
and Peder K. Batalden for Defendant and Appellant.
__________________________
SUMMARY
In a “lemon law” case involving a used car, the court gave
the jury a special instruction, at the request of plaintiff and over
defendant’s objection, that if a defect existed within the warranty
period, the warranty would not expire until the defect had been
fixed. That instruction misstated the law and conflicted with
another instruction given to the jury, CACI No. 3231, which
correctly explains the continuation of warranties during repairs.
The court erred in giving the special instruction, and the error
was prejudicial. We reverse the judgment and remand for
further proceedings.
We affirm the trial court’s order granting a nonsuit on
plaintiff’s cause of action for breach of implied warranty.
Defendant was the manufacturer of the car, not a distributor or
dealer who sold the used car to plaintiff. Under the lemon law,
only distributors and retail sellers, not manufacturers, are liable
for breach of implied warranties in the sale of a used car where,
as here, the manufacturer did not offer the used car for sale to
the public.
Reversal of the judgment likewise requires reversal of the
attorney fee award to plaintiff.
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FACTS
On October 30, 2013, plaintiff Anabell Ruiz Nunez bought a
used 2011 Jeep Patriot. The previous owner bought it as a new
car on December 31, 2010. Defendant FCA US LLC (formerly
known as Chrysler) manufactured the car and provided an
express warranty for three years or 36,000 miles. Absent tolling
of the warranty period, the three years expired on December 31,
2013, a few months after plaintiff bought the car.
More than two and a half years after plaintiff bought the
car, on June 20, 2016, plaintiff had the car towed to the dealer for
repairs after a harrowing incident on the freeway. The car
started shaking and suddenly lost power, dropping from 65 to
10 miles an hour. (This is known as “safe mode” or “limp-in
mode.”) The car’s mileage was then 51,465. The dealer replaced
the throttle body and performed related programming and a road
test.
The first owner of the car had brought the car to the dealer
two years nine months earlier (September 25, 2013, at 21,774
miles), because the throttle warning light was on and “no power
felt.” The dealer replaced the throttle body on that occasion, too.
The 2013 throttle body replacement for the first owner had
fixed the problem for the next 33 months. But about four months
after the June 2016 throttle body replacement, on October 17,
2016, the same thing happened again. The dealer again replaced
the throttle body and returned the car to plaintiff the next day.
Two days later, on October 20, 2016, the same thing happened
yet again. At this point, the dealer had replaced the throttle body
once for the first owner and twice for plaintiff. This time, the
dealer replaced the throttle body connector.
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A few days later, on October 26, 2016, plaintiff telephoned
Chrysler, at its “buyback” number, to request a buyback of her
car. Chrysler did not agree to a buyback. Plaintiff filed this
lawsuit on December 23, 2016.
A few months later, on March 28, 2017, the same problem
occurred yet again. The dealer again replaced the throttle body
connector. That was the last time plaintiff experienced the limp-
in mode problem.
In her complaint, plaintiff alleged several causes of action
under the Song-Beverly Consumer Warranty Act (Song-Beverly
Act), popularly known as the lemon law. (Civ. Code, § 1790 et
seq.) (All unspecified statutory citations are to the Civil Code.)
The complaint alleged defendant failed to promptly replace the
car or make restitution (§ 1793.2, subd. (d)(2)); failed to
commence repair within a reasonable time and to complete
repairs within 30 days (§ 1793.2, subd. (b)); and breach of the
implied warranty of merchantability (§§ 1791.1, 1794).
Plaintiff alleged, among other things, the car “contained or
developed . . . defects related to the throttle body” during the
warranty period, and defendant was unable to repair the car to
conform to the express warranties after a reasonable number of
attempts but refused to replace it or make restitution. Plaintiff
sought damages, civil penalties of twice the actual damages for
willful violations, and attorney fees.
Plaintiff’s theory of the case was (and is) that the source of
the car’s problem was an electrical component—the throttle body
connector that defendant replaced on October 20, 2016, and again
on March 28, 2017, and this defect existed (but was not diagnosed
and fixed) when the first owner brought the car in for warranty
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repairs on September 25, 2013, during the express warranty
period.
At the close of plaintiff’s case-in-chief, defendant moved for
nonsuit on all causes of action. The court granted the motion as
to plaintiff’s claim for breach of implied warranty, finding that
implied warranty obligations apply to distributors and sellers of
used vehicles, not to manufacturers.
The trial court gave the jury two instructions relating to
the continuation of defendant’s express warranty during repairs.
The court instructed with CACI No. 3231, as follows: “Regardless
of what the warranty says, if a defect exists within the warranty
period and the 2011 Jeep Patriot has been returned for repairs,
the warranty will not expire until the defect has been fixed.
[Plaintiff] must have notified [defendant] of the failure of the
repairs within 60 days after they were completed. The warranty
period will also be extended for the amount of time that the
warranty repairs have not been performed because of delays
caused by circumstances beyond the control of [plaintiff].” The
CACI No. 3231 Directions for Use explain: “Give this instruction
if it might appear to the jury from the language of an express or
implied warranty that the warranty should have expired during
the course of repairs. By statute, the warranty cannot expire
until the problem has been resolved as long as the defendant had
notice that the defect had not been repaired. (Civ. Code,
§ 1795.6(b).)”
Over defendant’s objections, the court also gave a special
instruction requested by plaintiff: “If a defect exists within the
warranty period, the warranty will not expire until the defect has
been fixed.” (We will refer to this as plaintiff’s special
instruction.)
5
The jury returned unanimous special verdicts in favor of
plaintiff. The jury found the car had a defect covered by the
warranty that substantially impaired its use, value or safety;
defendant failed to repair it after a reasonable number of
opportunities; and defendant failed to replace or repurchase the
vehicle. Plaintiff’s damages were $15,126.33. The jury found
defendant’s failure to repurchase or replace the car was willful,
and imposed a penalty of two times the damages. The jury also
found defendant failed to begin repairs within a reasonable time,
and failed to complete repairs within 30 days, and found the
violation was willful. The jury awarded the same amounts in
damages and penalties.
The court entered judgment for plaintiff in the amount of
$45,378.99, plus costs and attorney fees, on February 11, 2019.
Defendant filed motions for judgment notwithstanding the
verdict and for a new trial. These were denied.
Defendant filed a timely notice of appeal from the judgment
and the orders denying a new trial and JNOV. Plaintiff filed a
cross-appeal from the judgment and all preceding orders.
Plaintiff filed a motion for attorney fees, costs and expenses
totaling $383,758.02. The court awarded $179,510 in attorney
fees to three law firms, plus $31,888.49 in costs. Defendant filed
a timely appeal from the court’s order.
We ordered the appeals consolidated for purposes of oral
argument and decision.
DISCUSSION
1. Defendant’s Appeal
Preliminarily, we address plaintiff’s contention we should
find defendant forfeited its legal arguments for failure to comply
with appellate rules for citation to the record in its statement of
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the case. (See, e.g., Duarte v. Chino Community Hospital (1999)
72 Cal.App.4th 849, 856 [“If a party fails to support an argument
with the necessary citations to the record, that portion of the
brief may be stricken and the argument deemed to have been
waived.”].) Here, defendant cited to large swathes of the
reporter’s transcript rather than to specific pages. Defendant
also improperly included the reporter’s transcript in its appendix
and omitted various required documents, including the judgment
and certain opposition briefs and trial exhibits. This prompted
plaintiff to file her own respondent’s appendix.
We certainly do not condone defendant’s rule violations, but
in this case, we do not believe forfeiture of legal arguments is
necessary or appropriate. Contrary to plaintiff’s assertions,
defendant does not seek reversal based on sufficiency of the
evidence. Defendant has presented a single issue—instructional
error. The errors in record citation and document omissions have
not prevented or unduly complicated our appellate review of that
claim. Consequently, we will not deem any arguments forfeited,
and turn to the merits of defendant’s claim.
a. Express warranties and tolling
“The general rule is that an express warranty ‘does not
cover repairs made after the applicable time or mileage periods
have elapsed.’ ” (Daugherty v. American Honda Motor Co., Inc.
(2006) 144 Cal.App.4th 824, 830 (Daugherty).) In Daugherty, a
class action alleging breach of express warranty and violation of
consumer protection laws, the court rejected the plaintiffs’ claim
that the warranty “covers any defect that ‘exists’ during the
warranty period, no matter when or whether a malfunction
occurs.” (Id. at p. 832; ibid. [“as a matter of law, in giving its
promise to repair or replace any part that was defective in
7
material or workmanship and stating the car was covered for
three years or 36,000 miles, [the defendant] ‘did not agree, and
plaintiffs did not understand it to agree, to repair latent defects
that lead to a malfunction after the term of the warranty’ ”].)
The Song-Beverly Act specifies the duties of a
manufacturer making an express warranty (§ 1793.2) and
governs tolling of the warranty period (§ 1795.6), specifying
exactly when and how the warranty period is tolled or extended.
(The relevant text appears in full in the next footnote.)1
1 “(a) [¶] (1) Except as provided in paragraph (2) [governing
hearing aids] warranty period relating to an implied or express
warranty accompanying a sale . . . shall automatically be
tolled for the period from the date upon which the buyer
either (1) delivers nonconforming goods to the
manufacturer or seller for warranty repairs or service or
(2), pursuant to subdivision (c) of Section 1793.2 or
Section 1793.22, notifies the manufacturer or seller of the
nonconformity of the goods up to, and including, the date
upon which (1) the repaired or serviced goods are delivered to
the buyer, (2) the buyer is notified the goods are repaired
or serviced and are available for the buyer’s possession or
(3) the buyer is notified that repairs or service is completed, if
repairs or service is made at the buyer’s residence. [¶] . . . [¶]
(b) Notwithstanding the date or conditions set for the
expiration of the warranty period, such warranty period
shall not be deemed expired if either or both of the
following situations occur: (1) after the buyer has satisfied
the requirements of subdivision (a), the warranty repairs or
service has not been performed due to delays caused by
circumstances beyond the control of the buyer or (2) the
warranty repairs or service performed upon the
nonconforming goods did not remedy the nonconformity
for which such repairs or service was performed and the
8
First, the warranty period is automatically tolled from the
date on which a buyer delivers the car to the manufacturer or
seller for warranty repairs, until the date on which the buyer is
notified the car is repaired and available for the buyer’s
possession. (§ 1795.6, subd. (a)(1).)
Second, the warranty period shall not be deemed expired if
the warranty repairs have not been performed due to delays
beyond the control of the buyer. (§ 1795.6, subd. (b).)
Third, the warranty period shall not be deemed expired if
the warranty repairs did not fix the defect for which the repairs
were performed, and the buyer notified the manufacturer or
seller of this failure within 60 days after the repairs were
completed. (§ 1795.6, subd. (b).)
In sum, the warranty period is tolled or extended under
only three circumstances: (1) the car is in the shop for warranty
repairs (§ 1795.6, subd. (a)(1)), (2) there are delays in warranty
repairs beyond the control of the buyer, and (3) upon notice from
the buyer, given within 60 days of completion of warranty
repairs, that those repairs did not solve the problem (§ 1795.6,
subd. (b)). The statute provides no other circumstances under
which the warranty is tolled or extended.
Section 1793.1 of the statute governs, among other matters,
the form of express warranties (e.g., “simple and readily
buyer notified the manufacturer or seller of this failure
within 60 days after the repairs or service was completed.
When the warranty repairs or service has been performed so as to
remedy the nonconformity, the warranty period shall expire in
accordance with its terms, including any extension to the
warranty period for warranty repairs or service.” (§ 1795.6,
subds. (a) & (b), boldface added.)
9
understood language”), and the information a manufacturer or
retailer must give to consumers when they bring a product for
warranty repairs or service, about their warranty rights and
remedies. Section 1793.1, subdivision (a)(2) (§ 1793.1(a)(2))
requires specific language on all work orders or repair invoices
for warranty repairs. The notice tells the buyer the three
circumstances recited above under which the warranty period
will be extended (§ 1795.6), and of a fourth right to replacement
or refund if the defect has not been fixed after a reasonable
number of attempts (§ 1793.2). We recite below each of these
four rights that must appear on the face of every work order or
repair invoice:
First, “The warranty period will be extended for the
number of whole days that the product has been out of the
buyer’s hands for warranty repairs.” (§ 1793.1(a)(2).) This
means the number of days a car is in the shop for repairs during
the warranty period are added to the warranty period. (§ 1795.6,
subd. (a)(1).)
Second, “If a defect exists within the warranty period, the
warranty will not expire until the defect has been fixed.”
(§ 1793.1(a)(2).) This means if the car is in the shop for repairs
during the warranty period, the dealer has to complete the
repairs before returning the car to the owner, even if the
warranty period expired while the car was in the shop. (§ 1795.6,
subd. (a)(1).)
Third, “The warranty period will also be extended if the
warranty repairs have not been performed due to delays caused
by circumstances beyond the control of the buyer, or if the
warranty repairs did not remedy the defect and the buyer notifies
the manufacturer or seller of the failure of the repairs within
10
60 days after they were completed.” (§ 1793.1(a)(2).) This means
if the car is in the shop for repairs during the warranty period
but there are delays not caused by the buyer, such as when the
dealer is waiting for delivery of parts, the dealer has to complete
the repairs, even if the warranty period expired while the car was
in the shop. And, if the repairs did not fix the problem, and if the
buyer reports the failure within 60 days after the repairs are
completed, the dealer must make further repairs under warranty,
even if the warranty period has expired. (§ 1795.6, subd. (b).)
Fourth, “If, after a reasonable number of attempts, the
defect has not been fixed, the buyer may return this product for a
replacement or a refund subject, in either case, to deduction of a
reasonable charge for usage. This time extension does not affect
the protections or remedies the buyer has under other laws.”
(§ 1793.1(a)(2).) This means that the manufacturer must buy
back or replace the car if repeated warranty repairs have not
fixed the defect. (§ 1793.2.)
b. Contentions and conclusions
The statutory requisites for tolling the warranty, as just
described, are embodied in CACI No. 3231 (quoted, as it was
given by the trial court, ante at p. 5). But the trial court also
instructed the jury with plaintiff’s special instruction, that “[i]f a
defect exists within the warranty period, the warranty will not
expire until the defect has been fixed.” This is a sentence plucked
from the notice to buyers quoted just above that
section 1793.1(a)(2) requires on every repair invoice.
When read in context with the rest of the required notice,
the sentence notifies the buyer the warranty period is extended
while the product is in the shop for warranty repairs and until
those repairs are completed, even if the stated period of the
11
warranty would otherwise expire during that time. Taken out of
context and standing entirely alone, the language suggests a far
more expansive meaning. The notice language required by
section 1793.1(a)(2) describes the rights conferred by other
sections of the statute, including section 1795.6 on tolling or
continuation of the warranty period. Section 1793.1(a)(2) does
not expand those rights or create new rights.
Well-established rules of statutory construction do not
allow us to read a statutory provision in isolation, and a jury
instruction cannot stand when it is based on an erroneous
construction of statutory language. We cannot imagine the
Legislature would, in a provision prescribing the language for
notice to consumers, extend warranties beyond the terms of a
statutory provision (§ 1795.6) that is specifically directed to that
point. Nor does any other construction of the notice provision
comport with the law of express warranty. (See Daugherty,
supra, 144 Cal.App.4th at p. 832 [express warranty did not
“cover[] any defect that ‘exists’ during the warranty period, no
matter when or whether a malfunction occurs”].)
The only authorities discussing the section 1793.1(a)(2)
sentence at issue are federal cases that align with our analysis.
(See, e.g., Yi v. BMW of North America, LLC (C.D.Cal. May 24,
2018, No. 2:17-cv-06467-SVW) 2018 U.S.Dist.Lexis 171313,
pp. *25–*29 [rejecting, under several canons of statutory
construction, the plaintiff’s claim that the sentence in
section 1793.1(a)(2) tolled the expiration of the express
warranty]; see also Schick v. BMW of North America, LLC
(C.D.Cal. Sept. 27, 2018, No. 5:17-cv-02512-VAP-KKx)
2018 U.S.Dist.Lexis 223690, p. *15 [purpose of section 1793.1 “is
to ensure that manufacturers and retailers set forth their
12
warranties in ‘simple and readily understood language,’
[§ 1793.1(a)(1)], and it does not create the bounds of express
warranties”]; Koeper v. BMW of North America, LLC (C.D.Cal.
Sept. 14, 2018, No. LACV 17-6154-VAP (JPRx)) 2018
U.S.Dist.Lexis 226156, p. *6 [noting that the plaintiff “has taken
§ 1793.1(a)(2) out of context,” and “to read this provision in the
manner Plaintiff urges would render moot the other provision of
the statute pertaining to the tolling of express warranties” (citing
Yi)].)
There is no support in the law for instructing the jury that
if a defect exists within the warranty period, the warranty
continues in perpetuity until the defect has been diagnosed and
fixed. It was error to give the special instruction, an incomplete
and misleading statement that does not comport with the law of
express warranty or with the lemon law provision on tolling. The
proper instruction was CACI No. 3231.
Plaintiff makes several other arguments, all similarly
misguided. One is that defendant treated the warranty as
extended by paying all the dealer’s claims for warranty
reimbursement for the repairs performed outside the warranty
period. Plaintiff cites no legal authority for the proposition, in
essence, that a manufacturer may be estopped from relying on
the terms of an express warranty, simply because its dealer
mislabeled the repairs as under “warranty” and the
manufacturer paid the dealer’s warranty claims. Nor did
plaintiff request a jury instruction that the stated term of an
express warranty could be extended in this fashion.
Another contention is that any error in the instructions was
invited by defendant, who “advocated for an instruction based on
the vaguely worded CACI 3231.” Defendant requested, and the
13
court instructed the jury with CACI No. 3231, which correctly
states the law. There was no error in giving CACI No. 3231. The
error was in giving plaintiff’s special instruction, to which
defendant objected. There was no “invited error” by defendant.
Still another unavailing argument is that the special
instruction did not conflict with CACI No. 3231. That is wrong,
because the special instruction did not tell the jury that plaintiff
must prove an owner gave notice within 60 days that repairs
performed during the warranty period did not remedy the defect,
as section 1795.6 plainly does.
Plaintiff insists that notice is only required to toll an
express warranty “where the defect has been ‘fixed’ and the
completed ‘repair’ fails”—and not where the defendant “replaced
the wrong part” and thus “left a defect unrepaired.” Under
plaintiff’s theory, the warranty would never expire unless a
repair performed under warranty forever foreclosed the
possibility of a recurring malfunction, whether the malfunction
was caused by a new problem or by a latent condition that was
not diagnosed when the in-warranty repair seemed to have fixed
the problem. This ignores the requirement that the owner give
notice within 60 days that an in-warranty repair did not resolve a
malfunction.
Here, the September 2013 repair for the previous owner
did resolve the malfunction that caused her to seek warranty
repairs, and accordingly no notice to the contrary was given.
Defendant’s repair of the limp-in mode problem in 2013 by
replacing the throttle body resolved the problem for two and a
half years after the expiration of the stated term of the warranty.
The defect in the wiring connector was not diagnosed until years
after the warranty expired. Daugherty tells us that a latent
defect does not extend the term of an express warranty.
14
(Daugherty, supra, 144 Cal.App.4th at p. 832 [manufacturer who
gave a three-year or 36,000-mile warranty did not agree “ ‘to
repair latent defects that lead to a malfunction after the term of
the warranty’ ”].)
In the end, plaintiff’s contentions consistently reduce
themselves to the proposition that we should interpret the
statute in a way that protects the interests of consumers, in
accordance with its purpose. Of course, we know the Song-
Beverly Act “ ‘is manifestly a remedial measure, intended for the
protection of the consumer; it should be given a construction
calculated to bring its benefits into action.’ ” (Murillo v.
Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 990.) But that
does not mean we may disregard “ ‘ “the actual words of the
statute,” ’ ” or fail to give them “ ‘ “a plain and commonsense
meaning.” ’ ” (Ibid.) Here, that meaning is clear: section 1795.6
governs tolling of the warranty period, section 1793.1(a)(2) does
not expand the circumstances under which the warranty period
may be tolled, and CACI No. 3231 explains the conditions
prescribed by section 1795.6 that continue an express warranty
during repairs.
The error in giving the special instruction was prejudicial.
Plaintiff’s counsel told the jury it was the most important
instruction the judge gave, and the jury should find the warranty
continued from the first throttle body repair through the last
throttle body connector repair. The special instruction
improperly allowed the jury to conclude the warranty did not
expire until years after its stated expiration, without considering
the statutory conditions for extending the warranty that are
prescribed in section 1795.6. It is reasonably probable that, if the
jury had been instructed only with CACI No. 3231, it would have
reached a different verdict.
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2. Plaintiff’s Cross-appeal
Plaintiff asks the court, in the event of a reversal of the
judgment, to reverse the trial court’s order granting a nonsuit on
plaintiff’s implied warranty claim. We conclude the trial court’s
order was correct.
“The rule is that a trial court may not grant a defendant's
motion for nonsuit if plaintiff’s evidence would support a jury
verdict in plaintiff’s favor.” (Campbell v. General Motors
Corp. (1982) 32 Cal.3d 112, 117–118.) In this case, plaintiff’s
implied warranty claim fails as a matter of law, because in the
sale of used consumer goods, liability for breach of implied
warranty lies with distributors and retailers, not the
manufacturer, where there is no evidence the manufacturer
played any role in the sale of the used car to plaintiff.
We begin with a few definitions.
A manufacturer is an entity “that manufactures,
assembles, or produces consumer goods.” (§ 1791, subd. (j).)
A distributor is an entity “that stands between the
manufacturer and the retail seller in purchases, consignments, or
contracts for sale of consumer goods.” (§ 1791, subd. (e).)
A seller or retailer is an entity “that engages in the
business of selling or leasing consumer goods to retail buyers.”
(§ 1791, subd. (l).)
Section 1791, subdivision (a) defines “consumer goods” as
“any new product” that meets specified conditions.
Section 1791.1 defines implied warranties (§ 1791.1,
subds. (a) & (b)), and states implied warranties for new consumer
goods (id., subd. (c)) are coextensive with an express warranty,
but in no event last less than 60 days or more than one year
following the sale of the new product. (We deny defendant’s
16
request for judicial notice of a letter among the legislative history
of section 1791.1 as it is irrelevant to our analysis.)
Section 1795.5 governs the obligations “of a distributor or
retail seller of used consumer goods” in a sale in which an express
warranty is given. These obligations, with stated exceptions, are
“the same as that imposed on manufacturers” under the Song-
Beverly Act. (§ 1795.5.) One of the exceptions, for example, is
the implied warranty for a used product is coextensive with an
express warranty but lasts not less than 30 days and not more
than three months after the sale of the used product. (Id.,
subd. (c).)
It is evident from these provisions that only distributors or
sellers of used goods—not manufacturers of new goods—have
implied warranty obligations in the sale of used goods. (See
§ 1795.5.) As one court has put it, the Song-Beverly Act provides
similar remedies (to those available when a manufacturer sells
new consumer goods) “in the context of the sale of used goods,
except that the manufacturer is generally off the hook.” (Kiluk v.
Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 339 (Kiluk),
citing § 1795.5; see id. at p. 337 [Song-Beverly Act “generally
binds only distributors and retail sellers in the sale of used
goods”].)
Of course, as Kiluk explains, “the assumption baked into
section 1795.5 is that the manufacturer and the
distributor/retailer are distinct entities. Where the manufacturer
sells directly to the public, however, it takes on the role of a
retailer.” (Kiluk, supra, 43 Cal.App.5th at p. 340.) Kiluk
involved a defendant manufacturer that “issu[ed] an express
warranty on the sale of a used vehicle” that “would last for one
year from the end of the new car warranty.” (Id. at p. 337.) In
17
Kiluk, the manufacturer “partnered with a dealership to sell used
vehicles directly to the public by offering an express warranty as
part of the sales package,” and by doing so, “stepped into the role
of a retailer and was subject to the obligations of a retailer under
section 1795.5.” (Id. at p. 340.)
This is not such a case. Here, plaintiff presented no
evidence that defendant was “a distributor or retail seller of used
consumer goods” (§ 1795.5), or in any way acted as such.
Plaintiff insists there is evidence that defendant was both
the manufacturer and the distributor of the car. She points to
two exhibits in the record. One shows when the new car was sold
to the first owner on December 31, 2010, there were 56 miles on
the odometer. The other shows that when the dealer performed
“new vehicle prep” on November 16, 2010, the car had zero miles
on the odometer, and the claim was paid. Plaintiff contends this
is evidence defendant “was the ‘distributor’ of the Vehicle.” We
do not see how evidence that defendant paid the dealer for “new
vehicle prep” with zero miles on the odometer, and the car had
56 miles when the first owner bought it new in 2010, could
possibly show that defendant was “a distributor . . . of used
consumer goods” under section 1795.5. It is common for a new
car to be test-driven by potential buyers who, for whatever
reason, do not buy the car.
Plaintiff then tells us, alternatively, that liability with
respect to used goods is the same for manufacturers, distributors
and retail sellers. No authority is cited, and Kiluk tells us
otherwise. (Kiluk, supra, 43 Cal.App.5th at p. 339 [“the
manufacturer is generally off the hook”].)
18
3. Attorney Fees
Because the judgment for plaintiff must be reversed, so too
must the order awarding attorney fees to plaintiff.
DISPOSITION
The judgment and postjudgment order are reversed, the
nonsuit order is affirmed, and the cause is remanded for further
proceedings. Defendant shall recover costs of appeal.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.
19