Petrosian v. Mercedes-Benz USA CA2/1 ( 2021 )

Filed 4/30/21 Petrosian v. Mercedes-Benz USA CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
NARINE PETROSIAN, B299629
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC685538)
v.
MERCEDES-BENZ USA, LLC, et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lia Martin, Judge. Affirmed.
Universal & Shannon, Jon D. Universal, James P. Mayo,
Nejla Nassirian; Weinberg Wheeler Hudgins Gunn & Dial, Gary
J. Toman for Defendants and Appellants.
The Bravo Law Firm, Nicholas A. Bravo; Law Office of
Adam Zolonz, Adam Zolonz for Plaintiff and Respondent.
___________________________________
Respondent Narine Petrosian purchased a used vehicle
from Keyes European, a car dealership, which was manufactured
by Mercedes-Benz USA (collectively Mercedes). She later
demanded pursuant to the Song-Beverly Consumer Warranty Act
that Mercedes-Benz repurchase the car, claiming it had a chronic
engine clatter that Keyes was unable to fix. Mercedes-Benz
declined to repurchase the car and Petrosian filed this lawsuit,
alleging Mercedes willfully violated its obligations under the act.
The jury found in favor of Petrosian. Mercedes contends
insufficient evidence supported the verdict in several respects,
and the trial court made numerous prejudicial errors. We affirm.
BACKGROUND
As this matter is before us on appeal from a judgment in
favor of Petrosian after a jury trial, we view the evidence in favor
of the judgment. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686,
694.)
A. Vehicle Function
On August 5, 2015, Petrosian purchased a certified pre-
owned 2013 Mercedes-Benz S-550 with 17,706 miles on it from
Keyes European dealership for $76,116.88. The vehicle came
with an original factory warranty through February 2017, and
also a second warranty of one year beginning at the expiration of
the original factory warranty. The terms of these warranties
were not made part of the record at trial, and so far as we can tell
do not appear in the record on appeal.
Most interaction with the dealer was by Petrosian’s father,
Jack Petrosian, who was the car’s primary operator, referring to
it at trial as “my car.” (We will refer to Narine as “Petrosian” and
her father as “Jack Petrosian.”) During the test drive prior to
purchase, Jack Petrosian inquired why the car made a rattling
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noise on cold startup. The salesman informed him the noise was
normal for that vehicle.
The day after the purchase, and again a week after that,
August 7 and 13, 2015, Jack Petrosian presented the vehicle with
complaints that a rattling noise came from the engine at cold
startup, lasting approximately half a minute. Keyes was unable
to verify the noise because the car had warmed up on the trips to
the dealership, and generated no repair order document for these
visits.
More than a year after the purchase, Jack Petrosian
presented the vehicle to Keyes five more times.
On October 6 and 10, 2016, he again complained of the
engine rattling noise. Keyes replaced the battery on October 6
and the timing chain tensioner and check valve (another chain
tensioning part) on October 10, 2016.
On October 22, 2016, Keyes replaced a leaking washer fluid
holder.
On July 7, 2017, Jack Petrosian again complained about
the rattling noise, and Keyes again replaced the timing chain
tensioner. Jack also complained about a suspension noise, which
the dealer was unable to duplicate and did not remediate.
Finally, he complained about a stuck sun shade, which he decided
not to have repaired because Keyes represented it was not
covered by the warranty. That problem eventually resolved
itself.
On August 24, 2017, Jack Petrosian again complained
about the engine rattling noise, which Keyes addressed by
replacing the timing chain tensioner (for the third time) and
camshaft adjuster. Jack also complained about an engine
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vibration, which Keyes addressed by replacing the engine and
transmission mounts.
The rattling noise was never fixed, and existed when the
parties’ experts inspected the vehicle in December 2018.
In late 2017, Petrosian submitted a claim to Mercedes for
repurchase of the vehicle, which was denied.
B. Litigation
On December 4, 2017, Petrosian sued Mercedes-Benz and
Keyes, asserting causes of action for breach of express warranty
and breach of the implied warranty of merchantability. She
alleged the vehicle was expressly warranted to be free from
defects in material and workmanship, but had significant
mechanical and electrical problems, and Mercedes-Benz willfully
breached the warranty by refusing in bad faith to repurchase the
car. Petrosian sought replacement of the car or restitution plus
civil penalties under the Song-Beverly Consumer Warranty Act
(also known as the California Lemon Law), Civil Code section
1790 et seq.
During discovery, Mercedes propounded form
interrogatories asking for identification of any persons with
knowledge of the incident. Petrosian first answered “N/A,” but
upon further request amended her answer to disclose herself and
her mother—but not Jack Petrosian—as having knowledge of the
car’s defects.
At trial, documents revealed that the prior owner had made
several calls for roadside assistance, had needed four battery
jump starts, on July 1 and December 20, 2013, June 9, 2014, and
June 4, 2015, and had replaced the battery at 4,000 miles. The
vehicle had also produced “low-voltage” fault codes in dozens of
control modules, indicating electrical components were receiving
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insufficient voltage. The car also experienced low-voltage fault
codes over several modules when Petrosian owned it, and
Petrosian had had to replace the battery again.
Jack Petrosian testified he regularly drove the vehicle,
referring to it several times as “my car.” He took it to Keyes the
day after Petrosian bought it, and a week after that, both times
complaining about the rattle, but Keyes told him the noise was
normal and would go away. Petrosian then left without
demanding that it be repaired. Mercedes contended these visits
never occurred.
Narine Petrosian testified she never drove the car more
than five or 10 miles, but Jack Petrosian was the usual driver, “so
he experienced all the problems more than [she] would.” She
testified that she did not feel safe driving the car, and that it sat
in the driveway for “days and months and weeks.” She would
take it out “once in a while” “[j]ust to see if it’s still the same
problem.”
A video recording of the engine was played for the jury.
Clark Bauman, Mercedes’s expert, testified that the rattling
noise it made on cold startup was normal, but Thomas Lepper,
Petrosian’s expert, testified it was “quite clearly” abnormal.
Lepper, who had worked on cars extensively for 50 years,
including professional race cars, testified that the Mercedes-Benz
S-550 was a world-class luxury car, “typically one of the best
vehicles in the world,” and with one exception was the “biggest,
most comfortable, most featured, most prideful car they make,”
with a listing price starting at $90,000.
The rattling noise was a known problem at Mercedes-Benz,
which had issued a “technical service bulletin” (TSB) titled
“Rattling Noise After Engine Starts for Several Seconds.” The
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TSB informed all Mercedes-Benz distributors that the problem
could be resolved by replacing the timing chain tensioners and
installing a check valve. Lepper testified that TSBs for a vehicle
will appear on a dealer’s service technician’s computer when the
vehicle’s VIN number is entered.
Lepper identified elements of the engine noise heard by the
jury: “You heard the starter go and the engine start to turn, and
you heard that hammering sound when the engine first started
cold, as the oil pumped up, established pressure in the chain
tensioners, and pulled everything taut. [¶] And you heard
probably the first just four or five seconds of that hammer that is
the objectionable noise that’s telling us there’s a problem in that
engine. It’s not maintaining that proper pressure to hold that
timing chain and everything in the proper alignment.”
Lepper testified that the noise was caused by insufficient
oil pressure to the timing chain tensioners. The Mercedes-Benz
S-550 has a V-8 engine with four camshafts, which rotate when
the engine runs, “timing” the intake and exhaust valves by
pushing on and releasing them in sync with the pistons. A
camshaft is turned by a chain, called the timing chain. The
timing chain must remain taut, as a loose chain could jump teeth
on the sprocket, possibly causing catastrophic engine failure,
with pistons colliding with valves, piston rods exploding through
the engine casing, and engine oil spraying the engine
compartment, with an outside chance of oil landing on a hot
catalytic converter and causing a fire. A loose timing chain may
rattle against the metal housing enclosing the system, and can
lead to reduced fuel efficiency, increased engine wear, and
damage to other components.
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A timing chain is kept taut by a hydraulic timing chain
tensioner, which requires oil pressure to function. Oil pressure is
lowest at cold startup but quickly increases as the engine
operates. A check valve operates to help maintain oil pressure.
At higher speeds the camshaft must activate valves slightly
earlier than at lower speeds for better power production. The
camshaft adjuster accomplishes this by “advancing” the
camshaft’s rotation slightly. It too requires oil pressure to
function.
Lepper testified there was no reason to replace the timing
chain tensioners three times—on October 10, 2016 and July 7
and August 24, 2017—without giving some explanation why prior
repairs did not work, for example because the repair parts were
defective or the first mechanic made a mistake. That none of the
repairs fixed the problem, which persisted even after Keyes
replaced the camshaft adjuster in August 2017, indicated the
problem resided somewhere else, although Lepper could not
diagnose exactly where.
Lepper testified that examination of past as well as present
electrical faults was necessary to understand the vehicle’s
condition as a whole. Four “quick tests” (basically snapshots of
the vehicle’s error code system) from 2013 to 2018 showed that
the vehicle produced dozens of reappearing undervoltage error
codes “all over th[e] car.” The car required a new battery at 4,000
miles and another one on October 6, 2016, and the prior owner
had called Mercedes’s roadside assistance number four times to
request jump starts.
Lepper testified that an S-Class Mercedes requiring four
jump starts in its first two years was unacceptable “in any way,”
and its history of electrical fault codes both before and after two
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batteries were replaced indicated that the car’s continuing low-
voltage codes could not be attributed to the battery. He testified,
“This [many] problems, this many presentations, this many
service issues, tells me there’s a real problem in that wiring
harness in that car, and that’s just unacceptable. [¶] Again, this
is an S-Class Mercedes. Four, maybe five jump-starts that we’ve
documented, numerous batteries, short tests that show failures
all over the place, that’s not right and not normal.” Lepper
testified that the car exhibited “problem after problem. The same
problems exhibiting. There’s no question here this was bad from
day one.”
Lepper opined that it was unreasonable for Mercedes’s
technicians not to proactively test the vehicle for faults when it
was in their possession, to repeat repairs that did not work, and
to fail to look for deeper causes. He testified that the technicians
knew about the car’s electrical problems: “They knew it. Once
they put the VIN number in their computer system, the last
service history comes up, and it will show you the last few times
it’s been in, and the technician or the service writer can check
and see, ‘Why does this car keep coming in?’ [¶] ‘Oh, my. Here’s
another battery.’ [¶] All this is known stuff. This is not a secret
or something they didn’t know because it was somewhere else.”
He testified, “I’m not going to accept anybody saying ‘We didn’t
know,’ because it’s been brought in to Keyes over and over and
over through most of this vehicle’s life.” He testified, “Why didn’t
the tech say, ‘I got some problems here, boss. Give me some time
to work on this’? [¶] Someone should have said here, ‘Here’s a
repeated problem. Here’s a current problem. Let me fix this.’
It’s kind of how they earn their living, right? The dealership.”
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Lepper testified that it was unreasonable for the number of
repairs performed not to have fixed the car’s issues, and the
unresolved issues impaired its value. He concluded that the
“continuing electrical problems” and, independently, the
“continuing engine problems have substantially impaired the
safety of the vehicle” and “affected the use of the vehicle, partly
because it’s been in the shop so many days and partially because
the Petrosians have restricted their use of it because they’re not
comfortable with the way that car has performed and failed on
them.”
Mario Haro, Mercedes’s customer care manager, testified
that he received Petrosian’s request for repurchase of the vehicle
along with the repair records, but declined to consider records
generated by the prior owner. Haro denied Petrosian’s claim on
the ground that the car did not have a defect that substantially
impaired its use, value or safety, which was not repaired after a
reasonable number of attempts.
The jury found defendants liable, and awarded Petrosian
$73,015.12 (equal to the purchase price less a mileage offset) plus
a $76,116.88 civil penalty for willful breach of the express
warranty, and $76,116.88 for breach of implied warranty.
Mercedes moved to vacate the judgment and moved for a
new trial and for judgment notwithstanding the verdict (JNOV).
The court granted the motion to vacate in part, finding the
breach of express and implied warranty awards to be duplicative.
It therefore vacated the award for breach of implied warranty but
otherwise denied defendants’ motions, entering judgment for
Petrosian in the amount of $149,132.
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DISCUSSION
A. Breach of Express Warranty
Mercedes contends the judgment must be reversed with
directions to enter judgment in its favor because no evidence
demonstrated that the car suffered a defect that substantially
impaired its use. We disagree.
1. Legal Principles
The Song-Beverly Consumer Warranty Act obligates a
manufacturer or its representative to service or repair a new car
to conform with applicable express warranties within a
reasonable number of attempts. (Civ. Code, § 1793.2, subd.
1
(d)(2).) If the manufacturer fails to do so, it must either replace
the car or make restitution to the buyer. (Ibid.) A used vehicle
sold during the period of a transferrable new vehicle warranty is
a new vehicle for purposes of the Song-Beverly Act. (Jensen v.
BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 123.)
A nonconformity requiring a vehicle’s refund or
replacement must “ ‘substantially impair the use, value, or
safety’ ” of the vehicle. (Johnson v. Ford Motor Co. (2005) 35
Cal.4th 1191, 1211; see also Lundy v. Ford Motor Co. (2001) 87
Cal.App.4th 472, 478.) “Whether the impairment is substantial
is determined by an objective test, based on what a reasonable
person would understand to be a defect. [Citations.] This test is
applied, however, within the specific circumstances of the buyer.”
(Lundy, at p. 478.)
“Where findings of fact are challenged on a civil appeal, we
are bound by the ‘elementary, but often overlooked principle of
1
Undesignated statutory references will be to the Civil
Code.
10
law, that . . . the power of an appellate court begins and ends
with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted,’ to support the findings
below.” [Citation.] We must therefore view the evidence in the
light most favorable to the prevailing party, giving it the benefit
of every reasonable inference and resolving all conflicts in its
favor . . . .” (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
A judgment supported by substantial evidence will be upheld
even if contrary evidence exists that might have caused the jury
to render a different verdict. (In re Dakota H. (2005) 132
Cal.App.4th 212, 228.) Substantial evidence is evidence of
ponderable legal significance, reasonable, credible and of solid
value. (Kuhn v. Department of General Services (1994) 22
Cal.App.4th 1627, 1633.) The “judgment . . . is presumed to be
correct on appeal, and all intendments and presumptions are
indulged in favor of its correctness.” (In re Marriage of Arceneaux
(1990) 51 Cal.3d 1130, 1133.)
2. Application
Here, Lepper testified that Petrosian’s vehicle suffered
persistent and substantial mechanical and electrical defects that
damaged the battery, produced dozens of undervoltage faults,
caused a “hammering sound” when the engine was started cold,
and threatened to reduce performance, damage other
components, and possibly cause a catastrophic engine failure.
Petrosian testified she and her father would leave the car in the
driveway unused, driving it only occasionally to see if the rattling
noise had gone away. From this evidence the jury could
reasonably conclude the car suffered a defect that substantially
impaired the use, value, and safety of the vehicle.
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Mercedes argues that substantial impairment must exist
from the buyer’s perspective, not from that of someone else, and
evidence that Jack Petrosian primarily drove the car and took it
in for repairs failed to show the car was defective from Narine’s
perspective. The argument is without merit. A loud hammering
noise in a world-class luxury car is defective from anyone’s
perspective.
Mercedes argues without citation to authority that
Petrosian was required to establish the precise terms of the
warranty in order to show that the car failed to conform to the
warranty, and her failure to do so necessitates that the judgment
for breach of express warranty be reversed. The argument is
without merit. To establish a warranty claim a plaintiff need
only prove the substance of the warranty’s relevant terms. (See
McKell v. Washington Mutual Inc. (2006) 142 Cal.App.4th 1457,
1489.) Here, it was undisputed at trial that the car was covered
by an express warranty that covered defects in parts and
workmanship. Lepper testified that the car’s timing chain
tensioning system and core electrical systems were defective.
This sufficed. Mercedes adduces no evidence, and does not claim,
that the timing chain and electrical systems were not covered by
the warranty.
Mercedes argues the car’s defects cannot be deemed under
an objective standard to have substantially impaired the car’s
use, value, or safety because the start-up noise was normal and
lasted only a few seconds, and the Petrosians never noticed the
low-voltage errors, which manifested only in a bad battery that
was promptly replaced as a normal maintenance item. This
argument flatly ignores Petrosian’s evidence supporting the
judgment. Lepper testified that the noise was not normal, but
12
indicated a deeper mechanical problem, and the low-voltage
errors and dead battery were symptomatic of an overarching
electrical problem infecting dozens of the car’s components. We
have no power on appeal to recharacterize the evidence in
opposition to the judgment.
Mercedes argues without citation to authority that to
establish the amount of restitution owed under section 1793.2,
subdivision (d)(2)(B), Petrosian had to establish the current pay-
off amount owed to the lender, Mercedes-Benz Financial Service.
Petrosian’s adducing no evidence of this amount, Mercedes
argues, necessitates that the restitution award be vacated. The
argument is without merit.
“In the case of restitution, the manufacturer shall make
restitution in an amount equal to the actual price paid or payable
by the buyer . . . .” (§ 1793.2, subd. (d)(2)(B).) The jury awarded
Petrosian the purchase price less an offset for usage of the
vehicle. Evidence of the purchase price, which was undisputed,
established the amount of restitution owed. No evidence
suggested that the amount “payable” would be less than the
purchase price. For example, Mercedes adduced no evidence that
Mercedes-Benz Financial Service offered to discount or forgive
part of Petrosian’s car loan.
Citing only its own evidence and entirely disregarding
Petrosian’s, Mercedes argues insufficient evidence supported the
civil penalty because no evidence established that it breached the
express warranty willfully as opposed to denying her claim
reasonably and in good faith. We disagree.
A buyer of consumer goods who is damaged by a
manufacturer’s failure to comply with its obligations under the
Song-Beverly Act may recover a civil penalty of up to two times
13
the amount of actual damages “[i]f the buyer establishes that the
failure to comply was willful.” (§ 1794, subd. (c).) A
manufacturer’s “failure to refund or replace [is] not willful if it
reasonably and in good faith believed the facts did not call for
refund or replacement.” (Kwan v. Mercedes-Benz of North
America, Inc. (1994) 23 Cal.App.4th 174, 186.)
Here, Lepper testified at length that Mercedes knew the
vehicle was defective but took no steps to repair the electrical
system or seek the cause of the rattling noise. Haro testified that
he reviewed the repair history insofar as Petrosian owned the
car, but declined to review any record predating the dealer’s
“certifying” inspection prior to its reselling the vehicle, thereby
precluding any opportunity to observe most of the vehicle’s
history of electrical defects. This evidence was substantial, and
supported the jury’s conclusion that Mercedes did not reasonably
and in good faith believe that the facts called for no refund or
replacement.
B. Breach of Implied Warranty
Mercedes argues insufficient evidence supported
Petrosian’s claim for breach of implied warranty. We disagree.
“[E]very sale of consumer goods that are sold at retail in
this state shall be accompanied by the manufacturer’s and the
retail seller’s implied warranty that the goods are merchantable.
(§ 1792.) The warranty arises by operation of law.” (Mega RV
Corp. v. HWH Corp. (2014) 225 Cal.App.4th 1318, 1330; see also
American Suzuki Motor Corp. v. Superior Court (1995) 37
Cal.App.4th 1291, 1295 (American Suzuki).) Merchantability
means that the goods are “fit for the ordinary purposes for which
such goods are used.” (§ 1791.1, subd. (a)(2).) Such fitness is
shown if the product “is ‘in safe condition and substantially free
14
of defects.’ ” (Isip v. Mercedes-Benz USA, LLC (2007) 155
Cal.App.4th 19, 27.)
A buyer may bring a civil action for damages incurred due
to breach of this implied warranty. (§ 1794, subd. (a); Brand v.
Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1545
(Brand).)
Here, the same evidence establishing that Petrosian’s car
suffered defects that substantially impaired its use, value, and
safety established that it was not in a safe condition and
substantially free of defects, and therefore was not “fit for the
ordinary purposes for which such goods are used.” (§ 1791.1,
subd. (a)(2).) The ordinary purpose for which a high-end luxury
car is used is to drive safely in luxury. The jury could reasonably
have concluded that one cannot safely drive in luxury a car which
exhibits a “hammering” rattle on startup, which suffers an
unremediated timing chain problem that could lead to
catastrophic engine failure, or which suffers electrical problems
that could lead to damaged batteries, power accessories failing, or
an unusually high number of calls for roadside assistance.
Quoting Brand, supra, 226 Cal.App.4th 1538, Lee v. Toyota
Motor Sales, U.S.A., Inc. (C.D.Cal. 2014) 992 F.Supp.2d 962 (Lee),
and American Suzuki, Mercedes argues that a merchantable
vehicle need only “ ‘ “provide safe, reliable transportation” ’ ”
(Brand, at p. 1547), and the implied warranty of merchantability
is breached only if the vehicle fails to provide “a minimum level of
quality,” i.e., suffers a defect that renders it “[un]fit for driving”
(Lee, at p. 980; American Suzuki, supra, 37 Cal.App.4th at p.
1295). We disagree.
First, Mercedes neglects to honor Brand’s italicization of
the word “safe,” holding that a merchantable vehicle must
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“ ‘ “provide safe, reliable transportation.” ’ ” (Brand, supra, 226
Cal.App.4th at p. 1547.) Brand held that a sunroof that opens
and closes by itself could alone render a car unmerchantable,
because “a reasonable jury could conclude that a vehicle sunroof
that opens and closes on its own creates a substantial safety
hazard,” in that it could infer “a driver suddenly distracted,
buffeted, or even incapacitated by unexpected incoming rain,
sleet, snow, dust, or blinding sun, or endangered by objects
shooting through or out of the cabin.” (Ibid.) Here, Lepper
testified that the timing chain defect could cause catastrophic
engine failure while the car was being driven, which could lead to
sudden loss of power, with an outside chance of a fire caused by
engine oil landing on a hot catalytic converter. Based on this
testimony, the jury could reasonably infer a driver suddenly
distracted at speed by an engine explosion and fire.
The Lee court found that the plaintiffs could not allege the
supposed defect actually resulted in any failure or that “they
stopped using their vehicles.” (Lee, supra, 992 F.Supp.2d at p.
980.) Here, in contrast, Lepper testified that the defect actually
caused the timing chain to rattle against its housing and could
lead to serious consequences, and Petrosian testified she had
stopped driving the car.
In American Suzuki the plaintiffs sought class treatment of
claims that vehicles breached the implied warranty of
merchantability simply by being prone to rolling over, even
though only a small minority of the plaintiffs’ vehicles had rolled
over. (American Suzuki, supra, 37 Cal.App.4th at p. 1298.) The
court held that in the context of vehicles having suffered no
damage, a breach of implied warranty was too speculative to
warrant class certification because “the vast majority” of the
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Suzuki vehicles “ ‘did what they were supposed to do for as long
as they were supposed to do it.’ ” (Ibid.) The instant case, unlike
American Suzuki, is before us after trial upon a set of facts
supporting a finding of two serious vehicle defects, and does not
turn on whether the damage is too speculative to support class
treatment.
Therefore neither Brand nor Lee nor American Suzuki
stands for the proposition that all a merchantable luxury vehicle
need do is get the driver from point A to point B. (See Isip v.
Mercedes-Benz USA, LLC, supra, 155 Cal.App.4th at p. 27 [“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”].)
Mercedes argues Petrosian adduced no evidence of a defect
that affected the vehicle’s “reliability, safety, or drivability.” But
one would have to ignore the bulk of Petrosian’s evidence to so
conclude.
Mercedes rebuts Lepper’s testimony point by point with
that of Bauman, its own expert, styling Lepper’s evidence as
speculative. We disagree and are neither free nor inclined to
reweigh the evidence.
Mercedes argues Petrosian failed to establish a breach of
the implied warranty during the warranty period because she
failed to take the vehicle in for repairs until more than a year
after the purchase. We disagree.
The “duration of the implied warranty of
merchantability . . . shall be coextensive in duration with an
express warranty which accompanies the consumer goods,
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provided the duration of the express warranty is reasonable; but
in 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. Where no duration for an
express warranty is stated with respect to consumer goods, or
parts thereof, the duration of the implied warranty shall be the
maximum period prescribed above.” (§ 1791.1, subd. (c).)
“The implied warranty of merchantability may be breached
by a latent defect undiscoverable at the time of sale. [Citations.]
Indeed, ‘[u]ndisclosed latent defects . . . are the very evil that the
implied warranty of merchantability was designed to remedy.’
[Citation.] In the case of a latent defect, a product is rendered
unmerchantable, and the warranty of merchantability is
breached, by the existence of the unseen defect, not by its
subsequent discovery.” (Mexia v. Rinker Boat Co., Inc. (2009) 174
Cal.App.4th 1297, 1304-1305 (Mexia).)
The statute of limitations for an action for breach of
warranty under the Song-Beverly Act is four years after the
cause of action has accrued. (Mexia, supra, 174 Cal.App.4th at
pp. 1305-1306.) “A cause of action accrues when the breach
occurs, regardless of the aggrieved party’s lack of knowledge of
the breach. A breach of warranty occurs when tender of delivery
is made . . . .” (Id. at p. 1306.)
Here, Petrosian testified that the timing chain defect
existed when she purchased the car, and Lepper testified that
both the electrical and timing chain defects existed at that time.
That Petrosian did not know about the electrical defect or seek
repair of the timing chain defect does not mean they were
nonexistent. The Song-Beverly Act “does not create a deadline
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for discovering latent defects or for giving notice to the seller.”
(Mexia, supra, 174 Cal.App.4th at p. 1301.)
Mercedes argues Petrosian produced no “competent
evidence that any defect rendering the vehicle unmerchantable
existed during the durational period.” But again, one would have
to ignore most of her evidence to draw such a conclusion.
C. Admission of the Testimony of Jack Petrosian
Narine and Jack Petrosian both testified that Jack was the
primary driver of the vehicle and experienced most of its defects,
yet when asked in an interrogatory to identify anyone with
knowledge of the “incident,” i.e., the facts giving rise to the
complaint, Petrosian named only herself and her mother.
Mercedes moved in limine to exclude any undisclosed witnesses
from presenting evidence at trial. Petrosian, apparently
recognizing that the generic motion would pertain to Jack
Petrosian’s testimony, opposed the motion on the ground that
Petrosian’s identity was “readily known” to Mercedes, as his
name and phone number were listed on numerous repair records.
He was therefore “not a secret witness,” Petrosian argued,
Mercedes had simply made a deliberate litigation choice not to
depose him. Petrosian argued that exclusion of Jack’s testimony
would “irreparably prejudice” Petrosian’s claim.
The trial court at first deferred ruling on the motion,
stating no party was to “mention or refer to the contested item of
evidence . . . without first being granted permission by the court.”
Mercedes renewed its objection to admission of testimony
by Jack Petrosian, both on the day before trial and during an
interruption in his testimony. Petrosian opposed the objection,
again arguing that Jack Petrosian was known to Mercedes
because he presented the car five times for repair and was
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“identified on every single repair record.” The trial court denied
the motion to exclude him, giving no explanation.
Mercedes argues the court improperly admitted Jack
Petrosian’s testimony, which rendered the trial fundamentally
unfair. Although we certainly do not condone Narine Petrosian’s
failure to disclose Jack’s identity as a person with knowledge, we
need not determine whether admission of his testimony was error
because even if the court had excluded his evidence, there is no
reasonable probability the verdict would have been different.
“A verdict or finding shall not be set aside, nor shall the
judgment or decision based thereon be reversed, by reason of the
erroneous admission of evidence unless . . . the error or errors
complained of resulted in a miscarriage of justice.” (Evid. Code,
§ 353.) An evidentiary error results in a miscarriage of justice
when the reviewing court, “ ‘after an examination of the entire
cause, including the evidence,’ is of the ‘opinion’ that it is
reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error.”
(People v. Watson (1956) 46 Cal.2d 818, 836.)
Here, Jack Petrosian’s main contribution was that he
complained about the engine rattle the day after purchase, and a
week after that, which supported Narine’s claim that she
presented the vehicle for repair within the 90-day implied
warranty term. But as discussed above, to do so was unnecessary
because the testimony of both Narine Petrosian and Lepper
established that both the electrical and timing chain defects
existed when Petrosian purchased the car, and defendant’s own
records demonstrated the car’s electrical faults. Jack Petrosian’s
testimony was therefore cumulative, and no reasonable
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probability exists that its exclusion would have changed the
verdict.
D. Trial Conduct
Mercedes contends the trial was infected by numerous
errors that manifestly prevented a fair trial and amounted to a
miscarriage of justice. It argues the trial court unfairly and
arbitrarily limited the defense case-in-chief and closing
arguments; scheduled the start of the trial on a date when
defense counsel had multiple conflicts; permitted Narine
Petrosian to introduce evidence of prior owner records for the
vehicle; instructed the jury that it need not return to complete
the trial; prepared an erroneous special verdict form over a
defense objection; improperly denied an instruction as to lack of
maintenance; and provided the jury with erroneous instructions,
including a series of “special instructions” prepared by Petrosian
as to which Mercedes was not permitted to object.
1. Time Limitations
Mercedes argues that the trial “covered eight days,” of
which Mercedes was allotted only two and one half hours for its
case-in-chief. It argues this unfair and arbitrary time limitation
was insufficient, and compromised its fundamental right to
present its case fully.
Administration of trials is within the sound discretion of
the trial court (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385),
and a judgment will be set aside only when errors result in a
miscarriage of justice (Cal. Const., art. VI, § 13). “ ‘ “[A]
‘miscarriage of justice’ should be declared when the court, ‘after
an examination of the entire cause, including the evidence,’ is of
the ‘opinion’ that it is reasonably probable that a result more
favorable to the appealing party would have been reached in the
21
absence of the error.” ’ ” (Linton v. Desoto Cab Company, Inc.
(2017) 15 Cal.App.5th 1208, 1224.)
Here, Mercedes presents insufficient information for us to
review its contention that the time allotted was insufficient. At
the final status conference the parties agreed to take each
witness only once and treat him or her as a cross-witness for each
side. Mercedes indicated it intended to call “at least” five
witnesses, namely Petrosian, Lepper, Bauman, Haro, and
Andrew Campa, Keyes’s service manager. Mercedes called these
witnesses, and only one other witness—Jack Petrosian—was
called by either side.
Mercedes offers no citations to the record to show what
time was given, why more was needed, what other witnesses it
wished to call, or what objections it raised to any time limit. And
other than arguing that the time allotted was “plainly”
insufficient, Mercedes makes no attempt to explain what more
evidence it could have produced to change the verdict. We
therefore have no basis upon which to conclude that eight trial
days were insufficient to examine six witnesses.
Nor do we apprehend, nor does Mercedes explain, why 12
and a half minutes per side was insufficient for closing argument.
Trial courts “have broad discretion to control the duration and
scope of closing arguments.” [Citation.] [¶] We review a trial
court’s decision to limit defense counsel closing argument for
abuse of discretion.” (People v. Simon (2016) 1 Cal.5th 98, 147.)
Mercedes making no attempt to explain what more it could have
done after 12 and a half minutes of closing argument, we have no
basis to conclude the trial court abused its discretion.
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2. Trial Date
The record is similarly deficient for Mercedes’s claim that
the trial date inconvenienced its attorney. Mercedes argues that
the court set a date for trial that conflicted with his attorney’s
participation in unspecified “other trials” in Orange County,
which “significantly affected” the attorney’s trial preparation in
this matter. Absent some further explanation, however, we
cannot find the court abused its discretion in refusing to
accommodate counsel’s calendar.
3. Evidence of Prior Owner Records
Without citation to authority, Mercedes argues the trial
court abused its discretion in admitting of certain repair records
of the vehicle’s prior owner, which it argues were irrelevant. We
disagree. Lepper testified that a review of prior repair records
was necessary to determine the nature of the present electrical
defect. The records also demonstrated Mercedes’s awareness of
potential problems with the vehicle at the time of sale.
4. Special Verdict Form
Again citing no authority, Mercedes argues the court erred
in sending to the jury a verdict form that quoted the language of
section 1793.2, subdivision (d)(2)(B) as follows: “Question No. 6:
What are Narine Petrosian’s damages? Calculate as follows: [¶]
(a) Damages including the actual price paid or payable by the
buyer, including charges for transportation and manufacturer
installed items, but excluding nonmanufacturer items installed
by a dealer or the buyer, and including any collateral charges
such as sales or use tax, license fees, registration fees and other
official fees.” Mercedes argues this caused the jury to award
improper cost items such as unpaid finance fees and $895 for an
optional surface protection product.
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Subdivision (d)(2)(B) of section 1793.2 provides in pertinent
part the following: “In the case of restitution, the manufacturer
shall make restitution in an amount equal to the actual price
paid or payable by the buyer, including any charges for
transportation and manufacturer-installed options, but excluding
nonmanufacturer items installed by a dealer or the buyer, and
including any collateral charges such as sales or use tax, license
fees, registration fees, and other official fees . . . .”
It is unclear, and Mercedes fails to explain, how a jury
instruction that quotes subdivision (d)(2)(B) of section 1793.2
nearly verbatim could be an improper statement of the law. It is
also unclear how a verdict form that instructs the jury not to
award damages for nonmanufacturer items installed by the
dealer caused the jury to award $895 for a nonmanufacturer item
installed by the dealer. To the extent, as Mercedes argues, the
jury simply and incorrectly awarded Petrosian the purchase
price, which itself included improper charges, nothing suggests
that the verdict form caused this error.
5. Instruction to the Jury that it Need Not Return
At the conclusion of testimony on March 12, 2019, the court
advised the jury that although it had not discharged them, since
they were previously told the trial would end that day and it had
not yet completed, it was up to them to decide whether they
would return the following day to continue with the trial. All the
jury opted to return. Mercedes argues it was prejudicial error to
instruct the jury it need not return. We agree that any
suggestion that the jury need not return would have been error,
but as the jury in fact did return, the error caused no prejudice.
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6. Jury Misconduct
Mercedes argues without citation to the record that the
jury returned the verdict before the court answered a question
the jury had posed: “How do we calculate damages under
Question 4 for Breach of Implied Warranty?” No authority of
which we are aware obligates a jury to await an answer to one of
its questions before rendering a verdict. In any event, because
the trial court vacated the implied warranty award, the issue is
moot.
7. Instruction as to Lack of Maintenance
During the trial, Bauman testified that the vehicle was 351
days past due on “maintenance,” referring to a photo he took
during his inspection of the vehicle’s dashboard cluster on
December 11, 2018, which reflected a message that the vehicle
was 351 days past due on maintenance. The court refused to
admit the photo on relevancy grounds, and refused to instruct the
jury on the issue of lack of maintenance as a possible cause for
the vehicle’s defects. Mercedes argues this constituted
prejudicial error. We disagree.
A vehicle’s maintenance schedule covers all maintenance
points, including such things as inspection and replacement of
brake fluid and cabin filters. Absent some indication what
maintenance was missed, if any, the jury had no basis upon
which to conclude lack of maintenance contributed to the
vehicle’s defects.
8. Special Jury Instructions
The court gave the jury eight special jury instructions
proposed by Petrosian. All pertained to issues discussed above,
and Mercedes argues each represented a misstatement of the law
for reasons we have rejected above. Mercedes contends it had no
25
opportunity to object to the instructions. However, Mercedes’s
only citation to the record supporting this contention reflects only
that its attorney claimed he had no opportunity “today” to
“address” the instructions. The record reflects that Petrosian’s
counsel shared the instructions with defense counsel on
December 28, 2018, three months before trial. Therefore,
Mercedes had ample time to object to them, but did not do so.
E. Conclusion
For the reasons discussed above, the judgment is affirmed.
DISPOSITION
The judgment is affirmed. Respondent is to recover her
costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
*
FEDERMAN, J.
*
Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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