SIMGEL CO., INC., et al., v. JAGUAR LAND ROVER NORTH AMERICA, LLC
B292458
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Filed October 1, 2020
CERTIFIED FOR PUBLICATION
DIVISION EIGHT
SIMGEL CO., INC., et al., Plaintiffs and Appellants, v. JAGUAR LAND ROVER NORTH AMERICA, LLC, Defendant and Appellant.
B292458
(Los Angeles County Super. Ct. No. BC645632)
APPEALS from a judgment and orders of the Superior Court of Los Angeles County. Michael L. Stern, Judge. Affirmed.
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. (
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.
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 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.”
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
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
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
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
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
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
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
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 (
The same time deadlines to file a motion to vacate the judgment also apply to a JNOV motion (
motion].) This “jurisdictional in nature” principle has also been applied to a motion to vacate a judgment under
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
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’ (
“[o]therwise, the time limits . . . are triggered by service on the moving party of ‘written notice’ of the ‘entry of judgment.’ (
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
We cannot guess whether the reference to
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.” (
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.” (
A buyer who is damaged by a breach of implied warranty has two possible measures of those damages: one where the buyer has rightfully
(
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
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.
In the trial court, plaintiffs never proposed the language they now say should have been used in the verdict form. The
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
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
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.)
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)
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
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.” (
Plaintiffs’ first argument involves the fourth factor required under
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
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” (
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 (
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
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.
The judgment is affirmed. Defendant shall recover costs of appeal.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.