Brunner v. DaimlerChryslter

Filed 4/5/07 Brunner v. DaimlerChryslter CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment and an order of the Superior Court of San Diego County, Luis R. Vargas, Judge. Affirmed.

Christopher Brunner obtained a verdict against DaimlerChrysler Corporation (DaimlerChrysler) for breach of warranty under the Magnuson-Moss Warranty Act (Magnuson-Moss) (15 U.S.C.  2301 et seq.) for a defective 2002 Jeep Grand Cherokee (the Jeep). The jury awarded the full purchase price of the Jeep, $28,040.58.[1] The trial court denied DaimlerChrysler's motion for a judgment notwithstanding the verdict but granted it a new trial on the issue of damages.

On appeal, DaimlerChrysler contends it was entitled to a judgment notwithstanding the verdict because Brunner failed to present any evidence of his damages; Brunner's attorney misled the jury as to the proper measure of damages; the instructions on the Magnuson-Moss cause of action were misleading; and a new trial should have been granted as to both liability and damages. We affirm the judgment and the order.

Factual and Procedural Background

In January 2002, the Brunners purchased the Jeep from McCune Chrysler. They wanted a safe and reliable vehicle, it had ranked well in Consumer Reports, and the price was reasonable. The Jeep came with a limited warranty.[2]

During most of the first year the Brunners owned the Jeep, they did not experience any problems. On November 29, 2002, they brought the Jeep to the dealer complaining of noises.[3] The dealer found the serpentine belt was split, ordered a new belt, and told them to return in 30 days.

On December 24, 2002, the Brunners returned to the dealer. The serpentine belt, which was stretched out, was replaced without charge.

On January 24, 2003, the Brunners brought the Jeep to the dealer complaining of sounds from the front side of the engine. The dealer replaced the water pump.

On April 2, 2003, the Brunners had routine maintenance performed on the Jeep at the dealership.

On May 20, 2003, the Brunners brought the Jeep to the dealer complaining of excessive noises, a metal-on-metal scraping sound from the rear-end, a squeaking sound when they drove over bumps, as well as a noise coming from the brakes. The dealer replaced the right rear sway bar link rod.

On August 1, 2003, the Brunners brought the Jeep to the dealer because a dashboard light kept coming on and there was a continuing metal-on-metal scraping noise from the back of the Jeep. The dealer replaced the cam sensor, lubed the bushings and torqued the rear suspension. The Jeep, however, continued to make noises and the sensor light continued to come on periodically.

All the repairs were performed under warranty and at no cost to the Brunners. The Jeep never broke down nor was it in a major accident. Brunner's wife, who drove the Jeep 95 percent of the time, continued driving the Jeep but avoided taking it on the freeway. Brunner "lost faith" that the Jeep was safe for his wife and child. As of the end of July 2003, the Jeep had 24,480 miles.

Twelve to eighteen months after he purchased the Jeep, Brunner had considered selling it and researched the value of the Jeep on Kelley Blue Book's Web site. The Web site listed values depending on the condition of the vehicle: excellent, good, fair, or poor. Excellent condition means the vehicle is completely restored and "needs . . . absolutely nothing"; good condition means some repairs are needed; fair condition means "it's going to have a little more than just a few repairs"; and poor condition "usually comes out as 20 percent same as salvage." Because Brunner had diligently maintained the Jeep, he believed that, under normal conditions, it should have been in excellent condition, however because of all the Jeep's problems, he believed the Jeep, was "at best" in fair condition. As Brunner recalled, the Kelley Blue Book value for a 2002 Grand Cherokee Jeep in excellent condition was in the "low to mid 20's" and "was in the teens" if in fair condition. Had he known of the Jeep's defects, he would not have paid full price for it.

In early 2004, Jackie Winters, who inspects used cars for a living, inspected the Jeep. Winters noted a rattle in the back that he believed came from the exhaust system; signs of leaks from the two rear shocks; damage to the idler pulley on the drive belt; a "screeching" noise for about two seconds when the Jeep first started; a rough idle for about 10 seconds after starting the engine; and a rattle or clunking sound that appeared to be coming from the rear suspension when the Jeep went over bumps or made a u-turn. Winters testified that no vehicle with less than 50,000 miles should make those types of noises.

Winters also reviewed the repair orders for the Jeep. He would not have recommended driving with a split serpentine belt because if the belt broke, the consequences could be a loss of the power steering and brakes, overheating, blowing a head gasket, "burn[ing] up the engine," or further damage to the engine if the belt wrapped around one of the pulleys and caused something else in the engine to break. He testified it was premature for the water pump to fail at 15,153 miles when it was replaced in January 2003; water pumps normally last for 70,000 to 80,000 miles. He testified a squeaking sway bar might be normal in a vehicle with 100,000 miles, but not in a vehicle with 15,000 to 20,000 miles. Driving with a loose suspension was not recommended because it could cause stability problems. Essentially, Winters testified the Jeep had had a defective serpentine belt, defective water pump, defective sway bar, and a defective suspension.

DaimlerChrysler's expert Dick Schmidt, who inspected the Jeep in January 2004, did not notice any unusual noises in the Jeep; all vehicles have some noises. An assistant service manager from the dealership similarly testified he had never seen "a noiseless jeep or other vehicle" and that the Jeep, because it is a truck-type vehicle, is not going to be "completely silent." Schmidt found no problems with any of the repairs made to the Jeep or allowing the Brunners to drive the Jeep with a split serpentine belt. He minimized the potential problems if a serpentine belt broke, noting that the driver would have "plenty of warning" before the engine would stop running, would be able to steer the vehicle although it would be "stiff," and would continue to be able to use the brakes.

The mechanic who worked on the Jeep in November 2003 testified he found "a little cut" in the middle of the serpentine belt that he thought might have been caused by a small rock or piece of metal kicked up while driving on the freeway. The cut did not render the car unsafe to drive. In January 2004, the serpentine belt had stretched horizontally to the sides and was not elongated. He replaced the belt and did not hear any noises when he test drove it.

DISCUSSION

I

Evidence of Damages

DaimlerChrysler contends the trial court erred in denying its judgment notwithstanding the judgment on the basis Brunner failed to present any evidence he sustained any damages. DaimlerChrysler contends Brunner's testimony as to damages was without an adequate foundation, inadmissible and was based on speculation.

"Well-settled standards govern judgments notwithstanding the verdict: 'When presented with a motion for [a judgment notwithstanding the verdict], the trial court cannot weigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom in support of the verdict, the motion should be denied.' " (Osborn v. Irwin Mem'l Blood Bank (1992) 5 Cal.App.4th 234, 258-259; Ajaxo, Inc. v. E*Trade Group, Inc. (2005) 135 Cal.App.4th 21, 49.) " 'The scope of appellate review of a trial court's denial of a motion for judgment notwithstanding the verdict is to determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury's conclusion and where so found, to uphold the trial court's denial of the motion.' " (Pusateri v. E. F. Hutton & Co. (1986) 180 Cal.App.3d 247, 250; Shapiro v. Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722, 730.)

Magnuson-Moss "authorizes a civil suit by a consumer to enforce the terms of an implied or express warranty." (Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 832-833; 15 U.S.C.  2310(d)(1).) When there is only a limited warranty, state law governs. (15 U.S.C.  2310, subd. (d)(1)(A); De Shazer v. National RV Holdings, Inc. (2005) 391 F.Supp.2d 791, 794 [" 'state warranty law lies at the base of all warranty claims under Magnuson-Moss' "].)

Under California law, "The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount." (Com. Code,  2714, subd. (2); Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1264.) The burden of proving damages rests on the plaintiff. (Rose v. Chrysler Motors Corp. (1963) 212 Cal.App.2d 755, 763.)

"While it is not necessary that damages for breach of warranty be calculated with mathematical precision [citation], basic contract theory requires that damages be proved with reasonable certainty and precludes damages based on conjecture or speculation." (Valenti v. Mitsubishi Motor Sales of Am., Inc. (2002) 332 Ill.App.3d 969, 973, see also People v. Holt (1997) 15 Cal.4th 619, 669 ["An inference is not reasonable if it is based only on speculation"]; Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 661-662 [" '[D]amages may not be based upon sheer speculation or surmise . . . .' "]; Acree v. General Motors Acceptance Corp. (2001) 92 Cal.App.4th 385, 398 ["Where the fact of damages is certain, as here, the amount of damages need not be calculated with absolute certainty"].)

An owner, as a general rule, may give an opinion as to the value of his or her property. (Evid. Code,  813, subd. (a)(2).) An owner's right to offer an opinion is not absolute; it cannot be used as a means of placing incompetent evidence before a jury (see Contra Costa Water Dist. v. Bar-C Properties (1992) 5 Cal.App.4th 652, 661) and must have an adequate foundation (see Fragale v. Faulkner (2003) 110 Cal.App.4th 229, 240-241 [owner not qualified to give an opinion on the market value of a house affected by code violations and structural defects when he had researched only the value of comparable sales in the neighborhood]; Hill v. Mercedes-Benz USA, LLC (2005) 274 Ga.App. 826, 828-830 [owner's opinion on diminished value of vehicle insufficient when it was based on the usefulness of the vehicle to her rather than the fair market value].)

DaimlerChrysler contends that Brunner presented no evidence as to the diminution in value as to his Jeep, arguing that "while he attempted to testify as to the value of the Jeep, the testimony was woefully insufficient and unsupported entirely throughout his testimony." We disagree.

Contrary to DaimlerChrysler's contention, Brunner's opinion was based on an adequate foundation and was not speculative. Brunner presented evidence of the amount he paid for the Jeep in January 2002. He presented evidence of numerous defective parts that had to be replaced beginning in November 2002 and evidence that there were continuing problems with the Jeep. He testified that after owning the Jeep for 12 to 18 months, he researched the value of the Jeep on Kelley Blue Book's Web site. Kelley's Blue Book's Web site contained a range of values. His expert, Winters, testified as to the Kelley Blue Book meanings of "excellent" and "fair condition." Brunner testified that he "religiously maintained" the Jeep and brought it to the dealer whenever there was a problem. He testified that given this diligent maintenance of the Jeep, it should have been in excellent condition, but that given the number of problems with the Jeep, it was only in fair condition. He testified that the value of a Jeep in excellent condition was in the "low to mid 20's" but only in the "teens" if it were in fair condition.

Kelley's Blue Book is recognized as an objective guide to valuing vehicles that may be relied on to determine the diminished value of a vehicle. (See Martinez v. Enterprise Rent-A-Car Co. (2004) 119 Cal.App.4th 46, 56; Hill v. Mercedes-Benz USA, LLC, supra, 274 Ga.App. 826, 829; In re General Motors Corp. v. Pick-Up Truck Fuel Tank Prods. Liab. Litig. (3rd Cir. 1995) 55 F.3d 768, 816.) Brunner's reliance on the Kelley's Blue Book values thus provided an adequate foundation for his opinion on value. His opinion on the Jeep's condition as being only "fair" was adequately supported by evidence of the past defects and continuing problems with the Jeep. Notably, DaimlerChrysler does not point to any objection it made to Brunner testifying as to value based on an inadequate foundation. As a general rule, points not objected to below are waived on appeal. (Cinnamon Square Shopping Center v. Meadowlark Enterprises (1994) 24 Cal.App.4th 1837, 1844.)

DaimlerChrysler additionally suggests Brunner's testimony was speculative because he was not able to give a precise value for the Jeep, but only a range of values, that is, "teens" for a Jeep in fair condition, and Brunner made responses during cross-examination stating he was guessing or did not definitively know the Kelley Blue Book value for the Jeep. As we noted above, it is not necessary to provide a precise mathematical figure for damages; Brunner's testimony of "teens" provided a sufficiently restricted value range, particularly when limited by an upper end of "low to mid 20's" for a Jeep in excellent condition and the existence of an intermediate level for Jeeps in "good" condition.

As to DaimlerChrysler's claim Brunner was just speculating or guessing, the record, when viewed as a whole, shows that Brunner indicated he was providing his best recollection of the values and believed his recollection accurately reflected the Kelley Blue Book values. His testimony, when viewed as a whole, was sufficient to support a determination his recollection was correct. In other words, Brunner's qualifiers to his testimony did not render his testimony wholly speculative or without foundation and therefore inadmissible but rather were factors going to its weight.

In sum, Brunner presented sufficient evidence showing there had been a diminution in value of his Jeep and as to his damages.

II

Closing Argument by Brunner's Counsel

DaimlerChrysler contends Brunner's counsel misled the jury by arguing they should award the full purchase price of the Jeep ($28,040.58) rather than the amount the Jeep had been diminished in value by the defects. DaimlerChrysler, however, does not appear to argue this as a separate ground for reversal. Moreover, since the trial court agreed with DaimlerChrysler that the full purchase price was an improper measure of damages and granted DaimlerChrysler a new trial on that issue, this issue is moot and requires no further discussion.

III

Instructional Error

DaimlerChrysler argues the instructions on the Magnuson-Moss cause of action were inadequate because in listing the necessary elements, the instruction failed to require that damages be proven. DaimlerChrysler, however, does not point out where it objected to the instruction on this ground. An objection was necessary to preserve the issue for appeal. (See Cinnamon Square Shopping Center v. Meadowlark Enterprises, supra, 24 Cal.App.4th 1837, 1844.)

Further, in other instructions the court did instruct the jury on damages and there was a special verdict form requiring the jury to specify the amount of damages on the Magnuson-Moss cause of action. Thus, this issue was clearly presented to the jury and addressed by them. Any error in not specifically including the requirement of proving damages in the Magnuson-Moss instruction was clearly harmless.

IV

Denial of New Trial on Liability

DaimlerChrysler argues the trial court erred by granting a new trial as to damages only. DaimlerChrysler contends the trial court erred because "the court must have concluded that there was no evidence to support the proper measure of damages under Mag-Moss" and because liability was hotly contested.

The purpose of a limited new trial "is to expedite the administration of justice by avoiding costly repetition." (Leipert v. Honold (1952) 39 Cal.2d 462, 466.) " 'A new trial limited to the damage issue may be ordered where it can be reasonably said that the liability issue has been determined by the jury.' " (Liodas v. Sahadi (1977) 19 Cal.3d 278, 285; Shapiro v. Prudential Property & Casualty Co., supra, 52 Cal.App.4th at p. 726.) "The decision on limiting the new trial appropriately rests in the discretion of the trial judge." (Leipert v. Honold, supra, 39 Cal.2d at p. 467.) "When the trial judge has exercised this discretion to grant a limited new trial his [or her] action will be upheld where the issue reserved as final has been fully, fairly and separately determined by the trier of fact and no injustice will result." (Baxter v. Phillips (1970) 4 Cal.App.3d 610, 616.) Injustice or prejudice to a party may exist if the circumstances indicate a verdict awarding inadequate damages was the result of compromise such as when some jurors believe the evidence failed to establish liability but nonetheless agreed to awarding the plaintiff a small recovery (Lauren H. v. Kannappan (2002) 96 Cal.App.4th 834, 840-841) or if the liability and damage issues "are so interwoven that a partial retrial would be unfair to the other party." (Pelletier v. Eisenberg (1986) 177 Cal.App.3d 558, 565.)

On appeal, we will not disturb the trial court's ruling unless the trial court has exceeded "the limits of legal discretion by making an arbitrary, capricious or patently absurd determination." (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 617; Tan Jay Internat., Ltd. v. Canadian Indemnity Co. (1988) 198 Cal.App.3d 695, 706.)

Initially, to the extent DaimlerChrysler's argument is premised on the lack of any evidence to support an award of damages, we have already rejected that argument. Similarly, we reject DaimlerChrysler's argument that "had the jury been accurately [instructed] that Brunner had the burden to establish damages for breach of Mag-Moss, it is highly likely that the jury would have rendered judgment in DaimlerChrysler's favor, since there was no evidence of diminished value." Not only did DaimlerChrysler fail to object to the instructions on this basis but also the jury was properly instructed on the measure of damages and a special verdict form was used in this case. This was not a case where liability and damage issues were inextricably interwoven or where there was a compromise verdict.

Finally, we reject DaimlerChrysler's contention a limited retrial was required because the liability issue was hotly contested. The liability issue, while contested, was straightforward and there was strong evidence supporting a finding the Jeep was defective. It was undisputed that the serpentine belt, water pump, sway rod bar and cam sensor had been replaced. Brunner's expert testified the parts had been replaced because they were defective. The mechanic who worked on the jeep, although testifying he believed the split in the serpentine belt had been caused by a rock or piece of metal on the freeway, admitted he did not find any foreign object in the engine compartment and had never before seen a belt with that type of cut. As to the water pump, the mechanic testified it was replaced because it was noisy and DaimlerChrysler's expert inspector essentially conceded the water pump was defective. DaimlerChrysler's expert also conceded the cam sensor had been defective. The dealer's assistant service manager testified he did not know why the sway bar link rod was replaced but he assumed it was replaced because there was a problem with it. In sum, contrary to DaimlerChrysler's contention, it was essentially undisputed that the Jeep had a number of defective parts.

Further, while there was conflicting evidence as to whether the replacement cam sensor was functioning properly and whether the Jeep had continuing problems that caused excessive noise Brunner and Winters testified it did; DaimlerChrysler's witnesses emphasized it was unreasonable to expect the Jeep to be noiseless this was a simple credibility issue. The fact that the jury awarded the full purchase price of the vehicle, although an incorrect measure of damages, shows the jury's decision was not a compromise verdict; the jury clearly and fully resolved the liability issue against DaimlerChrysler.[4]

We find no abuse of discretion in the trial court's decision to grant a new trial limited to the damages issue.

DISPOSITION

The judgment and the order are affirmed. Brunner is entitled to costs on appeal.

McCONNELL, P. J.

WE CONCUR:

HALLER, J.

IRION, J.

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[1] This was the cash price of the Jeep not including the sales tax, documentation fee or license fee.

[2] The basic limited warranty covered the cost of all parts and labor needed to repair any defective item on the Jeep that was supplied by DaimlerChrysler for 36,000 miles or three years.

[3] For the sake of convenience, we refer to the Brunners generally in the context of bringing the Jeep into the dealer, rather than specifying whether Brunner or his wife brought the Jeep in for service.

[4] Additionally, we note that the amount of damages at issue in this case -- based on the diminution in value of the Jeep, which amounts to only a few thousand dollars -- is a factor, that as a pragmatic matter, favors a limited retrial.