Hovsepian v. Land Rover North America

Filed 9/9/08 Hovsepian v. Land Rover North America CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Affirmed.

Korper & Shefter, Rene Korper and Bret A. Shefter; Law Offices of Rene Korper, Rene Korper and Sophie A. Hubscher for Plaintiff and Appellant.

Bowman and Brooke, Brian Takahashi, Robert S. Robinson and Michael C. Foley for Defendant and Respondent.

_______________________________________

Plaintiff and appellant Victor Hovsepian appeals from a judgment after a jury verdict in favor of defendant and respondent Land Rover North America, Inc. (Land Rover) in this action under the Song-Beverly Consumer Warranty Act, popularly known as the Lemon Law. (Civ. Code, 1790 et seq.) Hovsepian contends: (1) the trial court erred in excluding evidence of an additional defect in his vehicle; (2) the trial court erred in granting a nonsuit on his cause of action for breach of the implied warranty of merchantability; and (3) the evidence is insufficient to support the jurys verdict. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual Background

On December 30, 2003, Hovsepian purchased a new 2004 Land Rover Range Rover Westminster Model (the car) from South Bay Land Rover (the dealer). He paid $90,594.46 for the car. The car came with a four year/50,000 mile warranty.

Hovsepian had no problems with the car during his first year of ownership. Thereafter, he began to experience a series of problems, both superficial and substantial, with the car.

On February 7, 2005, with 14,290 miles on the car, Hovsepian brought the car to the dealer for its 15,000 mile service, and also reported several problems with the car.^[1] Hovsepian reported that when driving the car at 50 miles per hour, there is a metallic/vibration noise heard and felt inside the vehicle. The dealer was unable to duplicate this condition on the test drive. Hovsepian also complained that: (1) when he would push a preset station button on the cars radio, there would be a delay in tuning in the station (2) some of the leather in the cars interior was discoloring and flaking off; (3) some of the cars exterior paint was rough and not glossy; (4) two of the door handles were stiff when opening from the outside; and (5) the glove compartment door release switch failed intermittently. The dealer told Hovsepian that the delay in radio tuning was normal. Hovsepians leather and paint concerns were addressed by the dealer. The dealer also adjusted the door strikers. All attempts to open the glove compartment door were successful.

Approximately 1000 miles later, Hovsepian experienced a more significant problem with the car. Specifically, the transmission failed to upshift beyond second gear. On March 7, 2005, with 15,559 miles on the car, Hovsepian brought the car to the dealer to repair this problem. The dealer replaced the cars radiator, having concluded that the malfunctioning radiator was overheating the transmission. This repair resolved the transmission problem. Hovsepian also reported that there was a loud knocking noise for 15 seconds when he started the car cold; the dealer could not duplicate the problem.^[2]

Hovsepian next brought the car in for service on April 25, 2005. He repeated his complaint regarding the knocking noise on cold starts; again, the dealer found no fault with the car. Hovsepian also asserted that the car made a vibrating noise when going uphill; the dealer was unable to duplicate this sound on several test drives. Hovsepian also asserted a rattling noise at startup, which he thought might have been the fan belt. The dealer could not duplicate the sound, but confirmed that the tensions in the fan belt were good.^[3]

Hovsepian took the car back to the dealer on July 12, 2005, and reasserted his problems with the car. According to Hovsepian, the service technician failed to write his concerns on the repair order. Hovsepian wrote on the repair order that the dealer failed to document the other problems. Thereafter, the technician wrote all of Hovsepians complaints on the repair order. Hovsepian reported both a knocking noise and a rattle during cold startup. The dealer inspected various engine parts and ultimately replaced the oil filter housing. According to the dealer, this resolved both the rattle and the knocking noise. According to Hovsepian, it resolved the rattle and shortened the duration of the knocking noise from 15 seconds to 2 or 3.^[4]

The car still made a brief knocking noise at startup. This noise would ultimately be the main thrust of Hovsepians action against Land Rover. As we will discuss in detail below, Hovsepian would take the position that the noise indicated the presence of an oil bleed back condition in the car, whereby insufficient oil was present to lubricate the engine at startup. Land Rover would take the position that there was no oil bleed back, and even if there was, the engine was sufficiently lubricated at all times.

The July 12, 2005 repair took nine days to complete; the car was returned to Hovsepian on July 20, 2005. On July 22, 2005, Hovsepian made a video in order to document the startup noise. By August 11, 2005, Hovsepian had retained counsel, Attorney Ren Korper, and an expert automotive technician, Francis James McNab.

On August 17, 2005, Hovsepian was driving the car when the entire instrument cluster zeroed out. He recorded this on video; then restarted the car. On restart, the instrument cluster was fine. Evidence of this incident would ultimately be excluded at trial.

On September 25, 2005, Attorney Korper wrote Land Rover, requesting that Land Rover repurchase the car. Land Rover declined.

On December 12, 2005, Hovsepian brought the car to Land Rover for its regular 30,000 mile service. The repair order does not indicate that Hovsepian mentioned any of the alleged continued problems with the car. According to Hovsepian, he mention[ed] again the engine rattle and the electrical problems, but the technician did not write them down and Hovsepian chose not to press it. Hovsepian conceded at deposition that he never asked the dealer to address the August 17, 2005 problem with the instrument cluster.

2. The Complaint

On January 19, 2006, Hovsepian filed the instant action against Land Rover,^[5]alleging breach of express warranty and breach of the implied warranty of merchantability, under the Lemon Law. Land Rover answered and the case proceeded. Hovsepian would ultimately testify that he would not have sued Land Rover just for the electrical problems; his main concern was the engine.

3. The Pretrial Motions

Two pretrial motions raised issues that would ultimately form the basis of Hovsepians appeal. First, Land Rover moved to preclude all references to the implied warranty of merchantability. Land Rover based its motion on the undisputed fact that no problems with the car manifested during the cars first year of operation, and the law providing that the duration of the implied warranty of merchantability is one year. (Civ. Code,  1791.1, subd. (c).) The court denied the motion as a disguised summary judgment motion. However, the court indicated its understanding that unless the plaintiff could show at trial that a defect had existed during the one-year period even if it first manifested later the plaintiff would be unable to recover for breach of the implied warranty.

Second, Land Rover sought to exclude evidence of the August 17, 2005, instrument cluster failure, as that purported defect had never been presented to Land Rover for repair.^[6] Hovsepian took the position that the Lemon Law requires a dealer to repurchase a vehicle if the vehicle exhibits a new defect (and therefore does not conform to the warranty) after the dealer has repaired a series of earlier defects. Thus, Hovsepian argued that a defect not submitted to the dealer for repair is still relevant as evidence that the car itself is defective. The trial court excluded the evidence of the alleged instrument cluster failure under Evidence Code section 352.

4. The Trial Testimony

The case proceeded to trial. Hovsepian testified on his own behalf; his only other witness was McNab. According to McNab, the noise at startup was the result of an oil bleed back condition. The metal parts of an engine need a thin layer of oil to lubricate them, in order for the car to run properly. When an engine is turned off, gravity makes the oil run downward. As oil needs to be at the top of the engine at startup, the engine contains several check valves, which are designed to keep the oil from bleeding back downward when the car is off. McNab testified that the July 12, 2005 replacement of the oil filter housing must have addressed an oil bleed back condition, but did not completely resolve it as the sound upon startup indicates that a bleed back is still present. McNab also testified that the bleed back means there is metal on metal contact in the engine for a few seconds every time it starts up, which can cause wear on the engine and significantly shorten its useful life. Indeed, McNab testified to another, quieter knocking noise in the car, which he claimed was the result of abnormal wear in the engine.

Hovsepian did not introduce any evidence that the alleged oil bleed back condition was caused by a defect in the car that existed during his first year of ownership of the car. McNab testified that the oil bleed back was the result of a faulty check valve; but he did not testify as to the reasons such valves generally fail. Specifically, he did not testify that valve failure in this case was more likely than not the result of a valve that was faulty or otherwise prone to fail prior to the time the startup noise first manifested. Similarly, Hovsepian introduced no evidence that any other alleged defect in the car was the result of some latent problem in the car that existed during his first year of ownership.

Moreover, Hovsepian introduced no evidence that his use of the car had been strictly normal prior to the alleged problems manifesting. He did not testify that the car was not in any accidents. He did not testify as to whether he ever drove the car off-road or under other difficult driving conditions. While he testified that after the initial February 7, 2005 service, the only place he took the car for repairs was the dealer, he did not testify that the dealer was the only place that he ever took the car for service.^[7]

Land Rovers sole witness at trial was Robert Davis, its Western Regional Service Engineer.^[8] Davis testified that, when the engine is cold, the oil is less viscous so it does not flow smoothly. He testified that there is nothing wrong with that condition. In fact, Davis testified that there is always sufficient oil present for lubrication of the engine at startup, and that the still-present noise does not indicate a condition that could cause any damage to the engine. While Davis initially testified that there was nothing unusual about the brief noise heard when starting the car, he later agreed that the startup sound was due to an oil bleed back. However, Davis testified that even if there is an oil bleed back, there is still sufficient lubrication in the engine to prevent metal on metal contact.

5. The Nonsuit

During argument on jury instructions (after the close of Hovsepians case), the court sua sponte granted a nonsuit on Hovsepians cause of action for breach of the implied warranty of merchantability. The court stated, [I]t is my understanding implied warranty lasts for one year. [] Plaintiff bought the automobile on December 30, 2003. He didnt bring it into the dealer until February 2005, which is more than a year later. And the implied warranty would have passed at that point for any defect that had not yet arisen. And there is no evidence in the case that the defect the bleed back defect that was that really is the principal subject of this case, or any other defect alleged by plaintiff existed within the one year period. Therefore, it may be my intention to instruct the jury on express warranty only, not breach of implied warranty. In response, Hovsepian made no argument that it could be inferred from the evidence that the defect existed during the warranty period.^[9] The court granted the nonsuit.

6. Verdict, Judgment and Appeal

The jury was instructed solely on Hovsepians cause of action for breach of express warranty. The jury returned a special verdict reading, in pertinent part, as follows: Did the [car] have one o[r] more defects covered by the warranty that substantially impaired the use, value or safety to a reasonable person in Hovsepians situation? [Yes.] [] How many miles did Hovsepian put on the vehicle before the first time he delivered it to [Land Rover] or [the dealer] for correction of a substantially impairing defect? 15,559 miles. [] Did [Land Rover] or [the dealer] fail to service or repair the substantially impairing defects to conform to the written warranty after a reasonable number of repair opportunities? [No.]

Judgment was entered in favor of Land Rover. Hovsepians motion for new trial was denied. Hovsepian filed a timely notice of appeal.

ISSUES ON APPEAL

On appeal, Hovsepian asserts: (1) the trial court abused its discretion in excluding evidence of the instrument cluster failure; (2) the trial court erred in granting the nonsuit on his cause of action for breach of the implied warranty of merchantability; and (3) insufficient evidence supports the jurys verdict.^[10] We disagree.

DISCUSSION

1. Exclusion of Evidence

Hovsepian first contends the trial court erred in excluding evidence of the instrument cluster failure under Evidence Code section 352.^[11] Hovsepian contends the evidence was relevant to his claim that the car, as a whole, was still defective even after the dealer had attempted to repair other defects in the car.

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code,  352.) A trial courts determination under Evidence Code section 352 will not be disturbed on appeal absent a clear showing of abuse of discretion. (Peoplev. Linkenauger (1995) 32 Cal.App.4th 1603, 1610.)

A general understanding of a breach of express warranty claim under the Lemon Law is helpful. The [Lemon Law] represents the Legislatures response to the increasing exploitation of express warranties in product advertising. [Citation.] If a manufacturer elects to provide an express warranty for consumer goods such as motor vehicles, the [Lemon Law] protects buyers in a number of ways. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 121.) The [Lemon Law] requires a manufacturer who gives an express warranty on a new motor vehicle to service or repair that vehicle to conform to the express warranty. If the manufacturer is unable to do so after a reasonable number of attempts, the buyer may seek replacement or restitution. (Id. at p. 134.)

The Lemon Law does not expressly indicate whether the manufacturer must be given an opportunity to repair each individual defect, or whether a buyer can state a cause of action based on the occurrence of a new defect after repeated successful repairs of different defects in the same motor vehicle. Hovsepian concedes that the instrument cluster failure was not itself actionable,^[12]but argues that the failure was still relevant to demonstrate that the car still was not in conformance with the warranty after Land Rover had serviced it multiple times.

We need not consider whether Hovsepian is correct in his interpretation of the Lemon Law. The court did not base its exclusion of the instrument cluster failure on a conclusion that the evidence was not relevant. Instead, the court excluded the evidence under Evidence Code section 352, on the basis that its probative value was substantially outweighed by the danger of undue prejudice, confusing the issues, or misleading the jury.

We conclude there is no abuse of discretion. Assuming that the evidence is probative on the issue of whether the car was, as a whole, still defective, the evidence possessed minor probative value. The main thrust of Hovsepians case was the alleged oil bleed back; he proceeded on the theory that the car was still defective because it still suffered from an engine-damaging oil bleed back not that Land Rover had fixed the oil bleed back but the car was still defective due to unrelated problems. Indeed, Hovsepian sought counsel in preparation for litigation before the instrument cluster failure, and he testified that the engine problem was the reason he had brought suit. Moreover, Hovsepian was permitted to testify to numerous other electrical problems which he believed had not been properly addressed by Land Rover in repeated repair attempts. Thus, the excluded evidence would have been minimally probative evidence of simply one additional electrical problem which Hovsepian alleged was still present in the car. Weighed against this minimal probative value is the high likelihood of jury confusion. If the evidence were admitted, the jury would have had to be instructed that the instrument cluster failure was not itself actionable, and the evidence could only be considered for the issue of whether the car itself was still defective. Given the minimal probative value and the likelihood of jury confusion, the trial court did not err in excluding the evidence.

2. Nonsuit on Implied Warranty of Merchantability

The Supreme Court has explained the standard of review of a grant of nonsuit as follows: A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.] In determining whether plaintiffs evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give to the plaintiff[s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff[s] favor.  [Citation.] A mere scintilla of evidence does not create a conflict for the jurys resolution; there must be substantial evidence to create the necessary conflict. [Citation. Italics in original.]

In reviewing a grant of nonsuit, we are guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. [Citation.] We will not sustain the judgment  unless interpreting the evidence most favorably to plaintiffs case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.  [Citation.] (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.)

In this case, the trial court granted a nonsuit on Hovsepians cause of action for breach of the implied warranty of merchantability. [E]very sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturers and the retail sellers implied warranty that the goods are merchantable. (Civ. Code,  1792.) This warranty promises that the goods pass without objection in the trade under the contract description, and are fit for the ordinary purposes for which such goods are used. (Civ. Code,  1791.1, subd. (a).)

Under the California Uniform Commercial Code, [a] breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered. (Cal. U. Com. Code,  2725, subd. (2).) The Lemon Law extends the duration of an implied warranty of merchantability, by operation of law, to the length of any express warranty given, but no more than one year following the sale of new consumer goods to a retail buyer. (Civ. Code,  1791.1, subd. (c).)

Thus, the implied warranty of merchantability need not be breached at the time of delivery in order for a buyer to state a cause of action. Instead, it may be breached any time within the first year after the sale. (Atkinson v. Elk Corporation of Texas (2006) 142 Cal.App.4th 212, 229-231.)

The warranty period is to be distinguished from the statute of limitations for a cause of action for breach of that warranty. An action for breach of the implied warranty of merchantability must be commenced within four years of the accrual of the cause of action. (Cal. U. Com. Code,  2725, subd. (1).) Thus, there are two separate requirements which must be met to pursue a cause of action for breach of the implied warranty: (1) the breach must occur within the one-year warranty period; and (2) the action must be commenced within four years of the breach. In this case, we are concerned with the former requirement only.

The trial court granted a nonsuit on Hovsepians cause of action for breach of the implied warranty of merchantability because Hovsepian had introduced no evidence that the car was not merchantable during his first year of ownership. On appeal, Hovsepian relies on an Illinois appellate case for the proposition that the jury could infer the existence of a defect during the warranty period through evidence of reasonable and proper handling of the car in the interim period between leaving the defendants possession and control and manifestation of the malfunction. (Razor v. Hyundai Motor America (Ill. App. 2004) 813 N.E.2d 247, 261.) The Illinois court stated,   A prima facie case that a product was defective and that the defect existed [during the warranty period] is made by proof that in the absence of abnormal use or reasonable secondary causes the product failed to perform in the manner reasonably to be expected in light of [its] nature and intended function.  [Citations.] (Ibid.)

Assuming, without deciding, that this standard is applicable in California, the grant of a nonsuit was appropriate in this case as Hovsepian failed to establish the prima facie case required by the Illinois court. Specifically, Hovsepian did not present any evidence of reasonable and proper handling of the car during his first year of ownership.^[13] Moreover, the alleged defect in the Illinois case, the failure of the car to start within one month of purchase (Razor v. Hyundai Motor America, supra, 813 N.E.2d at p. 253) is the sort of problem which a reasonable juror can assume would not occur in the absence of a defect at the time of sale. In contrast, a brief noise on engine startup after more than one year of perfect operation is not within the common understanding of a lay juror, and Hovsepian introduced no expert testimony to indicate that the noise was the result of a defect which likely existed during the warranty period. In short, Hovsepian failed to introduce any evidence from which a jury could make the reasonable inference that the car possessed any defect during the one-year warranty period. Therefore, nonsuit on his cause of action for breach of the implied warranty of merchantability was proper.

3. Sufficiency of the Evidence

When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment. (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465.) In reviewing the evidence on appeal, all conflicts must be resolved in favor of the judgment, and all legitimate and reasonable inferences indulged in to uphold the judgment if possible. When a judgment is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the judgment. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571; Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.)

Hovsepian contends the evidence is insufficient to support the jurys verdict. Specifically, Hovsepian posits that the jurys finding that the vehicle had possessed a defect constituted a rejection of Land Rovers contention that the noises in the vehicle were normal and . . . that the bleed-back condition would not damage anything. He therefore argues that, in light of that supposed jury conclusion, there was no evidence to support the jurys second conclusion that the engine-damaging oil bleed back had been fixed.

Hovsepians argument is based on a faulty premise. The jury did not find that the car suffered from an engine-damaging oil bleed back. Instead, the jury answered yes to the question, Did the [car] have one o[r] more defects covered by the warranty that substantially impaired the use, value or safety to a reasonable person in Hovsepians situation? and further concluded that the car was first delivered to the dealer for correction of a substantially impairing defect at 15,559 miles. At 15,559 miles, Hovsepian brought the car to the dealer for service because the transmission would not shift higher than second gear. The jury could have concluded that this was a substantial defect covered by warranty, and answered yes to the defect question on that basis alone. Alternatively, the jury could have concluded that an engine-damaging oil bleed back had occurred, and was completely resolved by the dealer during the July 12, 2005 service appointment, with the remaining startup noise not rising to the level of a substantially impairing defect. In either circumstance, the jury would have answered yes to the defect question, while still accepting Daviss testimony that there was no current defect in the car.

Moreover, the jury did not necessarily conclude that the defect was repaired. Instead, the jury answered no to the question, Did [Land Rover] or [the dealer] fail to service or repair the substantially impairing defects to conform to the written warranty after a reasonable number of repair opportunities? While Daviss testimony certainly provided a sufficient basis for the jury to conclude that Land Rover had repaired any substantially impairing oil bleed back that may have existed, another plausible interpretation of the jurys verdict exists: that Hovsepian did not give Land Rover a reasonable number of opportunities to repair the defect. It is true that Hovsepian brought his car in for service five times. It is also true that the jury concluded that none of the myriad concerns raised by Hovsepian at the first service appointment constituted substantial impairments to the car, and there was sufficient evidence from which the jury could have concluded that Hovsepian failed to raise any of his concerns at the fifth and final service appointment. There were, at most, three other repair opportunities, at the end of which the dealer had indisputably eliminated the rattling noise and reduced the duration of the knocking noise at startup from 15 seconds to 2 or 3. Thereafter, Hovsepian immediately hired counsel and began preparing for litigation, without ever telling Land Rover that he believed the defect still existed. The jury would have been within its rights to conclude that Land Rover had not been given a reasonable number of opportunities to repair the defect. (Cf. Civ. Code,  1793.22, subd. (b)(1) [presumption that a reasonable number of attempts have been made to conform a car to warranty if, within the first eighteen months, the same defect has been subject to repair four or more times].)

In short, there are several ways the jurys verdict can be interpreted. For each one, substantial evidence supports the jurys conclusion that, even though a substantially impairing defect did, at one time, exist, Land Rover did not fail to service or repair the substantially impairing defect(s) after a reasonable number of repair opportunities.

DISPOSITION

The judgment is affirmed. Land Rover shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

KITCHING, J.

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^[1] As we will discuss below, the jury concluded that Hovsepian had put 15,559 miles on the car before the first time he delivered it to [Land Rover] or [the dealer] for correction of a substantially impairing defect. In other words, the jury concluded that none of the defects raised by Hovsepian on February 7, 2005 were substantially impairing.

^[2] Hovsepian had reasserted several of his earlier complaints, adding similar complaints regarding the dome light, the CD player, and some minor rusting. The dealer addressed some of the complaints and found no fault with respect to others.

^[3] Hovsepian had also reasserted his other minor complaints. Again, some were addressed and others were unconfirmed.

^[4] Hovsepian had also reasserted three of his other minor complaints. One was readdressed; the others could not be confirmed.

^[5] Hovsepian also named the dealer as a defendant. The case against the dealer had been disposed of, by the time the matter was given to the jury; the record does not indicate the basis of the dealers dismissal.

^[6] Initially, Land Rover sought to exclude evidence of alleged problems with the car that had not been presented for repair more than once, on the basis that the Lemon Law does not apply unless there have been multiple repair attempts. (Civ. Code,  1793.2, subd. (d)(1).) Argument on the motion ultimately centered on the purported defect which had never been presented for repair.

^[7] Indeed, Hovsepian testified he took the car to an independent mechanic to replace the brakes.

^[8] Land Rover also elicited testimony from McNab that his sole employment is as a consultant in Lemon Law cases. McNab has worked for Attorney Korper for 8 or 9 years, and Attorney Korper is responsible for 30-40% of McNabs business. McNab has been hired on 300 Lemon Law cases over the past 11 years; in all but 2 of the cases, he worked for the plaintiff.

^[9] Instead, Hovsepian argued that he filed his claim well within the four-year statute of limitations for suits on the implied warranty of merchantability.

^[10] Hovsepian also asserts that he challenges the trial courts order denying his motion for a new trial. However, although his opening brief on appeal sets forth the standard of appellate review for the denial of such a motion, he makes no argument addressed to the trial courts denial of that motion.

^[11] Preliminarily, we note that this contention likely has been waived. The ruling was initially made before the trial; there was no proffer of the evidence and its exclusion during trial. Instead, it appears that counsel agreed that the testimony would not be elicited. During Land Rovers cross-examination of McNab, counsel briefly questioned McNab regarding whether McNab had been able to duplicate Hovsepians complaints regarding the radio, dome light, and door locks. Attorney Korper asked to approach the bench, and stated the following, I thought that we had discussed earlier this morning that Mr. McNab was not going to be testifying with regard to the electrical problems, nor was he to be questioned about the electrical problems. In turn, he was not going to say anything about the gauges going to zero. (Emphasis added.) While counsel for Land Rover disputed the precise terms of the earlier agreement, the trial court agreed, I thought it was about the gauges going to zero. Counsel for Land Rover then ceased his cross-examination in the area of electrical defects. The transcript on appeal does not include the transcript of the earlier discussion, and the discussion quoted here seems to indicate an agreement that McNab would not testify about the instrument cluster going to zero.

^[12] It is clear that a defect must be presented for repair in order for a buyer to assert a breach of express warranty claim under the Lemon Law based on that defect. (Civ. Code,  1793.2, subd. (d)(1).) However, the seller need not be given an opportunity to repair a defect when the buyers claim under the Lemon Law is based on a breach of the implied warranty of merchantability. (Mocek v. Alfa Leisure, Inc. (2003) 114 Cal.App.4th 402, 404.) As we will conclude, post, that Hovsepian has no cause of action for breach of the implied warranty, this distinction is of no aid to Hovsepian.

^[13] On appeal, Hovsepian argues that it is the defendants burden in a Lemon Law case to prove that the defect was caused by unauthorized or unreasonable use of the vehicle, as unreasonable use constitutes an affirmative defense. (See Civ. Code,  1794.3.) Apart from whether this is a correct statement of the law, it is inapposite. We are not here concerned with whether Land Rover established that it was not responsible for any defect, but with whether Hovsepian established a prima facie case that any defect arose during the warranty period. If Hovsepian chose to meet his burden with evidence from which a jury could infer the defect existed during the warranty period, he was required to introduce the evidence from which such inference could be made.