Filed 12/13/17 Wilburn v. Corey CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Plumas)
----




TRACY WILBURN et al.,

Plaintiffs and Respondents,

v.

JAMES DENNIS COREY,

Defendant and Appellant.
C073246

(Super. Ct. No. GNCV1100183)





After their boat sank, plaintiffs Tracy and Cathy Wilburn brought suit against defendant James Dennis Corey, who had repaired their boat before it sank. The trial court found both parties shared responsibility for negligent conduct and awarded $5,000 in damages to the Wilburns. Corey appeals, arguing the Wilburns never authorized him to replace the defective water pump which caused the boat to sink. We affirm the judgment.
FACTS AND PROCEEDINGS
In 2007, the Wilburns bought a boat at a yard sale. Three years later, they took their boat to Corey for repairs.
Corey told them the carburetor and engine both needed to be replaced. The Wilburns agreed. Corey also said they would eventually need a new water pump. The Wilburns opted not to replace the pump, anxious to get the boat on the water because they had family visiting. Tracy Wilburn testified the pump had always had a little wobble.
After the new engine was installed, the Wilburns took the boat to the lake to break the new engine in. Afterward, they moored the boat at a slip, leaving the propeller in the water. The boat sank overnight.
A worker at the marina testified to seeing water coming out of a hole in a hose and concluded that was the cause of the sinking.
A different mechanic concluded the water pump had wobbled so badly it broke a bracket designed to prevent the pump hose from hitting the alternator belt. Freed, the belt cut through the hose. The mechanic found one of the pump brackets was missing, and the other had sheared off. He also testified that Corey had made a bushing from a heater hose, which did not allow enough wiggle room to stabilize the water pump correctly. He opined that the bushing failed and caused the boat to sink.
After a court trial, the court found for the Wilburns only on their cause of action for negligence. The trial court found the Wilburns and Corey shared responsibility for negligent conduct.
The trial court found the water pump had wobbled, causing the hose to come into contact with the belt. The belt wore a hole in the hose, allowing water into the boat.
The court further found, Corey had breached his duty of care by minimally repairing the water pump, by making a support bushing for it, and realigning the pump to the new engine, despite the wobble. The Wilburns, however, contributed to the sinking. Corey had discussed the wobbling water pump with the Wilburns, telling them it would eventually need to be replaced. But the Wilburns were anxious to get the boat on the water, and felt Corey was taking too long to finish the repairs. They took their boat knowing the water pump would likely fail in the future.
The court found the total property loss at $10,031 and ordered judgment for the Wilburns in the amount of $5,000. Corey timely appealed.
DISCUSSION
On appeal, Corey argues the Wilburns, “did not authorize the repair, however, the judge in this case made me responsible stating that it was ‘my duty of fair care’ as a qualified mechanic knowing the part was defective I should have replaced it even though I was not given permission or authorized to do so.” He avers that that was in direct violation of Business and Professions Code section 9884.9 and Bennett v. Hayes (1975) 53 Cal.App.3d 700 (Bennett) and asserts the trial court misinterpreted that statute and case.
Business and Professions Code section 9884.9 provides in part: “The automotive repair dealer shall give to the customer a written estimated price for labor and parts necessary for a specific job. No work shall be done and no charges shall accrue before authorization to proceed is obtained from the customer.” Bennett cites to Business and Professions Code section 9884.9, but Corey does not tell us how, in his view, the trial court misinterpreted the holding in that case.
In any event, Corey misconstrues the trial court’s findings. The trial court did not find that Corey should have replaced the pump, despite the Wilburns’s refusal to authorize it. Rather, the court found Corey breached his duty by minimally repairing the water pump in a way that allowed it to continue to wobble which, in turn, contributed to the boat eventually sinking. Indeed, the trial court found the Wilburns shared responsibility for the sinking by taking their boat on the water despite knowing the water pump’s failure was foreseeable and failing to have it fixed adequately or replaced.
We find no error.
DISPOSITION
The judgment is affirmed.




HULL , J.



We concur:



NICHOLSON , Acting P. J.



MAURO , J.