Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BC365679 John P. Shook, Judge.
Law Offices of Jim O. Whitworth and Jim O. Whitworth for Plaintiff and Appellant.
Burke, Williams & Sorensen, C. Forrest Bannan, Brian I. Hamblet for Defendants and Respondents.
RUBIN, ACTING P. J.
Plaintiff and appellant Michael Nunan appeals from the judgment entered following a jury verdict in favor of Nunan and against Mercedes-Benz USA, LLC (MBUSA) and Mercedes-Benz of South Bay (MBSB) (collectively MB) on Nunan’s complaint for violation of the Song-Beverly Consumer Warranty Act, Civil Code sections 1790 et seq. (the Act), known as California’s lemon law. Nunan contends: (1) the damage award does not comply with applicable provision of the Act, and (2) the trial court’s calculation of the attorney fee award was an abuse of discretion. We affirm.
All future undesignated statutory references are to the Civil Code.
THE STATUTORY SCHEME
We begin with an overview of the statutory scheme. Under the Act, with certain exceptions not relevant here, every sale of consumer goods is accompanied by the manufacturer’s and retailer’s implied warranty of merchantability (§ 1792) and may also be accompanied by an express warranty (§ 1791.2). A buyer of consumer goods who is damaged by breach of the express or implied warranties may bring an action to recover damages pursuant to the Act (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 121 (Jensen)), which is designed to give consumers broader protection for breach of warranty than buyers would have under the common law or the California Uniform Commercial Code (Jiagbogu v. Mercedes-Benz USA (2004) 118 Cal.App.4th 1235, 1241 (Jiagbogu)).
Damages for breach of an express warranty on a new automobile is governed by Civil Code section 1793.2. If the manufacturer is unable to service or repair a vehicle to conform to an express warranty after a reasonable number of attempts, the buyer may seek replacement or restitution. (Civ. Code, § 1793.2, subd. (d)(2).) Restitution shall be “in an amount equal to the actual price paid or payable by the buyer....” (Id., subd. (d)(2)(B).) The “actual price paid or payable” may be reduced by any amount attributable to the buyer’s use prior to the first time the buyer brought the car in for repair. (Id., subd. (d)(2)(C) [formula for calculating the “amount directly attributable to use by the buyer”].) In addition, the buyer is entitled to incidental or consequential damages as defined in California Uniform Commercial Code section 2715. (Civ. Code, § 1794; Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 187-188.)
California Uniform Commercial Code section 2715 provides: “(1) Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach. [¶] (2) Consequential damages resulting from the seller’s breach include [¶] (a) Any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and [¶] (b) Injury to person or property proximately resulting from any breach of warranty.”
The Act applies to automobile leases as well as sales. (§ 1795.4; Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041, 1044.) But the Act does not explain how “actual price paid or payable by the buyer” is defined in the context of an automobile lease. For example, it does not specify whether the “actual price paid or payable” is limited to those payments made in fact by the lessee or extends to all payments which might be due for the remainder of the lease term. In Brady v. Mercedes-Benz USA, Inc. (N.D.Cal. 2002) 243 F.Supp.2d 1004, 1008 (Brady), the federal court held that limiting a buyer’s recovery to payments actually made is consistent with the general principle of restitution embodied in section 1793.2, subdivision (d)(2)(B) “which seeks to restore the plaintiff to his or her original position. Moreover, similar lemon laws of other states either expressly, or have been interpreted to, require restitution only of actual lease payments made by the lessee, and does not provide, for instance, for the recovery of the full capitalized purchase price or current value of the lease by the lessee. [Citations.]”
The replacement/restitution remedy is available only for breach of an express warranty. (Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1262 (Gavaldon).) Damages for breach of an implied warranty is governed by Civil Code section 1791.1, subdivision (d) which provides, “Any buyer of consumer goods injured by a breach of the implied warranty of merchantability... has the remedies provided in Chapter 6 (commencing with Section 2601) and Chapter 7 (commencing with Section 2701) of Division 2 of the [California Uniform] Commercial Code, and, in any action brought under such provisions, Section 1794 of this chapter shall apply.” When the buyer accepts the goods, damages for breach of the implied warranty include damages available under California Uniform Commercial Code sections 2714 and 2715. (Civ. Code, § 1794, subd. (b)(2).) Under California Uniform Commercial Code section 2714, subdivision (2), the measure of damages for breach of warranty where the buyer has accepted goods, “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.” (See Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 25.)
Section 1794, subdivision (a) provides that any buyer damaged by a failure to comply with any obligation under an express or implied warranty may bring an action for the recovery of damages. The measure of a buyer’s damages “shall include the rights of replacement or reimbursement as set forth in subdivision (d) of [Civil Code] Section 1793.2, and the following: [¶] (1) Where the buyer has rightfully rejected or justifiably revoked acceptance of the goods or has exercised any right to cancel the sale, Sections 2711, 2712, and 2713 of the Commercial Code shall apply. [¶] (2) Where the buyer has accepted the goods, Sections 2714 and 2715 of the Commercial Code shall apply, and the measure of damages shall include the cost of repairs necessary to make the goods conform.” (§ 1794, subd. (b), italics added.) In Gavaldon, supra, 32 Cal.4th at pages 1262-1263, our Supreme Court explained that the italicized phrase means that the reimbursement remedy is available only for breach of an express warranty.
With that overview of the Act in mind, we turn now to the facts of this case.
FACTUAL AND PROCEDURAL BACKGROUND
Nunan leased a new Mercedes-Benz E500 at MBSB in April 2003. Nunan subsequently brought the E500 back to the dealer for various repairs which were covered by a new car warranty, but the vehicle continued to have problems. In February 2007, Nunan filed suit against MBUSA and MBSB for violation of the Act. Nunan’s complaint alleged breach of MB’s express and implied warranty obligations and sought replacement or restitution, plus incidental and consequential damages, prejudgment interest, a civil penalty and attorney fees.
A. Jury Trial
The record on appeal does not include a full transcript of the jury trial, the evidentiary portion of which commenced on June 27, 2008. Only a portion of Nunan’s trial testimony – his direct examination – is included in the record. Nunan testified that in April 2003 he traded in a 2001 Mercedes-Benz to lease the E500 from MBSB; the lease price was $1,091.33 down, plus 48 monthly payments of $766.33. Nunan began having problems with the radio almost immediately. Later, he experienced other problems with the electrical system, the transmission and the brakes. Eventually, Nunan became concerned about the safety of the vehicle. After taking it in for service 22 times, Nunan told the quality control manager at MBSB that he wanted to return the E500. The used car service manager offered to purchase the vehicle from Nunan for $31,000, which at the time was $20,000 less than the lease payoff amount. The used car service manager explained that the price was so low because they had so many problems with the vehicle. Nunan contacted an attorney and eventually filed the instant action.
According to the complaint, the “total consideration over the term of the contract” was $58,516, but Nunan does not explain how that figure was arrived at. The lease itself is not part of the record on appeal.
When the lease ended in May 2007, Nunan had paid a total of $37,508.84 under the lease agreement. Because the litigation was still pending, Nunan decided not to return the vehicle at the end of the lease. Instead, he continued making monthly payments of $766.33 to the finance company. Nunan estimated that, at the time of trial, the lease payoff amount was about $22,000.
B. The Jury Instructions
The clerk’s transcript does not include a written copy of the jury instructions requested, refused or given. And the reporter’s transcript does not include any discussion among the trial court and counsel of the proposed jury instructions, although it does include the instructions that were actually given. According to the reporter’s transcript, the jury was instructed on the elements of a breach of express warranty claim (CACI No. 3201), as well as the elements of a breach of implied warranty claim (CACI Nos. 3210 and 3211). Regarding the measure of damages for breach of express warranty, the jury was instructed consistent with CACI No. 3241. Regarding the measure of damages for breach of implied warranty, the jury was instructed in language consistent with Civil Code section 1794, subdivision (b)(2) and California Uniform Commercial Code, section 2714, subdivision (2).
On damages for breach of express warranty, the jury was instructed: “ ‘If you decide that [MBUSA] or its authorized repair facility did not repair substantial defects in the... E500 to match the written warranty after a reasonable number of opportunities, then Mr. Nunan is entitled to recover the price he proves he paid for the car, including: [¶] ‘1, The lease payments made towards the E500 vehicle itself, including credits toward the purchase price paid by Mr. Nunan towards the E500 vehicle; [¶] ‘2, Charges for transportation and manufacturer-installed options; [¶] ‘3, Finance charges actually paid by Mr. Nunan; and [¶] ‘4, Sales Tax, license fees, registration fees and other official fees. [¶] ‘In determining the purchase price, do not include any charges for items supplied by someone other than [MBUSA], and also subtract the value of any physical damage to the E500 that [MBUSA] proves Mr. Nunan caused.’ ”
On breach of implied warranty, the jury was instructed: “If you determine that the plaintiff is entitled to recover under his breach of [implied] warranty claim, the amount of damages to which he is entitled is either a difference in value between the vehicle as warranted and the vehicle as delivered, or the cost of repair of any remaining problems covered by the warranty, whichever is greater.”
C. The Special Verdict Form
The Special Verdict Form (see Code Civ. Proc., §§ 624, 625) included the following implied warranty questions:
Question No. 1: Did Nunan lease the E500 from MB?
Question No. 2: At the time of the lease, was MB in the business of selling automobiles?
Question No. 3: Was the E500 of the same quality as those generally accepted in the trade?
Question No. 4: What amount is Nunan entitled to receive as restitution to him for the E500?
The verdict included the following express warranty questions:
Question No. 5: Did Nunan lease the E500 from MBUSA?
Question No. 6: Did MBUSA give Nunan a written warranty?
Question No. 7: Did the vehicle have a defect covered by the warranty that substantially impaired the vehicle’s use, value or safety to a reasonable lessee in Nunan’s position?
Question No. 8: Did MBUSA or its authorized repair facility fail to repair the vehicle to match the written warranty after a reasonable number of opportunities to do so?
Question No. 9: Did MBUSA fail to promptly replace or repurchase the vehicle?
Question No. 10: What are Nunan’s actual damages?
Question Nos. 1 through 4 appear to be adopted from the special verdict form suggested by the Judicial Council for use in actions based on breach of the implied warranty of merchantability under the Act, CACI No. VF-3204.
During deliberations on July 8, 2008, the jury submitted the following questions: “Is there a standard amount or formula that we should use to calculate an amount for question 4, or do we just use our judgment?” and “What is the difference between questions 4 and 10?” Initially, counsel agreed that the trial court should instruct the jury: “Follow the verdict form and the instructions. Numbers 4 and 10 are different.” But then Nunan’s counsel reconsidered, stating his belief that Question Nos. “4 and 10 are the same, and restitution is the appropriate remedy. So we don’t agree that they are different. We think they are the same.” The trial court told the jury: “[I]n reply to your question, I will tell you that the jury has the case is closed. All the evidence has been submitted on both sides and that is sufficient for you. The jury has been instructed on the law that applies to this case. Both sides have agreed and stipulated to the proposed verdict form as to form and content. [¶] So with that, you can resume your deliberations.”
Later that same afternoon, the jury reported that a verdict had been reached. It answered Question Nos. 1 through 2 and 5 through 9 in the affirmative. Question Nos. 4 and 10 were answered as follows:
Question No. 4: $37,508.84
Question No. 10: $560.
Thus, the jury awarded Nunan $37,508.84 for breach of implied warranty and $560 for breach of express warranty.
Before the jury was dismissed, the trial court declined Nunan’s request that it send the jury back for further deliberations with an instruction “that restitution was the appropriate remedy... and that would require the full amount paid or payable, plus the payoff to be added into the amount listed on item number 10.”
On August 26, 2008, Nunan filed an ex parte “Application For Order Fixing The Judgment Re Additur, ” in which he argued that the jury’s damage award was insufficient under section 1793.2, subdivision (d)(2)(B). The application requested the trial court to enter judgment in the amount of $75,518.36. At the ex parte hearing, MB’s counsel objected that notice was insufficient. The trial court denied the application on the merits.
On appeal, Nunan states that the application was filed pursuant to Code of Civil Procedure section 657, subdivision (5) (new trial on grounds of inadequacy of damages). But any such motion was procedurally defective in that there is no provision in the law for an ex parte motion for new trial. (See Code Civ. Proc., § 659 [party must file and serve notice of intention to move for new trial], § 659a [time for filing affidavits and counter affidavits].) At oral argument Nunan maintained that the trial court treated the application as a noticed motion for new trial. But the minute order states: “The ex parte application is argued and denied.”
On January 23, 2009, the trial court entered judgment in the amount of the jury’s verdict: $37,508.84. Notice of Entry of Judgment was served by mail on January 28, 2009. On March 30, 2009, Nunan filed a timely notice of appeal from the judgment.
Also on March 30, 2009, Nunan filed a motion for Attorneys Fees and Costs, and a Memorandum of Costs. MB opposed the motion on various grounds. The trial court awarded Nunan attorney fees in the amount of $64,000 and costs in the amount of $18,036.47.
DISCUSSION
A. Instructional Error
Although Nunan frames the issue as a challenge to the jury instructions relating to the measure of damages, he has not included in the record any jury instructions that he requested but the trial court refused to give. Nor has he included in the record on appeal a discussion of the proposed jury instructions, specifically any objections Nunan may have made to those proposed instructions. Nunan does not identify any given instructions that were an incorrect statement of the law, or specify what instructions should have been given. Under these circumstances, Nunan has waived any challenge to the adequacy of the instructions given. (Cf. Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 276 [where given instructions are legally correct, failure to request additional or qualifying instructions forfeits issue on appeal]; Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 171 [“[A] party may not argue on appeal that the court failed to give a specific instruction when that party did not request such instruction [citations]”].)
We observe that Nunan asked the trial court to instruct the jury further after the verdict was announced but before the jury was dismissed. Even assuming the court had the power to do so before the verdict was entered (see Code Civ. Proc., § 619), Nunan does not raise the point on appeal and thus does not discuss whether the trial court abused its discretion in not belatedly augmenting its instructions. (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1091-1092.)
B. Sufficiency of the Evidence to Support the $37,508.84 Damage Award
To the extent Nunan’s contention can be understood as a challenge to the sufficiency of the evidence to support the jury’s award of $37,508.84, we find it has no merit. In this respect, Nunan argues that the evidence established he was entitled to restitution of $75,518.36, which includes the $37,508.84 he testified he paid pursuant to the lease agreement, plus the payments he made after the lease ended, plus the balance to pay off the car “loan, ” as well as incidental damages.
Contrary to Nunan’s assertion that the issue is subject to de novo review, we review the jury’s damage award under the substantial evidence standard. (Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 746.) “Substantial evidence is evidence that a rational trier of fact could find to be reasonable, credible, and of solid value. We view the evidence in the light most favorable to the verdict and accept as true all evidence tending to support the verdict, including all facts that reasonably can be deduced from the evidence. We must affirm the award of damages based on the verdict if an examination of the entire record viewed in this light discloses substantial evidence to support the verdict. [Citations.]” (Ibid.) The testimony of a single witness, even the party himself, may be sufficient. (Jensen, supra, 35 Cal.App.4th at p. 134.)
Nunan is incorrect in his assertion that our consideration of damages is a question of law, which this court should review de novo. The cases he cites for this proposition relate to attorney fees, which we deal with in the next part.
Here, the jury awarded Nunan $37,508.84 in compensatory damages, which is the amount he testified he paid pursuant to the lease agreement through the end of the lease. The evidence established that, although Nunan could have returned the E500 to MB at the end of the lease – thereby ending his legal obligation to incur any additional costs associated with the vehicle – Nunan chose to retain it as evidence for the litigation. We find his decision to keep the vehicle irrelevant to the calculation of damages. Nunan had other options to protect the evidentiary value of the E500. For example, he could have sought an order enjoining MB from destroying, selling or otherwise disposing of the E500 during the pendency of the litigation. (See, e.g., Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1417.) Nothing prevented appellant from returning the car when the lease expired.
In addition to the $37,508.84 for breach of the implied warranty, the jury also awarded $560 for express warranty damages. It is not clear to us how the jury arrived at $560 but the parties do not address the point on appeal, so we do not consider it.
Under the reasoning of Brady, supra, 243 F.Supp.2d at page 1008, which we find persuasive, Nunan was entitled only to restitution of actual lease payments made, not to amounts he paid voluntarily after the lease period ended and he could have returned the vehicle. Thus, substantial evidence supports the award of compensatory damages in the amount of $37,508.84.
It is also immaterial that the jury attributed $37,508.84 to damages for breach of implied warranty and $560 to breach of express warranty rather than the other way around as appellant suggests is more sensible under the statute. This is because substantial evidence supports a finding that Nunan’s damages for breach of implied warranty was $37,508.84. It is reasonable to infer the jury concluded that Nunan accepted the E500 within the meaning of Civil Code section 1794, subdivision (b)(2). Under such circumstances, the measure of damages set forth in California Uniform Commercial Code section 2714, subdivision (2) applies: “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.” In this case, the jury could have reasonably concluded that Nunan’s election to keep the E500 after the lease expired brought him within the “special circumstance” referred to in California Uniform Commercial Code section 2714, and that under such circumstances, Nunan’s proximate damages were the $37,508.84 he paid under the lease agreement, and did not include the amount he elected to pay after the lease ended.
These facts are distinguishable from those in Jiagbogu, supra, 118 Cal.App.4th at pages 1243-1244, in which the court held that a car manufacturer was not entitled to an equitable offset for the buyer’s use of the car after making a buyback request, but before the manufacturer refunded the buyer’s money. Here, the verdict reflects not an equitable setoff, but a finding that Nunan’s damages from MB’s violation of the Act were limited to the payments he made under the lease contract, and did not include payments he elected to make after the lease expired and he could have returned the vehicle.
C. Incidental and Consequential Damages
Nunan contends the jury should have awarded him $3,292 in incidental and consequential damages. But he fails to point to any evidence in the record to show that he incurred such damages. We are not required to comb the record on a party’s behalf. Accordingly, we deem the contention waived. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887-888 [appellants must state fully, with transcript references, the evidence which is claimed to be insufficient to support findings]; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627 [reviewing court is not required to make an independent, unassisted study of the record in search of error].)
D. Prejudgment Interest
We also find no merit in Nunan’s contention that the trial court erred in denying his post-trial application for prejudgment interest.
The Act permits recovery of prejudgment interest under section 3287 when damages are certain or capable of being made certain. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1009.) The issue of prejudgment interest in an action under the Act was addressed in Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718 (Duale). The appellate court held the trial court did not err in denying prejudgment interest because the amount of damages owed by the car dealer to the buyer was not calculable prior to trial. Only when the calculation of damages is not in dispute but the trial essentially is limited to liability alone can damages be said to be certain. (Id. at p. 729.) The court explained that, in the context of an action under the Act, the jury was required to determine (1) whether any of the many defects alleged in the complaint represented a nonconformity, (2) whether any such nonconformity “ ‘substantially impaired [the] use, value, or safety’ ” of the vehicle, and (3) then to determine – for any such nonconformity – the mileage at which plaintiffs first presented the car to defendant for repair. (Ibid., see also §§ 1793.2, subd. (d)(2)(C), 1794, subd. (b).) The Duale court stated that the trial court found those issues were contested at the trial. (Duale, supra, at p. 729.) “Thus, the amount of damages could not be resolved except by verdict, and prejudgment interest was not appropriate.” (Ibid.)
Here, as in Duale, whether any defects alleged in the complaint represented nonconformity under the Act and if so the extent they substantially impaired the use, value or safety of the vehicle were contested issues at trial. Under these circumstances, it was not error to deny prejudgment interest.
E. Attorney Fee Award
Nunan contends the trial court erred in awarding attorney fees in the amount of $64,000, which was substantially less than he requested. We find no error.
We begin with the standard of review, which is deferential to the trial judge who is the best judge of the value of the professional services rendered in his or her court. (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 148-149 (Graciano).) Appellant bears the burden of providing an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141 (Ketchum).)
We next turn to the legal principles governing determination of an award of attorney fees. In setting the reasonable amount of fees under a statutory attorney fees provision, the court must first calculate the “lodestar” amount, which is “ ‘the number of hours reasonably expended multiplied by the reasonable hourly rate.’ ” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394 (Bernardi); see also EnPalm, LCC v. Teitler (2008) 162 Cal.App.4th 770, 774 [fees pursuant to contract].) To determine the reasonable hourly rate, the court looks to the hourly rate prevailing in the community for similar work. (Bernardi, supra, at p. 1394.) Absent a request, the trial court is not required to explain the mathematical calculations by which it arrives at the lodestar figure. (Graciano, supra, 144 Cal.App.4th at p. 156, fn. 7; see also Ketchum, supra, 24 Cal.4th at p. 1140.)
Next, the court determines whether the lodestar should be adjusted – by a so-called “multiplier” – to fix the fee at the fair market value for the particular action. (Bernardi, supra, 167 Cal.App.4th at p. 1399.)
Here, Nunan requested attorney fees in the amount of $512,266.18, comprised of a $186,000 lodestar plus a multiplier. At the hearing on the motion, the trial court observed: “[A]fter reading your papers, my general feeling is that you are certainly entitled to attorney fees. But I think that you are asking for too much money. I think for a six-day trial, I think that $500,000 is way too much money for this type of a trial. [¶] I think it was tried well. But in reviewing all of the all of the papers that have been submitted, the bill itself doesn’t appear to me that it was that it was generated after the case was over. It looked to me like it is time records. [¶] Also, it is not really clear as to who prepared the clerical time entries that were submitted.” MB noted that Nunan had incurred only $64,000 in fees at the time MB offered to settle the matter. The trial court awarded attorney fees in the amount of $64,000.
On appeal, Nunan has not demonstrated how the amount of attorney fees – which we note was more than the amount of damages – was an abuse of discretion. From its comments, the trial court appears to have exercised its discretion guided by the applicable legal principles: determination of the hours reasonably expended multiplied by a reasonable hourly rate, to be adjusted based on the novelty and difficulty of the questions involved and the skill displayed in presenting them.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: FLIER, J., O’CONNELL, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Question Nos. 6 through 9 appear to be adopted from the special verdict form suggested by the Judicial Council for use in actions based on breach of express warranty of merchantability under the Act in which civil penalties are sought, CACI No. VF-3203. Question No. 10, however, differs from the Judicial Council’s recommended question, which instructs the jury how to calculate damages for breach of express warranty, including subtracting for the use of the vehicle before it was brought in for repairs.