Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County No. VC044791, William P. Birney, Judge.
Crowe & Rogan, Kate S. Lehrman and Guy Mizrahi for Defendant and Appellant.
Law Offices of Lawrence J. Hutchens, Lawrence J. Hutchens and Timothy F. Fatone for Plaintiff and Respondent.
CROSKEY, Acting P. J.
Defendant and appellant BMW of North America, LLC (“BMW-NA”) appeals from the order of the trial court granting a new trial in favor of plaintiff and respondent Amarjeet Dahamija, in Dahamija’s action under the Song-Beverly Consumer Warranty Act (Civ. Code, §§ 1790, et seq.). Dahamija had alleged that BMW-NA sold her a car, covered by warranty, in which the heater would independently turn itself on and blow hot air at her feet, regardless of her attempts to turn it off. BMW dealers attempted to repair the problem repeatedly, but were unable to do so. At trial, BMW-NA took the position that the car did not contain a defect covered by the warranty, in that the heater malfunction had, in fact, been caused by an accident. Although the jury concluded that Dahamija had failed to establish that her automobile contained a defect, the trial court disagreed and granted a new trial. On appeal, BMW contends the evidence is insufficient to support the trial court’s determination. We conclude that the evidence could have supported a verdict in favor of either party; therefore, in accordance with the deferential standard of review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On appeal from a ruling granting a new trial, “the trial court’s factual determinations, reflected in its decision to grant the new trial, are entitled to the same deference that an appellate court would ordinarily accord a jury’s factual determinations.” (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.) We therefore set forth the facts in the light most favorable to the trial court’s ruling.
On April 24, 2002, Dahamija purchased a new car from Santa Monica BMW. The purchase price of the car was $64,130.90, which Dahamija paid in cash. Two days after she had purchased the car, Dahamija was driving it when the heater came on of its own accord. Dahamija had not turned the heater on. She attempted to turn it off, but the heating controls on the dashboard were not responding. Within two minutes, however, the heater went off. Dahamija told her husband about this. The next day, a representative of Santa Monica BMW telephoned Dahamija with a “courtesy call.” Dahamija told him about the unusual behavior of her car’s heater. The representative told her that if it happened again, she should bring her car in.
BMW-NA would subsequently take the position that this was not an early manifestation of the heater problems to come. Instead, BMW-NA asserted that Dahamija must have turned the climate control on, and set it to “automatic” mode, in which the system would blow cool or warm air as necessary to reach the driver’s preset desired temperature.
The heater did not independently turn on again for approximately 11 months. The time of the next occurrence of spontaneous heat was disputed at trial; indeed, it was the main issue at trial. Dahamija’s car was involved in an accident on February 7, 2003. At trial, BMW-NA would take the position that the heater next malfunctioned after the accident, and that the accident, or the subsequent repair of Dahamija’s car, was the direct cause of the heater malfunction. Dahamija, however, testified to the contrary. According to her, approximately one week before the accident, the car’s heater again came on without her turning it on. Dahamija attempted to turn the heater off, but she could not do so. The heater’s dashboard panel was dead; it had no active lights on it. Unlike the first instance, the heater did not turn itself off after a few minutes, but continued to blow hot air at Dahamija’s feet.
Dahamija contacted Santa Monica BMW, and asked if she could take the car to be fixed at another BMW location. Dahamija was told that she could, and she chose to take her car to a BMW dealer known as “McKenna.” Dahamija telephoned McKenna, and informed the service department of the car’s problem. Dahamija was told that she could bring the car in immediately or wait until the problem happened again. As Dahamija would need a “loaner” while her car was being serviced, she could not have an immediate appointment. She made an appointment for sometime the following week.
Dahamija testified that she had this conversation with Rochelle Lovering, a service advisor at McKenna. BMW-NA attempted to impeach Dahamija’s testimony with evidence that Lovering did not work at McKenna until May 27, 2003, a date several months after the conversation Dahamija recounted. While this evidence certainly calls into doubt Dahamija’s testimony that she spoke with Lovering about her heater problem prior to the February 7, 2003 accident, the trial court could conclude that Dahamija correctly recounted the date and substance of the conversation, but misrecollected the identity of the service advisor with whom she had spoken.
Dahamija was unable to keep her appointment, as, prior to the appointment, her car was hit by another vehicle when parked in a parking lot. There was damage to the car’s front bumper on the passenger side. Dahamija had the damage repaired at Quality Collision Center, an independent repair shop. The damage was estimated at $2,193.99. At the time of the estimate, Dahamija’s car had 14,990 miles on it.
After the damage had been fixed, Dahamija called McKenna to make a new appointment to fix the car’s heater. When she brought the car in, Dahamija was asked why she had missed her earlier appointment; she explained that her car had been hit and she had taken it to be fixed.
Dahamija brought her car to McKenna on March 1, 2003. The car’s mileage, as reported on the service department repair order, was 15,001. In describing the reason for service, the repair order indicates, “Customer reports after car was wrecked that heater comes on & off automatically.” Dahamija signed the repair order. Dahamija testified, however, that she did not tell McKenna that the car was “wrecked.” Moreover, Dahamija took the position that the McKenna service advisor incorrectly recorded the chronology. Dahamija admittedly brought her car to McKenna for service after the accident, but the problem had arisen prior to it.
While the point was not emphasized at trial, as we discuss below, we find it significant that the car was driven only 11 miles between the time of the repair estimate and the time Dahamija took it to McKenna for service, as BMW-NA’s trial theory rests on the assumption that the heater problem first arose between these two events.
In its reply brief on appeal, BMW-NA argues that, in her testimony, Dahamija impliedly admitted that the heater problem arose after the accident. The challenged testimony is as follows:
McKenna also apparently misstated the nature of the problem, as all of the evidence indicates the problem was that the heater would turn on automatically, not that it would “turn on & off.”
The service technician’s notes on the repair order state two different things. The first, which is crossed out, reads, “Could not duplicate cus[tomer] complaint at th[is] time. Heater operation OK at this time.” The second note, which apparently replaced the first, reads, “Blower fan inop[erative] at times. Final Stage faulty, [remove and replace] final stage.” The “Final Stage” is a portion of the climate control unit. As McKenna had understood the problem to have arisen after the accident, Dahamija was charged for this repair.
After this repair, the heater problem did not arise again for three months. Thereafter, over more than year, Dahamija experienced the heater problem on an intermittent basis. Sometimes, it would happen every week or two; other times, it would go months between occurrences. On each occasion, while Dahamija was driving, the heater would turn itself on and blow hot air without warning. Dahamija did not have the heater set on “automatic” when this happened. Indeed, on one occasion, it happened when Dahamija had turned on the air conditioner. Each time, the heater would stay on longer than the last. It would blow hot air at full force through the vents near her feet. The heat was very hot. It left her feet “red hot, swollen, [and] painful.” The heater controls were dead and unlit. Even if Dahamija stopped the car and removed her key from the ignition, the heater would continue for another 40 or 45 minutes.
During this time, Dahamija was repeatedly attempting to have the problem fixed. At each service call, Dahamija was not charged; all of the repairs were handled under warranty. On June 18, 2003, she took the car to Santa Monica BMW. Santa Monica BMW concluded that Dahamija’s car had been automatically set to turn the heat on every day at noon. Santa Monica BMW cleared the setting. Dahamija was disappointed in this solution, as her heater problem had not occurred at noon. Moreover, her experience did not match this function as described in the car’s owner’s manual. On October 15, 2003, Dahamija took the car to McKenna. The repair order indicates, “Cause: shorted” and McKenna again replaced the Final Stage of the car’s climate control unit. On December 12, 2003, Dahamija again brought her car to McKenna with the same complaint. McKenna indicated that it “replaced faulty Final Stage unit.” On January 20, 2004, Dahamija again brought her car for service at McKenna. McKenna’s shop foreman and technician test drove the car “and were unable to[]verify abnormal concern at this time.” No repairs were made.
According to the owner’s manual, the car could be set to ventilate for a half-hour at set times during the day. The automatic system would remain active for 30 minutes; Dahamija’s heater stayed on longer. The automatic system could be turned off manually; Dahamija could not turn the heater off. The automatic system circulates air through the vent outlets for the upper body; Dahamija’s problem was with heat from the vents at the floor level.
Around this time, Dahamija expressed an intention to exercise her rights under the Song-Beverly Consumer Warranty Act. Her complaints were forwarded to BMW-NA. The heater problem persisted. On March 8, 2004, Dahamija took her car to McKenna. McKenna replaced the air conditioner “control module.” On April 1, 2004, Stephen Kossar at BMW-NA wrote Dahamija and told her that McKenna “has assured me that the problem has been corrected by the replacement of the heater/AC control panel that was found to be defective.” The problem appeared solved, and, on June 11, 2004, Dahamija wrote Kossar saying as much. However, on the night of July 12, 2004, Dahamija experienced the problem again, and immediately drove the car to McKenna. The problem was witnessed by three or four members of McKenna’s staff. The next morning, the service department telephoned Dahamija and told her that the technicians could not find anything wrong, but were still looking. Ultimately, the repair order indicates the cause of the problem as “Upgraded module needed.” McKenna replaced the air conditioning “blower resistor.” Dahamija, however, refused to pick the car up and left it at McKenna.
By August 2004, Dahamija had obtained counsel, and made a formal demand to Kossar that BMW-NA replace the faulty vehicle. Kossar denied the request, and suggested that a BMW Field Service Engineer inspect the car. Harry Henkel, a BMW Field Service Engineer, conducted two inspections by October 2004. Henkel found nothing wrong with the car. On October 22, 2004, Kossar wrote Dahamija’s counsel, stating, “If the problem of the hot air again manifests itself, which we do not expect, it will be the responsibility of BMW to repair it under the car’s New Vehicle Limited Warranty.” Kossar encouraged Dahamija to pick up the car.
On November 10, 2004, Dahamija sent an email to Kossar asking BMW-NA to repurchase the car, stating that she did “not feel safe in driving this car” and felt that it had not been fixed. Kossar responded that the “vehicle is not defective, and, consequently, BMW[-NA] will not consider a repurchase or replacement.” Kossar went on to state, “The hot air problem was traced to a faulty resistor in the final stage of the hot air blower. The resistor was replaced and the system works perfectly, as verified by a BMW Field Service Engineer who inspected your car at McKenna BMW. This repair took place in July of this year.” Kossar reaffirmed that “BMW[-NA] continues to be responsible under the car’s New Vehicle Limited Warranty (until its expiration) for any repairs that might be required in the future.”
Dahamija hired Paul Petty, a forensic investigator, to determine whether the car was still experiencing problems. He inspected the car for two hours in March 2005, and again for three weeks in May 2005. While he could not exactly duplicate Dahamija’s experience, he did confirm that, on three occasions, when the air conditioner was on, the air coming through the vents would be hot, and stayed hot. The would occur only if Petty had been driving and then let the vehicle set. Once the car was restarted, it would discharge hot air only, and would not stop discharging hot air, no matter what the air conditioning setting. By stopping and starting the car multiple times, Petty could ultimately reset the system to blow cold air.
On July 12, 2005, Dahamija filed the instant action against BMW-NA for breach of the Song-Beverly Consumer Warranty Act, seeking damages for BMW-NA’s failure to repurchase the defective vehicle. The case proceeded to trial.
Dahamija also brought causes of action for rescission and revocation of acceptance against Santa Monica BMW. Dahamija ultimately dismissed her action against Santa Monica BMW.
By the time of trial, BMW-NA was no longer taking the position that the car’s problems had been fixed by McKenna. Instead, BMW-NA argued that the car did have a continuing problem, but that the problem had been caused by the February 2003 accident or the repairs made by Quality Collision Center. At trial, BMW-NA offered the testimony of Paul Labrie, a Senior Product Engineer in BMW-NA’s Technical Service Department. Labrie never examined the car, but relied on Henkel’s examination and the car’s history. Labrie found it significant that diagnostic computers never found a “fault code” registered in the heating system in Dahamija’s car; Labrie concluded from this that the problem must have arisen by one of the few possible failures that would not trigger a fault code. One such problem is a short in the wiring attached to the car’s external temperature sensor. In the course of conducting its repairs, Quality Collision Center had removed and replaced the headlight assembly on the passenger side of the car. The headlight assembly shares a “wiring harness” with many other components, including the external temperature sensor. An intermittent short could occur in the wiring harness from accident damage or a repair. If there is a short in that wiring, and the car’s climate control system is set to automatically maintain a constant temperature inside the car, the short could give an incorrect reading to the system, causing the climate control system to “think” it is very cold outside, and increase the heat output. The driver would then see “irrational” output from the climate control system. When there is a total failure of the system, it enters a fail-safe mode in which it directs warm air, at full blower, to defrost the windshield, with “residual heat at the footwell, too.”
One of the defects that will not trigger a fault code is a defect in the Final Stage. McKenna’s service manager, John Hatcher, testified that there is no way that McKenna itself could determine whether a Final Stage was defective. He testified that when McKenna repeatedly indicated on repair orders that the Final Stage was “faulty” or “shorted,” it was not an actual determination that the Final Stage was faulty or shorted, but rather a best guess based on known information.
Labrie conceded that he has “no physical evidence[] that there is a short in the wiring system.” Indeed, Henkel, who had actually examined the car, testified at deposition that he could not say whether there was a short. While a short in the wiring triggering the fail-safe mode would result in increased heat output, the resulting circumstances as explained by Labrie did not completely match the problem experienced by Dahamija. A sporadic short would result in a changing display for the outside temperature in the car’s instrument cluster; Dahamija stated the outside temperature indicator did not flash an inconsistent temperature. The fail-safe mode would trigger increased hot air at the windshield as well as on the floor; Dahamija experienced increased output at the floor only. The fail-safe mode could only occur if the car’s climate control system was set to automatic; Dahamija testified that her problem occurred without the system being set on automatic. Labrie testified that once the fail-safe starts to occur due to a short, the problem recurs on a regular rhythm; Dahamija’s problem occurred intermittently with no established pattern.
Labrie’s testimony that Dahamija’s heater problem was caused by a short in the wire caused by the accident or accident repairs was very confident. Labrie testified that the problems experienced by Dahamija were inconsistent with any known factory defect. He discounted the possibility that a short could have been caused at the factory, because BMWs are assembled by robots, so a factory defect “does not happen on [only] one vehicle.” When asked whether his opinion would change if the problem had first manifested prior to the accident, Labrie said that it would not. He believed that the only thing that could cause Dahamija’s problem is a short in the wiring, and that a short in the wiring could not be a factory defect. Therefore, if the problem manifested before the accident, something must have happened to the car to cause the short.
The testimony of Edward Mooers, Jr., an After-Sales Market Manager for BMW-NA was similarly circular. He testified that he did not believe the alleged defect was substantial, because if it was, in fact, a manufacturing defect, it would be something that BMW-NA could fix, and therefore would not be a problem.
At trial, the jury deliberated approximately 20 minutes before returning a defense verdict. Specifically, the jury answered “No” to the question, “Did plaintiff’s vehicle contain a defect covered by the warranty that substantially impaired its use, value or safety to a reasonable buyer in plaintiff’s situation?”
The reporter’s transcript indicates that deliberations began at 1:30 p.m. and that the jury returned to the courtroom with their verdict at 2:30 p.m. Plaintiff’s counsel submitted a declaration indicating that, after the documentary evidence was submitted to the jury, the jury deliberated approximately 20 minutes before indicating that they had reached a verdict. This matched the trial court’s recollection.
At a subsequent hearing on an unrelated issue, the trial court sua sponte granted a new trial. The trial court relied on the following four facts: (1) There was a malfunction in Dahamija’s car; (2) BMW-NA’s position was that the problem was not a defect covered by the warranty, but that it had been caused by the accident; (3) BMW-NA offered no engineering or mechanical evidence to back up Labrie’s theory of a short caused by the accident; and (4) the jury had deliberated a disturbingly short amount of time.
Thereafter, it became apparent that the trial court lacked authority to grant a new trial without a motion having been made. The court therefore vacated its order granting a new trial. Dahamija then made the necessary motion, based on insufficiency of the evidence and irregularity of the jury proceedings. At the hearing on the motion, the court relied on the same four points it had previously identified. The court further explained, with respect to the third point, that Labrie had not “shown physical evidence of that short in the wiring system.” On February 21, 2007, the court granted the motion for new trial on the basis of insufficiency of the evidence.
Subsequently, the court issued a minute order setting forth its reasons for granting the new trial. In its statement of reasons, the court fleshed out further the four reasons stated above. Specifically, the court clarified that Dahamija “testified [that the] malfunction occurred during the first week of her ownership and intermittently up to a week before the vehicle was struck in an accident resulting in front end damage . . . . [¶] [BMW-NA] never rebutted the evidence that the malfunction occurred in the time between purchase and accident. Instead, [BMW-NA]’s expert testified that the front end damage was the cause of the malfunction, but . . . without a technical explanation of the process affecting the heating system’s defect. [¶] In short, [Dahamija]’s evidence of a defect in the heating system prior to the accident was unchallenged and therefore evidence of a defect emanating from materials and/or workmanship. This conclusion is not disturbed by [BMW-NA’s] analysis that the defect occurred after the vehicle suffered front end accident damage, and is obviously insufficient to contradict [Dahamija]’s claim.” BMW-NA filed a timely notice of appeal from the order granting a new trial.
CONTENTIONS OF THE PARTIES
BMW-NA does not dispute that sufficient evidence supports the trial court’s conclusion that the vehicle experienced a malfunction. BMW-NA argues, however, that there is insufficient evidence to support the court’s conclusion that the malfunction was the result of a defect in the car, rather than the accident damage or repair. Specifically, BMW-NA argues that there is no substantial evidence to support the court’s conclusions: (1) that the malfunction occurred before the accident; and (2) that BMW-NA did not support Labrie’s theory with any mechanical evidence.
BMW-NA also argues that a 20-minute deliberation is not, in itself, a sufficient irregularity on which to base a grant of a motion for new trial. In light of our conclusion upholding the grant of a new trial on the basis of insufficiency of the evidence, we need not reach the issue.
DISCUSSION
1. Standard of Review
Under Code of Civil Procedure section 657, a trial court may grant a new trial for insufficiency of the evidence. The court must not grant a new trial on that basis unless “after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the . . . jury should have reached a different verdict.” “[O]n appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict . . ., it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons.” (Code Civ. Proc., § 657.)
In its reply brief, BMW-NA argues, for the first time, that the trial court did not, in fact, review the entirety of the record, because the court’s statement of reasons does not mention evidence favorable to BMW-NA’s position. It is well settled law that “ ‘[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.’ [Citation.]” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) BMW-NA also argues for the first time in its reply brief that the trial court misapplied the burden of proof, and that the court’s grant of a new trial was, in effect, a de facto judgment notwithstanding the verdict. We do not consider any of these untimely-raised arguments.
An order granting a new trial “ ‘must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court’s] theory.’ ” (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 409.) This is a “highly deferential standard.” (Ibid.) We review the grant of a new trial for an abuse of discretion. (Fountain Valley Chateau Blanc Homeowner’s Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 751.) “A new trial motion allows a judge to disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury, and still, on appeal, retain a presumption of correctness that will be disturbed only upon a showing of manifest and unmistakable abuse.” (Ibid.) An abuse of discretion cannot be found in a case where the evidence is in conflict and a verdict for the moving party could have been reached. (Lane v. Hughes Aircraft Co., supra, 22 Cal.4th at p. 412.) “In weighing and evaluating the evidence, the court is a trier-of-fact and is not bound by the factual resolutions made by the jury. The court may grant a new trial even though there be sufficient evidence to sustain the jury’s verdict on appeal, so long as the court determines the weight of the evidence is against the verdict. ” (Candido v. Huitt (1984) 151 Cal.App.3d 918, 923.) “Conflicting evidence . . . places the new trial order beyond review so long as the conflict relates to the trial court’s reasons for granting a new trial.” (Lane v. Hughes Aircraft Co., supra, 22 Cal.4th at p. 416.)
2. Sufficient Evidence Supports the Trial Court’s Determination that the Malfunction Manifested Before the Accident
The trial court concluded that the malfunction occurred in the week after Dahamija’s purchase of the car, and again prior to the accident. Sufficient evidence, in the form of Dahamija’s own testimony, clearly supports this conclusion. BMW-NA argues that the testimony should not be believed, as it is contrary to the statement recorded on the March 1, 2003 repair order that “Customer reports after car was wrecked that heater comes on & off automatically,” and that Dahamija was otherwise discredited. We disagree. This was a dispute regarding credibility left to the trier of fact to decide. That the trial court, acting as the trier of fact, found in favor of Dahamija is not an abuse of discretion.
The court also stated that the problem occurred “intermittently up to a week before” the accident. This statement is not supported by the evidence; the undisputed evidence is that there were no recurrences in the ten or so months between the first occurrence and the one just prior to the accident. Nonetheless, the absence of evidence to support this particular statement of the trial court does not undermine the court’s basis for granting a new trial.
Again, we note that the repair order indicates Dahamija brought her car to McKenna only 11 miles after the repair estimate. While not conclusive, this undisputed evidence certainly suggests that there was little time between the accident repairs and the McKenna service for the heater problem to manifest.
3. Sufficient Evidence Supports the Trial Court’s Determination that Labrie’s Theory was Unsupported by Mechanical Evidence
The trial court acknowledged Labrie’s theory of the accident, or repair, causing a short in the wiring which led to the sporadic activation of the fail-safe condition. However, the court found the theory unsupported by any mechanical evidence. As the court explained, BMW-NA failed to show any physical evidence that a short in the wiring system actually existed. Nor did BMW-NA show any physical evidence that the wiring harness had actually been damaged, that either of these things had been caused by the accident or repairs, or that the circumstances actually existing under the hood of Dahamija’s BMW could create the symptoms Dahamija had experienced by means of the process explained by Labrie. While Labrie had clearly testified to his understanding of the way in which an accident or accident repair could cause symptoms like those experienced by Dahamija, BMW-NA introduced no evidence that this had actually occurred, beyond Labrie’s bald assertion that nothing else could explain the problem. On this basis, the trial court found Labrie’s testimony unpersuasive.
The court did not abuse its discretion in rejecting Labrie’s unsupported theory. We note that Labrie’s theory for the sole possible cause of Dahamija’s heater malfunction is only the next in a long line of explanations offered by BMW-NA and its dealers. McKenna first said the cause was a “faulty” Final Stage. Santa Monica BMW thought the problem had been caused by Dahamija incorrectly setting the automatic function on her heater to activate at noon every day. McKenna next concluded the Final Stage was “shorted.” The following time, McKenna again diagnosed a “faulty” Final Stage. The next time, McKenna replaced the control module. Kossar represented that the problem had been caused by a “control panel that was found to be defective.” When the problem recurred, McKenna next replaced the air conditioning “blower resistor.” This time, Kossar represented that “[t]he hot air problem was traced to a faulty resistor in the final stage of the hot air blower.” While Kossar promised that “the system works perfectly,” Dahamija’s expert, Petty, confirmed that it did not. Substantial evidence supports the trial court’s conclusion that, after six different explanations and five repairs, BMW-NA’s seventh explanation, which was unsupported by any physical evidence, is unworthy of belief. As, prior to Labrie’s explanation, BMW-NA had repeatedly acknowledged that the hot air problem – although not yet diagnosed and fixed – was covered by the warranty, substantial evidence supports the conclusion that the cause of the problem was, in fact, a defect in the car and not the accident or repair.
In fact, if Labrie’s explanation is to be believed, the true problem had still not been repaired.
DISPOSITION
The order granting a new trial is affirmed. Dahamija shall recover her costs on appeal.
We Concur: KITCHING, J. ALDRICH, J.
“Q And the word ‘wrecked’ that we just saw in that repair order, is it your testimony that somebody just made that word up?
“A That was their writing.
“Q And so it’s your testimony you didn’t say after the car was wrecked?
“A I never said car was wrecked.
“Q Okay. And what about – what about saying the word ‘after’ the car was wrecked, ‘after’?
“A I never said the word ‘wrecked.’
“Q So that was just what Rochelle made up?
“A They made up.”
BMW-NA takes the position that in denying only the use of the word “wrecked,” and not the use of the word “after,” Dahamija denied only the service department’s terminology in describing her complaint, not the fact that she had reported that the heater problem arose after the accident. We disagree. Dahamija had already testified at length that the problem arose prior to the accident. We fail to see a conclusive admission to the contrary in Dahamija’s response to a poorly phrased question.