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Eslamieh v. Coachmen Recreational Vehicle Company

Court of Appeals of California, Second Appellate District, Division One.
Nov 19, 2003
No. B159251 (Cal. Ct. App. Nov. 19, 2003)

Opinion

B159251.

11-19-2003

FARIBORZ ESLAMIEH, Plaintiff and Respondent, v. COACHMEN RECREATIONAL VEHICLE COMPANY et al., Defendants and Appellants.

Lynberg & Watkins, Michael J. Larin; Hinshaw & Culbertson, Paul E. Vallone and Peggy Kolkey for Defendants and Appellants. Norman Taylor & Associates and René Korper for Plaintiff and Respondent.


Fariborz Eslamieh purchased a new motor home that turned out to be a lemon. After repeated efforts to get the manufacturer and dealer to repair the problems or refund the purchase price, Eslamieh gave up and sued for damages and a statutory penalty. He prevailed, and the manufacturer and dealer now appeal, claiming the jury was improperly instructed. We disagree, affirm the judgment, and grant Eslamiehs request for an award of attorneys fees incurred on appeal.

FACTS

A.

In November 1999, Eslamieh bought a new Coachmen motor home from American RV Outlet. On his first outing with his wife and children, Eslamieh noticed several problems, including a loud whistle from the windshield area. Eslamieh took the RV into American and gave the serviceman a list of 15 items in need of repair. When the repairs were supposedly completed, Eslamieh picked up the RV and took it on a trip to Las Vegas. The whistling noise had not been eliminated, the rear air conditioning did not work, the fiberglass beneath the bedroom "slide-out" was cracked, and there were a dozen or more other less serious problems. Eslamieh, armed with a new list of needed repairs, took the RV back to American. Although some of the problems were corrected, the whistling noise continued and Eslamieh cancelled a planned trip to San Luis Obispo.

At the end of November, Eslamieh took the RV to Camping World, another authorized Coachmen facility, for a third attempt at repairs. Eslamieh reviewed the list of problems (including the whistle and the damage to the bedroom slide-out) with the serviceman and went on a test drive with him so he could point out the noise. Camping World purportedly fixed the noise and sent the RV to CBS Auto Body for the slide-out repair. When Eslamieh picked up his RV and took his previously cancelled trip to San Luis Obispo, the whistling noise was as bad as ever.

In mid-December, Eslamieh took the RV back to Camping World and went over the list of needed repairs with the serviceman. When he picked up the RV two days later, he was told that everything was in order, but the whistle noise continued. A day or two later, while Eslamieh was driving the RV to American to try once more to get the RV repaired, the bedroom slide-out detached from its mechanism and opened in traffic as Eslamieh was making a left turn.

In January 2000, Eslamieh wrote to American, complaining about the problems outlined above and his efforts to have the RV repaired, and explaining that (in addition to the noise and the defective slide-out) there were still several items on his lists that had not been fixed. He expressed his displeasure, explaining it this way:

"I purchased a brand new year 2000 RV so that I can enjoy my trips with my family. Instead all I have had has been aggravation and cancellation of my trips. The trip that we went on for the new year was also a disaster. We had to put up with the windshield whistling noise, and when we arrived, the bedroom would not slide out. . . . [¶] When we got back I wanted to take the RV from my home to the dealership another time for the new problem with the bedroom and all the other problems that we have been through and I drove it for a half a mile and the bedroom all of a sudden slid out on its own. This really scared me half to death. What if my kids were on the bed . . . . [¶] At this time I am asking you to take this vehicle back and give me a full refund. . . ."

American and Coachmen refused to repurchase the RV (although Coachman offered to replace the grill, which it said would "reduce" the whistling noise).

B.

Eslamieh sued Coachmen Recreational Vehicle Company and American RV Outlet, alleging they had breached their express and implied warranties and violated the Song-Beverly Consumer Warranty Act, Civil Code section 1790 et seq. He asked for a replacement RV or reimbursement of the purchase price, damages, a civil penalty on the ground that Coachmen and Americans violations of the Act were willful (§ 1794, subd. (c)), prejudgment interest, attorneys fees, and costs. Coachmen and American (collectively "Coachmen" from this point on) answered, and the case was tried to a jury with Eslamieh presenting evidence of the facts summarized above. The jury rejected Coachmens efforts to minimize the problems and rendered its verdict for Eslamieh, finding the RV was defective, that Coachmen failed to repair it after a reasonable number of attempts, and that Coachmen acted willfully. The jury awarded Eslamieh $ 112,130.19 in actual damages, and $175,000 in civil penalties, to which the trial court added $55,000 for costs and attorneys fees (plus prejudgment interest).

All section references are to the Civil Code.

Subdivision (c) of section 1794 provides, as relevant: "If the buyer establishes that the failure to comply was willful, the judgment may include . . . a civil penalty which shall not exceed two times the amount of actual damages. . . ." (See Suman v. BMW of North America, Inc. (1994) 23 Cal.App.4th 1, 12-13, fn. 7 [as used in subdivision (c) of section 1794, "willfulness" does not necessarily imply anything blamable, or any malice or wrong toward the other party, or perverseness or moral delinquency, but merely that the thing done or omitted to be done was done or omitted intentionally; it amounts to the person knowing what he is doing, intending to do what he is doing, and acting as a free agent, and this definition would "be helpful to a jury"]; Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 184-185 [as used in subdivision (c) of section 1794, "willfulness" means there was something more than an honest mistake or a sincere and reasonable difference of factual evaluation].)

Coachmen appeals from the judgment entered on the jurys verdict.

DISCUSSION

According to Coachmen, "[t]he fundamental issues on this appeal concern the validity and impact of the [willfulness] instructions given to the jury." Coachmen says the trial court should not have instructed the jury as it did, and that a properly instructed jury would not have found that Coachmen acted in bad faith (and thus would not have ordered it to pay a penalty to Eslamieh). For the same reason, Coachmen says its motion for a directed verdict on the penalty claim should have been granted. We reject Coachmens challenge to the willfulness instructions (and for this reason do not consider the remaining arguments, all hinged as they are on our acceptance of the instructional error claim).

A.

At a conference held after both sides had presented all their evidence, the court noted that they had "gone through all of the jury instructions," that Eslamieh had withdrawn a number of those he had proposed, that Coachmen had withdrawn all but one of its proposed instructions, and that "[b]oth sides ha[d] agreed to [unspecified] modifications of the instructions." The court asked, "Is there anything else anyone would like to put on the record regarding the instructions, or anyone would like to make any objections to any of the instructions as proposed?" Coachmen did not object to any of the proposed instructions, and it did not at any time suggest it had withdrawn any of its instructions under protest.

At the conclusion of Eslamiehs case-in-chief, Coachmen had moved for "partial non-suit" on the ground that the evidence was insufficient to support a finding that Coachmen had acted willfully. The trial court denied the motion. Later, in response to the courts invitation to comment on the proposed jury instructions, Coachmen had nothing to say about the subject at hand but revisited the issue raised on the nonsuit motion: "Defense would like to at least make a record of having made a [motion for a] directed verdict on the issue of willfulness. This is a continuation of the same argument we made as to the nonsuit. I dont think the evidence has changed. In fact, its gotten even better that the defense has done nothing but express itself in terms of good faith, that they thought they had it fixed and were working on it. And I dont know that any evidence in this trial supports an act that requires them to be punished." The court denied the motion.

On this appeal, Coachmen nevertheless contends that, on the issue of willfulness, the trial court should have given its proposed (but withdrawn) Special Instruction No. 3, and that the court should not have given Eslamiehs substantially similar Special Instruction No. 16. Eslamieh contends, and we agree, that the issue has been waived by Coachmens voluntary withdrawal of its alternative instruction and its obviously intentional failure to object to Special Instruction No. 16. (Smith v. Americania Motor Lodge (1974) 39 Cal.App.3d 1, 7; Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 129.)

Coachmens withdrawn instruction read this way: "If you find that defendants COACHMEN RECREATONAL VEHICLE, INC. and AMERICAN RV OUTLET, willfully failed to comply with any obligation imposed upon it by the Act, you may include an award of a civil penalty. You may assess a civil penalty against defendants for any amount you deem appropriate, but such civil penalty cannot exceed two times the amount you determine to be plaintiffs actual damages. [¶] A willful act may be described as one done intentionally, knowingly, and purposely. A willful act differs essentially from a negligent tort. You may find [willfulness] only if the defendants knew they could not repair and intentionally refused to replace the vehicle or reimburse the purchase price. [& para;] If you should find that the defendants have established that they reasonably and in good faith believed, based upon facts they knew or should have known, that no replacement or reimbursement of the purchase price was required under the Act, then you shall find that the defendants did not act willfully in refusing the vehicle or refund the purchase price."

Special Instruction No. 16 put it this way: "If you find that Defendant failed to comply with any obligation under the Song-Beverly Consumer Warranty Act, you may impose a civil penalty if you find that Defendants failure to comply with the Song-Beverly Act was willful. [¶] The word willful, when applied to the intent with which an act is done or omitted, and as used in these instructions, implies simply a purpose or willingness to commit the act or to make the omission in question. The word does not require in its meaning any intent to violate the law, or to injure or damage another, or to acquire any advantage. It does not necessarily imply anything blamable, or any malice or wrong toward another party, or perverseness or moral delinquency. [¶] The word willful, as used in these instructions, means merely that the thing done or omitted to be done was done or omitted intentionally. It means that the person knows what he or she is doing, intends to do what he or she is doing, and is a free agent. Thus, you may award a civil penalty to the Plaintiff if you determine that Defendant knew of its obligations under the Song-Beverly Consumer Warranty Act, but intentionally declined to fulfill them. [¶] However, if you do find that defendants are liable for breach of warranty, but if you also should find that the defendants reasonably and in good faith believed based upon facts they knew or should have known, that no replacement or reimbursement of the purchase price was required under the Act, then you shall find that the defendants did not act willfully in refusing to refund the purchase price."

Both instructions were variations on the themes articulated in Suman v. BMW of North America, Inc., supra, 23 Cal.App.4th at pages 12-13, and Kwan v. Mercedes-Benz of North America, Inc., supra, 23 Cal.App.4th at pages 184-185, and both were substantially correct statements of the law. (See fn. 2, ante, and see Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 893-894; Schreidel v. American Honda Motor Co. (1995) 34 Cal.App.4th 1242, 1253-1254.) In short, we are satisfied that the jury understood the general concept of willfulness, and that something more than a mere failure to repair, or something more than a good faith mistake, had to be shown to support a penalty. For these reasons, we summarily reject Coachmens assertion that Special Instruction No. 16 incorrectly stated the law, its related claim that it ought not to be held to its waiver, and its assertion that its claim of evidentiary insufficiency ought to be viewed as an objection to the instruction.

As explained in Bishop v. Hyundai Motor America (1996) 44 Cal.App.4th 750, where a substantially similar instruction was given in a substantially similar case, and where (as here) the defendants motion for a directed verdict on the penalty issue was denied, the reviewing court noted that the defendant, although clearly aware of the willfulness instruction, did not object to the form of the instruction or offer a modification. "Nor is it likely the jurors were misled. [The plaintiffs] counsel in final argument emphasized her case for a statutory penalty rested on the jury finding [the defendant] knew its obligations under the Act, but intentionally declined to fulfill them.

"A failure to object to civil jury instructions will not be deemed a waiver where the instruction is prejudicially erroneous as given, that is which is an incorrect statement of the law. On the other hand, a jury instruction which is incomplete or too general must be accompanied by an objection or qualifying instruction to avoid the doctrine of waiver. [Citation.] Here, [the defendants] counsel showed he was totally conversant with the law and the correct elements of willfulness required by the penalty provisions of the Act. Although aware of the wording of the instruction to be given, he indicated satisfaction with the wording of the instruction by his silence when given the opportunity to object or propose modifications. . . . On this record, we are satisfied [the defendants] deliberate silence at a time when this perceived instructional error could have been resolved is appropriately treated as a waiver of the issue for this appeal." (Bishop v. Hyundai Motor America, supra, 44 Cal.App.4th at pp. 759-760.)

In sum, Bishop defeats Coachmens challenge to the instruction.

B.

As noted above, our finding that the challenge to the instruction was waived makes it unnecessary to consider Coachmens argument that the lack of "substantial evidence that [Coachmen] acted in bad faith towards Eslamieh [makes it] reasonably probable [that] the jury would have reached a different result had proper instructions been given." To the extent this claim of prejudice might arguably be construed as a separate challenge to the sufficiency of the evidence of willfulness, and to the extent Coachmen contends in conclusory terms that its motion for a partial directed verdict should have been granted, we summarily reject those arguments.

As our summary of the evidence shows, Coachmen repeatedly failed to repair the problems with Eslamiehs RV, and repeatedly returned the vehicle to him with assurances that all was well. Quite plainly, all was not well — as dramatically demonstrated when the slide-out popped open in the middle of traffic. As for the whistling noise, which Eslamieh testified about in detail, Coachmen repeatedly failed to fix it notwithstanding that it knew there was a problem — as shown by Coachmens tardy offer of a new grill designed to "reduce" the whistle. In short, substantial evidence supports the jurys finding that Coachmens conduct was willful within the meaning of the Song-Beverly Act, and similarly supports the trial courts decision to deny Coachmens motion for a partial directed verdict. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429 [in determining whether there is substantial evidence to support a factual finding, all conflicts are resolved in favor of the respondent, and all reasonable inferences indulged in to uphold the verdict].)

C.

Eslamieh contends he is entitled to recover his attorneys fees on appeal. We agree, and note that Coachmen has simply ignored the issue. Where a statute authorizes the recovery of attorneys fees in the trial court, fees are recoverable on appeal. (§ 1794, subd. (d); Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927 [attorneys fees, if recoverable at all pursuant to contract or statute, are recoverable for services rendered at trial and on appeal].) On the other hand, we do not agree that this is an appropriate case for sanctions, and therefore deny Eslamiehs motion for sanctions for a frivolous appeal.

DISPOSITION

The judgment is affirmed. Eslamieh is awarded his attorneys fees and costs incurred on appeal, and the cause is remanded to the trial court with directions to determine the amount to which Eslamieh is entitled. Eslamiehs motion for sanctions is denied.

We concur: SPENCER, P.J., ORTEGA, J.


Summaries of

Eslamieh v. Coachmen Recreational Vehicle Company

Court of Appeals of California, Second Appellate District, Division One.
Nov 19, 2003
No. B159251 (Cal. Ct. App. Nov. 19, 2003)
Case details for

Eslamieh v. Coachmen Recreational Vehicle Company

Case Details

Full title:FARIBORZ ESLAMIEH, Plaintiff and Respondent, v. COACHMEN RECREATIONAL…

Court:Court of Appeals of California, Second Appellate District, Division One.

Date published: Nov 19, 2003

Citations

No. B159251 (Cal. Ct. App. Nov. 19, 2003)