Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KC047553, Robert A. Dukes, Judge.
Matthew M. Proudfoot for Defendant and Appellant DaimlerChrysler Corporation.
Alexander Wick, Previn A. Wick; Krohn & Moss and Todd M. Friedman, for Plaintiff and Respondent Charles Kirkton.
ZELON, J.
Defendant DaimlerChrysler Corporation (DaimlerChrysler) appeals a jury’s award of $32,000 on plaintiff’s breach of warranty claim arising from plaintiff’s purchase of a defective 2005 Dodge Power Wagon. DaimlerChrysler contends that the trial court (1) improperly permitted plaintiff to testify to the diminution in value of the truck as a result of the defects; (2) erred in denying DaimlerChrysler’s motion for judgment notwithstanding the verdict on the grounds plaintiff’s opinion testimony concerning damages lacked foundation; and (3) erred in denying DaimlerChrysler’s motion for a new trial based upon jury misconduct. We conclude that the trial court did not abuse its discretion in permitting plaintiff’s opinion testimony concerning the diminution in value of the Dodge, and affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In March 2005, plaintiff purchased a 2005 Dodge Power Wagon. He purchased the truck in Idaho because a friend told him a dealer there had good prices and large inventory. Plaintiff purchased the vehicle for use in business, but also wanted to use it for family purposes and vacations with his grandchildren. He is an account executive for Gallo and does not do a lot of travelling for business, but his commute is 30 miles each way. His employer provides him with a car allowance.
Almost immediately, he began to experience difficulties with the vehicle. At trial, plaintiff testified in detail concerning his attempts to have problems with the vehicle fixed. Between April 2005 and November 2005, he took the vehicle to Glendora Dodge multiple times for each of the problems, which related to the transmission, wheel alignment, radio, CD player, navigation system, glove box, console latch, and keyless entry. At times, the dealership would tell him that it could not duplicate the problem, or that nothing was wrong.
DaimlerChrysler successfully moved to preclude plaintiff’s proposed expert, Jackie Winters, from testifying to the diminution in value of the car. Winters was, however, permitted to testify as a percipient witness concerning the vehicle’s defects. Plaintiff moved in limine for a determination that he could testify on his own behalf to the loss in value. Over defense objection that the opinion would be speculative if based upon anything other than knowledge of facts relating to the loss in value, and would be nothing more than a “gut feeling,” the court ruled that it would admit plaintiff’s testimony because the defendant’s arguments went to the weight, rather than the admissibility, of the evidence.
Plaintiff’s complaint, filed December 22, 2005, sought recovery under theories of breach of written warranty (Magnuson-Moss Warranty Act) and breach of implied warranty (Magnuson-Moss Warranty Act). As a third cause of action, plaintiff sought revocation of acceptance; his prayer for relief sought revocation, or in the alternative, damages under Commercial Code § 2714.
At the time of trial, plaintiff was still having problems with the transmission; the vehicle would not shift into fifth gear on the highway. Although he had been able to use the vehicle at all times, he was leery of using it off-road for camping. He had not been in an accident caused by any of the problems, but his wife and son-in-law had driven the vehicle and had the same problems with the transmission.
Jackie Winters testified that he inspects cars for consumers. He inspected plaintiff’s vehicle and observed that the tires had uneven wear, indicating an alignment problem, oil seepage, and a leak in the pinion seal. This was unusual for a vehicle with 60,000 miles on it, and he believed the problems were caused by defects. He did not see evidence of misuse. There was a technical service bulletin regarding the transmission slipping out of gear, and that defect was never repaired. The dealership road-tested the vehicle, but could not duplicate the problem, although they could have used a device to locate the problem. In his opinion, the truck had a defect in the transmission that DaimlerChrysler knew about, but the dealer did not look at; the frame also was getting loose and coming out of alignment.
The vehicle came with a three-year, 36,000 mile warranty. Plaintiff testified he understood that the warranty would cover everything on the vehicle, and that if anything malfunctioned, the dealer would fix it free of charge. The warranty provided that it would “cover [ ] the cost of all parts and labor needed to repair any defective item on your truck supplied by DaimlerChrysler Corporation that is defective in material, workmanship, or factory preparation. There is no list of covered parts since the only exception is tires.”
In plaintiff’s opinion, he purchased a “lemon.”
Initially, plaintiff demanded a refund of the purchase price from DaimlerChrysler. However, he did not trade in or sell the car because he wanted to keep it. He believed most of the reviews for the truck had been good, except for the mileage; further, the truck has “exceptional” off-road equipment, and can also be used as a commuter vehicle. His research disclosed that trucks would hold their value better than passenger cars because of their utility.
Plaintiff testified that without the interest for the loan, the price paid for the car was $39,500. He received a manufacturer’s rebate of $3,750.
He initially testified he paid $49,000 for the vehicle, plus $500 or $600 for financing.
Regarding his damages, plaintiff testified over relevancy and foundational objection that he would not have agreed to pay the contract price for the car had he known he would experience problems with it. In the past, he has owned new and used vehicles, and in purchasing a car, he decides how much money he is willing to pay based upon research. He did eight to 12 months of research before buying the Dodge.
Plaintiff testified that “[b]ased on all the issues with the vehicle, I wouldn’t have paid half the price I paid for [it]. Not half.” Plaintiff further testified that he had not received the “full value” of his vehicle, and that he “paid a lot of money. I believe this is the most I’ve paid for a vehicle, and it was a huge investment. Like I said, I did a lot of homework on it and, no, [I] absolutely [did] not [receive full value].”
Plaintiff reiterated his testimony that had he known of the vehicle’s problems, he would have paid “[l]ess than half, way less than half” for the truck. He testified that having owned the vehicle for two years and having driven it for 60,000 miles, the truck had not held its value. He stated, “[i]t’s less than half of the value. If I was going to purchase the vehicle, I wouldn’t have paid half what I paid knowing now – If I knew then what I know now. I just would not have purchased the vehicle.”
DaimlerChrysler moved for nonsuit. The court granted the motion on the third cause of action (revocation and acceptance), and denied it on the first cause of action.
The jury found there was a warranty, the warranty covered the defects in the Dodge, DaimlerChrysler failed to repair the defects, and plaintiff suffered damages in the amount of $32,000. The trial court entered judgment on the verdict.
DaimlerChrysler moved for judgment notwithstanding the verdict, contending that there was no competent evidence of plaintiff’s damages and his testimony was insufficient as a matter of law to support the award of damages. DaimlerChrysler contended that under the Moss-Magnuson Warranty Act (15 U.S.C. § 2301, et seq.), the measure of damages was measured under Commercial Code section 2712, subdivision (2) and consisted of the difference between the value of the goods as accepted and the value of the goods as warranted. It further argued that while under Evidence Code section 813, the value of property may be shown by the testimony of the owner, the owner is nonetheless constrained by the limitations of Evidence Code section 814, which requires that owner opinion testimony be “of a type that reasonably may be relied upon by an expert.” Here, DaimlerChrysler argued, plaintiff’s evidence did not conform to this standard because it was nothing more than plaintiff’s personal belief.
California’s Song-Beverly Consumer Warranty Act (Civ. Code, §§ 1790, et seq.) does not apply to a vehicle purchased out of state. (Cummins, Inc. v. Superior Court (36 Cal.4th 478, 484-493; Davis v. Newmar Corp. (2006) 136 Cal.App.4th 275, 278; see Civ. Code, § 1793.2.)
In opposition, plaintiff argued that the motion should be denied because DaimlerChrysler did not establish it would prevail on nonsuit; and further because he presented substantial evidence of damages. The measure of damages under Commercial Code section 2714 is the difference between the value of the goods as accepted and the value as warranted, unless special circumstances show damages of a different amount. Thus, he argued, in his case the full amount paid to purchase the product was properly the value of the goods as warranted; such value could be shown in any manner which was reasonable, and need not be proved to mathematical certainty. Further, plaintiff contended he need not satisfy the same criteria as an expert.
The trial court denied the motion. The court found that plaintiff’s “belief” as to loss in value was not the only basis for his opinion concerning his claimed damages. The court noted that plaintiff testified he paid $49,716.82, including tax; he researched the vehicle to make sure he was getting his value; and the value of the vehicle was diminished by at least 50 percent, based upon testimony of the car’s defects, his repair orders which were admitted into evidence; and the approximately 10 visits plaintiff made to the dealer for repairs. This testimony, the court concluded, consisted of matters personally known or perceived by plaintiff and of a type that could reasonably be relied upon by an expert. The court also denied defendant’s motion for a new trial based upon insufficient evidence of damages, juror misconduct, and excessive damages.
DISCUSSION
I. BREACH OF WARRANTY DAMAGES.
DaimlerChrysler argues that no competent evidence was presented to establish breach of warranty diminution in value damages because under Evidence Code sections 813 and 814, an owner may testify to the value of property only if he relies upon the same criteria as an expert witness. Here, the decision to permit plaintiff’s loss-of-value evidence was committed to the sound discretion of the trial court, and, under the circumstances, the trial court did not abuse that discretion. Plaintiff’s testimony was sufficient to allow the jury to determine his damages.
In its opening brief, DaimlerChrysler improperly directs this court’s attention to an unpublished decision. Pursuant to California Rule of Court 8.1115, subdivision (a), except for circumstances not applicable here, “an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any . . . action.” This attempt to evade the rules by noting the opinion without formally citing it is nonetheless a violation of the rules.
A. Measure of Damages.
The Magnuson-Moss Warranty Act provides a right of action for a consumer who is damaged by a warrantor’s failure to comply with an implied warranty that arises under state law. (15 U.S.C. §§ 2301(7), 2310(d)(1).) The Act authorizes a civil suit by a consumer to enforce the terms of an implied or express warranty, and “calls for the application of state written and implied warranty law, not the creation of additional federal law,” except in specific instances in which it expressly prescribes a regulating rule. (Walsh v. Ford Motor Co. (D.C.Cir. 1986) 807 F.2d 1000, 1012.) We apply Commercial Code section 2714 to determine breach of warranty damages, which provides in pertinent part: “(2) 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.” The parties here do not dispute the measure of damages, but dispute the type of evidence that may be presented to establish such damages.
B. Proof of Damages.
Under Evidence Code section 813, an owner of property may testify to its value. (Evid. Code, § 813, subd. (a)(2).) In giving that opinion, the owner may not state reasons that bring before the jury incompetent evidence or methodologies; any explanation of the valuation must rely on information that “is of a type reasonably . . . relied upon by an expert in forming an opinion as to the value of property. . . .” (Evid. Code, § 814; Contra Costa Water Dist. v. Bar-C Properties (1992) 5 Cal.App.4th 652, 661.) A trial court has broad discretion to rule on these issues. (Ibid.; see also Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 921.)
An owner of property is permitted to give opinion testimony on its value because the owner is presumed to have acquired sufficient knowledge of the property to give an intelligent estimate as to its value. (City of Pleasant Hill v. First Baptist Church (1969) 1 Cal.App.3d 384, 411 (Pleasant Hill).) The determination of whether the owner has sufficient familiarity to give competent evidence is remitted to the discretion of the trial court. (Id. at p. 413.) While an owner may not present evidence that is mere speculation, we will, on appeal, give deference to the decision of the trial court to permit the jury to hear that evidence, subject to cross-examination. It is for the jury to determine the weight of that evidence in reaching its verdict. (See, e.g. OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 876-877.) Where permitted, that evidence is sufficient to support a judgment. (Schroeder v. Auto Driveaway Co., supra, 11 Cal.3d at p. 921.) We do not, in this case, see a basis to substitute our judgment for that of the trial court; there is no showing of any abuse of discretion.
DaimlerChrysler also argues that its motions for new trial and for judgment notwithstanding the verdict were improperly denied because the damages were not supported by the evidence and because of claimed juror misconduct relating to items of damage allegedly improperly considered. As discussed above, the trial court did not abuse its discretion in allowing the jury to consider plaintiff’s opinion and value, and the jury’s verdict was within a range supported by that testimony. As a result, we need not reach these issues.
DISPOSITION
The judgment of the superior court is affirmed. Respondent is to recover his costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.