FILED
NOT FOR PUBLICATION MAR 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAVID ORTEGA, Nos. 09-56640, 09-56692
Plaintiff–Appellant–Cross-Appellee, D.C. No. 3:08-CV-00724-DMS
v.
MEMORANDUM *
TOYOTA MOTOR SALES, U.S.A., INC.,
Defendant–Appellee–Cross-Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted February 9, 2011
Pasadena, California
Before: PREGERSON and WARDLAW, Circuit Judges, and ZOUHARY, District
Judge.**
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jack Zouhary, District Judge for the U.S. District Court
for the Northern District of Ohio, Toledo, sitting by designation.
Experiencing problems nine months after he purchased a certified used car,
plaintiff-appellant David Ortega (“Ortega”) brought this warranty action against
Toyota Motor Sales, U.S.A., Inc. (“Toyota”). A jury returned a verdict in Ortega’s
favor on his breach of implied warranty of merchantability claim. Following trial,
Toyota filed a motion for judgment as a matter of law pursuant to Federal Civil Rule
50(b), which the district court granted. We affirm.
Preemption
Ortega first argues the district court erred because the statute relied upon in
granting Toyota’s Rule 50(b) motion, Cal. Civ. Code § 1795.5, is preempted by
federal law. California Civil Code § 1795.5 provides that all implied warranties shall
be coextensive in duration with an express warranty provided by the seller, “but in no
event shall such implied warranties have a duration of less than 30 days nor more than
three months following the sale of used consumer goods to a retail buyer.” Cal. Civ.
Code § 1795.5(c). Ortega argues this statute is preempted by 15 U.S.C. § 2308(b),
which provides that “implied warranties may be limited in duration to the duration of
a written warranty of reasonable duration, if such limitation is conscionable and is set
forth in clear and unmistakable language and prominently displayed on the face of the
warranty.”
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Ortega contends the plain language of Section 2308(b) requires all implied
warranties be coextensive in duration with any express warranty provided by a seller.
He reasons that because the express warranty provided to him was for three years, and
Section 1795.5(c) limits all implied warranties for used goods to three months, Section
1795.5(c) is contrary to, and thus preempted by, Section 2308. See Young v.
Coloma-Agaran, 340 F.3d 1053, 1055–56 (9th Cir. 2003) (stating conflict preemption
occurs “where it is impossible . . . to comply with both state and federal requirements,
or where state law stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress”) (internal quotation marks and citation
omitted).
Ortega incorrectly reads this section to require an extension of the implied
warranty to be coextensive in duration with any express warranty; however, correctly
read, it permits a party to limit the duration of an implied warranty under certain
circumstances. See Atkinson v. Elk Corp. of Tex., 142 Cal. App. 4th 212, 228 (Cal. Ct.
App. 2006). A common sense reading of Section 2308 reveals there is no conflict
between Section 1795.5(c) and 2308(b). A supplier can limit the duration of an
implied warranty as prescribed by Section 2308(b), ensuring that the limitation is no
shorter than thirty days and no longer than three months pursuant to Section
1795.5(c).
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Sufficient Evidence of Breach
Ortega next argues that even if the duration of the implied warranty of
merchantability is three months, he presented sufficient evidence demonstrating
Toyota breached the implied warranty during that time period. He contends the jury
was permitted to infer the defect was present at the time of purchase but remained
latent until nine months later, because Ortega did not work on the vehicle himself
prior to the start of his car troubles.
In support, Ortega relies upon Mexia v. Rinker Boat Co., Inc., 174 Cal. App. 4th
1297 (Cal. Ct. App. 2009), which held that Cal. Civ. Code § 1791.1(c) -- dealing with
the duration of implied warranties for new goods -- “merely creates a limited,
prospective duration for the implied warranty of merchantability; it does not create a
deadline for discovering latent defects or for giving notice to the seller.” Id. at 1301.
Mexia, however, was decided at the pleading stage where the court was required
to assume the factual allegations in the complaint as true. The court simply held that
the buyer had stated a claim upon which relief could be granted, not that he had
presented sufficient trial evidence entitling him to an award of damages. Further, the
court suggested that to ultimately prevail, Mexia still needed to demonstrate a defect
existed at the time of sale. Id. at 1308 (“Although the evidence produced at later
stages of the case could show that the corrosion was due to improper maintenance, it
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is also possible that Mexia can present evidence that the corrosion was due to a defect
that existed at the time of sale but remained latent and undiscoverable for two years.”
(emphasis added)).
Here, Ortega had the burden to provide some evidence a breach of the implied
warranty occurred during the first three months following purchase. None is found.
Ortega’s expert could not identify the cause of the vehicle’s defects, and was not
asked if the defects were present at the time of sale. Ortega’s testimony confirmed
that no problems surfaced until nine months after the purchase. Simply put, Ortega
failed to meet his burden that a defect was present at the time of sale or arose during
the three-month warranty period.
We therefore AFFIRM the district court, and dismiss Toyota’s conditional
cross-appeal as moot.
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