Filed 9/30/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
RIGOBERTO RAMOS, B298958
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC608910)
v.
MERCEDES-BENZ USA, LLC,
et al.,
Defendants and Respondents.
APPEAL from a judgment and order of the Superior Court
of Los Angeles County. David S. Cunningham, Judge. Affirmed.
Rosner, Barry & Babbitt, Hallen D. Rosner, Arlyn L.
Escalante; Strategic Legal Practices and Payam Shahian for
Plaintiff and Appellant.
No appearance for Defendants and Respondents.
__________________________
SUMMARY
We hold that, under the Song-Beverly Consumer Warranty
Act (Civ. Code, § 1791 et seq.; the Song-Beverly Act), popularly
known as the “lemon law,” a buyer may not obtain restitution of
the full price he paid for a new motor vehicle, where the
manufacturer failed to complete repairs to a defect within
30 days, but the defect did not substantially impair the vehicle’s
use, value or safety. We affirm the judgment entered on the
jury’s verdict.
FACTS
Plaintiff Rigoberto Ramos leased a new 2013 Mercedes-
Benz E350 from Mercedes-Benz of Beverly Hills on March 24,
2013.
A year later, in April 2014, plaintiff took the car to the
dealer for the first time, because the car had been making
squeaking and grinding noises when the steering wheel was
turned to the right while backing up. The dealer was unable to
duplicate the noise. The car was in the shop for one day.
Six months after that, in October 2014, plaintiff brought
the car in because of a high-pitched noise from the front wheel
area. The dealer confirmed the complaint and performed several
repairs, including replacement of several parts. The service
department also independently discovered cracked bushings and
replaced them. The car was in the shop for 16 days.
About two weeks after the October repair, on November 15,
2014, plaintiff brought the car in again, reporting he continued to
hear the grinding noise when the steering wheel was turned to
the right while backing up. The dealer confirmed the noise
occurred and performed repeated diagnostic road tests, but could
not identify the cause. The dealer instructed plaintiff to continue
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driving the vehicle until further review by Mercedes-Benz. The
car was in the shop for 18 days.
In December 2014, plaintiff asked Mercedes-Benz USA,
LLC (the manufacturer) to repurchase the car, and on January 6,
2015, the company declined to do so.
Nine months later, in October 2015, plaintiff took the car to
the dealer, reporting the car was still making the same noise
when he backed up and turned the steering wheel to the left. The
dealer found the rack and pinion assembly was the source of the
noise, replaced it and performed other repairs. The car was in
the shop for nine days.
Plaintiff returned the vehicle at the end of the lease term in
May 2016.
Meanwhile, in February 2016 plaintiff filed this lawsuit
against Mercedes-Benz USA, LLC and Mercedes-Benz of Beverly
Hills under the Song-Beverly Act. (All statutory citations are to
the Civil Code unless otherwise specified.) He alleged several
causes of action, including failure to promptly replace the car or
make restitution, after failing to repair the car to conform to
express warranties after a reasonable number of attempts
(§ 1793.2, subd. (d)); failure to commence repairs within a
reasonable time and failure to repair the car so it conformed to
the applicable warranties within 30 days (§ 1793.2, subd. (b));
and breach of the implied warranty of merchantability (§ 1791.1).
A jury trial resulted in a special verdict finding the car did
not have a defect covered by the warranty that substantially
impaired the vehicle’s use, value or safety, and the car was fit for
ordinary purposes, but defendants failed to complete warranted
repairs within 30 days. Specifically, the jury answered these
questions.
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Question No. 3: “Did the vehicle have a defect covered by
the warranty that substantially impaired the vehicle’s use, value
or safety to a reasonable buyer in [plaintiff’s] situation?” The
jury answered “No.”
Question No. 10: “Did [the manufacturer] or its authorized
repair facility fail to complete repairs to a defect covered by the
written warranty within 30 days to conform the 2013 Mercedes-
Benz E350 to the applicable warranties?” The jury answered
“Yes,” and found plaintiff’s incidental and consequential damages
were $1,800.
Question No. 17: “Was the motor vehicle fit for the
ordinary purposes for which vehicles are used?” The jury
answered “Yes.”
The court entered judgment for plaintiff and against
defendants for $1,800 on March 25, 2019. Plaintiff filed motions
for a new trial, for partial judgment notwithstanding the verdict,
and to vacate and enter a different judgment. Defendants filed
motions to enter a different judgment and for judgment
notwithstanding the verdict on the cause of action for failure to
complete repairs within 30 days.
All motions were denied, and plaintiff filed this appeal.
DISCUSSION
Defendants did not file a respondents’ brief. We decide the
appeal “on the record, the opening brief, and any oral argument
by the appellant.” (Cal. Rules of Court, rule 8.220(a)(2).)
Plaintiff contends the trial court erred when it refused to
instruct the jury that restitution of everything plaintiff paid
under his lease contract for the car could be awarded as the
remedy for defendants’ failure to complete warranty repairs in
30 days. As a consequence, on that cause of action the special
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verdict form asked the jury only: “What are [plaintiff’s]
incidental and consequential damages?”
The question whether the Song-Beverly Act permits
restitution of the price paid for the car, as a remedy for a
manufacturer’s failure to complete warranty repairs within
30 days, is a question of statutory construction that we review de
novo. We give statutory language “ ‘a plain and commonsense
meaning,’ ” and we consider a statutory provision “in its statutory
context,” not in isolation. (Kirzhner v. Mercedes-Benz USA, LLC
(2020) 9 Cal.5th 966, 972, 977 (Kirzhner).)
We begin with the pertinent statutes.
Section 1793.2 governs the duties of a manufacturer
making an express warranty. One of those duties appears in
section 1793.2, subdivision (b). It provides that where repair of
consumer goods is necessary “because they do not conform with
the applicable express warranties,” the goods must be repaired
“so as to conform to the applicable warranties within 30 days.”
(We will refer to this as the 30-day repair requirement, or
section 1793.2(b).)1
Another duty appears in section 1793.2, subdivision (d). “If
the manufacturer . . . is unable to service or repair a new motor
vehicle . . . to conform to the applicable express warranties after a
reasonable number of attempts, the manufacturer shall either
1 Section 1793.2(b) states, in pertinent part: “Where . . .
service or repair of the goods is necessary because they do not
conform with the applicable express warranties, service and
repair shall be commenced within a reasonable time by the
manufacturer or its representative in this state. Unless the
buyer agrees in writing to the contrary, the goods shall be
serviced or repaired so as to conform to the applicable warranties
within 30 days.”
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promptly replace the new motor vehicle in accordance with
subparagraph (A) or promptly make restitution to the buyer in
accordance with subparagraph (B).” (§ 1793.2, subd. (d)(2).) (We
refer to this as the replacement-restitution remedy, or
section 1793.2(d).)
Section 1794 governs a buyer’s damages. It allows any
buyer “who is damaged by a failure to comply with any obligation
under this chapter or under an implied or express warranty or
service contract” to bring an action for recovery of those damages
and other legal and equitable relief. (§ 1794, subd. (a).)
Section 1794, subdivision (b) sets the measure of a buyer’s
damages: “The measure of the buyer’s damages in an action
under this section shall include the rights of replacement or
reimbursement as set forth in subdivision (d) of 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.”
(Italics added.)
Because the jury found a violation of the 30-day repair
requirement (§ 1793.2(b)), plaintiff argues the plain language of
the just-quoted statutes entitles him to everything he paid under
his lease contract plus incidental and consequential damages
(rather than only incidental and consequential damages). He
also contends that he justifiably revoked acceptance of the car
(§ 1794, subd. (b)(1)), so that Commercial Code section 2711
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applies, permitting him to recover the price he paid for the car.
Neither of plaintiff’s contentions is correct.
First, as the language italicized above shows, section 1794,
subdivision (b) limits the replacement-restitution remedy to the
circumstances “set forth in subdivision (d) of Section 1793.2.”
Under section 1793.2(d), it is only when the manufacturer is
unable to repair the car “to conform to the applicable express
warranties after a reasonable number of attempts” that the duty
to replace or make restitution arises. (§ 1793.2(d)(2).) Further,
“[f]or the purposes of [section 1793.2(d)],” nonconformity is
defined to mean “a nonconformity which substantially impairs
the use, value, or safety of the new motor vehicle to the buyer or
lessee.” (§ 1793.22, subd. (e)(1).) The statute says nothing about
a replacement-restitution remedy for the section 1793.2(b)
violation of failing to complete repairs within 30 days.2
This conclusion is supported by Gavaldon v.
DaimlerChrysler Corp. (2004) 32 Cal.4th 1246 (Gavaldon), where
the Supreme Court held a service contract is not an express
warranty, and section 1794 does not authorize the replacement-
restitution remedy for breaches of service contracts. (Gavaldon,
at pp. 1250, 1262.) (Recall that, in addition to failure to comply
with obligations under the statute, section 1794 authorizes
damages for failure to comply with obligations “under an implied
or express warranty or service contract.” (§ 1794, subd. (a).)) In
2 Plaintiff’s car was in the shop for a total of 44 days during
the period between April 2014 and October 2015, but no single
repair visit extended for 30 days. We have not been asked to
decide whether the 30 days of failure to complete repairs must be
30 consecutive days. For purposes of this appeal, we assume
plaintiff proved the 30-day failure to repair requirement without
deciding the question.
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Gavaldon, the Supreme Court rejected the plaintiff’s contention
“that [section 1794,] subdivision (b) signifies that anyone injured
under subdivision (a) may obtain the replacement/restitution
remedy.” (Gavaldon, at p. 1262.) The court explained:
“But the statute on its face does not so read. The right to
replacement or restitution is qualified by the phrase ‘as set forth
in subdivision (d) of section 1793.2.’ It is most reasonable to
assume that this qualification means that the remedy is subject
to the provisions set forth in section 1793.2, subdivision (d)
(section 1793.2(d)), otherwise the reference to section 1793.2(d)
would be superfluous. [The plaintiff] argues in effect that only
some of the provisions of section 1793.2(d) apply, but not the
provision stating that the replacement/restitution remedy is
available only for breach of an express warranty.” (Gavaldon,
supra, 32 Cal.4th at p. 1262; id. at p. 1263 [“the legislative
history confirms that the only reasonable reading of section 1794,
subdivision (b) is that the replacement/restitution remedy applies
only if the conditions of section 1793.2(d) are met”]; see also
Kirzhner, supra, 9 Cal.5th at p. 986 [“The duty to promptly
provide restitution arises only after the manufacturer is unable
to repair the vehicle after being afforded the opportunity to make
a reasonable number of repair attempts.”].)
Here, “the conditions of section 1793.2(d)” (Gavaldon,
supra, 32 Cal.4th at p. 1263) were not met. As we have just
observed, a nonconformity for purposes of section 1793.2(d) is a
nonconformity that substantially impairs the use, value, or safety
of the new car. (§ 1793.22, subd. (e)(1).) Plaintiff would have us
construe the statute to require a replacement-restitution remedy
for failure to repair, within 30 days, a defect the jury expressly
found did not substantially impair the vehicle’s use, value or
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safety to a reasonable buyer in plaintiff’s circumstances. We see
no basis in the statute, or in sound reason, to do so.
Second, plaintiff’s theory that section 1794,
subdivision (b)(1) entitles him to restitution fares no better.
Section 1794, subdivision (b)(1) provides “[w]here the buyer has
rightfully rejected or justifiably revoked acceptance of the goods
or has exercised any right to cancel the sale,” section 2711 of the
Commercial Code “shall apply.” Section 2711 allows a buyer who
“justifiably revokes acceptance” to recover “so much of the price
as has been paid,” as well as “any expenses reasonably incurred
in their inspection, receipt, transportation, care and custody.”
(Cal. U. Com. Code, § 2711, subds. (1) & (3).) Plaintiff contends
he revoked acceptance when he asked the manufacturer to buy
back the car, and again when he filed his complaint. But the
statute requires the buyer’s revocation of acceptance be
justifiable, and here, the jury’s verdict foreclosed a finding that
revocation of acceptance would have been justifiable. (§ 1794,
subd. (b)(1).)
The jury’s verdict, finding no substantial nonconformity in
the car, makes clear it would not have been justifiable for
plaintiff to revoke acceptance, and that he had no “right to cancel
the sale.” (§ 1794, subd. (b)(1); see Cal. U. Com. Code, § 2608,
subd. (1) [“The buyer may revoke his acceptance of a lot or
commercial unit whose nonconformity substantially impairs its
value to him . . . .”].)3
3 Plaintiff argues he did not have to show he revoked
acceptance of the car “within a reasonable time” and “before any
substantial change in condition” as required under section 2608
of the California Uniform Commercial Code. This argument
misses the point. The point in this case is that plaintiff’s asserted
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In short, plaintiff was only entitled to recover damages
caused by the delay in repairing a nonconformity that did not
substantially impair the car’s use, value or safety. The trial court
correctly concluded such damages do not include the
replacement-restitution remedy under section 1793.2(d). Nor do
they include damages that are available when a buyer justifiably
revokes acceptance of goods under section 1794,
subdivision (b)(1). There was no instructional error.
revocation of acceptance was unjustified at any time, because
there was no substantial impairment of the value of the car. The
argument is wrong on the law as well. A buyer seeking the
replacement-restitution remedy of section 1793.2(d) need not
revoke acceptance of the vehicle at any time to obtain that
remedy. (Krotin v. Porsche Cars North America, Inc. (1995)
38 Cal.App.4th 294, 303.) Justifiable revocation of acceptance
under section 1794, subdivision (b)(1) is an alternate theory of
recovery, as explained in Gavaldon, and the Commercial Code’s
requirements apply to it. (Gavaldon, supra, 32 Cal.4th at
pp. 1263-1264; id. at p. 1264 [“As can readily be observed,
revocation of acceptance requires more and different actions of
the buyer than is required under section 1793.2(d).”].) Plaintiff’s
reliance on such cases as Mocek v. Alfa Leisure, Inc. (2003)
114 Cal.App.4th 402 and Music Acceptance Corp. v. Lofing (1995)
32 Cal.App.4th 610 is misplaced. Those cases involve the
remedies for breach of implied warranty, which include the right
to cancel the contract and recover amounts paid. (Mocek, at
pp. 406-407; Music Acceptance, at p. 621; see also § 1791.1,
subd. (d), § 1794; Cal. U. Com. Code, § 2711.) The jury here
found there was no breach of implied warranty.
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DISPOSITION
The judgment is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
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