Williams v. FCA US LLC

Filed 2/27/23 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----

MELISSA A. WILLIAMS et al., C091902

Plaintiffs and Appellants, (Super. Ct. No. 17CV02617

v. ORDER MODIFYING
OPINION AND DENYING
FCA US LLC, REHEARING

Defendant and Respondent. [NO CHANGE IN JUDGMENT]

APPEAL from a judgment of the Superior Court of Butte County, Tamara L.
Mosbarger, Judge. Reversed.

Greines, Martin, Stein & Richland, Cynthia E. Tobisman, Jeffrey Gurrola; Knight
Law Group, Steve Mikhov, Roger Kirnos, Deepak Devabose; Wirtz Law, Richard M.
Wirtz, Amy R. Rotman and Jessica R. Underwood for Plaintiffs and Appellants.

Horvitz & Levy, Lisa Perrochet, Shane H. McKenzie, John A. Taylor, Jr.; Nixon
Peabody, Jennifer A. Kuenster, Leon V. Roubinian and Kristi J. Livedalen for Defendant
and Respondent.

1
THE COURT:
It is ordered that in response to the petition for rehearing filed by defendant FCA US
LLC, the opinion filed in this case on February 1, 2023, be modified as follows:
1. On page 17, the last full paragraph, beginning “Manufacturer also argues the Act,”
and the paragraph commencing at the bottom of page 17, beginning “We fail to
see” are deleted and the following paragraphs inserted in their place:

Manufacturer also argues the Act makes clear the buyer is expected to
return the vehicle to the manufacturer, relying on section 1793.23, subdivisions (c)
through (e) and our Supreme Court’s statement in Kirzhner that “ ‘buyers and
lessees are legally required to pay . . . registration renewal fees incurred prior to
the vehicle’s transfer back to the manufacturer.’ ” (Citing Kirzhner, supra,
9 Cal.5th at p. 980.) Manufacturer asserts it is clear a buyer must return the
vehicle to the manufacturer because section 1793.23 “states in four different
places that a defective vehicle is ‘accepted for restitution’ by the manufacturer.”
We find these arguments inapplicable in determining the meaning of the phrase
“the actual price paid or payable by the buyer,” as provided in the restitution
provision.

Initially, manufacturer’s reliance on Kirzhner is misplaced. Our Supreme
Court in that case did not consider whether a buyer must return a vehicle to pursue
restitution. Cases are not authority for propositions not considered. (In re
Marriage of Cornejo (1996) 13 Cal.4th 381, 388.) For this same reason, we find
no merit in manufacturer’s reliance on the first introductory sentence in Gavaldon,
as relied upon in manufacturer’s petition for rehearing, which states, “[W]hen a
manufacturer does not repair a motor vehicle to conform to an express warranty
after ‘a reasonable number of attempts,’ the buyer may opt to have the item
replaced, or may return the item and obtain restitution for its cost . . . .”
(Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1250.) Gavaldon
did not consider whether a buyer must return a vehicle in order to pursue an action
for restitution. (Ibid. [considering “whether a service contract is an express
warranty within the meaning of the Act”].)

Section 1793.23 also does not assist manufacturer. Section 1793.23,
subdivisions (c) through (e) pertain to situations in which the manufacturer or
dealer “reacquires” the defective vehicle. These provisions are inapplicable in the
situation where, as here, the manufacturer elects not to reacquire the vehicle and
the buyer is forced to seek legal intervention. Nothing in those provisions state the
buyer is entitled to restitution only if the manufacturer reacquires the defective

2
 vehicle. Indeed, as manufacturer acknowledges, Martinez held the exact opposite.
(Martinez, supra, 193 Cal.App.4th at pp. 194, 196 [a buyer need not own or
possess the defective vehicle to pursue remedies under the Act].)

In a footnote, manufacturer states: “For purposes of this case, [it] does not
challenge the holding in Martinez because that is not necessary to obtain
affirmance of the judgment. But if, contrary to Martinez, the Act were read
according to the plain language that contemplates return of the vehicle as part of
the restitution process, the question presented in this case would be moot: owners
could not pocket both the resale value and the statutory damages award as
restitution (as they attempt to do here) because their failure to return the vehicle
would preclude such an award.” Manufacturer has provided us with no basis or
argument to depart from the holding in Martinez. We do not consider
manufacturer’s new arguments raised in its petition for rehearing in that regard.
We further find no merit in manufacturer’s attempt to distinguish Martinez on the
basis that, here, “[t]here is no evidence that” buyers had “no choice but to dispose
of the vehicle . . . while a manufacturer dragged its feet in complying with the
Act.” The Martinez court’s holding was not fact specific; it was instead based on
statutory interpretation. (Martinez, supra, 193 Cal.App.4th at pp. 193-196.)

Dovetailing the forgoing argument, manufacturer further argues that
disallowing the trade-in credit would frustrate the Act’s “extensive provisions
aimed at protecting consumers who might later acquire defective vehicles as used
cars,” as discussed in Niedermeier, supra, 56 Cal.App.5th at page 1061 (rev.
granted). We disagree. It makes no sense that the labeling and notification
requirements in the Act would be promoted if we read the restitution provision to
reduce a buyer’s recovery by the amount of the trade-in value of the defective
vehicle. The defective vehicle has already been sold; the manufacturer simply
gets the benefit of reducing its restitution obligation while obviating the
responsibility it would otherwise have if it had reacquired the defective vehicle.
As aptly explained in Figueroa, such a result does not further the pro-consumer
and remedial intent behind the Act.

2. On page 20, the last two sentences of the first paragraph, beginning with “It is
further significant that a buyer” and “Thus, a buyer may sell” are deleted.

3. At the beginning of the last paragraph on page 20, after the first sentence ending
“seeks restitution under the Act,” add as footnote 9 the following footnote:

3
 9 Manufacturer invites this court to address an issue first raised in its petition for
rehearing, i.e., whether damages provisions in the Commercial Code, rather than
the Act’s restitution provision, apply when a buyer cannot or does not return the
vehicle to the manufacturer. We decline the invitation. Our review in this appeal
is limited to whether the jury erred in deducting the trade-in credit when it
calculated “the actual price paid or payable to the buyer,” as provided in the
restitution provision.

4. On page 20, the fourth sentence of the first paragraph, beginning “It is significant
the Legislature” is deleted and the following sentence is inserted in its place:

It is significant the Legislature vested the buyer with the right and power to elect
restitution in lieu of replacement. (§ 1793.2, subd. (d)(2).)

5. On page 20, in the first sentence of the first full paragraph, beginning “Under
manufacturer’s and the Niedermeier court’s interpretation,” the word “elects” is
changed to “accepts” and “instead of restitution” is removed so the sentence reads:

Under manufacturer’s and the Niedermeier court’s interpretation, if a buyer
accepts a replacement vehicle, the buyer need not pay to the manufacturer the
value he, she, or they received for the defective vehicle.

There is no change in the judgment.
Defendant’s petition for rehearing and its request for judicial notice are denied.

4
BY THE COURT:

/s/
Robie, Acting P. J.

/s/
Hull, J

/s/
Duarte, J.

5
Filed 2/1/23 (unmodified opinion)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----

MELISSA A. WILLIAMS et al., C091902

Plaintiffs and Appellants, (Super. Ct. No. 17CV02617)

v.

FCA US LLC,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Butte County, Tamara L.
Mosbarger, Judge. Reversed.

Greines, Martin, Stein & Richland, Cynthia E. Tobisman, Jeffrey Gurrola; Knight
Law Group, Steve Mikhov, Roger Kirnos, Deepak Devabose; Wirtz Law, Richard M.
Wirtz, Amy R. Rotman and Jessica R. Underwood for Plaintiffs and Appellants.

Horvitz & Levy, Lisa Perrochet, Shane H. McKenzie, John A. Taylor, Jr.; Nixon
Peabody, Jennifer A. Kuenster, Leon V. Roubinian and Kristi J. Livedalen for Defendant
and Respondent.

1
 Plaintiffs Melissa A. Williams and Geoffrey G. Williams (collectively buyers)
sued defendant FCA US LLC (manufacturer) for violation of the Song-Beverly
Consumer Warranty Act (Civ. Code, § 1790 et. seq.) 1 (Act), popularly known as the
lemon law, seeking restitution for a defective truck that was manufactured and warranted
by manufacturer. When a buyer seeks restitution from an automobile manufacturer for a
defective vehicle under section 1793.2, subdivision (d)(2)(B) (restitution provision), the
buyer is entitled to “an amount equal to the actual price paid or payable by the buyer,” as
specified. “The manufacturer must also pay for any ‘collateral charges’ [citation] and
‘incidental damages’ incurred [citation].” (Kirzhner v. Mercedes-Benz USA, LLC (2020)
9 Cal.5th 966, 969 (Kirzhner).) The manufacturer is, however, entitled to an offset for
the buyer’s use of the vehicle prior to the buyer first delivering the vehicle for repair, as
specified. (§ 1793.2, subd. (d)(2)(C).)
In this case, buyers sought restitution from manufacturer after trading in the
defective truck for another vehicle at an unrelated dealership. The parties disputed
whether manufacturer was entitled to a credit for the trade-in value of the truck in
calculating “the actual price paid or payable by the buyer” under the restitution provision.
Instead of resolving the question of statutory interpretation presented, the trial court
transmitted the question to the jury and told the parties the jury would decide, based on
the parties’ closing arguments, what should be included in “the actual price paid.”
The jury found manufacturer breached its express written warranty to buyers when
it (or its authorized repair facility) failed to repair the defects in buyers’ truck “to match
the written warranty after a reasonable number of opportunities to do so.” The jury
further found manufacturer willfully failed to promptly replace or repurchase the
defective truck and awarded buyers $46,716.54, consisting of $15,572.18 in total

1 Undesignated statutory references are to the Civil Code.

2
damages and a $31,144.36 civil penalty. The trial court subsequently denied buyers’
motion for a new trial, in which buyers argued the damages were inadequate as a matter
of law because the jury’s calculation of “the actual price paid or payable” impermissibly
deducted the $29,500 credit buyers previously received when they traded in the defective
truck for a new vehicle. 2 Buyers appeal.
The principal question presented is whether the jury impermissibly deducted the
trade-in credit when it calculated “the actual price paid or payable by the buyer,” as
provided in the restitution provision. Buyers present two arguments in this regard: (1)
the trial court prejudicially erred by modifying the jury verdict form to allow
manufacturer to seek and obtain the deduction for the trade-in value of the defective
truck; and (2) the trial court erred in denying their new trial motion. We analyze the issue
under the rubric of reviewing a new trial motion.
Although it may at first blush seem reasonable that a buyer’s restitution under the
Act should exclude a credit the buyer received for trading in the defective vehicle, we
conclude the language of the restitution provision, our Supreme Court’s prior
interpretation of the term “price” in the restitution provision, and the legislative history
indicate otherwise. We thus disagree with Niedermeier v. FCA US LLC (2020)
56 Cal.App.5th 1052 (Niedermeier), review granted February 10, 2021 (S266034), and
reach the same conclusion (under a different analysis) as Figueroa v. FCA US, LLC
(2022) 84 Cal.App.5th 708 (Figueroa). 3

2 The parties agree the jury reduced buyers’ damages award by the $29,500 trade-in
credit buyers previously received for the defective truck.
3 Our Supreme Court has granted itself an extension of time to review whether to
grant review of Figueroa, supra, 84 Cal.App.5th 708 (petn. for review pending, petn.
filed Dec. 2, 2022, time for grant or denial of review extended to Mar. 2, 2023, S277547).

3
 We reverse the judgment and the order denying the motion for a new trial and
remand the cause for further proceedings. In light of the reversal, we do not reach
buyers’ remaining claims of error regarding the denial of prejudgment interest or
application of Code of Civil Procedure section 998.
FACTUAL AND PROCEDURAL BACKGROUND
Buyers purchased a certified pre-owned truck manufactured and warranted by
manufacturer; the truck had 43,888 miles on the odometer. Buyers purchased the truck
for $54,362.48, providing a $5,000 down payment and financing $39,530.60 at a finance
charge of $9,831.88. The monthly payments on the truck were $685.59.
The purchase price included: a cash price of $37,499; $189 for a theft deterrent
tracker device; $2,832.60 in sales tax; a $15 registration charge; $795 in “GAP”
insurance (to pay off the loan in the event of a total loss of the truck); $2,499 for a service
contract; $621 in fees; and an $80 document processing charge. 4
The following jury findings are not challenged on appeal: the truck had defects
covered by a written warranty; the defects “substantially impaired the vehicle’s use,
value, or safety”; manufacturer “or its authorized repair facility” failed to repair the truck
in accordance with the written warranty “after a reasonable number of opportunities to do
so”; manufacturer willfully failed “to promptly replace or repurchase” the truck; and the
truck had been driven 19,850 miles “between the time [buyers] took possession of the
vehicle and the time when they first delivered the vehicle to [manufacturer] or its
authorized repair facility to fix the problem.”
Prior to filing suit, buyers traded the defective truck in at an unrelated dealer and
there purchased a new vehicle made by a different manufacturer. Buyers testified they
told the dealer that the truck “had been in the shop” and “[d]isclosed everything that was

4 These items total $44,530.60 (i.e., the sum of the $5,000 down payment and the
$39,530.60 financed amount).

4
wrong with it.” The new sale paperwork shows buyers owed $34,953.33 on the defective
truck. The dealer credited buyers a trade-in value of $29,500 for the truck, and buyers
rolled the remaining $5,453.33 owed on the truck into the new loan.
Pertinent to this appeal, buyers sued manufacturer for breach of express warranty
under the Act. Manufacturer served buyers with two Code of Civil Procedure section
998 offers to compromise, both of which the parties agree were rejected. When the case
proceeded to trial, manufacturer submitted a brief regarding the calculation of buyers’
damages. Manufacturer asserted it was entitled to a monetary offset based on the trade-in
value of the truck. In that vein, manufacturer submitted a proposed special jury
instruction stating: “To calculate the amount paid by the [buyers] for the subject vehicle,
do not include the trade-in value for the subject vehicle.” Buyers disagreed that
manufacturer was entitled to a monetary offset for the trade-in value of the truck and
opposed the proposed special jury instruction.
The trial court declined to give manufacturer’s proposed special jury instruction
and instead instructed buyers to modify the verdict form as to the question of damages by
changing the language in the first subpart of the damages question from asking the jury to
determine the “purchase price” of the truck to asking the jury to determine the “actual
price paid” for the truck. The trial court explained “that’s the language used in this
statute” and the change would allow the parties “to argue their position as to what the
amount actually paid was”⸺i.e., buyers could argue “the amount actually paid [was] the
purchase price” and manufacturer could argue “the amount paid [was] the purchase price
minus the trade-in value.” The trial court said: “It is not an offset. It is what you think
the actual price paid is. You can argue what you think the actual price paid is. And we’ll
throw it to the jury.” 5

5 Although we do not analyze buyers’ jury verdict argument, we note it was the trial
court’s duty to interpret the statute when the parties requested a ruling on the meaning of

5
 The trial court instructed the jury: “If you decide [manufacturer] or its authorized
repair facility failed to repair the defect after a reasonable number of opportunities, then
[buyers] are entitled to recover the amount they paid for the car including: [¶] One, the
amount paid to date for the vehicle including finance charges; [¶] Two, charges for
transportation and manufacturer-installed options; [¶] Three, sales tax, use tax, license
fees, registration fees, and other official fees.”
During closing arguments, buyers argued the actual price paid for the truck was
$37,499, as reflected in the sales contract and “[t]here [was] no offset other than the
mileage” identified on the verdict form. Buyers thus asked the jury not to offset the
$29,500 trade-in value of the truck against the purchase price of the truck, arguing
manufacturer had “been paid in full for everything [it] expected” when the truck was
sold.
Manufacturer argued buyers were not entitled “to the full purchase price of the
truck” because they received $29,500 when they traded the truck in. Manufacturer’s
counsel asserted, “That is what we call a windfall. The [A]ct is not designed t[o] bestow
a windfall on anyone. The [A]ct is designed to make the customer whole. . . . [¶] The
verdict form is clear. It asks you what was actually paid by the plaintiffs for the [truck].
And I have broken down that amount for you. That amount does not include the
[$]29,500, because they didn’t actually pay for that amount.”
The case proceeded to trial and the jury returned a verdict in favor of buyers. The
jury found manufacturer breached the express written warranty it owed to buyers. As to
damages, the jury found “[t]he actual price paid” for the truck was $17,994.82, and
buyers had incurred $554 in incidental and consequential damages. The jury found the
buyers’ “value of use” was $2,976.64 in terms of the number of miles driven before the

the restitution provision. Matters of statutory interpretation should not be delegated to
the jury, as was done here. (See Weinstein v. County of Los Angeles (2015)
237 Cal.App.4th 944, 965.)

6
vehicle was first delivered for repair. After subtracting the “value of use” amount, the
jury found buyers’ total damages to be $15,572.18. The jury further found that
manufacturer willfully failed to repurchase or replace the vehicle, awarding buyers a
$31,144.36 penalty. The trial court issued a judgment in favor of buyers in the amount of
$46,716.54.
Buyers filed a motion for a new trial, requesting “a limited new trial of the
restitution base damage amount, conditioned on [manufacturer] accepting an additur in
the amount of the trade-in credit that defense counsel argued for -- and that the jury
erroneously subtracted -- from the judgment.” Buyers explained “the jury’s finding that
[buyers] ‘actually paid’ only $17,994.82 for the vehicle shows that the jury mistakenly
applied a $29,500 trade-in credit offset” because the amount awarded was exactly $99.28
more than the damages amount advanced by manufacturer. The $99.28 coincided with
an interest charge reflected on buyers’ payment transaction history detail, which “was
subsequently zeroed out” and was mistakenly added to the award by the jury. Buyers
asserted, “Because the jury applied an impermissible offset, the damages award [was]
inadequate as a matter of law.” The trial court denied the motion. 6
The trial court awarded buyers $322.56 in postverdict prejudgment interest but
denied their request for preverdict prejudgment interest because buyers’ “damages were
not certain, or capable of being rendered certain, prior to entry of the jury’s verdict.” The
trial court also awarded buyers $78,837.50 in attorney fees and $11,351.98 in costs,
declining to award attorney fees and taxing all costs incurred after manufacturer’s

6 Buyers filed the new trial motion on February 18, 2020. The trial court issued an
order denying the new trial motion on May 26, 2020. Buyers argue the trial court did not
have jurisdiction to rule on the new trial motion and the new trial motion was denied by
operation of law pursuant to Code of Civil Procedure section 660, subdivision (c) because
the trial court failed to rule on the motion within 75 days. We do not address this
argument because it is irrelevant to the issue presented on appeal. The only salient fact is
that the new trial motion was denied.

7
January 25, 2019 Code of Civil Procedure section 998 offer to compromise because
buyers did not obtain a more favorable judgment at trial. The trial court awarded
manufacturer $17,031.26 in costs after finding the January 2019 Code of Civil Procedure
section 998 offer to compromise “was reasonable, valid and made in good faith” and
manufacturer’s “post-offer expert witness fees [were] reasonable.”
Buyers appeal, challenging various aspects of the judgment as well as the trial
court’s denial of their new trial motion. Because we find merit in buyers’ argument that
the trial court erred in denying their new trial motion and, accordingly, reverse the
judgment and remand for further proceedings, we do not address buyers’ challenges to
other aspects of the judgment.
DISCUSSION 7
A motion for a new trial based on inadequate damages should be granted where
the uncontradicted evidence demonstrates the award is insufficient as a matter of law.
(Gersick v. Shilling (1950) 97 Cal.App.2d 641, 645.) To resolve whether the jury’s
award in this case was insufficient as a matter of law, we must review de novo the
statutory interpretation question whether a buyer’s trade-in credit for the defective
vehicle forms part of the “actual price paid or payable” calculus set forth in the restitution
provision. (California Forestry Assn. v. California Fish & Game Commission (2007)
156 Cal.App.4th 1535, 1544 [we review de novo the proper interpretation of a statute as
applied to undisputed facts].) We seek to determine the Legislature’s intent and “ ‘first
examine the statutory language, giving it a plain and commonsense meaning.’ [Citation.]
We do not consider statutory language in isolation; instead, we examine the entire statute
to construe the words in context. [Citation.] If the language is unambiguous, ‘then the
Legislature is presumed to have meant what it said, and the plain meaning of the

7 Buyers’ motion for judicial notice is granted.

8
language governs.’ [Citation.] ‘If the statutory language permits more than one
reasonable interpretation, courts may consider other aids, such as the statute’s purpose,
legislative history, and public policy.’ ” (Kirzhner, supra, 9 Cal.5th at p. 972.)
“The Act ‘provides certain protections and remedies for consumers who purchase
consumer goods such as motor vehicles covered by express warranties.’ [Citation.] The
Act requires that manufacturers of consumer goods covered by express warranties
provide ‘service and repair facilities’ in the state ‘to carry out the terms of those
warranties.’ [Citation.] ‘In order to trigger the manufacturer’s service and repair
obligations, the buyer . . . “shall deliver nonconforming goods to the manufacturer’s
service and repair facility within this state. . . .” ’ [Citation.] Motor vehicles are
nonconforming for purposes of the Act if the nonconformity ‘substantially impairs the
use, value, or safety of the new motor vehicle to the buyer or lessee.’ ” (Niedermeier,
supra, 56 Cal.App.5th at p. 1064, rev. granted.)
“Section 1793.2, subdivision (d)(2) sets forth the manufacturer’s affirmative
obligation to ‘promptly’ repurchase or replace a defective vehicle it is unable to repair,
providing that if a 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 promptly replace the new motor vehicle in accordance with
subparagraph (A) or promptly make restitution to the buyer in accordance with
subparagraph (B).’ ” (Kirzhner, supra, 9 Cal.5th at p. 971.) The buyer need not own or
possess the defective vehicle in order to avail himself, herself, or themselves of these
remedies. (Martinez v. Kia Motors America, Inc. (2011) 193 Cal.App.4th 187, 194
(Martinez).) The buyer is further “free to elect restitution in lieu of replacement, and in
no event shall the buyer be required by the manufacturer to accept a replacement
vehicle.” (§ 1793.2, subd. (d)(2).)
“In the case of replacement, the manufacturer shall replace the buyer’s vehicle
with a new motor vehicle substantially identical to the vehicle replaced. . . . The

9
manufacturer also shall pay for, or to, the buyer the amount of any sales or use tax,
license fees, registration fees, and other official fees which the buyer is obligated to pay
in connection with the replacement, plus any incidental damages to which the buyer is
entitled under Section 1794, including, but not limited to, reasonable repair, towing, and
rental car costs actually incurred by the buyer.” (§ 1793.2, subd. (d)(2)(A).) When the
manufacturer replaces the vehicle, “the buyer shall only be liable to pay the manufacturer
an amount directly attributable to use by the buyer of the replaced vehicle prior to the
time the buyer first delivered the vehicle to the manufacturer or distributor, or its
authorized service and repair facility for correction of the problem that gave rise to the
nonconformity,” as specified. (§ 1793.2, subd. (d)(2)(C).)
“In the case of restitution, the manufacturer shall make restitution in an amount
equal to the actual price paid or payable by the buyer, including any charges for
transportation and manufacturer-installed options, but excluding nonmanufacturer items
installed by a dealer or the buyer, and including any collateral charges such as sales or
use tax, license fees, registration fees, and other official fees, plus any incidental damages
to which the buyer is entitled under Section 1794, including, but not limited to,
reasonable repair, towing, and rental car costs actually incurred by the buyer.” (§ 1793.2,
subd. (d)(2)(B).) When restitution is made, “the amount to be paid by the manufacturer
to the buyer may be reduced by the manufacturer by that amount directly attributable to
use by the buyer prior to the time the buyer first delivered the vehicle to the manufacturer
or distributor, or its authorized service and repair facility for correction of the problem
that gave rise to the nonconformity,” as prescribed by statute. (§ 1793.2,
subd. (d)(2)(C).)
If the fact finder finds the manufacturer’s failure to comply with any obligation
under the Act or an implied or express warranty was willful, the buyer may, except in
specified instances, be awarded, in addition to his, her, or their damages, “a civil penalty
which shall not exceed two times the amount of actual damages.” (§ 1794, subd. (c).)

10
 The Act is “strongly pro-consumer” and the “pro-consumer remedies [of the Act]
are in addition to those available to a consumer pursuant to the Commercial Code . . . and
the Unfair Practices Act [citation]. The Act ‘is manifestly a remedial measure, intended
for the protection of the consumer; it should be given a construction calculated to bring
its benefits into action.’ ” (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985,
990.)
Manufacturer argues the plain language of the restitution provision requires a
credit for the trade-in value of a defective vehicle because a buyer’s restitution does not
include any amounts recouped through a trade-in or sale of the defective vehicle.
Manufacturer relies, in part, on Niedermeier. In that case (currently pending before our
Supreme Court), the Second District Court of Appeal, Division One, considered whether
the trial court erred in denying the manufacturer’s motion to reduce the buyer’s jury
award by $19,000 to account for the trade-in value the buyer had received for her
defective vehicle when she purchased a new vehicle. (Niedermeier, supra,
56 Cal.App.5th at p. 1061, rev. granted.) The appellate court concluded the trial court
erred and reduced the damages award because, “[a]s a matter of first impression, . . . the
Act’s restitution remedy, set at ‘an amount equal to the actual price paid or payable’ for
the vehicle [citation], does not include amounts a plaintiff has already recovered by
trading in the vehicle at issue.” (Ibid.)
The Niedermeier court focused on the word “restitution” in the Act, stating it
indicated “an intent to restore a plaintiff to the financial position in which she would have
been had she not purchased the vehicle.” (Niedermeier, supra, 56 Cal.App.5th at
p. 1061, rev. granted.) The Niedermeier court reasoned that a literal reading of “the
actual price paid or payable” in the restitution provision would permit a buyer “to recover
far more” from a manufacturer than the “actual economic loss” to which the buyer would
otherwise be entitled and would disregard “the Legislature’s choice of the term
‘restitution,’ ” leading “to an unjustified windfall.” (Id. at p. 1071.) Relying on Mitchell,

11
the Niedermeier court said, just as “the Act cannot leave a plaintiff in a worse position
than when he or she purchased the vehicle, it similarly would be inimical to the concept
of restitution to leave a plaintiff in a better position, rather than merely restoring her to
the status quo ante.” (Niedermeier, at p. 1071, italics omitted, citing Mitchell v. Blue
Bird Body Co. (2000) 80 Cal.App.4th 32, 36-37.) The Niedermeier court further
reasoned that allowing a buyer to “trade in a defective vehicle in exchange for a reduction
in the price of a new car while still receiving a full refund from the manufacturer” “would
render the labeling and notification provisions [in the Act] largely meaningless, a
consequence the Legislature could not have intended.” (Niedermeier, at p. 1061.) We
are unpersuaded and disagree with the Niedermeier court’s analysis.
Kirzhner is instructive. In that case our Supreme Court considered whether
registration renewal or nonoperation fees paid annually after the initial purchase or lease
of a vehicle “are recoverable as collateral charges” under the restitution provision.
(Kirzhner, supra, 9 Cal.5th at p. 972.) The court explained, “The Act makes clear that
charges must be ‘collateral’ to the ‘price paid or payable’ to be recoverable.” (Ibid.) Our
Supreme Court thus analyzed the meaning of “price” in the restitution provision, defining
it as “ ‘[t]he cost at which something is obtained’ or ‘[t]he consideration given for the
purchase of a thing.’ ” (Id. at pp. 972-973.) The court further defined “collateral” to
mean “ ‘[a]dditional or auxiliary; supplementary; co-operating; accompanying as a
secondary fact’ or ‘[r]elated to, complementary, accompanying as a co-ordinate.’ ” (Id.
at p. 973.)
In light of these definitions, our Supreme Court explained, “Initial registration fees
are typically paid at the time of the sale or lease and are itemized as part of the total price
paid for the vehicle in the sale or lease agreement. [Citations.] By contrast, subsequent
registration renewal and nonoperation fees are not auxiliary to and do not supplement the
price paid to own or lease the vehicle. Buyers do not pay these fees to the dealer in
exchange for the vehicle. Instead, buyers renew their vehicles’ registration on an annual

12
basis (or obtain a certificate of nonoperation) and pay the associated fees to the
Department of Motor Vehicles . . . , but only so long as they continue to own or lease the
vehicle at the time the fees become due.” (Kirzhner, supra, 9 Cal.5th at p. 973.)
The buyer in Kirzhner in part argued “the phrase ‘actual price paid or payable’
indicates ‘a legislative intent to ensure that the manufacturer pays the consumer what he
actually paid in connection with the vehicle as of the time the repurchase occurs, rather
than merely what he was obliged to pay at the time of contracting.’ [The buyer] relie[d]
on Mitchell . . . , in which the court interpreted the phrase ‘ “actual price paid or
payable” ’ to include finance charges paid after the date of purchase because these
charges are amounts consumers become ‘legally obligated to pay’ at the time they buy or
lease a new car. [Citation.] [The buyer] contend[ed] that registration renewal and
nonoperation fees are akin to finance charges in that the buyer is legally obligated to pay
them; the buyer can avoid the fees by simply selling the car; and the fees are paid over
the course of several years rather than on the date of the sale or lease.” (Kirzhner, supra,
9 Cal.5th at p. 974, citing Mitchell v. Blue Bird Body Co., supra, 80 Cal.App.4th 32.)
Our Supreme Court disagreed, stating: “[The buyer’s] interpretation reads the
word ‘price’ out of the statute” because “the word ‘price’ means the cost at which an item
is obtained. The word ‘payable’ modifies the word ‘price’ and operates to acknowledge
that some buyers do not pay the full cost of the vehicle at the time of the initial purchase
or lease. It does not, however, indicate that all charges and expenses that may later be
incurred in connection with the ownership or use of the vehicle are recoverable, even if
they are not a part of and do not accompany the price of the vehicle. The finance charges
at issue in Mitchell are unlike registration renewal and nonoperation fees because a buyer
obtains financing at the time of the purchase or lease in order to cover the total cost of the
vehicle. Finance charges therefore supplement and are paid auxiliary to the price of the
vehicle.” (Kirzhner, supra, 9 Cal.5th at p. 974.) Our Supreme Court concluded,
“[R]egistration renewal and nonoperation fees are not auxiliary to and do not supplement

13
the price paid because they are not paid as part of the total cost of the vehicle and in
exchange for the vehicle.” (Id. at p. 975, italics added.)
From Kirzhner we glean the phrase “actual price paid or payable” in the restitution
provision means the cost to obtain the vehicle at the time of purchase, whether that cost is
paid at the time of purchase or payable thereafter. The subsequent trade-in value (or sale)
of a defective vehicle thus cannot form part of the “actual price paid or payable.”
We disagree with the Niedermeier court’s reasoning that the Legislature’s use of
the word “restitution” in the Act indicates an intent to import the common law meaning
of restitution into the statute, overriding a literal reading of the restitution provision.
(Niedermeier, supra, 56 Cal.App.5th at pp. 1061, 1071, rev. granted.) We have “strong
reasons to doubt” that the restitution mentioned in the restitution provision “is the plain
vanilla common law kind” rather than the narrower, more specialized concept expressly
defined in the statute. (Scholes v. Lambirth Trucking Co. (2020) 8 Cal.5th 1094, 1111.)
Although the Legislature used the word “restitution” in section 1793.2, subdivision (d), it
clearly defined that term in the restitution provision by stating it is “an amount equal to
the actual price paid or payable by the buyer,” a calculus that includes and excludes
specified costs. We only assume that the common law meaning of a word was intended
if the term has not otherwise been defined by statute. (People v. Lopez (2003) 31 Cal.4th
1051, 1060.)
The legislative history supports our conclusion that “restitution” in section 1793.2,
subdivision (d) is not the plain vanilla common law kind. Prior to 1987, the Act provided
that, “Should the manufacturer or its representative [of consumer goods] in this state be
unable to service or repair the goods to conform to the applicable express warranties after
a reasonable number of attempts, the manufacturer shall either replace the goods or
reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that
amount directly attributable to use by the buyer prior to the discovery of the
nonconformity.” (Former § 1793.2, subd. (d).) In 1987, the Legislature created an

14
exception to the foregoing provision (which remains in § 1793.2, subd. (d)(1)) for a “new
motor vehicle.” 8
The restitution provision was enacted and codified virtually unchanged from how
it was introduced in Assembly Bill No. 2057. (Assem. Bill No. 2057 (1987-1988 Reg.
Sess.) as introduced Mar. 6, 1987; see Stats. 1987, ch. 1280, § 2.) The Legislative
Counsel’s Digest in the introduced version of the bill, each subsequent amendment, and
the chaptered version of the bill stated the “bill would revise the provisions relating to
warranties on new motor vehicles to require the manufacturer or its representative to
replace the vehicle or make restitution, as specified, if unable to conform the vehicle to
the applicable express warranties after a reasonable number of attempts.” (Assem. Bill
No. 2057 (1987-1988 Reg. Sess.) as introduced Mar. 6, 1987; Assem. Amend. to Assem.
Bill No. 2057 (1987-1988 Reg. Sess.) Apr. 28, 1987; Assem. Amend. to Assem. Bill
No. 2057 (1987-1988 Reg. Sess.) May 13, 1987; Assem. Amend. to Assem. Bill
No. 2057 (1987-1988 Reg. Sess.) June 11, 1987; Sen. Amend. to Assem. Bill No. 2057
(1987-1988 Reg. Sess.) Aug. 17, 1987; Sen. Amend. to Assem. Bill No. 2057 (1987-1988
Reg. Sess.) Aug. 25, 1987; Sen. Amend. to Assem. Bill No. 2057 (1987-1988 Reg. Sess.)
Sept. 4, 1987; Assem. Bill No. 2057, approved by Governor, Sept. 28, 1987 (1987-1988
Reg. Sess.).)
The same “as specified” language was used in two committee reports and the
summary digest to describe the proposed remedies in the bill. (Sen. Com. on Judiciary,
Rep. on Assem. Bill No. 2057 (1987-1988 Reg. Sess.) as amended Aug. 17, 1987, p. 2;
Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Assem. Bill No. 2057 (1987-1988
Reg. Sess.) as amended Sept. 4, 1987, p. 1; Legis. Counsel’s Dig., Assem. Bill No. 2057
(1987-1988 Reg. Sess.) Stats. 1987, ch. 1280, Summary Dig., p. 457.) Several committee

8 As noted post, the meaning of this phrase is currently pending before our Supreme
Court; the application of this phrase is not at issue in this appeal.

15
reports also stated the bill specified what would be included in the replacement and
“refund” options and then identified and discussed the specific language as to the
proposed restitution provision. (Assem. Com. on Governmental Efficiency and
Consumer Protection, Rep. on Assem. Bill No. 2057 (1987-1988 Reg. Sess.) as amended
Apr. 28, 1987, p. 2; Sen. Com. on Judiciary, Rep. on Assem. Bill No. 2057 (1987-1988
Reg. Sess.) as amended Aug. 17, 1987, p. 4; Sen. Rules Com., Off. of Sen. Floor
Analyses, Rep. on Assem. Bill No. 2057 (1987-1988 Reg. Sess.) as amended Sept. 4,
1987, p. 3.) And, finally, the State and Consumer Services Agency, in its enrolled bill
report, explained: “The present law also does not specify what costs are included when
awarding restitution or replacement. Restitution or replacement awards under current
practice often do not make the buyer ‘whole’ (i.e., compensate him or her for expenses
such as sales tax, license and registration fees, and towing or rental car costs). [¶] The
calculation of the offset for the buyer’s use prior to discovering the defect is a major
source of disagreement between buyers and manufacturers. A frequent complaint is that
manufacturers seek reimbursement equal to the offset for use of commercial rental cars,
which would be excessive and unfair to the buyer.” (State and Consumer Services
Agency, Enrolled Bill Rep. on Assem. Bill No. 2057 (1987-1988 Reg. Sess.) Sept. 25,
1987, pp. 2-3.)
The legislative history indicates the Legislature wanted to specify how restitution
awards had to be calculated as to defective vehicles. As the Jiagbogu court appropriately
noted: “Section 1793.2, subdivision (d)(2)(C), and [subdivision] (d)(2)(A) and (B) to
which it refers, comprehensively addresses replacement and restitution; specified
predelivery offset; sales and use taxes; license, registration, or other fees; repair, towing,
and rental costs; and other incidental damages. None contains any language authorizing
an offset in any situation other than the one specified. This omission of other offsets
from a set of provisions that thoroughly cover other relevant costs indicates

16
legislative intent to exclude such offsets.” (Jiagbogu v. Mercedes-Benz USA (2004)
118 Cal.App.4th 1235, 1243-1244.)
Mitchell does not dictate a different result. In that case, “the issue was whether the
manufacturer, in making restitution to the purchaser, had to reimburse the purchaser’s
finance charges. In answering the question in the affirmative, the Court of Appeal stated
that the remedy was intended to restore the status quo, that is, make ‘ “complete relief,
including restitution of benefits . . . and any consequential damages to which [the
purchaser] is entitled . . . .” ’ ” (Martinez, supra, 193 Cal.App.4th at p. 199.) Mitchell
has no application to the issue in this case. The Mitchell court used the general intent
behind common law restitution to bring the Act’s pro-consumer remedial “ ‘benefits into
action.’ ” (Murillo v. Fleetwood Enterprises, Inc., supra, 17 Cal.4th at p. 990.) Here, in
contrast, manufacturer seeks to use the equitable common law doctrine of restitution to
defeat the plain language of the restitution provision. (Jiagbogu v. Mercedes-Benz USA,
supra, 118 Cal.App.4th at p. 1244 [“principles of equity [cannot] be used to avoid a
statutory mandate”].)
Manufacturer also argues the Act makes clear the buyer is expected to return the
vehicle to the manufacturer, relying on section 1793.23, subdivisions (c) through (e).
This argument dovetails with manufacturer’s further argument that disallowing the trade-
in credit would frustrate the Act’s “extensive provisions aimed at protecting consumers
who might later acquire defective vehicles as used cars,” as discussed in Niedermeier,
supra, 56 Cal.App.5th at page 1061 (rev. granted).
We fail to see how the labeling and notification requirements with regard to
reacquired vehicles assist in analyzing the restitution provision because the subdivisions
relied upon by manufacturer focus on what the manufacturer or dealer must or cannot do
when it reacquires a defective vehicle from the buyer; the subdivisions impose no
affirmative obligation on the buyer to return the vehicle. As Martinez, supra,
193 Cal.App.4th at page 196 explained, while other states require a buyer to return the

17
defective vehicle to the manufacturer to receive a refund, reimbursement, or restitution
under their respective automobile lemon laws, “[s]tatutorily, California has no such
requirement.” It further makes no sense that the labeling and notification requirements in
the Act would be promoted if we read the restitution provision to reduce a buyer’s
recovery by the amount of the trade-in value of the defective vehicle. The defective
vehicle has already been sold; the manufacturer simply gets the benefit of reducing its
restitution obligation while obviating the responsibility it would otherwise have if it had
reacquired the defective vehicle. Such a result does not further the pro-consumer and
remedial intent behind the Act.
In Figueroa, supra, 84 Cal.App.5th at page 710, the buyer was forced to sell a
defective truck and received a little more than $3,000 over the amount owed on the loan
to purchase the truck. Manufacturer asserted it was entitled to “a credit for the $3,000
[the] plaintiff received on the loan.” (Ibid.) The Second District Court of Appeal,
Division Six disagreed. (Ibid.) The Figueroa court noted the buyer’s “windfall” of
which manufacturer complained was “the direct result of [manufacturer’s] willful
violation of the . . . Act.” (Id. at p. 713.)
The Figueroa court was unmoved by manufacturer’s argument “that if the owner
of a defective vehicle is encouraged by a windfall to sell a defective vehicle on the open
market, the purchaser of the vehicle will not receive the protections afforded by the . . .
Act.” (Figueroa, supra, 84 Cal.App.5th at p. 713.) The Figueroa court responded:
“[Manufacturer’s] concern for those who purchase defective vehicles on the open market
without the protections afforded by the . . . Act is admirable. But when confronted with
the duty to reacquire Figueroa’s defective vehicle and provide such protections to a
subsequent purchaser, it refused to do so.” (Ibid.) In the Figueroa court’s view, “it is
[manufacturer], and not the vehicle’s owner, who undercuts the [A]ct’s labeling and
notification requirements by refusing to repurchase the vehicle as required by the [A]ct.

18
The labeling and notification requirements only apply where the manufacturer replaces or
repurchases the vehicle, something [manufacturer] has refused to do.” (Id. at p. 714.)
The Figueroa court continued: “As this case and Niedermeier show,
[manufacturer] operates in open defiance of the . . . Act. It considers promptly
repurchasing, repairing, labeling as a lemon and selling the vehicle at a deep discount
with a one-year warranty, a losing proposition. It would much rather force the owner of a
defective vehicle to sell it on the open market, or trade it in without a label or warning,
and use the cash back on trade value as an offset. Niedermeier encourages
[manufacturer] to do just that. We decline to follow Niedermeier, although in some cases
the owner of a vehicle receives a windfall. [Manufacturer] could have avoided this by
complying with the law.” (Figueroa, supra, 84 Cal.App.5th at p. 714.)
We agree with the Figueroa court’s assessment that manufacturer is the one who
undercuts the labeling and notification provisions of the Act when it declines to, refuses
to, or does not reacquire the defective vehicle after the buyer complies with his, her, or
their obligation under the Act to deliver the defective vehicle to manufacturer or its
authorized representative. We further agree that manufacturer seeks to benefit by
receiving a credit against its restitution obligation under the Act rather than reacquiring
the vehicle. “Interpretations that would significantly vitiate a manufacturer’s incentive to
comply with the Act should be avoided.” (Jiagbogu v. Mercedes-Benz USA, supra,
118 Cal.App.4th at p. 1244.) Crediting the manufacturer with the trade-in value of or
sale proceeds received for the defective vehicle to reduce the buyer’s remedy under the
restitution provision would create a disincentive to reacquire or promptly replace or
provide restitution for a defective vehicle. Such an interpretation would, in essence,
reward manufacturer for declining or not offering to reacquire the vehicle. We decline to
interpret the Act in that manner.
We believe our plain reading of the restitution provision is reasonable considering
the duo of remedies available to the buyer of a defective vehicle. We see no distinction

19
(nor does manufacturer) between a buyer receiving a trade-in credit, as here, or sale
proceeds, as in Figueroa. Yet, the “actual price paid or payable” language is located only
in the restitution provision; it is absent from the replacement provision in section 1793.2,
subdivision (d)(2)(A) (replacement provision). It is significant the Legislature vested the
buyer with the right and power to elect between the duo of remedies. (§ 1793.2,
subd. (d)(2).) It is further significant that a buyer need not own, possess, or return the
defective vehicle in order to avail himself, herself, or themselves of these remedies.
(Martinez, supra, 193 Cal.App.4th at pp. 194, 196.) Thus, a buyer may sell the defective
vehicle and still seek restitution or a replacement vehicle.
Under manufacturer’s and the Niedermeier court’s interpretation, if a buyer elects
a replacement vehicle instead of restitution, the buyer need not pay to the manufacturer
the value he, she, or they received for the defective vehicle. That is because the
replacement provision does not contain the “actual price paid or payable” language. If,
on the other hand, a buyer elects the restitution remedy, the buyer must forego the value
the buyer received for the defective vehicle as part of his, her, or their damages. Nothing
in the Act or its legislative history indicates the Legislature would have hidden such an
important financial difference between the two remedies in the words “actual amount
paid or payable” in the restitution provision. “ ‘The Legislature “does not, one might say,
hide elephants in mouseholes.” ’ ” (Jones v. Lodge at Torrey Pines Partnership (2008)
42 Cal.4th 1158, 1171.)
It is not lost upon us that, in the absence of any other applicable statutes or
doctrines that may provide manufacturer with the relief it requests (something we do not
consider), a buyer may receive a financial windfall, as manufacturer puts it, when the
buyer trades in or sells a defective vehicle and subsequently seeks restitution under the
Act. That is, however, a policy consideration for the Legislature. We are tasked only
with analyzing the legal issue presented on appeal, which is to interpret the “actual price
paid or payable” language in the restitution provision.

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 Finally, manufacturer asserts buyers were not prejudiced by the jury’s verdict
because they could not have recovered more “as a matter of law” in the event of a retrial.
(Boldface omitted.) Manufacturer argues that, if buyers “obtain the new trial they seek,
they will recover less than the existing judgment, because they will confront the defense
that any claim for restitution or penalties against a manufacturer is available only to the
owner of a ‘new motor vehicle,’ not to used car purchasers such as themselves.” (Citing
Rodriguez v. FAC US, LLC (2022) 77 Cal.App.5th 209, review granted July 13, 2022,
S274625.) Rodriguez is, however, pending before our Supreme Court and thus
constitutes only persuasive authority and “has no binding or precedential effect.” (Cal.
Rules of Court, rule 8.1115(e)(1).) Rodriguez accordingly does not establish a lack of
prejudice.
For the foregoing reasons, we conclude the jury inappropriately and prejudicially
deducted the $29,500 trade-in value of the defective vehicle from the buyers’ statutory
restitution award, and thus the damages awarded were inadequate as a matter of law.

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 DISPOSITION
The judgment and the order denying the motion for a new trial are reversed and
the cause remanded for further proceedings. Buyers shall recover their costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1)-(2).)

/s/
Robie, Acting P. J.

We concur:

/s/
Hull, J.

/s/
Duarte, J.

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