Simgel Co., Inc. v. Jaguar Land Rover North America, LLC

The jury in a “lemon law” case answered special verdict

questions that determined a car manufacturer (defendant) had no

liability for breach of express warranty or for breach of the

implied warranty of merchantability. (Civ. Code, § 1790 et seq.,

the Song-Beverly Consumer Warranty Act). But there was a

mistake in the special verdict form that neither counsel nor the

court detected until long after the jury was discharged. The

verdict form did not tell the jury if they found no breach of

warranty, they should stop and answer no further questions. So

the jury went on to a subsequent question, which asked if

plaintiffs revoked acceptance within a reasonable time, and the

jury answered, “Yes.” The jury also went on to answer questions

about damages.

Judgment was entered on the special verdict, awarding

damages to plaintiffs. The clerk of the court served notice of

entry of the judgment, and 20 days later, defendant filed a

motion to vacate the judgment and enter a different judgment in

its favor, and alternatively for judgment notwithstanding the

verdict. The trial court granted defendant’s motion. Plaintiffs

appealed, and defendant filed a protective cross-appeal.

We affirm judgment for defendant.

FACTS

In May 2014, Emanuel Sasoones and his business, Simgel

Co., Inc. (plaintiffs), leased a new convertible 2014 Jaguar F-Type

automobile from Galpin Jaguar Lincoln, Inc. for use by

Mr. Sasoones’s son, Jonathan. The lease was for three years,

with a mileage allowance of 15,000 miles.

Two years later, on May 23, 2016, after about 10,000 miles,

Jonathan had the car towed to the dealer because of water

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leaking in through the roof after a carwash. (The dealer provided

a free towing service, so Jonathan did not personally take the car

to the dealer.) Jonathan also complained that, when rolling up

the driver’s and passenger’s windows, they bounced back open.

(This refers to the car’s “one-touch” feature, allowing the user to

open or close the windows by pressing and immediately releasing

the window switch, rather than pressing and holding the switch

for the entire time the window is being opened or closed.)

With respect to the convertible roof leak, the technician,

John Naylor, found the window seals were deformed, and the

bolts in the brackets that held the seals in place were “lock[ed]

too tight” at the manufacturer. He replaced the seals and, after

doing so, confirmed no leak.

With respect to the “one-touch” feature, Mr. Naylor could

not duplicate Jonathan’s complaint. But because there were now

new seals, he “just reset the windows,” recalibrating them by

holding the switch, and found “no fault afterwards. It was still

working correctly.”

According to Jonathan, after the May 2016 replacement of

the window seals, “there was no leak after that.”

In August 2016, at over 11,000 miles, Jonathan had the car

towed to the dealer a second time, again complaining the

windows bounced open when he tried to close them with the onetouch feature. The technician, Braulio Contreras, tried verifying

the complaint several times, but the windows were “operating

fully every time.” He “just cleaned up the glass, the channel,

lubed it a little bit and checked it again. Everything was good.”

Mr. Contreras testified that one can “still manually close the

window even if there is a complaint of a one-touch bounce issue.”

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Two months later, in November 2016, at almost

13,000 miles, Jonathan had the car towed in again for the same

complaint. This time, the repair order shows the technician

verified the complaint. He connected a diagnostic computer to

look for fault codes but found none. He removed the door panel,

to make sure internally everything was working properly, and

updated and programed the door modules. All electrical

connections and regular cables were operating smoothly. He

inspected and lubricated the regulators, and recalibrated the

windows. According to the repair order, the windows “work[ed]

to specs after repair.”

Four months later, in March 2017, at almost 14,000 miles,

Jonathan had the car towed in again for the same complaint.

The technician replaced the window regulators, updated the door

module software, and adjusted the glass. He verified the

windows were operating properly after he replaced the

regulators, and the shop foreman verified it as well.

In May 2017, at the end of the lease term, plaintiffs

returned the car, with mileage of 14,663.

Meanwhile, on January 4, 2017, between the third and

fourth visits to the dealer, plaintiffs filed this lawsuit. The

operative first amended complaint filed in February 2017 alleged

violations of the lemon law against defendant Jaguar Land Rover

North America, LLC. The first cause of action was based on

defendant’s failure to conform the car to express warranties and

failure to issue a refund or replacement. The second alleged a

breach of the implied warranty of merchantability, asserting the

defect “substantially reduces [the vehicle’s] safety and

performance,” and plaintiffs were entitled under the lemon law to

rescind the purchase contract. Plaintiffs alleged they were

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entitled to restitution of all money paid, and that by the

complaint they again “hereby reject[] and revoke[] acceptance of

the automobile.” Plaintiffs alleged a third cause of action against

the dealer, Galpin Jaguar Lincoln-Mercury, Inc., for negligence.

(At trial, the court granted a motion for nonsuit on the negligence

claim.)

A jury trial resulted in a special verdict finding the car did

not have a window defect covered by the written warranty that

substantially impaired use, value or safety. The verdict form

then instructed the jury to answer question 10, which asked

whether the car had a window defect in the first year of plaintiffs’

ownership that rendered it not fit for the ordinary purpose of

providing transportation. The jury answered, “No.”

After these findings, because of a mistake in the

instructions in the special verdict form following the “no” answer

to question 10 (as we will discuss, post), the jury went on to

answer other questions that concerned damages for breach of the

implied warranty of merchantability. Specifically, the jury was

asked if plaintiffs “revoke[d] acceptance within a reasonable time

after they discovered or could have discovered, the window

defect,” and answered “Yes.” The jury then answered the

question, “What are plaintiff’s recission damages?” and found

those damages were $26,023.68.

The special verdict was read and handed to counsel to

examine. Both said they had an adequate time to review the

verdict form. Plaintiffs’ counsel requested the jury be polled.

This was done. On the revocation of acceptance question, only

eight jurors confirmed their answer was “yes”; three said “no” and

one juror did not know what his or her verdict was. The court

sent the jury back to the jury room. When they returned, counsel

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examined the verdict form again and confirmed it was

unchanged. The jury was again polled on the revocation of

acceptance question, and this time all 12 confirmed that was

their verdict. After the jury was dismissed, the court asked

counsel if the clerk could enter the judgment on the verdict, and

whether counsel had “anything further on the verdict form or

otherwise by written Motion or appropriate proceeding.” Neither

counsel offered any objections.

The next day, June 8, 2018, judgment on the special verdict

was entered, awarding plaintiffs $26,023.68. That same day, the

clerk served notice of entry of judgment on the parties.

On June 28, 2018, defendant filed a motion to vacate the

judgment or, in the alternative, for judgment notwithstanding

the verdict (JNOV). Defendant argued, among other things,

there was no legal basis for the judgment because of the jury’s

factual findings that there was no window defect substantially

impairing the car’s use, value or safety, and no window defect in

the first year of ownership that rendered the car not fit for the

ordinary purpose of providing transportation. Alternatively,

JNOV was proper, defendant argued, because plaintiffs

presented no evidence the window defect existed during the first

year of the lease, so defendant’s nonsuit motion should have been

granted on the breach of implied warranty question.

Plaintiffs’ opposition contended an implied warranty is not

limited to one year; there was substantial evidence the car had

defects during the implied warranty period; a breach of implied

warranty does not require a car to be unfit for the ordinary

purpose of providing transportation; there was substantial

evidence the car did not measure up to promises made by the

manufacturer or dealer; and defendant waived any defect in the

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verdict. (There is no dispute over the jury’s verdict for the

defense on the express warranty claim.)

A few weeks later, on July 25, 2018, defendant filed an ex

parte application for relief under Code of Civil Procedure

section 473, concerned that its motion to vacate the judgment and

for JNOV had been filed a few days late. Defendant also filed an

ex parte application to shorten time for hearing on the motion to

vacate. The trial court granted both motions the same day, and

set a hearing date for August 2, 2018.

After the hearing, the trial court took the matter under

submission and later that day granted defendant’s motion, on

both alternative bases. The court found the legal basis for the

decision was “erroneous in that it is not supported by the facts of

the case because the jury did not find any substantially impairing

nonconformity and/or any defect rendering the subject vehicle

unfit for its ordinary purpose. Because of this finding, there is no

legal basis for jury to then find that the revocation had been

timely.” The court also found the original judgment was not

consistent with the special verdict, and the jury had “mistakenly

awarded damages to plaintiffs after finding no liability, for which

this Court has the authority to correct said mistake.” The court

vacated the original judgment and ordered entry of judgment for

defendant. The court also found, after viewing the evidence in

the light most favorable to plaintiffs, “there is no substantial

evidence to support the jury’s verdict in plaintiffs’ favor,” and

ordered judgment be entered in favor of defendant

notwithstanding the verdict.

Defendant served notice of entry of judgment, and plaintiffs

filed a timely notice of appeal. Defendant filed a protective crossappeal from the court’s failure to grant defendant’s motion for

8

partial nonsuit on the implied warranty claim and from the

original judgment in plaintiffs’ favor. We do not need to consider

the cross-appeal since we affirm the judgment for defendant.

DISCUSSION

Plaintiffs contend the judgment for defendant must be

reversed because (1) defendant’s motion to vacate was filed

beyond the applicable jurisdictional deadlines; (2) the jury’s

verdict was not inconsistent with the original judgment; and

(3) there was substantial evidence supporting the original

judgment. None of these contentions is correct.

1. The Jurisdictional Issue

A motion to vacate the judgment and enter a different

judgment (Code Civ. Proc., § 663) must be filed “[w]ithin 15 days

of the date of mailing of notice of entry of judgment by the clerk

of the court pursuant to Section 664.5, or service upon him or her

by any party of written notice of entry of judgment, or within

180 days after the entry of judgment, whichever is earliest.”

(§ 663a, subd. (a)(2), italics added.) The phrase we emphasize,

“pursuant to Section 664.5,” is the key to our decision that

defendant’s motion was timely. We find the clerk did not serve

notice of entry of judgment pursuant to section 664.5. (Further

undesignated statutory references are to the Code of Civil

Procedure.)

The same time deadlines to file a motion to vacate the

judgment also apply to a JNOV motion (§ 629, subd. (b), § 659,

subd. (a)(2)), and a new trial motion (§ 659, subd. (a)(2)). In the

case of a new trial motion, these time limits are jurisdictional

(Maynard v. Brandon (2005) 36 Cal.4th 364, 372), and

section 473 “does not offer relief from mandatory deadlines

deemed jurisdictional in nature.” (Maynard, at p. 372 [new trial

9

motion].) This “jurisdictional in nature” principle has also been

applied to a motion to vacate a judgment under sections 663 and

663a. (Advanced Building Maintenance v. State Comp. Ins. Fund

(1996) 49 Cal.App.4th 1388, 1392-1394.)

Here, the clerk of the court served a notice of entry of

judgment, and defendant did not file its motion to vacate the

judgment or for JNOV within 15 days. But the clerk’s notice of

entry of judgment did not start the 15-day period running,

because the clerk’s notice did not comply with explicit directions

from our Supreme Court in Van Beurden Ins. Services, Inc. v

Customized Worldwide Weather Ins. Agency, Inc. (1997)

15 Cal.4th 51 (Van Beurden).

Van Beurden held that “to qualify as a notice of entry of

judgment under Code of Civil Procedure section 664.5, the clerk’s

mailed notice must affirmatively state that it was given ‘upon

order by the court’ or ‘under section 664.5,’ and a certificate of

mailing the notice must be executed and placed in the file.” (Van

Beurden, supra, 15 Cal.4th at p. 64; ibid. [“To avoid uncertainty,

we clarify that—subject to the specified exceptions under Code of

Civil Procedure section 664.5, subdivisions (a) and (b), which

make notice by the clerk mandatory—when the clerk of the court

mails a file-stamped copy of the judgment, it will shorten the

time for ruling on the motion for a new trial only when the order

itself indicates that the court directed the clerk to mail ‘notice of

entry’ of judgment.”].)

The Van Beurden principle is recited again in Palmer v.

GTE California, Inc. (2003) 30 Cal.4th 1265, 1277 (“To be service

‘pursuant to Section 664.5’ (§§ 659, 660) the notice of entry of

judgment mailed by the clerk must ‘affirmatively state’ it is given

‘ “upon order by the court” or “under section 664.5” ’ ”;

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“[o]therwise, the time limits . . . are triggered by service on the

moving party of ‘written notice’ of the ‘entry of judgment.’

(§§ 659, 660.)”). This means a clerk’s notice of entry of judgment

must state, in so many words, that it is given “upon order of the

court” or “under section 664.5” in order to trigger the time to file

a motion to vacate the judgment or for JNOV.

Here, the clerk’s notice of entry of judgment did not

affirmatively state it was given “upon order by the court,” or

“under section 664.5.” The form served by the clerk is a Los

Angeles Superior Court multi-purpose form used for notice of

entry of judgment or dismissal or other order. In the lower righthand corner, in tiny font, there are references to section 664.5,

section 1013a (on proof of service by mail), and two court rules

(rule 8.104 on the time to appeal and another rule that has been

repealed). The citation to section 664.5 may be on the form, for

all we know, to reflect instances where notice of entry of

judgment by the clerk is mandatory, as mentioned in Van

Beurden. Whatever the reason, because the notice does not

affirmatively state it was given “upon order of the court,” or

“under section 664.5,” or anything similar, and because the

record nowhere reflects that the court ordered the clerk to serve

notice of entry of judgment, we cannot assume the court did so.

We cannot guess whether the reference to section 664.5 on

the form is meant to imply the court ordered the clerk to serve

notice of entry of judgment. “[I]n a matter involving

jurisdictional restrictions on the right to appeal, we should not

engage in ‘guesswork’ concerning whether the trial court actually

ordered the clerk to mail notice of entry of judgment.” (Van

Beurden, supra, 15 Cal.4th at pp. 62-63.) And, since neither

11

party served a notice of entry of judgment, defendant’s motion to

vacate was timely.

2. The Inconsistent Verdict Issue

Plaintiffs contend the jury’s verdict was consistent with the

judgment of liability for breach of implied warranty. We do not

agree.

A judgment may be set aside, and another judgment

entered, when there is an “[i]ncorrect or erroneous legal basis for

the decision, not consistent with or not supported by the facts,” or

when a judgment is “not consistent with or not supported by the

special verdict.” (§ 663.) Under either formulation, that is what

happened here. The original judgment rests on an erroneous

legal basis, and it is not consistent with the facts found by the

jury.

We begin with a few basic principles.

Under the lemon law, the implied warranty of

merchantability means that consumer goods “(1) Pass without

objection in the trade under the contract description. [¶] (2) Are

fit for the ordinary purposes for which such goods are

used. [¶] (3) Are adequately contained, packaged, and labeled.

[¶] (4) Conform to the promises or affirmations of fact made on

the container or label.” (Civ. Code, § 1791.1, subd. (a).) “[I]n no

event shall such implied warranty have a duration of less than

60 days nor more than one year following the sale of new

consumer goods to a retail buyer.” (Id., subd. (c), italics added.)

A buyer who is damaged by a breach of implied warranty

has two possible measures of those damages: one where the

buyer has rightfully rejected or “justifiably revoked acceptance” of

the goods (Civ. Code, § 1794, subd. (b)(1) & Cal. U. Com. Code,

§ 2711), and one where the buyer has accepted the goods

12

(Civ. Code, § 1794, subd. (b)(2) & Cal. U. Com. Code, § 2714). If

the buyer has “justifiably revoke[d] acceptance,” he may

“recover[] so much of the price as has been paid,” among other

remedies not relevant here. (Cal. U. Com. Code, § 2711,

subd. (1).) A buyer who has accepted goods may revoke

acceptance of a commercial unit “whose nonconformity

substantially impairs its value to him.” (Id., § 2608, subd. (1).) If

the buyer has accepted the goods, the measure of damages for

breach of warranty “is the difference . . . 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” (Cal. U. Com. Code, § 2714,

subd. (2)), and incidental and consequential damages also may be

recovered (id., subd. (3)).

In this case, the jury answered the only question

(question 10) concerning defendant’s liability for breach of

implied warranty in defendant’s favor—that is, the 2014 Jaguar

did not have “a window defect in the first year of plaintiffs’

ownership which rendered it not fit for the ordinary purpose of

providing transportation.” There was no other question on the

verdict form relating to whether the implied warranty was

breached. The ensuing questions related to the damages

plaintiffs would be entitled to recover if defendant had breached

the implied warranty. If defendant had breached the implied

warranty of merchantability, damages could be measured in one

of the two ways we have just described, depending on whether

plaintiffs justifiably revoked acceptance.

It is apparent to us that, after answering the question on

liability in the negative, the special verdict form should have

instructed the jury to “stop here,” and have the presiding juror

13

sign and date the verdict form. Instead, since the verdict form

did not instruct the jurors to stop, they continued, answering the

questions directed at determining damages. But there can be no

damages where there is no liability. This was a mistake that

neither counsel nor the court noticed before the jury was

discharged.

Section 663 authorizes a trial court to vacate “[a] judgment

or decree not consistent with or not supported by the special

verdict,” and enter a different judgment. (§ 663, subd. 2.) That is

what the court did here. “A trial court has the authority to

correct a mistaken verdict under section 663.” (Shapiro v.

Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722,

728-729, citing Woodcock v. Fontana Scaffolding & Equip. Co.

(1968) 69 Cal.2d 452, 456-457 (Woodcock).) “The judge has the

responsibility to interpret the verdict ‘ “from its language

considered in connection with the pleadings, evidence and

instructions.” ’ ” (Shapiro, at p. 729, quoting Woodcock, at

p. 456.)

Plaintiffs argue on appeal that question 10 “was improper

and irrelevant to the determination of liability” because, they say,

the language does not reflect the correct legal standard. They say

the appropriate question was whether the vehicle was in a “safe

condition and substantially free of defects,” a standard used in a

jury instruction given in Isip v. Mercedes-Benz USA, LLC (2007)

155 Cal.App.4th 19, 27 (Isip).) Plaintiffs say the jury’s answer to

question 10 “should be disregarded” and cannot be the basis for

setting aside the original judgment. Plaintiffs are wrong for

many reasons.

In the trial court, plaintiffs never proposed the language

they now say should have been used in the verdict form. The

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language plaintiffs proposed to use in the special verdict form,

which the trial court rejected, had no support in the evidence.

Plaintiffs objected to question 10, proposing instead that

question 10 ask, “Was the 2014 Jaguar F-Type of the same

quality as those generally acceptable in the trade?” The trial

court rejected that request for lack of any evidence on the point,

stating, among other things, that “there is no expert testimony or

other admitted or admissible testimony regarding the quality of

the subject window versus another comparison.” On appeal,

plaintiffs cite to no evidence to suggest the trial court was

mistaken on this point.

After that, plaintiffs told the court that question 10 should

ask, “Did the Jaguar F-Type measure up to the promises or facts

by the manufacturer and-or dealer?” The court rejected that

request, stating: “We don’t have a container or label, we don’t

have a comparison between this automobile window system and

any other for this model. There is no testimony regarding the

same.” Further, “We don’t have the promises or facts. That is

what I keep saying. I said it at least ten times in the last half

hour.” And, “Absolutely no testimony, to my recollection . . .

regarding [Jonathan Sasoones] testifying regarding any other

representation regarding the windows prior to lease of the

automobile or any comparison between the window system on

this particular automobile and any other of the same model year

by this manufacturer.”

And finally, plaintiffs asked that question 10 read, “Did the

2014 Jaguar F-Type have a window defect in the first year of

plaintiffs’ ownership?”—that is, omitting “which rendered it not

fit for the ordinary purpose of providing transportation.” That, of

15

course, would have been a meaningless question, completely

devoid of a standard.

In short, plaintiffs did not propose the question they now

say should have been asked, and on this record, there was no

evidence or law to support the questions they did propose.

Further, plaintiffs’ reliance on Isip for the proposition that

question 10 reflected an incorrect legal standard is misplaced.

Isip involved the defendant’s challenge to the trial court’s jury

instruction that “ ‘[f]itness for the ordinary purpose of a vehicle

means that the vehicle should be in safe condition and

substantially free of defects.’ ” (Isip, supra, 155 Cal.App.4th at

p. 23.) The defendant challenged that instruction, saying the

trial court should have instructed that the implied warranty for a

vehicle can be breached “only if [the vehicle] does not provide

transportation.” (Id. at p. 27, italics added.) Isip rejected that

contention, finding that a car in a “ ‘safe condition and

substantially free of defects’ ” was “consistent with the notion

that the vehicle is fit for the ordinary purpose for which a vehicle

is used.” (Id. at p. 27.)

Thus Isip stated: “We reject the notion that merely because

a vehicle provides transportation from point A to point B, it

necessarily does not violate the implied warranty of

merchantability. A vehicle that smells, lurches, clanks, and

emits smoke over an extended period of time is not fit for its

intended purpose.” (Isip, supra, 155 Cal.App.4th at p. 27.) The

court further pointed out the plaintiff had presented evidence the

car would not “ ‘pass without objection in the trade,’ ” adducing

evidence “that malodorous air-conditioning, a leaking

transmission, transmission hesitation, and [the plaintiff’s]

clanking brake problem were not normal for a car.” (Ibid.)

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This case is nothing like Isip. Here, unlike in Isip,

plaintiffs presented no evidence that the Jaguar was not of the

same quality as those generally acceptable in the trade. Nor was

there an evidentiary basis for asking the jury whether the car

“measure[d] up to the promises or facts by the manufacturer

and/or dealer,” as the trial court likewise found (and as we

discuss further post, in connection with the court’s JNOV ruling).

As Woodcock tells us, we interpret a special verdict “ ‘from

its language considered in connection with the pleadings,

evidence and instructions.’ ” (Woodcock, supra, 69 Cal.2d at

p. 456.) The only conceivable formulation was the one the court

used: whether the car had a window defect that rendered it “not

fit for the ordinary purpose of providing transportation.” While

that formulation might have been inadequate under other

evidentiary circumstances, such as those in Isip, there is no basis

for finding it inappropriate in this case.

Next, plaintiffs assert that when the jury went on to find

plaintiffs “revoke[d] acceptance within a reasonable time after

they discovered or could have discovered, the window defect,”

they necessarily found there was a defect that breached the

implied warranty of merchantability. That is not correct. That is

not only sheer speculation, it is contrary to the jury’s express

finding the car did not have a window defect in the first year of

plaintiffs’ ownership that rendered it not fit for the ordinary

purpose of providing transportation. (Cf. Zagami, Inc. v.

James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092 (Zagami)

[“[a] court reviewing a special verdict does not infer findings in

favor of the prevailing party”].) In any event, the mere existence

of a defect does not equate to a breach of the implied warranty of

merchantability. (See Brand v. Hyundai Motor America (2014)

17

226 Cal.App.4th 1538, 1546 (Brand) [“a new car need not ‘be

perfect in every detail’; rather, its implied merchantability

‘requires only that a vehicle be reasonably suited for ordinary

use’ ”].)

Finally, plaintiffs assert that defendant prepared the

special verdict form and failed to object before discharge of the

jury, so defendant “has waived any objection to any alleged

ambiguity in the verdict.” But defendant does not claim the

special verdict was ambiguous. Defendant claims the original

judgment was not consistent with the special verdict. In any

event, “[w]aiver is not found where the record indicates that the

failure to object was not the result of a desire to reap a ‘technical

advantage’ or engage in a ‘litigious strategy.’ ” (Woodcock, supra,

69 Cal.2d at p. 456, fn. 2.)

The mistake in the verdict form was inadvertent and went

unnoticed by both counsel and the court, despite the efforts of all

to carefully consider the verdict form before it was submitted to

the jury and to poll the jury on their verdict before they were

discharged. That it was an inadvertent mistake is evidenced by

the fact that even plaintiffs’ own proposed special verdict form,

after asking the question on liability for implied warranty

(whether the car was “of the same quality as those generally

acceptable in the trade”) told the jury, “If you answered yes, stop

here, answer no further questions, and have the presiding juror

sign and date this form.”

3. The JNOV Issue

Defendant sought JNOV in the alternative, arguing that

even if the verdict could be construed in plaintiffs’ favor, JNOV

should be entered because plaintiffs failed to produce substantial

evidence that the window defect existed during the first year of

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the lease. The trial court ordered judgment entered for defendant

on this basis as well, finding “there is no substantial evidence to

support the jury’s verdict in plaintiffs’ favor.” That ruling was

also correct.

A judgment notwithstanding the verdict must be rendered

“whenever a motion for a directed verdict for the aggrieved party

should have been granted had a previous motion been made.”

(§ 629, subd. (a).) That is the case here. Plaintiffs insist

otherwise, proffering two arguments, both incorrect.

Plaintiffs’ first argument involves the fourth factor

required under Civil Code section 1791.1 for consumer goods to

be merchantable: the goods must “[c]onform to the promises or

affirmations of fact made on the container or label.” (§ 1791.1,

subd. (a)(4).) This language is reflected in the CACI form

instruction. In this case, the instruction was modified to state

that breach of implied warranty could be established if plaintiffs

proved the Jaguar “did not measure up to the promises or facts by

the manufacturer and/or dealer.” (Italics added.) But—as we

have already seen—the trial court rejected plaintiffs’ proposal to

ask the jury that question, because there was no evidence to

support it: “no testimony regarding the same,” and “[w]e don’t

have the promises or facts.”

Plaintiffs insist there is such evidence, and point to

“promises” that Jonathan Sasoones testified about, in the form of

the owner’s manual. (The manual explains on page 55 how the

one-touch window function works (“press (or pull) the switch

briefly to open (or close) a window. Window travel can be stopped

at any time by operating the switch again”). Plaintiffs also cite

Jonathan’s testimony that the “specs” sticker on the car (listing

its features and suggested retail price) did not tell him, and

19

nobody at the dealer told him, “that the windows would not

work.” This is not evidence of promises or affirmations of fact

made on a container or label.

An owner’s manual or a “specs” sticker may be relevant to

express warranty claims, but neither has anything to do with

“promises or affirmations of fact made on the container or label”

(Civ. Code, § 1791.1, subd. (a)(4)), or with “promises or facts by

the manufacturer and/or dealer,” for purposes of establishing a

breach of implied warranty. For one thing, Jonathan “never

looked at the owner’s manual regarding window operation.” For

another, we cannot comprehend how a dealer’s failure to tell him

“the windows would not work” can be characterized as a

“promise[] or affirmation[] of fact.” (Ibid.) The implied warranty

of merchantability arises by operation of law and is a “bulwark

against fundamental defects.” (Brand, supra, 226 Cal.App.4th at

pp. 1545, 1550 [dangerous safety flaw].) It does not arise from an

owner’s manual describing how car windows work, or from

something a dealer has not said.

Plaintiffs’ second contention is that, although it is

undisputed the window defect did not manifest itself until

two years after the lease began, there was evidence the window

defect was “latent” and existed at the time of manufacture, so

that the one-year maximum duration of the implied warranty of

merchantability (Civ. Code, § 1791.1, subd. (c)) does not apply.

(See Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297,

1304 [“The implied warranty of merchantability may be breached

by a latent defect undiscoverable at the time of sale.”].)1

1 Defendant asks us to take judicial notice of the legislative

history of Civil Code section 1791.1. Defendant contends it shows

the Legislature intended the one-year maximum duration to be a

20

The evidence plaintiffs cite does not support this second

contention. They are referring to Mr. Naylor’s testimony

concerning the successful repair of Jonathan’s first complaint of a

roof leak, during the car’s first visit to the dealer, not repair of

Jonathan’s complaint about the one-touch feature (a complaint

Mr. Naylor could not duplicate). In correcting the roof leak,

Mr. Naylor found the window seals were deformed, and said the

bolts in the brackets that held the seals in place were “lock[ed]

too tight” at the manufacturer, so he “had trouble getting the

bolts out from the—whatever holds the seals in place, the . . .

bracket.” But he did so, and that repair corrected the leaking,

which never occurred again.

In short, Mr. Naylor did not testify that the tight bolts

holding the seals in place caused or could cause a defect in the

one-touch mechanism. He was asked: “And if the seals are not

put in properly, can that cause an obstruction for the windows to

bounce back down?” He replied, “It [the repair order] doesn’t say

that the seals weren’t put in properly. It says that the seals were

limitation on the time in which a latent defect may surface and

create liability, and after that period, the warrantor is no longer

responsible. We deny the request. The document defendant cites

is a letter from the staff of the bill’s sponsor, responding to a

letter from an attorney for a dealers’ association. There is no

indication the letter was communicated to the Legislature as a

whole. For that reason, it does not constitute cognizable

legislative history. (Kaufman & Broad Communities, Inc. v.

Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 30; see

id. at p. 37 [authoring legislator’s files and letters not

communicated to the Legislature as a whole do not constitute

legislative history].)

21

deformed and that the bolts that hold the bracket that hold the

seal were locked tighted [sic].”

Plaintiffs nonetheless assert that Mr. Naylor testified the

deformed seals and brackets locked too tight at manufacture

“could cause the problem with the window.” Mr. Naylor did not

testify to that. Mr. Naylor was asked, “So once the new seals are

put in and the windows are recalibrated, if they are not

calibrated correctly, would that make the window bounce back

down?” and he answered, “It’s possible, yes.” In other words, an

incorrect recalibration during a repair could cause the problem—

not deformed seals or their brackets.

In sum, the defect in the one-touch mechanism did not

occur until two years after plaintiffs leased the car, and there is

no evidence it was caused by some other defect present when the

car was manufactured. The alternative JNOV ruling was correct.

The judgment is affirmed. Defendant shall recover costs of appeal.