Flyer v. Monaco Coach Corp.

Filed 12/14/07 Flyer v. Monaco Coach Corp. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Ronald L. Bauer, Judge. Motion to augment the record. Order reversed. Motion granted.

James G. Lewis for Plaintiff and Appellant.

Dawson & Dawson, Keith A. Dawson and John M. Whelan for Defendants and Respondents.

* * *

Plaintiff Mitchell Flyer appeals from denial of an order denying his posttrial motion for prejudgment interest, claiming the court erred when it found the amount awarded by the judgment against defendants Monaco Coach Corporation and McMahons RV was not liquidated. We agree and reverse with directions for the court to decide the correct amount of interest to which plaintiff is entitled and add it to the judgment.

FACTS

On January 10 plaintiff purchased a new motor home, manufactured by Monaco, from McMahons. When he was inspecting it prior to purchase, he noticed a small discoloration in the roof. The salesman told him it looked like water damage and McMahons would fix it. Plaintiff obtained a loan to pay the full purchase price of $238, 371.30. The vehicle came with a 12-month, 24,000 mile warranty.

Within a few days after the purchase the coach completely flooded during the rain, causing substantial water damage. Both McMahons and Monaco told plaintiff to return the vehicle to McMahons. When he did so, McMahons had the coach for about a week and indicated repairs had been made. Plaintiff then took the coach on a trip for five days. When he returned, shortly thereafter the coach again flooded when it rained.

When he called Monaco at the beginning of February, the earliest appointment for repair was in April, but then agreed to a sooner date. Plaintiff drove to Monacos factory in Oregon and demanded the coach be repaired. When Monaco refused, plaintiff filed this action against both defendants.

He included causes of action for violation of the Song-Beverly Consumer Warranty Act (Civ. Code,  1790 et seq.) and the Magnuson-Moss Warranty Act (15 U.S.C. 2301 et seq.), and for breach of express and implied warranties. The jury found Monaco breached the warranty by failing to repair or replace the motor home and failing to reimburse plaintiff. It determined plaintiff was entitled to the full purchase price as reimbursement and declined to deduct any amount for plaintiffs use before discovery of the defect. The jury also awarded plaintiff $40,000 as a civil penalty.

After the verdict was rendered, plaintiff filed a motion for new trial on the ground the jury had failed to award almost $29,000 in incidental damages, an issue not the subject of this appeal. He also filed a motion to recover prejudgment interest in the amount of just a little more than $39,000. The court denied both motions. As to the motion for interest, the court found the damages were not certain or able to be made certain.

DISCUSSION

Plaintiff asserts the court erred in denying his motion for prejudgment interest because the damages awarded were liquidated pursuant to Civil Code section 3287. That section provides that a party who is entitled to recover damages certain, or capable of being made certain by calculation, is entitled to interest. (Civ. Code,  3287, subd. (a).) Damages are deemed certain or capable of being made certain within the provisions of subdivision (a) of section 3287 where there is essentially no dispute between the parties concerning the basis of computation of damages if any are recoverable but where their dispute centers on the issue of liability giving rise to damage. [Citations.] [Citation.] Thus, [t]he test for recovery of prejudgment interest under [Civil Code] section 3287, subdivision (a) is whether defendant actually know[s] the amount owed or from reasonably available information could the defendant have computed that amount. [Citation.] [Citations.] (Duale v. Mercedes-BenzUSA, LLC (2007) 148 Cal.App.4th 718, 729, italics omitted.)

Under the Song-Beverly Consumer Warranty Act, where there is a breach of warranty and the dealer or manufacturer fails to repair the vehicle 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. (Civ. Code,  1793.2, subd. (d)(1).)

In denying the motion the court stated: [Plaintiff was] favored by the jury . . . about whether some debit should be taken against [the] judgment for the value of the unit during the time it was used and available to your client. I suppose it was plausible that the jury might have assessed a value for that trip to Palm Springs. . . .   [C]ertainly the defendant could think that that calculation should have been included. And the fact that it wasnt just suggests it was hard to know in advance what the jury would do or how the jury would make these calculations.

This decision is not supported by the facts or the law. Under Civil Code section 1793.2, subdivision (d)(1) an amount may be deducted from refund of the purchase price based on the buyers use prior to the discovery of the nonconformity. The evidence shows plaintiff discovered the leaks and reported them to defendants before he ever used the motor home. Thus there was no impediment to defendants determining they owed plaintiff a refund of the full purchase price. There is no evidence in the record to the contrary.

Defendants counter with the claim plaintiff did not designate the entire reporters transcript and that bars him from recovery. Relying on Estate of Fain (1999) 75 Cal.App.4th 973, they conclude that the undesignated portion of the transcript is presumed to show the absence of error. Not so.

Where no reporters transcript is provided, an order is presumed correct unless the error is on the face of the record. (Cal. Rules of Court, rule 8.163; accord Estate of Fain, supra, 75 Cal.App.4th at p. 992.) But when there is a partial reporters transcript, it is presumed the designated record includes all matters material to deciding the issues raised. (Cal. Rules of Court, rule 8.163.) CRC 8.163 thus facilitates an appeal on a partial record without risking the possibility of defeat by a presumption that the omitted proceedings would have shown no error. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) 8.28, p. 8-14.) Here the record before us supports plaintiffs position.

In addition, that plaintiff pleaded different theories of recovery in the complaint does not mean defendants did not know or were unable to calculate the amount due to plaintiff based on their refusal to repair or replace the vehicle. Moreover, the fact that the special verdict form contained a question about a potential amount of offset does not mean defendants knowledge of amount of damages due to plaintiff was actually in dispute. And Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427, on which defendants rely, is inapt, because in that case there was a genuine factual dispute as to the amount of defendants liability. (Id. at p. 436.)

As an alternative argument, defendants contend plaintiff waived his right to recover interest when he accepted full payment of the judgment amount and filed a full satisfaction of judgment. (We grant defendants motion to augment the record with the Agreement re Documents To Jury Room and the Acknowledgement of Satisfaction of Judgment.) We are not persuaded.

It is true an appellant is generally prohibited from both accepting the benefits of a judgment and challenging it because the two courses of action are inconsistent. [Citation.] An appeal is not inconsistent, however, where the appellant is simply attempting to augment the judgment and the relief sought would not jeopardize the amount already collected. [Citations.] (Heacock v. Ivorette-Texas, Inc. (1993) 20 Cal.App.4th 1665, 1670.) Here plaintiff is seeking to augment his judgment for the principal and penalty, and addition of interest would not affect the amount he has already collected.

DISPOSITION

The order is reversed and the matter remanded for the court to determine the correct amount of interest to which appellant is entitled and add that amount to the judgment. Appellant shall recover his costs on appeal.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

OLEARY, J.

MOORE, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.