Ford Motor
Filed
9/4/12 Revious v. Ford Motor CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
AARON REVIOUS et al.,
Plaintiffs and
Appellants,
v.
FORD MOTOR COMPANY,
Defendant and
Respondent.
F062211
(Super.
Ct. No. 08C0703)
APPEAL from
a judgment of the Superior Court of
Law Office
of John Derrick and John Derrick for Plaintiffs and Appellants.
Snell &
Wilmer, Mary-Christine Sungaila and Matt Bennett; Law Offices of Kevin J.
Tully and Kevin J. Tully for Defendant and Respondent.
-ooOoo-
Plaintiffs Aaron and Cobi Revious
experienced recurring engine problems with their Ford F-250 truck and, in
December 2008, filed a lawsuit against defendant Ford Motor Company under the
Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.;
Song-Beverly Act). In accordance with
its written warranty, defendant or its authorized repair facility made a number
of attempts to correct the engine problems during the warranty period. Repairs performed in March 2009 were apparently
effective, and no further repairs under the warranty were requested by
plaintiffs even though the five-year warranty continued until December
2009. In March 2010, a diagnostic test
conducted by defendant’s expert confirmed the truck was working fine at that
time. However, according to plaintiffs,
the engine was not permanently fixed. A
diagnostic test performed by plaintiffs’ expert in November 2010, shortly
before trial, indicated the truck was manifesting engine problems again. During in limine proceedings, defendant moved
to exclude the introduction of evidence relating to the November 2010
diagnostic test under Evidence Code section 352.
concluding that the risk of prejudice was substantial while the relevance of
the evidence was tenuous at best.
Additionally, when plaintiffs attempted to testify of engine symptoms
that were continuing at the time of trial, the trial court sustained
defendant’s objections. Based on the
evidence before it, the jury found that defendant or its authorized repair
facility had successfully repaired the vehicle to match defendant’s written
warranty within a reasonable number of attempts, thereby defeating plaintiffs’
Song-Beverly Act action. The trial court
entered judgment in defendant’s favor, and plaintiffs now appeal from that
judgment on the ground that the trial court erred in excluding plaintiffs’
postwarranty evidence of recurring engine problems. We conclude that plaintiffs have failed to
demonstrate the trial court’s evidentiary rulings were prejudicial and,
therefore, we sustain the judgment.
FACTS AND PROCEDURAL BACKGROUND
Plaintiffs
purchased a new Ford F-250 crew cab truck from a local Ford dealership in
December 2004. The truck had a diesel
engine, seating to accommodate plaintiffs’ entire family, and was capable of
towing recreational vehicles. The
truck’s diesel engine came with a five year or 100,000 mile warranty.
Summary of Engine Problems and Repairs
In the first three years that
plaintiffs owned the truck, they took it to a Ford dealership for repairs of
various problems under the warranty, including an oil pressure leak, check
engine light illuminating, a surge or jerk upon climbing hills, replacement of
alternator and battery, replacement of head gaskets, coolant system problems
and a lag in acceleration. Additionally,
in March 2008, the truck lost all power while climbing a hill on the way back
from a family trip to Las Vegas, and plaintiffs were forced to tow the truck
home from Barstow. According to the Ford
dealership, the source of the power loss was a faulty high-pressure oil pump
that fed the fuel injectors.
Plaintiffs’ truck began to
experience serious cranking or starting difficulties in the fourth year of
plaintiffs’ ownership. During 2008, the
truck was brought to the dealership several times for repairs when the check
engine light was illuminating and/or when the truck would have difficulty
starting or would not start at all.
Twice in December 2008, the truck had to be towed into the repair facility
because it would not start or because the engine would die after starting.
In March 2009, while plaintiffs
were in Las Vegas, the truck once again would not start and plaintiffs had it
towed to a Ford dealership in Nevada for repairs. At that point, the truck had 72,000 miles on
it. The Ford dealership replaced the
wiring harness in the engine compartment.
After this repair in March 2009, plaintiffs did not take the vehicle in
for any further repairs under the warranty, even though the warranty remained
in effect until at least December 2009.
This was because “the vehicle ha[d] somewhat been acting normal.”
Plaintiffs Assert Rights Under Song-Beverly Act
Shortly
after the March 2008 incident in which the truck lost all power and broke down
on the drive home from Las Vegas, plaintiff Aaron Revious contacted defendant’s
customer hotline and asked defendant to replace the vehicle. He was told that the vehicle did not meet the
criteria for a buyback at that time. On
December 11, 2008, after a series of incidents that year in which the truck
would not start or would die after starting, plaintiffs filed their complaint
for violation of the Song-Beverly Act.
According to the complaint, the “subject vehicle has suffered from
nonconformity(s) to warranty, including, but not limited to, defect(s) to its
engine which have manifested in the following recurrent concerns: oil leak, activation of the check engine
light, surging, slow and/or no start, coolant leak, loss of power, and rough
idle,” and said problems “have substantially impaired the vehicle’s use, value,
or safety to Plaintiffs.” The complaint
further alleged that plaintiffs had delivered the truck for repair to defendant
or its authorized repair facilities and defendant or its authorized repair facilities
“have failed to … repair the subject vehicle to warranty after a reasonable
number of attempts.” In their prayer for
relief, plaintiffs requested restitution of their financial investment in the
vehicle, along with other incidental damages and
Postwarranty Inspections
The
five-year engine warranty expired on December 12, 2009. As noted above, the last repair performed
under the warranty was in March 2009, after which the vehicle was, in plaintiff
Aaron Revious’s words, “somewhat … acting normal.” Although plaintiffs did not bring the truck
in for any further repairs under the warranty following the March 2009 repair,
plaintiffs testified they did not believe that the truck was permanently fixed,
since problems had always recurred in the past.
Also, plaintiffs continued to notice some hesitations in engine
acceleration, but the truck was functional and plaintiffs “basically just … got
fed up with dealing with all of it.”
In March
2010, approximately three months after expiration of the warranty period and
12,000 miles after the last repair in March 2009, defendant’s expert (a field
service engineer) inspected the truck, with plaintiffs’ expert observing, and
both experts agreed the truck drove normally and that no error codes showed up
on the computer diagnostic test.
Plaintiffs concede the vehicle was working fine on that day.
On November
11, 2010, shortly before trial, the subject truck was inspected by plaintiffs’
expert. At that time, plaintiffs had
driven the truck another 9,000 miles since the time of the March 2010
inspection.
title="">[2] Plaintiffs’ expert ran a computer diagnostic
test on the vehicle and reported there were error codes for lag on
acceleration, check engine light and fuel injectors. One week later, plaintiffs’ expert was
deposed concerning the test results.
Jury trial
began on November 29, 2010.
Motions In Limine
During in limine proceedings, the
trial court considered defendant’s motion to exclude evidence of the November
2010 inspection and diagnostic test under section 352.
service or repairs long after the warranty had expired would be of little if
any relevance and would likely be prejudicial or confuse the jury, particularly
when the March 2010 inspection showed the vehicle was functioning properly at
that time. Plaintiffs’ counsel responded
that the November 2010 inspection and test results showed that the vehicle’s
core defects were never permanently repaired and thus problems continued to
recur. Plaintiffs’ theory was that the
repairs amounted to a temporary “Band-Aid” which worked for a while, but then
the symptoms would come back. The trial
court agreed with defendant’s position, ruling as follows: “[P]ursuant to … section 352[,] the results
of the examination by the plaintiff’s expert o[f] the vehicle [i]n November of
2010 would be excluded under [section] 352.… [T]he relevance in the Court’s opinion is
substantially tenuous. The prejudice is
overwhelming, the confusion of the jury and the additional time that it would
take to explain these issues away require that the Court make [this] order.”
One day after the trial court
granted defendant’s motion to exclude the results of the November 2010
examination of plaintiffs’ truck, plaintiffs made a motion to exclude the March
2010 inspection and diagnostic test.
Plaintiffs argued that if the November 2010 test/inspection had to be
excluded under section 352 since it was outside the warranty period, the
same should hold true of the March 2010 test/inspection. Defendant countered the March 2010 evidence
was distinctly relevant because at that time the warranty period had only
recently ended and there “could be some arguments the warranty extended beyond
that.”
motion. Although the trial court’s
explanation for its ruling is somewhat hard to follow, it is clear that the
trial court distinguished the March 2010 test/inspection from the later
(November) evidence. The November 2010
evidence was excluded because it involved concerns about “prejudice to the
defendant and the potential confusion of the jury” (i.e., § 352
considerations) as well as “timeliness” issues.
In contrast, the trial court concluded the March 2010 test/inspection
did not suffer from those concerns and was “relevant” because it shed light on
the issue of whether the warranty was potentially extended (see fn. 3,
As a result of the trial court’s
rulings on the motions in limine, the jury was permitted to hear evidence
relating to the test/inspection conducted by defendant’s expert in March 2010,
but not the later test/inspection conducted by plaintiffs’ expert in November
2010.
Trial Testimony
Plaintiffs’
expert, Daniel Calef, testified that plaintiffs’ F-250 truck had never been
properly repaired because “there [was] no indication that the root cause and
the root problems were ever actually addressed,” and the same types of symptoms
continued to recur. He explained that he
was not surprised that there were no error codes during the March 2010
inspection of the truck: “One would
reasonably expect the [vehicle] to work right[,] at least for awhile [after the
wiring harness repair], and it is not surprising to me that … you come and you
do an inspection later on and right now the problems aren’t there, but as you
look through the history [and] this [is] what happens is problems keep
[recurring].” As an example of that
pattern, he pointed out how, after the two alternator replacements, the truck
started fine for a while but later the starting problem returned. Further, based on plaintiffs’ testimony about
how the vehicle “[was] still acting up” in ways that “[were] consistent with
its repair history,” Calef’s opinion was that the vehicle was currently in need
of repair.
Defendant’s
expert, James Reavill, testified based on his March 2010 diagnostic test,
visual inspection and test drive of plaintiffs’ truck that the repairs had been
successful; the truck was functioning properly and past warranty concerns had
been resolved. He found no indication of
“belt squeal, lack of power or any previous warranty driveability
concerns.” No error codes were present
on the computer diagnostic test and the truck performed normally in a test
drive. He reported that at the time of
the March 2010 inspection, plaintiff Cobi Revious admitted that the vehicle
“was running fine.” Reavill also testified
that in comparison to a gasoline engine, a diesel truck ordinarily has a slight
lag in acceleration after making a complete stop such as at a stop sign or
traffic light, especially in the case of a six-liter diesel engine as
here. His test drive showed the vehicle
was functioning properly (including in regard to acceleration) and it performed
comparably to other diesel trucks of this type.
At trial,
plaintiffs individually testified to some extent regarding continuing problems
with their truck, but the trial court also curtailed such testimony. Plaintiff Aaron Revious testified about a
“[h]igh pitch squealing noise when the fan clutch engages when pulling a load,”
which they were still experiencing “today,” at least intermittently. He also testified that “today” the truck
continues to have “a significant lag on acceleration, typically from a stop
sign.” In later testimony, he again
referred to the hesitation or lag in acceleration and testified that he did not
believe that the truck was permanently repaired. Plaintiffs’ counsel inquired further about
current problems with the vehicle, at which point defense counsel
objected—based in part on the “motions in limine”—and the trial court sustained
the objection. Out of the presence of
the jury, plaintiffs’ counsel asked the trial court to explain why it sustained
the objection. The trial court agreed
with plaintiffs’ counsel that plaintiffs’ testimony about the current condition
of the vehicle that they themselves experienced was “relevant,” but the trial
court did not want the plaintiffs to discuss the November 2010 inspection/test.
asked if there had ever been a time after the March 2009 repair that he did not
have problems with the vehicle. He
responded: “No, there seemed to be
always a delay from a start or a lag that was noted early on,” which was most
noticeable when “leaving a stop sign or a stoplight.”
When plaintiff Cobi Revious was
asked to specify what problems she was currently experiencing with the truck,
the trial court sustained defense counsel’s objection. It is difficult to harmonize this ruling with
the trial court’s earlier clarification that such testimony would be relevant,
particularly when no explanation is given as to why her testimony would be
unduly prejudicial or misleading to the jury.
Nonetheless, plaintiff Cobi Revious was
permitted to testify that she did not believe the truck was permanently fixed,
she did not trust the truck because of its engine problems, she and her husband
would not take trips by themselves anymore due to concerns about its
reliability, and they would not sell it because the person who bought it would
be stuck with the same problems.
Plaintiff Aaron Revious gave essentially the same testimony about how
they have changed their present driving habits due to the unreliability of the
vehicle.
Jury Verdict and Motion for New Trial
The jury’s
special verdict form asked two key questions relating to whether plaintiffs
successfully proved their Song-Beverly Act claim. The first question was: “Did the vehicle have a defect covered by the
… Warranty that substantially impaired the vehicle[’]s use, value or safety to
a reasonable buyer in [plaintiffs’] situation.”
The jury’s finding was “Yes.” The
second question was as follows: “Did
[defendant] or its authorized repair facility fail to repair the vehicle to
match the written … Warranty after a reasonable number of opportunities to do
so” The jury’s finding, in an 11-to-1
verdict, was “No.” Based on the jury
verdict, the trial court entered judgment in defendant’s favor.
Plaintiffs
moved for a new trial, contending that the exclusion of expert testimony about
the November 2010 inspection and of plaintiffs’ testimony about the current
condition of the truck was erroneous, prejudicial and required a new
trial. Defendant opposed the motion, arguing
the trial court had correctly ruled and/or no reversible error was shown. The motion was denied by operation of
law. Plaintiffs timely appealed from the
judgment.
DISCUSSION
Standard of
Review
Plaintiffs
argue the trial court prejudicially erred in excluding evidence of the November
2010 test/inspection of the truck and in limiting plaintiffs’ testimony of
continuing engine problems they experienced.
The trial court’s rulings were based on section 352, which
states: “The court in its discretion may
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will … create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” We review the trial court’s decision to exclude
evidence under section 352 under the abuse of discretion standard. (Thompson
v. County of Los Angeles (2006) 142 Cal.App.4th 154, 168.)
“Under this standard, the trial court’s ruling will not be disturbed,
and reversal of the judgment is not required, unless the trial court exercised
its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice.
[Citation.]” (
The trial court’s discretion should be exercised in conformity with the
spirit of the law and in a manner to subserve and not to impede or defeat the
ends of justice. (People v. Harris (1998) 60 Cal.App.4th 727, 736-737.)
The Trial Court Abused Its Discretion
Under section 352, a trial
court has broad discretion to exclude otherwise relevant evidence where its
probative value is substantially outweighed by the probability that its
introduction will create a substantial danger of undue prejudice. (§ 352; Thompson v. County of Los Angeles, supra, 142 Cal.App.4th at p. 171.) In the present case, the trial court excluded
the evidence of the November 2010 diagnostic test because, in the court’s view,
its relevance was “tenuous” while prejudice was “overwhelming.” For similar reasons and/or to prevent
testimony about the November 2010 diagnostic test, plaintiffs’ testimony of
their experience with continuing engine problems was curtailed in response to
defendant’s objections.
To properly evaluate whether the trial court’s evidentiary rulings may
have been an abuse of discretion, it is necessary to understand what is meant
by “prejudice” under section 352.
“Evidence is not prejudicial, as that term is used in a section 352
context, merely because it undermines the opponent’s position or shores up that
of the proponent. The ability to do so
is what makes evidence relevant.” (
998, 1008.) “‘The prejudice which …
section 352 is designed to avoid is not the prejudice or damage to a defense
that naturally flows from relevant, highly probative evidence.’ [Citations.]
‘Rather, the statute uses the word in its etymological sense of
“prejudging” a person or cause on the basis of extraneous factors. [Citation.]’
[Citation.]” (
958.) As one court helpfully summarized: “[E]vidence should be
excluded as unduly prejudicial when it is of such nature as to inflame the
emotions of the jury, motivating them to use the information, not to logically
evaluate the point upon which it is relevant, but to reward or punish one side
because of the jurors’ emotional reaction.
In such a circumstance, the evidence is unduly prejudicial because of
the substantial likelihood the jury will use it for an illegitimate purpose.” (Vorse
v. Sarasy, supra, at
p. 1009.) In other words, evidence
is unduly prejudicial where it has very little effect on the issues but
uniquely tends to evoke an emotional bias against one party and thus poses an
intolerable risk to the fairness of the proceedings. (People
v. Karis (1988) 46 Cal.3d 612,
638; Ajaxo Inc. v. E*
724 [“Evidence is substantially more prejudicial than probative … if, broadly
stated, it poses an intolerable ‘risk to the fairness of the proceedings or the
reliability of the outcome’”].)
Plaintiffs argue that the excluded evidence was relevant to the issue
of whether or not the defect was ever repaired.
We agree with plaintiffs that the evidence had some relevance on that issue, even though the remoteness in time
may suggest its probative value would be relatively slight. Thus, the key question before us is whether
introduction of this evidence could have resulted in undue prejudice within the
meaning of section 352. Plaintiffs
argue that there is nothing concerning a computer diagnostic test of a vehicle
that would tend to be inflammatory or that would result in an emotional bias or
reaction against defendant. We agree
with plaintiffs. No such prejudice was
apparent here in the sense used under section 352. Additionally, although the trial court and
defendant mainly focused on prejudice, plaintiffs further argue that the
evidence would not have resulted in a confusion of the issues or misleading of
the jury. Again, we agree with
plaintiffs. The November 2010 evidence
would have been of the same type as was introduced concerning the March 2010
diagnostic test, simply more remote in time.
Since the jury capably heard and considered other postwarranty evidence
relating to the existence or nonexistence of engine problems, there is no
reason to believe it would have been misled or confused by this particular
evidence. Moreover, as plaintiffs
correctly pointed out in their opening brief:
“If the defense had wanted to argue that the testing was too late in the
day for the defects to be considered a continuation of the old ones, it could
have made that argument to the jury. It
went to weight, not admissibility.” We
hold there was no reasonable basis for the trial court to conclude that the
probative value of the evidence was substantially outweighed by the probability
that its admission would result in undue prejudice, confusion of issues or
misleading the jury. Accordingly, the
trial court abused its discretion in excluding the evidence under
section 352.
Erroneous Evidentiary Rulings Were Not
Prejudicial
Plaintiffs contend the exclusion of
its postwarranty evidence of
recurring engine problems was prejudicial error because the evidence was
material to a main issue in the case—namely, whether defendant actually
resolved or repaired the defect.
Defendant argues that the errors, if any, were harmless because the
excluded evidence was largely cumulative and of marginal evidentiary
value. That is, the excluded evidence
would not have made a difference in the outcome. On the record before us, we agree with
defendant.
“The standard for deciding whether
the erroneous refusal to admit evidence constitutes grounds for reversal is
well-settled. A case will be reversed
for trial error only when the error results in a ‘miscarriage of
justice.’” (Loftleidir Icelandic Airlines, Inc. v. McDonnell Douglas Corp. (1984) 158 Cal.App.3d 83, 95; see Cal.
Const., art. VI, § 13; Code Civ. Proc., § 475.) Under the seminal case of
court, ‘after an examination of the entire cause, including the evidence,’ is
of the ‘opinion’ that it is reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of the error.” (Id.
at p. 836; the Watson
test.) The Supreme Court has clarified
that “‘a “probability” in this context does not mean more likely than not, but
merely a reasonable chance, more than an abstract possibility.’” (Cassim
v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800, quoting
(1994) 8 Cal.4th 704, 715.) An erroneous
exclusion of evidence will be deemed harmless or nonprejudicial (i.e., no
miscarriage of justice) if the evidence was “‘of so little materiality or value
that its admission would not have had any substantial influence on the
result,’” or it “‘would have been merely cumulative or corroborative of
evidence properly in the record.’
[Citation.]” (
(1992) 5 Cal.App.4th 234, 255; see 9 Witkin, Cal. Procedure (10th ed. 2008)
Appeal, § 431, p. 486.)
In considering whether the excluded
evidence would have affected the outcome under the Watson test, we find it helpful to briefly recapitulate what the
jury was called upon to decide and the nature of the evidence that was before
it.
Liability under the Song-Beverly Act
requires a plaintiff to prove that there was a defect in the vehicle and the
defendant/manufacturer or its authorized repair facility failed to repair the
vehicle to conform to the applicable express warranty after a reasonable number
of attempts. (Civ. Code, § 1793.2,
subd. (d)(1).) Here, the jury found by
special verdict that plaintiffs’ truck suffered from a defect “that
substantially impaired” its “use, value or safety.”
However, the jury also found that defendant was successful in repairing
the truck to conform to the express warranty in a reasonable number of
attempts. The latter finding was fatal
to plaintiffs’ Song-Beverly Act claim.
In reaching its verdict, the jury
heard extensive testimony of the history of the truck’s engine problems and the
repairs that were performed. That
testimony reflected that the truck was brought in for repairs for a variety of
complaints in the first few years of plaintiffs’ ownership, but after March
2008, the main problem (aside from an occasional “check engine light”
forwhich repairs were sought was the cranking and starting deficiency. After the March 2009 repairs concerning the
cranking and starting problem, plaintiffs did not bring the truck in for any
further repairs under the warranty.
Plaintiffs did not argue or make an offer of proof that the cranking and
starting problem ever returned, and we have found nothing in the record to
indicate a recurrence of that serious problem.
In March 2010, three months after the expiration of the warranty,
defendant’s expert inspected the truck.
The computer diagnostic test showed no error codes and the truck
performed normally in a test drive.
Defendant’s expert testified the truck was functioning fine at that time,
plaintiffs’ expert (who was present) agreed with that assessment, and plaintiff
Cobi Revious admitted to the same at the time of said inspection.
Plaintiffs
continued to drive the vehicle after the March 2009 repairs and put a
considerable number of miles on it. In
March 2009, the mileage on the truck was 72,000. By the time of the March 2010 test/inspection
of the truck by defendant’s expert, the mileage was 84,000; and by the time of
the November 2010 test/inspection by plaintiffs’ expert, the mileage was
93,000. Hence, in November 2010,
11 months after the warranty expired, the truck had been driven 9,000
miles since the March 2010 inspection and 21,000 miles since the last repair
requested under the warranty.
Against this backdrop, plaintiffs
attempted to persuade the jury that the defects were never repaired. Although the trial court sustained objections
during testimony by both plaintiffs, the jury heard testimony of continuing
issues that plaintiffs were experiencing with the truck. As noted, plaintiff Aaron Revious testified about
a “[h]igh pitch squealing noise when the fan clutch engages when pulling a
load,” which was continuing intermittently.
He also testified that the truck continued to have “a significant lag on
acceleration, typically from a stop sign.”
In later testimony, he again referred to the lag in acceleration and
commented that he did not believe that the truck was permanently repaired. On redirect, plaintiff Aaron Revious was
asked if there had ever been a time after the March 2009 repair that he did not
have problems with the vehicle. He
responded: “No, there seemed to be
always a delay from a start or a lag that was noted early on,” which problem
was most noticeable when “leaving a stop sign or a stoplight.” Although plaintiff Cobi Revious was not
permitted to testify about specific problems she currently experienced with the
truck, she was permitted to tell the jury that she did not believe the truck
was ever permanently fixed, she did not trust the truck because of concerns
about engine problems, she and her husband would not take trips by themselves
in the truck due to its lack of reliability, and they would not sell it because
the person who bought it would be stuck with the same problems.
Plaintiffs’ expert testified that
plaintiffs’ truck had never been properly repaired because “there [was] no
indication that the root cause and the root problems were ever actually
addressed,” and the same types of symptoms continued to recur. Further, based on plaintiffs’ testimony about
how the vehicle “[was] still acting up” in ways that “[were] consistent with
its repair history,” he testified that the vehicle was currently in need of
repair.
In light of the entire record, it
appears the November 2010 error codes evidence would not have affected the
outcome.
was continuing to experience a lag in acceleration and occasional squealing
when the fan clutch engaged, and the jury also heard from plaintiffs’ expert
that the root problems were never fixed.
Thus, the jury was well aware of such reported ongoing problems but
nonetheless found the defect had been repaired during the warranty period. This could only mean the jury was convinced
the defect was fixed by the March 2009 repair and that the truck remained in
good condition through the end of the warranty period to at least the time of
the March 2010 test/inspection.
Plaintiffs’ evidence of intermittent squealing sounds, lag in
acceleration and the like was plainly deemed insufficient to alter that
conclusion. The November 2010 error code
evidence was not only more of the same, but that test was conducted so long
(and so many miles) after expiration of the warranty period and the March 2010
test/inspection (in which the truck was admittedly working fine), that it was
simply too remote and tenuous to have reasonably impacted the outcome of the
case. As to the sustained objections to
plaintiffs’ testimony, it appears that elsewhere one or both plaintiffs were
permitted to inform the jury of the perceived ongoing problems with the truck;
therefore, no prejudice resulted.
In summary, although the trial
court abused its discretion in making the challenged evidentiary rulings,
rulings were prejudicial under the standard of People v. Watson,
was their burden,
title="">[9] and our own review of the record convinces us
the errors were harmless under that standard.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendant.
_____________________
Kane, J.
WE CONCUR:
_____________________
Cornell, Acting P.J.
_____________________
Franson, J.
name="_ftn1" title="">[1] Unless
otherwise indicated, all further statutory references are to the Evidence Code.
name="_ftn2" title="">[2] At
the time of the last warranty repair in March 2009, the odometer reading on
plaintiffs’ truck was 72,000 miles; by the time of defendant’s inspection in
March 2010, the mileage was 84,000; and by the time of plaintiffs’ inspection
in November 2010, the mileage was 93,000.
Thus, from the time of the last repair under the warranty until the
November 2010 diagnostic test, plaintiffs put approximately 21,000 miles on the
vehicle.
