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Erik V. Kreizenbeck et al v. Dan Gamel's Rocklin Rv Center

April 15, 2011

ERIK V. KREIZENBECK ET AL., PLAINTIFFS AND APPELLANTS,
v.
DAN GAMEL'S ROCKLIN RV CENTER, DEFENDANT AND RESPONDENT.



(Super. Ct. No. SCV21063)

The opinion of the court was delivered by: Hoch , J.

Kreizenbeck v. Dan Gamel's Rocklin RV Center

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 this action for breach of express and implied warranties in the sale of a Fleetwood travel trailer, plaintiffs Erik V. Kreizenbeck and Rikki N. Kreizenbeck appeal from summary judgment (Code Civ. Proc., § 437c) entered in favor of defendant Dan Gamel's Rocklin RV Center (Gamel), the retailer that sold plaintiffs the trailer. Plaintiffs' principal contention on appeal is that delamination (bubbling paint) on the exterior of the trailer constituted a breach of express and implied warranties entitling plaintiffs to rescind or revoke the purchase under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.*fn1 (the Act)) because, even though the delamination problem was fixed, the trailer was out of service for a long time. We affirm the judgment.*fn2

SUMMARY JUDGMENT STANDARDS

To obtain summary judgment, a defendant must show that it has a complete defense to the claim or that the plaintiff cannot establish a necessary element of the claim. (Code Civ. Proc., § 437c, subd. (p).) If the defendant meets that burden, the burden shifts to the plaintiff to show a triable issue of material fact as to that element or defense. (Ibid.) "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." (Code Civ. Proc., § 437c, subd. (c).)

The burden of persuasion remains with the party moving for summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 861.) "When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true (id. at p. 851), or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff 'does not possess and cannot reasonably obtain, needed evidence.' (Id. at p. 854.) We review the record and the determination of the trial court de novo. [Citation.]" (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.)

"'First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party's showing has established facts which negate the opponent's claims and justify a judgment in movant's favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. . . .'" (Waschek v. Dept. of Motor Vehicles (1997) 59 Cal.App.4th 640, 644.)

THE PLEADINGS

On May 25, 2007, plaintiffs filed against Gamel and Fleetwood a "COMPLAINT FOR DAMAGES BASED ON VIOLATION OF [THE] ACT; RESCISSION AND RESTITUTION; REVOCATION OF ACCEPTANCE." Plaintiffs alleged three "causes of action" labeled: (1) violation of the Act; (2) rescission and restitution based on breach of express and implied warranties and failure of consideration; and (3) revocation of acceptance based on breach of express and implied warranties and failure of consideration.

As noted by Gamel, plaintiffs' three "causes of action" set forth a single cause of action for return of the trailer's purchase price under three related theories of recovery stemming from the express and implied warranties. "'A cause of action consists of (1) a primary right possessed by the plaintiff and a corresponding primary duty imposed upon the defendant, and (2) a delict or wrong committed by the defendant which constitutes a breach of such primary right and duty. [Citation.]'" (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364, italics omitted.) "[I]f a plaintiff states several purported causes of action which allege an invasion of the same primary right he has actually stated only one cause of action." (Ibid.) However, "the phrase 'cause of action' is 'often used indiscriminately to mean what it says and to mean counts which state differently the same cause of action, . . .' [Citations.]" (Slater v. Blackwood (1975) 15 Cal.3d 791, 796.)

The first count, for violation of the Act, alleged that on March 11, 2006, plaintiffs purchased from Gamel a travel trailer manufactured by Fleetwood -- a 2006 Gear Box LSV 335FS -- for a purchase price of $82,663. The trailer came with an express written warranty undertaking to preserve or maintain the utility or performance of the motor home*fn3 and an implied warranty of merchantability (fitness for ordinary purposes) and fitness for a particular purpose. Plaintiffs discovered the trailer was "defectively manufactured, designed or assembled" and attempted to act on the warranties. In March 2007, defendants violated the Act and the express and implied warranties, in that they "failed to repair the following complaint(s) within 30 days and after a reasonable number of attempts, includ[]ing but not limited to: door side sidewalls fiberglass is delaminating." Plaintiffs sought "damage[s]" of $82,663 (the purchase price), plus a civil penalty of double the actual damages, plus attorney fees.

The second count, for rescission and restitution against Gamel based on breach of the express and implied warranties and failure of consideration, alleged, "Despite numerous demands by Plaintiff to do so, Defendant FLEETWOOD . . . has failed and refused to perform the conditions of their warranties with Plaintiffs, in that they have failed to repair the subject trailer so that it is in a drivable condition even after a reasonable number of attempts at repair."

The third count, against Gamel for revocation of acceptance based on breach of express and implied warranty and failure of consideration, alleged, "Despite numerous demands by Plaintiffs to do so, Defendant FLEETWOOD . . . has failed and has refused to perform the conditions of their warranty with Plaintiffs, in that they have failed to repair the subject trailer so that it is in a drivable condition even after a reasonable number of attempts at repair."

Defendant filed an answer denying the allegations.

THE SUMMARY JUDGMENT MOTION

On January 18, 2008, defendants (Gamel and Fleetwood) filed a motion for summary judgment or summary adjudication, on the grounds that plaintiffs could not establish any breach of the express or implied warranty allowing them to rescind the contract or revoke acceptance.

Defendants asserted as undisputed facts:

On March 11, 2006, plaintiffs bought the trailer from Gamel. It came with a one-year express warranty, warranting the trailer "including the structure, plumbing, heating and electrical systems, all appliances and equipment installed by the manufacturer" to be "free from manufacturing defects in material or workmanship." The express warranty also said, "By agreement with the manufacturer, the dealer is obligated . . . to repair or replace any parts necessary to correct defects in material or workmanship."

In November 2006, plaintiffs brought the trailer to Gamel, complaining about delamination on one exterior wall, screws missing from the ceiling fan, dents in refrigerator door panels, a discolored mini-blind on the window, and a loose cabinet. In December 2006, Gamel told plaintiffs the trailer was ready, except for the delamination problem, which needed to be fixed at a Fleetwood facility. Plaintiffs left the trailer with Gamel. In February 2007, Fleetwood transported the trailer to their facility in Rialto. In March 2007, the trailer was returned to Gamel. However, plaintiffs did not pick up the trailer until May 2007. Everything was fixed, except that the missing screws in the ceiling fan were not replaced. Plaintiffs complained about two new items (regarding an exterior fuel pump and a broken rubber stop) but never reported these items to Gamel or Fleetwood within the one-year warranty period.

Defendants submitted deposition testimony of Erik Kreizenbeck, acknowledging that all reported problems were fixed when he picked up the trailer in May 2007, except for the missing screws in the ceiling fan. He acknowledged ...


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