APPEAL from a judgment of the Superior Court of Tehama County, S. William Abel, Judge. (Retired Judge of the Colusa Sup. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed with directions. (Super. Ct. No. CI60443)
The opinion of the court was delivered by: Hoch , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Daniel Joyce sued Ford Motor Company (Ford) for violation of the refund-or-replace provision of the Song-Beverly Consumer Warranty Act (Civ. Code, §§ 1790, 1793.2, subd. (d)(2) (the Act)), arising out of Joyce's purchase of a new 2005 Ford F-250 truck.*fn2 Ford moved for non-suit at the close of Joyce's case-in-chief arguing that the truck fell outside the Act's protection because it was bought or used primarily for business purposes and had a gross vehicle weight rating of 10,000 pounds. Following a jury verdict in Joyce's favor, the trial court granted the motion and entered judgment in favor of Ford. The trial court also granted Ford's motion for directed verdict on the issue of civil penalties (§ 1794, subd. (c)), made following Ford's case-in-chief, which removed this issue from the jury's consideration.
On appeal, Joyce challenges both of these rulings. With respect to the motion for non-suit, he argues: (1) Ford's admission that the F-250 was a "new motor vehicle" within the meaning of the Act conclusively established the matter against Ford; (2) Ford did not properly disclose this as a potential defense in response to Joyce's discovery requests; and (3) sufficient evidence establishes that the F-250 qualifies as a "new motor vehicle" within the meaning of section 1793.22, subdivision (e)(2). With respect to the directed verdict motion, Joyce argues that substantial evidence supports a finding that Ford's failure to comply with the Act was "willful" within the meaning of section 1794, subdivision (c).
We conclude that the truck qualifies as a "new motor vehicle" within the meaning of the Act. We also conclude that Joyce submitted sufficient evidence of willful conduct to allow the jury to decide whether or not to award civil penalties. Accordingly, we reverse the judgment and remand the matter to the trial court with directions to reinstate the jury verdict and hold a new trial limited to the issue of civil penalties.
In September 2005, Joyce bought a new Ford F-250 truck from Corning Ford Mercury Kia for $35,323.87. The truck had a three-year, 36,000 mile warranty. Joyce, a licensed contractor, had his own excavation business and bought the truck to serve as his "work truck." The truck weighed 6,787 pounds and had a gross vehicle weight rating of 10,000 pounds. Before the truck was delivered to Joyce, Corning Ford replaced a vacuum pump on the air conditioning system to stop air from flowing out of the wrong vents.
In January 2006, Joyce received an emissions recall notice from Ford explaining that his new truck "may be releasing air pollutants which exceed California standards." The notice directed Joyce to return to the dealer to have the engine and transmission control modules reprogrammed with the latest software to enhance the performance of the fuel injection and on-board diagnostic systems, and to have the exhaust pressure sensor replaced.
The next month, Joyce brought the truck to another dealer, Novato Ford, for the recall service. Joyce was also concerned that his seatbelt would "lock up" when he tried to lean forward, the light under the hood appeared to have a short, and some screws had fallen out of the tailgate. Novato Ford performed the recall service, ordered a hood light switch and seatbelt retractor, and scheduled another service appointment to have these components replaced.
Following the recall service, Joyce immediately noticed a difference in the truck's performance. As he explained: "It didn't feel like the same truck. I hadn't had it that long, but I knew something wasn't right. . . . I would step on the gas, and there wasn't any real response." When Joyce called Novato Ford to complain, he was advised to wait until his next service appointment, and if the problem persisted, they would address it then.
About three weeks later, Novato Ford replaced the hood light switch and seatbelt retractor. The Ford emblem was also replaced. During the service appointment, Joyce told the technician about the truck's lack of power and acceleration. The technician explained that the reprogramming done to address the recall should not have affected the truck's performance. No other repairs were performed.
In March 2006, Joyce returned to Novato Ford with the same complaints. In the meantime, he had taken his family on a road trip to Southern California, and as he tried to pass another vehicle while climbing over the Tejon Pass, "the engine completely lost all the horsepower." Afraid that he was about to cause an accident, Joyce stepped on the gas pedal a couple times, which caused the horsepower to return. However, throughout the trip, the truck remained "totally sluggish." As Joyce explained the situation to the service department at Novato Ford: "Something's wrong with my truck. I don't know what it is. Now my engine is cutting out. I don't have any -- I don't have the acceleration. I don't have the horsepower. I don't have the torque. . . . Something's wrong. And now the engine is cutting out on me." Joyce also complained of a "popping" noise that sounded like "miniature backfires" coming from under the hood. Novato Ford replaced the VGT sensor, which did not remedy the situation.
A short time later, Joyce returned to Novato Ford. Instead of scheduling an appointment, Joyce went straight to the service technician who had replaced the VGT sensor, Mark Fox, and explained that the problems persisted. Fox did not have an answer, but advised Joyce to bring the truck in immediately after he experienced the loss of power. A couple weeks later, Joyce returned with the same complaints. This time, Fox took the truck for a test drive, concluded that the turbocharger needed to be replaced, and told Joyce to schedule an appointment. These unscheduled meetings with Fox were not documented.
In June 2006, Novato Ford replaced the turbocharger. This repair fixed the problem Joyce described as the engine "go[ing] completely flat," but the problems with horsepower and acceleration continued. Following the replacement, Joyce noticed an oil leak and brought the truck back to Novato Ford. Again, instead of scheduling an appointment, Joyce went straight to Fox, who assured him that the leak was "no big deal," but that he would fix it the next time the truck was there for a scheduled appointment. Joyce also told Fox that he continued to experience hesitation with respect to the truck's acceleration. Fox scanned the truck with his computer, but found nothing wrong.
About a month later, Joyce brought the truck in for another unscheduled visit with Fox. Fox again scanned the truck with his computer. But this time, he found and performed two updates on the vehicle. After these updates, the truck "ran a little bit better" and regained some of its horsepower. Joyce returned about four months later because the updates did not fix the hesitation problem. Fox was unable to locate any updates to perform on the truck. These unscheduled meetings with Fox also went undocumented.
In May 2007, Joyce returned to Novato Ford, this time because the truck's "check engine" light was on. He scheduled an appointment and informed the service advisor that he was still experiencing the hesitation problem and also wanted to have the oil leaks fixed. Novato Ford performed an update on the PCM module, which caused the "check engine" light to go out, but did nothing to address Joyce's other concerns.
In February 2008, Joyce brought his truck to Novato Ford and complained that his limited slip differential was not working. A limited slip differential "essentially helps provide traction when one wheel starts to spin or take off." Joyce first noticed a problem with the differential when he was trying to drive up a fire road on his way to a job site and the truck became stuck in the mud. After a couple unsuccessful attempts to drive out of the mud, Joyce engaged the truck's four-wheel-drive and was able to reach the job site. He did not think much of the situation until the owner of the company who had hired him arrived at the job site in a Porsche. According to Joyce, between this incident and the February 2008 service appointment, he brought the truck to Novato Ford "[a]t least a dozen" times. But because he neither scheduled an appointment nor talked to a service advisor, these visits also went undocumented.
During the service appointment, the technicians performed a series of tests and found nothing wrong with the differential. The service manager, Joe Galileo, then e-mailed Ford's field service engineer, who referred him to the technical hotline. Following this phone call, the technicians performed another test on the truck, which also revealed no problems with the differential. Not satisfied, Joyce returned home and performed his own test on the truck, placing a block under the axle so that one rear tire was on the ground and the other rear tire was an inch off of the ground. When he tried to drive off of the block, the elevated tire simply spun while the other tire remained motionless. Joyce then returned to Novato Ford and convinced Galileo to perform the same test. After making some phone calls and consulting the shop manual, the technicians were able to get the truck to drive off of the block by briefly engaging the parking brake. Galileo then explained to Joyce that according to the shop manual, when the vehicle is on an "excessively slippery surface," slight application of the parking brake would help the clutches within the differential to engage, which would enable him to get out of the situation.
Still not satisfied, Joyce called Ford's customer service number and complained about the differential and Novato Ford's handling of the situation. After a 40-minute conversation, the voice on the other end of the line explained that there was nothing he could do for Joyce, except register the complaint with Ford. At this point, Joyce threatened to file a lawsuit if Ford refused to repair his vehicle and stated: "You guys either fix it or give me my money back." The record of this phone ...