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Donlen v. Ford Motor Co.

California Court of Appeals, Third District, Calaveras

June 14, 2013

GREG DONLEN, Plaintiff and Appellant,
FORD MOTOR COMPANY, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Calaveras County, No. CV35184 Thomas A. Smith, Judge. (Retired judge of the Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Lemon Law Associates of California and Susan A. Yeck; Rosner Barry & Babbitt and Hallen D. Rosner for Plaintiff and Appellant.

Bowman and Brooke and Robert S. Robinson; Law Office of Kevin J. Tully and Kevin J. Tully; Snell & Wilmer and Mary-Christine Sungaila for Defendant and Respondent.


Plaintiff Greg Donlen appeals from the trial court’s grant of a new trial following a jury verdict awarding him damages in his lemon law action against defendant Ford Motor Company (Ford). He claims the court committed no error at trial and thus had no jurisdiction to grant a new trial on that basis. Ford also appeals, asserting that if we reverse the new trial order, we should reverse the judgment on the basis of lack of substantial evidence and evidentiary error. We conclude the trial court erred in granting a new trial, and we reverse its order. We also affirm the judgment and reject Ford’s appeal.


Plaintiff purchased a new Ford F-450 Super Duty truck in July 2004. The truck was covered by an express limited warranty for a period of three years or 36, 000 miles, whichever came first.

1. Repair history

Plaintiff took the truck to a dealer four times during the warranty period to have it repaired or checked for problems. The first warranty repair, in August of 2005 at 11, 618 miles, occurred pursuant to a recall notice plaintiff received from Ford. The recall concerned the truck’s transmission. The notice stated “[t]he TorqShift transmission in your vehicle may have a low/reverse gear set pinion shaft(s) that may become loose, causing metallic particle contamination. If this condition occurs, it may lead to harsh/slipping shifts and/or harsh/delayed forward/reverse engagements.”

For this repair, the technician removed and disassembled the truck’s transmission. He determined a planetary pin, a pin used to hold a gear in place, had come out. He made the repair as required by the recall, and he reassembled and installed the transmission.

The truck’s second visit to the dealer during the warranty period occurred approximately two months later in October 2005 at 13, 916 miles. This visit was also the result of a recall notice. The recall concerned emission-related components in the engine. An exhaust pressure sensor was experiencing corrosion, and the onboard diagnostic system may not have been properly monitoring the performance of the emissions control systems.

For this repair, the technician installed a newly designed exhaust pressure sensor and reprogrammed various control modules, including the transmission control module, to enhance the function of the onboard diagnostic and other systems. The transmission control module was reprogrammed to reflect and coordinate with updates made in the power control module, the main computer on the vehicle.

The truck’s third visit to the dealer during the warranty period occurred one month later in November 2005 at 15, 670 miles. Plaintiff complained that when he was driving downhill and he put the truck into tow/haul mode, it felt like the transmission went into neutral before it would downshift, and it would not upshift.[1] He said this happened whether or not he was pulling a trailer. On one occasion, when he came to a stop, the transmission went into neutral and would not accelerate for a moment before it engaged.

The technician and the service manager took the truck on road tests to see if they could duplicate the problem with the truck in tow/haul mode. They could not, and they found no problem with it.

The truck’s fourth visit to the dealer during the warranty period occurred approximately four months later in March 2006 at 17, 778 miles. Plaintiff complained the truck made what he described as a “loud thunk” when the transmission engaged in reverse. He also complained the transmission intermittently acted like it wanted to go into neutral when it was in tow/haul mode, or it intermittently engaged in tow/haul mode by itself.

The technician verified plaintiff’s concerns. The transmission had “extreme/harsh reverse and forward engagement.” It also intermittently would not upshift from first gear to second gear. After replacing a shift solenoid, [2] the technician tested the truck and found it still had the intermittent shift problem from first to second gears. He replaced the power control module. That fixed the tow/haul problem somewhat, but he noticed the truck still intermittently delayed when shifted into reverse. Ultimately, based on directions he received from Ford, the technician removed and tore down the transmission. He found that a lip seal was coming apart on the reverse piston drum. He replaced the drum and reassembled and installed the transmission. His road test of the truck was successful.

After this last repair, plaintiff did not hear the thunk noise. Plaintiff made no complaints to Ford up to and beyond the limited warranty’s expiration. The limited warranty expired no later than July 2007, some 16 months after the last warranty repair was performed.

In July 2008, at 45, 121 miles, plaintiff took his truck to the dealer. At this point, plaintiff’s truck had been out of warranty for at least one year, and plaintiff had driven it for 28 months and over 27, 000 miles since the last repair. On this occasion, plaintiff complained the truck once again made a thunk noise and he was unable to put it into reverse. He also stated the tow/haul light was flashing. He had experienced these problems for three weeks prior to bringing the truck in for repair.

The technician verified plaintiff’s complaints. The transmission had a long engagement in all gears, and the transmission fluid was dark. The technician tore down the transmission and discovered the reverse clutch piston (a seal) was leaking and its edge was worn off. He overhauled the transmission and installed it into the truck. The repair cost plaintiff approximately $3, 000.

By letter dated August 19, 2008, plaintiff demanded Ford repurchase his F-450 truck pursuant to California’s lemon law, the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq. (the Act)). Ford refused, and plaintiff filed this action. Plaintiff alleged Ford breached the express limited warranty as well as implied warranties of merchantability and fitness. He demanded rescission and restitution, along with damages and a civil penalty.

2. Trial

Ford filed two in limine motions at issue here. The first, in limine motion No. 4, sought to exclude evidence of any other vehicle other than plaintiff’s truck. The second, in limine motion No. 11, sought to exclude all evidence of the July 2008 non-warranty repair. Ford argued evidence of other vehicles and the non-warranty repair was inadmissible because it was irrelevant under Evidence Code section 350 and unduly prejudicial under Evidence Code section 352. The court denied both motions, and the jury received evidence of other similar vehicles and the non-warranty repair.

Plaintiff’s expert witness, James Hughes, testified the problems addressed by the non-warranty repair were similar to the problems addressed by the warranty repairs: “[Ford] had overhauled [the transmission] previously for a similar problem.” It was “inconceivable” to him for a transmission that had no design defects and had been repaired properly to go “belly up in 27, 000 miles, ” as a properly designed and maintained transmission would “in a heartbeat go a hundred thousand miles or more.” He stated the transmission had not been fixed by any of the repairs it underwent. In his opinion, each repair was only a “band-aid repair, ” and the non-warranty repair related back to one of the original repairs.

Hughes believed the transmission was defective before plaintiff bought the truck. He stated the transmission installed in plaintiff’s truck was known in the automotive repair industry as “problematic.” He based these opinions on the fact that Ford had issued a special service message to dealers in March 2004, some four months before plaintiff bought the truck, informing them the transmission could experience “harsh/slipping engagements, upshifts and/or downshifts” if its adaptive shift strategy was temporarily lost.[3] Hughes also derived his opinion from speaking with personnel at two independent transmission shops, a Ford dealer, and two research facilities, the Automatic Transmission Rebuilders Association and an entity named Transco.

Ford issued other notices to dealers concerning problems with this transmission. In August 2005, about the time Ford issued its first recall, it issued a technical service bulletin noting trucks with this transmission could experience harsh shifting. It recommended technicians reprogram the power control module to remedy this.

In July 2007, about the time the warranty expired on plaintiff’s truck, Ford issued another technical service bulletin concerning the transmission. According to this bulletin, this transmission may exhibit erratic shifts at certain speeds, an engagement “shudder” when shifting from drive to reverse or reverse to drive, and what Ford described as a “downshift clunk” while coasting to a stop. The ...

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