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Donlen v. Ford Motor Co.

California Court of Appeals, Third District, Calaveras

July 8, 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.



It is ordered that the opinion filed herein on June 14, 2013, be modified as follows:

Delete the first full paragraph on page 12 and replace it with the following paragraph:

Ford’s standard of relevance is too strict for purposes of the Act. The Act “is a remedial measure intended for protection of consumers and should be given a construction consistent with that purpose.” (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 801.) As a result, the plaintiff is not obligated to identify or prove the cause of the car’s defect. Rather, he is required only to prove the car did not conform to the express warranty. (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1102, fn. 8 (Oregel).) The non-warranty repair, affecting the transmission for a third time and a worn seal for a second time, tends to show the truck did not conform to the express warranty after the last warranty repair and thus was relevant. Plaintiff was not required to show a closer causal relationship in order for the evidence to survive an objection based on relevance.

This modification does not change the judgment.

The petition for rehearing is denied.




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 ...

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