                                                                           FILED
                            NOT FOR PUBLICATION                             APR 01 2010

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PASQUALE VENEZIA,                                No. 09-15930

              Plaintiff - Appellee,              D.C. No. 2:07-cv-01511-SMM

  v.
                                                 MEMORANDUM *
BENTLEY MOTORS, INC.,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                  Stephen M. McNamee, District Judge, Presiding

                       Argued and Submitted March 10, 2010
                             San Francisco, California

Before: B. FLETCHER and CLIFTON, Circuit Judges, and ANELLO,** District
Judge.

       Bentley raises several issues in its appeal from a judgment based on a jury

verdict in Venezia’s favor under Arizona’s lemon law. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Michael M. Anello, United States District Judge for
the Southern District of California, sitting by designation.
      Bentley first argues that it is entitled to judgment as a matter of law. We

review the district court’s ruling de novo, considering whether “the evidence,

construed in the light most favorable to the nonmoving party, permits only one

reasonable conclusion, and that conclusion is contrary to the jury’s verdict.” Pavao

v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002).

      Liability under Arizona’s lemon law arises if a vehicle fails to conform to its

warranty after a “reasonable number of attempts.” Ariz. Rev. Stat. Ann. § 44-

1263(A); see also Hull v. DaimlerChrysler Corp., 99 P.3d 1026, 1027–28 (Ariz.

Ct. App. 2004) (“[I]f the vehicle cannot be timely repaired, the consumer is entitled

to either a replacement vehicle or a refund of the purchase price.”). The number of

attempts that is reasonable is for the jury to decide; the statute neither allows for

strict liability after a given number of attempts or days out of service nor precludes

liability if a vehicle finally conforms to its warranty at the end of the lemon-law

period. Cf. Milicevic v. Fletcher Jones Imps., Ltd., 402 F.3d 912, 916 (9th Cir.

2005) (interpreting Nevada’s lemon law, which contains a presumption very

similar to the one in Arizona’s lemon law).

      Venezia had to take his car to the shop eleven times in the first two years,

including as many as three trips for scheduled maintenance. The car was out of

service for between thirty-eight and ninety-nine days, depending on which


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evidence the jury believed. Viewed in the light most favorable to Venezia, the

evidence provided sufficient support for the jury to conclude that at some point in

those two years, Venezia’s car still failed to conform to its warranty even though a

reasonable number of repair attempts had been made. The evidence permits the

jury’s finding of liability, so we affirm the district court’s ruling that Bentley is not

entitled to judgment as a matter of law.

      Bentley next argues that there should be a new trial because the district court

gave incorrect instructions to the jury. We conclude that the instructions did

include an error, but that the error was not prejudicial. In certain circumstances,

Arizona’s lemon law gives rise to a presumption that a “reasonable number of

attempts have been made to conform a motor vehicle to the applicable express

warranties.” Ariz. Rev. Stat. Ann. § 44-1264. We agree with Bentley that the

district court should have instructed the jury that this presumption applies against a

manufacturer only if there has been “prior direct notification” and “an opportunity

to cure the alleged defect.” Id. § 44-1264(C). While Bentley did receive notice,

whether it also had an opportunity to cure was a matter in dispute.

      The error in instructions was harmless because, more likely than not, it had

no effect on the verdict. See Swinton v. Potomac Corp., 270 F.3d 794, 805–06 (9th

Cir. 2001). An opportunity to cure is not required for a manufacturer to be held


                                            3
liable under section 44-1263; that opportunity is required only for the presumption

under section 44-1264 to apply. The jury did not indicate whether the presumption

was a basis for liability. Given the evidence in this case, we conclude that the jury

probably would have determined that a reasonable number of attempts had been

made even if it determined that the presumption did not apply.

      Venezia also made a claim under the Magnuson-Moss Warranty Act, for

which the jury found Bentley liable but awarded no damages. Bentley contends

that the jury’s verdicts on the state and federal claims were inconsistent. Bentley’s

argument ignores the subjective element of the Arizona lemon law. See Ariz. Rev.

Stat. Ann. § 44-1263(A). But even if the verdicts were inconsistent, inconsistencies

between general verdicts on different claims do not merit new trials. See Zhang v.

Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). A damages

award—which is all the jury’s verdict included—does not convert a general verdict

into a special verdict or a general verdict with interrogatories. See id. at 1031. Nor

is a finding of liability accompanied by no award of damages necessarily

inconsistent. See id. at 1036.

      Finally, none of the evidentiary rulings that Bentley raises merit reversal or

remand. The number of days the vehicle had been in service was in dispute only

because the dealer switched from a form that had both “invoice” and “ready” dates


                                           4
to one that had only an “invoice” date. The “invoice” and “ready” dates were

consistently identical when both appeared on a form, so it was no abuse of

discretion for the district court to allow testimony that assumed those dates might

continue to be identical. Moreover, Venezia’s testimony was based in part on his

personal experience, and the district court specifically instructed the jury that it

could disregard the assumption underlying Venezia’s expert’s testimony.

      Venezia’s testimony concerning the car’s loss in value was relevant, among

other things, to his subjective valuation of the car. See Ariz. Rev. Stat. Ann. § 44-

1263(A). We agree that Venezia’s expert’s formula appears to lack foundation, but

any error in its admission was harmless because the jury awarded no damages for

objective loss in value under the Magnuson-Moss Warranty Act and because there

was other evidence from which the jury could have determined liability under

Arizona’s lemon law. We reject the contention that the jury should have been

compelled to accept Bentley’s expert’s implausible opinion that the repair history

of the car had no impact on the car’s resale value.

      The evidence that Venezia elicited concerning other customers’ complaints

was valid impeachment that tended to show the bias of Bentley’s witness. See, e.g.,

United States v. Hankey, 203 F.3d 1160, 1171 (9th Cir. 2000). A pretrial order

concerning a motion in limine does not bar a district court from deciding to admit


                                            5
testimony once the trial is underway. See, e.g., Luce v. United States, 469 U.S. 38,

41–42 (1984). It was no abuse of discretion to allow the cross-examination.

      Nor did the district court abuse its discretion by excluding documentary

evidence that Venezia refused to allow additional repairs to the car for one month

after the lemon-law period had ended. The district court allowed testimony about

the same period and ordered that Venezia could not argue that Bentley had notice

and failed to make repairs during that period. Also, Venezia stipulated that he

would not be entitled to any Magnuson-Moss damages during the period. Finally,

the inference that Bentley intends to raise, that Venezia might also have refused to

allow repairs during the lemon-law period, is flatly contradicted by the car’s actual

repair history.

      AFFIRMED.




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