Filed 6/14/13
                               CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                THIRD APPELLATE DISTRICT
                                             (Calaveras)
                                                ----



GREG DONLEN,                                                          C065722

                  Plaintiff and Appellant,                   (Super. Ct. No. CV35184)

        v.

FORD MOTOR COMPANY,

                  Defendant and Appellant.



       APPEAL from a judgment of the Superior Court of Calaveras County, Thomas A.
Smith, Judge. (Retired judge of the Sup. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Reversed with directions.

      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


                                                 1
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.
                                           FACTS
       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,

                                              2
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




1      Tow/haul is a feature in some automatic transmissions that, when turned on,
delays upshifting for a short period of time. This provides extra torque for when the
vehicle is towing something.
2      A solenoid is “a coil of wire . . . that when carrying a current acts like a magnet so
that a moveable core is drawn into the coil when a current flows and that is used

                                              3
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



[especially] as a switch or control for a mechanical device . . . .” (Merriam-Webster‟s
Collegiate Dict. (11th ed. 2006) p. 1187, col. 1.)

                                              4
(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

                                              5
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 bulletin stated these concerns might be
caused by the power control module or transmission control module calibration.
       Hughes test drove the truck a few months before trial. The shifting was a little
harsh, and when he put it in reverse, he heard a loud bang. It happened two or three other
times during the test. He also heard what he called a “clunk” once while coming to a
stop. The tow/haul function worked fine, the computer sensor showed no trouble codes,
and he found no metal in the transmission fluid. The lack of trouble codes did not mean
there was no problem; the bangs and clunks indicated there was a problem.
       Plaintiff noticed the transmission continued to act up after Hughes‟ test drive. The
noise was occurring more often, and it was happening while the car was in drive.
       The jury considered only plaintiff‟s express warranty claim, the trial court
apparently having granted Ford‟s motion for a nonsuit on the implied warranty claims.
The jury found for plaintiff. It concluded Ford failed to repair the truck to match the



3      The adaptive shift strategy is a feature that adjusts the automatic shifting of gears
based on a driver‟s driving style and habits.

                                              6
written warranty after a reasonable number of opportunities to do so. It awarded plaintiff
restitution damages of $32,942.76, incidental damages of $2,980.58, and a civil penalty
of $1.00.
3.     Posttrial motions
       Ford moved for judgment notwithstanding the verdict (JNOV) and a new trial. In
its JNOV motion, Ford claimed plaintiff failed to produce substantial evidence showing
his truck had a defect covered by the warranty that impaired the truck‟s use, or that Ford
failed to repair any defect covered by the warranty.
       In its motion for new trial, Ford claimed plaintiff failed to produce substantial
evidence showing his truck was substantially impaired or that Ford failed to repair the
vehicle to match the written warranty. Ford also claimed the trial court committed an
error in law when it denied Ford‟s in limine motion No. 11 and allowed plaintiff to
introduce evidence of the July 2008 non-warranty repair.
       The trial court denied the JNOV motion. It found sufficient evidence supported
the jury‟s verdict.
       However, the trial court granted the new trial motion. It ruled it had made an error
of law in denying Ford‟s in limine motion and in allowing plaintiff to introduce evidence
of the July 2008 non-warranty repair. It found “the alleged error of law in the admission
of the July 2008 repair visit confused and misled the jury and resulted in undue prejudice
to Defendant Ford.”
       The court wrote: “Plaintiff did not report to Ford any further problems with his
truck [after the February 2006 repair] during the balance of the warranty period. It was
not until July 23, 2008 at 45,121 miles (about one year and 9,000 miles after the
expiration of the written warranty) that plaintiff took his truck to the local Ford dealership
for additional transmission repairs. He testified he began experiencing problems with the
transmission about three weeks before it was taken to the shop and he has continued to
have problems with the transmission following the non-warranty repair. [¶] Plaintiff‟s

                                              7
truck was driven over 27,000 miles during the 29 months between the fourth warranty
repair and the subject post-warranty repair in July 2008. The fact plaintiff experienced
transmission problems in July 2008 at 45,121 miles constitutes marginal evidence, if any,
that Ford breached the written warranty during the applicable warranty period.
Introduction of this evidence likely led the jury to conclude the fourth warranty repair in
February 2006 failed to repair a defect in the transmission. [¶] The court, over
defendant‟s objection, erroneously allowed into evidence testimony concerning the July
2008 repairs. This evidence is highly prejudicial to defendant and warrants a new trial.”
(Original italics.)
       Plaintiff appeals. He contends the trial court erred in granting Ford‟s motion for
new trial. He asserts the court did not err in denying Ford‟s in limine motion and in
admitting evidence of the July 2008 non-warranty repair because, among other
arguments, the evidence was relevant and it was not unduly prejudicial. He also
disagrees with Ford‟s assertion that the court granted a new trial on the basis of lack of
substantial evidence.4
       Ford also appeals. It contends that in the event we reverse the trial court‟s new
trial order, we should reverse the judgment in favor of plaintiff or at least remand for new
trial due to a lack of substantial evidence supporting the judgment and because the court‟s
denial of Ford‟s in limine motions was a prejudicial abuse of discretion.




4      Plaintiff also contends the new trial motion should be reversed because Ford‟s
motion in limine No. 11 was procedurally defective. Because we resolve the appeal on
its merits, we do not reach this issue.

                                              8
                                        DISCUSSION
                                               I
                  Plaintiff’s Appeal from the Order Granting a New Trial
       Plaintiff claims the trial court abused its discretion by granting a new trial. He
contends there was no error in law on which the court could grant a new trial because its
denial of Ford‟s in limine motion was not error. He also argues we cannot affirm the new
trial order on the ground of lack of substantial evidence, as the court did not specify that
as a ground for granting the motion. We agree with plaintiff on both points, and we
reverse the trial court‟s order.
A.     Standard of review
       Where a new trial is granted on the basis of legal error, we must first determine
whether the ruling the trial court claims was made in error is as a matter of law truly
error. “It is true . . . that, as a general matter, orders granting a new trial are examined for
abuse of discretion. [Citations.] [¶] But it is also true that any determination underlying
any order is scrutinized under the test appropriate to such determination. [Citations.]”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859.) If there were no legal
errors at trial, the order granting a new trial on the basis of error in law will be reversed.
(Treber v. Superior Court (1968) 68 Cal.2d 128, 136.) A trial court has no discretion to
grant a new trial on the basis of error in law unless its original ruling was erroneous as a
matter of law. (Ramirez v. USAA Casualty Ins. Co. (1991) 234 Cal.App.3d 391, 397.)
       Our analysis does not end if legal error is established. To be entitled to a new
trial, the moving party must also show the error was prejudicial; that it affected a
substantial right and prevented him from obtaining a fair trial. (Bristow v. Ferguson
(1981) 121 Cal.App.3d 823, 826.) We may not substitute our judgment for the trial
court‟s on the essentially factual question of whether the legal error was prejudicial, and
we will reverse only on a strong showing of abuse of discretion. (People v. Ault (2004)


                                               9
33 Cal.4th 1250, 1269-1272; Treber v. Superior Court, supra, 68 Cal.2d at p. 136;
Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 159.)
       The determination underlying the trial court‟s order granting a new trial was the
asserted error in denying Ford‟s in limine motion No. 11, where it concluded evidence of
the 2008 non-warranty repair was not unduly prejudicial. Rulings regarding relevancy
and Evidence Code section 352 “are reviewed under an abuse of discretion standard.”
(People v. Lee (2011) 51 Cal.4th 620, 643.) We thus apply that standard to determine
whether the court erred in denying Ford‟s in limine motion.
B.     Error in law in admitting evidence of non-warranty repair
       The issue raised by the complaint was whether Ford had repaired the truck to
conform to the express warranty. If it had not after a reasonable number of attempts to do
so, the Act required Ford to replace the truck or make restitution. The pertinent provision
of the Act, Civil Code section 1793.2, subd. (d)(2), states: “If the manufacturer or its
representative in this state is unable to service or repair a new motor vehicle . . . to
conform to the applicable express warranties after a reasonable number of attempts, the
manufacturer shall either promptly replace the new motor vehicle . . . or promptly make
restitution to the buyer . . . .”
       Ford contended evidence of the non-warranty repair was not relevant to this issue
or, even if relevant, was unduly prejudicial. The trial court originally disagreed with
Ford, finding the evidence relevant and not unduly prejudicial. We conclude the court
did not abuse its discretion when it made this ruling.
       1.      Relevance
       “Only relevant evidence is admissible (Evid. Code, § 350; People v. Crittenden
(1994) 9 Cal.4th 83, 132; People v. Garceau (1993) 6 Cal.4th 140, 176-177; People
v. Babbitt (1988) 45 Cal.3d 660, 681), and all relevant evidence is admissible, unless
excluded under the federal or California Constitution or by statute. (Evid. Code, § 351
. . . .) Relevant evidence is defined in Evidence Code section 210 as evidence „having

                                              10
any tendency in reason to prove or disprove any disputed fact that is of consequence to
the determination of the action.‟ The test of relevance is whether the evidence tends
„ “logically, naturally, and by reasonable inference” to establish material facts . . . .
[Citations.]‟ (People v. Garceau, supra, 6 Cal.4th at p. 177.) The trial court has broad
discretion in determining the relevance of evidence (ibid.; People v. Crittenden, supra, 9
Cal.4th at p. 132; People v. Babbitt, supra, 45 Cal.3d at p. 681), but lacks discretion to
admit irrelevant evidence. [Citations.]” (People v. Scheid (1997) 16 Cal.4th 1, 13-14.)
       Ford contends the non-warranty repair evidence was not relevant because there
was no evidence the repair was causally related to the warranty repairs or that it was for
the same defect. Ford claims that for non-warranty repair evidence to be relevant in this
case, plaintiff must show the evidence relates to warranty repairs or to the same defect
previously repaired under warranty. Ford calls this requirement “obvious,” although it
cites no authority to support its position.
       The court did not abuse its discretion in determining evidence of the non-warranty
repair was relevant. The evidence has a tendency to establish that the transmission was
not fully repaired in conformance with the express warranty. Prior to the expiration of
the warranty, the transmission was torn out, disassembled, repaired, and reassembled
twice. For the non-warranty repair, the transmission was disassembled a third time, and,
as in the last warranty repair, the non-warranty repair uncovered a deteriorating seal. The
evidence is relevant to establishing the transmission was not repaired to match the
warranty while the warranty was in effect.
       Ford argues allowing evidence of post-warranty repairs extends the term of its
warranty to whatever limit an expert is willing to testify. We disagree. Evidence that a
problem was fixed for a period of time but reappears at a later date is relevant to
determining whether a fundamental problem in the vehicle was ever resolved. (Jensen v.
BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 134-135.) Indeed, that a defect
first appears after a warranty has expired does not necessarily mean the defect did not

                                               11
exist when the product was purchased. (Mexia v. Rinker Boat Co., Inc. (2009) 174
Cal.App.4th 1297, 1308.) Post-warranty repair evidence may be admitted on a case by
case basis where it is relevant to showing the vehicle was not repaired to conform to the
warranty during the warranty‟s existence.
       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 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.
       2.     Unduly prejudicial
       Having originally concluded the evidence was relevant, the trial court next
determined the non-warranty repair evidence was not unduly prejudicial. Evidence Code
section 352 vests a trial court with discretion to exclude relevant evidence “if its
probative value is substantially outweighed by the probability that its admission will . . .
create substantial danger of undue prejudice, of confusing the issues, or of misleading the
jury.” Ford contends the court erred, as the evidence was of little probative value, and its
remoteness from the last warranty repair would confuse the issues and mislead the jury.
       “This court has noted that „ “[t]he prejudice which exclusion of evidence under
Evidence Code section 352 is designed to avoid is not the prejudice or damage to a
defense that naturally flows from relevant, highly probative evidence. „[A]ll evidence
which tends to prove guilt is prejudicial or damaging to the defendant‟s case. The

                                             12
stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in
Evidence Code section 352 applies to evidence which uniquely tends to evoke an
emotional bias against the defendant as an individual and which has very little effect on
the issues.‟ ” (People v. Karis (1988) 46 Cal.3d 612, 638; see Vorse [v. Sarasy (1997)]
53 Cal.App.4th [998,] 1009.)‟ (People v. Escudero (2010) 183 Cal.App.4th 302, 312,
italics added (Escudero).)
       “Next, we look to the plain language of [Evidence Code] section 352 and the
sometimes overlooked words, „substantially‟ and „substantial danger.‟ Evidence is not
inadmissible under [Evidence Code] section 352 unless the probative value is
„substantially‟ outweighed by the probability of a „substantial danger‟ of undue prejudice
or other statutory counterweights. Our high court has emphasized the word „substantial‟
in [Evidence Code] section 352. (People v. Tran (2011) 51 Cal.4th 1040, 1047 [„But
Evidence Code section 352 requires the exclusion of evidence only when its probative
value is substantially outweighed by its prejudicial effect.‟]; cf. People v. Geier (2007) 41
Cal.4th 555, 585.)
       “Trial courts enjoy „ “broad discretion” ‟ in deciding whether the probability of a
substantial danger of prejudice substantially outweighs probative value. (People v.
Michaels (2002) 28 Cal.4th 486, 532 []; People v. Perry (2006) 38 Cal.4th 302, 318; see
People v. Memro (1995) 11 Cal.4th 786, 866 [].) A trial court‟s exercise of discretion
„will not be disturbed except on a showing the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of
justice.‟ (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)” (People v. Holford (2012)
203 Cal.App.4th 155, 167-168, fn. omitted, original italics.)
       We cannot say the trial court‟s admission of the non-warranty repair evidence was
so arbitrary or patently absurd it resulted in a manifest miscarriage of justice. The court
was within its discretion when it determined the evidence‟s probative value was not
substantially outweighed by its probability of creating undue prejudice or confusing the

                                             13
issues. We disagree with Ford‟s assertion that the evidence was of little probative value.
The evidence was admitted to show the truck needed a repair after the warranty expired
that was similar to one the truck underwent before the warranty expired, and it tended to
show the truck‟s transmission had not been repaired to conform to the warranty during
the warranty period.
       Ford argues the evidence would confuse the jury because plaintiff failed to
connect the post-warranty repair to the last warranty repair. We disagree with this
assertion as well, for the post-warranty repair by its nature is connected to the last
warranty repair. The transmission had been overhauled twice while under warranty, and
the non-warranty overhaul was caused by a similar malfunction as that which
necessitated the second overhaul. Plaintiff‟s expert‟s testimony that the repairs were
related certainly was damaging to Ford, but it would not invoke a uniquely emotional
bias to the jurors against Ford unrelated to the evidence‟s relevance. Its force did not
create confusion. Under the facts of this case, the possibility that the evidence of the non-
warranty repair could confuse the issues or mislead the jury did not substantially
outweigh the evidence‟s probative value.
       Because the trial court did not abuse its discretion when it denied Ford‟s in limine
motion and admitted the non-warranty repair evidence, it did not commit an error in law,
and, thus, it did not have discretion to grant a new trial on that basis.
C.     Insufficient evidence as ground for new trial
       Ford asserts that error in law was not the only basis for the trial court‟s grant of a
new trial. It contends the court also granted a new trial on the basis of insufficiency of
the evidence, one of the statutory grounds upon which a court is authorized to grant a
new trial. (Code Civ. Proc., § 657.) We are required to affirm an order granting a new
trial if it should have been granted upon any statutory ground stated in the motion, with
one exception applicable here. We may not affirm the order on the ground of



                                              14
insufficiency of the evidence “unless such ground is stated in the order granting the
motion . . . .” (Code Civ. Proc., § 657.)
       Here, the trial court‟s order does not state it granted the new trial motion on the
ground of insufficient evidence. Rather, it states it granted the motion due to an error in
law; namely, the admission of unduly prejudicial evidence. Because the order does not
specifically state it is granted based on insufficiency of the evidence, we cannot affirm
the order on that basis. (Code of Civ. Proc., § 657.) “The right to move for a new trial is
a creature of statute and the procedure prescribed by law must be closely followed.
[Citation.]” (Collins v. Sutter Memorial Hospital (2011) 196 Cal.App.4th 1, 17.)
       Ford contends the court effectively stated it granted the motion on the ground of
insufficient evidence. It bases this assertion on the court‟s statement that the “fact
plaintiff experienced transmission problems in July 2008 at 45,121 miles constitutes
marginal evidence, if any, that Ford breached the written warranty during the applicable
warranty period.” (Original italics.)
       Ford misconstrues the court‟s statement. The court‟s reference to the weight of
the non-warranty repair evidence does not indicate there was insufficient evidence in the
whole record to support the verdict. Rather, the court stated only its new view that the
evidence of the non-warranty repair was marginal evidence to support plaintiff‟s claim.
The court‟s statement merely indicates the court was weighing the evidence‟s probative
value against its potential for prejudice, as required by Evidence Code section 352. The
new trial was granted solely on that purely legal ground. Because the court did not state
it was granting the motion on the basis of insufficient evidence, we cannot affirm the new
trial order on that ground.
                                              II
                              Ford’s Appeal from the Judgment
       Having concluded the court erred in granting a new trial, we must turn to Ford‟s
appeal from the judgment in favor of plaintiff. Ford claims the judgment is not supported

                                             15
by substantial evidence. It also asserts the trial court committed prejudicial error by
denying its in limine motion Nos. 4 and 11 and admitting evidence of the non-warranty
repair and by admitting evidence of “other similar vehicles.” We disagree with Ford.
Substantial evidence supports the verdict, and the trial court did not abuse its discretion in
admitting the contested evidence.
A.     Sufficiency of the evidence
       “A plaintiff pursuing an action under the Act has the burden to prove that (1) the
vehicle had a nonconformity covered by the express warranty that substantially impaired
the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was
presented to an authorized representative of the manufacturer of the vehicle for repair
(the presentation element); and (3) the manufacturer or his representative did not repair
the nonconformity after a reasonable number of repair attempts (the failure to repair
element). (Civ. Code, § 1793.2; Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878,
886-887.)” (Oregel, supra, 90 Cal.App.4th at p. 1101.)
       Ford challenges the sufficiency of the evidence on the failure to repair element. It
asserts plaintiff failed to introduce any evidence establishing that Ford failed to repair the
truck to conform to the written warranty. The evidence of the non-warranty repair did
not establish this point, Ford argues, because it failed to show “the same root cause or
mechanism -- i.e., the same defect -- was involved” in the fourth warranty repair and the
non-warranty repair. Moreover, Ford asserts plaintiff‟s own testimony was evidence the
fourth warranty repair was successful, as plaintiff stated he drove the truck without
incident after that repair for 28 months and 27,000 miles, one year beyond the expiration
of the express warranty. Ford asserts plaintiff never overcame this evidence except with
speculation and unfounded hearsay by plaintiff‟s expert witness.
       We conclude sufficient evidence supports the jury‟s verdict that Ford did not bring
plaintiff‟s truck into conformity with the warranty before the warranty expired.
Plaintiff‟s expert witness, Mr. Hughes, testified the transmission was defective before

                                              16
plaintiff purchased the truck in 2004. Ford had already issued a special service message
concerning the transmission before plaintiff purchased the truck. It had warned of harsh
shifting if the transmission‟s adaptive shift feature was temporarily lost. The
transmission was known as problematic among industry personnel he had contacted.
       Ford issued a recall notice in August 2005 to repair the transmission. A pin
holding a gear could come lose, causing metallic contamination and harsh shifting into
reverse. Ford disassembled plaintiff‟s transmission, found the loose pin, repaired it,
reassembled the transmission, and reinstalled it into plaintiff‟s truck.
       At about the same time, Ford issued a technical service bulletin concerning the
transmission. The bulletin noted the transmission could experience harsh shifting, and
directed technicians to reprogram the power control module.
       In November 2005, plaintiff returned the truck to the dealer, complaining the
transmission went into neutral before it would downshift, and it would not upshift. It also
once went into neutral when he stopped. The dealer could not replicate the problem.
       In March 2006, plaintiff again returned the truck to the dealer, complaining it
made what he described as a “loud thunk” when he shifted into reverse, and the
transmission wanted to go into neutral when it was in the tow/haul mode. The dealer
disassembled the transmission and found a deteriorating seal. He repaired the seal,
overhauled the transmission, and reinstalled it into the truck.
       In July 2007, at about the time the warranty expired and one year before the 2008
repair, Ford issued another technical service bulletin concerning this transmission. This
bulletin stated the transmission may experience erratic shifts, or what Ford described as a
“downshift clunk,” similar to what plaintiff had experienced.
       In July 2008, 28 months after the last repair and one year after the warranty
expired, plaintiff returned the truck to the dealer for a fifth time, complaining he again
heard a loud thunk and had difficulty shifting into reverse. For a third time, the



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technician disassembled the transmission, and again found a leaking seal. He overhauled
the transmission and reinstalled it into the truck.
       When the expert test drove the truck in 2010, it still was not operating as expected.
He encountered an intermittent clunk when he put it into reverse and when he
decelerated, just as plaintiff had complained in 2006.
       This evidence constitutes substantial evidence in support of the jury‟s verdict. The
jury could conclude from this evidence that Ford did not repair the truck‟s transmission to
conform to the express warranty during the warranty period, and indeed may not have
been able to have brought it into conformity with the warranty at any time.
B.     Denial of in limine motions
       Ford asserts the trial court abused its discretion when it denied its in limine
motions to exclude evidence of other vehicles and of the non-warranty repair. We have
already concluded the court did not abuse its discretion when it denied the in limine
motion as to the non-warranty repair, and we will not repeat that discussion here.
       Ford contends admitting evidence of other vehicles was prejudicial. Denying its
motion opened the door for plaintiff‟s expert, Mr. Hughes, to testify that the F-450
transmission was defective because he had heard from others that it was “problematic.”
Hughes also testified of similar problems with other F-450 transmissions. This
testimony, Ford claims, was made without foundation or support and should have been
disallowed.
       We disagree with Ford. Hughes‟ “other vehicle” testimony was not unduly
prejudicial. It did not concern simply other vehicles. It was limited to the transmission
model Ford installed in plaintiff‟s truck and other vehicles. Hughes described what Ford
itself had done to notify dealers and technicians about problems with this transmission
model. Thus, everything about which he testified that applied to other vehicles applied
equally to plaintiff‟s vehicle. Such evidence certainly was probative and not unduly
prejudicial.

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       Ford faults Hughes for testifying that others he had contacted believed this
transmission line was problematic. There was no error. As an expert witness, Hughes
was entitled to rely upon hearsay evidence that may reasonably be relied upon to form his
opinion. (People v. Carpenter (1997) 15 Cal.4th 312, 403.) Hughes contacted
technicians and dealers in the field and transmission research organizations to reach his
conclusion, and his sources were reasonable ones in this circumstance on which he could
rely. The court did not abuse its discretion when it denied the in limine motion to
exclude evidence of other vehicles.
                                      DISPOSITION
       The order granting a new trial is reversed. The matter is remanded to the trial
court to enter judgment in favor of plaintiff, which judgment is hereby affirmed. Costs
on appeal are awarded to plaintiff. (Cal. Rules of Court, rule 8.278(a).)




                                          NICHOLSON         , Acting P. J.



We concur:



      MAURO            , J.



      MURRAY           , J.




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