Filed 8/12/14 Clark v. Bank of America CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



CRAIG CLARK,                                                         B248593

         Plaintiff and Appellant,                                    (Los Angeles County Super. Ct.
                                                                      No. EC056135)
         v.

BMW OF NORTH AMERICA, LLC,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles, Laura Matz,
Judge. Affirmed.
         Krohn & Moss, Jennifer Basola and John Barker for Plaintiff and Appellant.
         Rogan Lehrman, Kate S. Lehrman, Robert A. Philipson, for Defendant and
Respondent.
                                             ____________________
       Plaintiff and appellant Craig Clark appeals from the judgment entered in favor of
defendant and respondent BMW of North America, LLC (BMW). Clark challenges the
trial court’s order granting a directed verdict in favor of BMW with respect to his causes
of action for breach of the implied warranty of merchantability. He also contends the
trial court committed prejudicial instructional error in regard to his breach of written
warranty causes of action. We hold that the directed verdict was properly granted as to
the implied warranty claims, and the instructional error was nonprejudicial under the
reasoning of Soule v. General Motors Corp. (1994) 8 Cal.4th 548 (Soule).


                            PROCEDURAL BACKGROUND


       Clark leased a new 2006 BMW 330i (vehicle) from Pacific BMW (dealership).
BMW expressly warranted the vehicle against defects in materials or workmanship,
agreeing to repair or replace any defective parts.
       Clark decided to stop driving the vehicle in January of 2011. On January 13,
2011, Clark revoked acceptance of the vehicle because it had “defects and non-
conformities . . . [that] constitute[d] a substantial impairment of the use, value and/or
safety of the vehicle.” 1
       Clark filed a complaint for breach of written warranty under the state Song–
Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.) (Song–Beverly) and the
federal Magnuson–Moss Warranty Act (15 U.S.C. § 2301 et seq.) (Magnuson–Moss),
and for breach of the implied warranty of merchantability under both Song–Beverly and
Magnuson–Moss, alleging that BMW failed to repair certain defects after a reasonable
number of attempts. He sought various remedies, including restitution of the purchase
price, damages, and a civil penalty.




       1 Clark    drove the vehicle an additional 6,000 miles between January 2011, and the
start of trial in February 2013.

                                              2
       The trial court granted BMW’s motion for directed verdict on the implied
warranty causes of action, finding that Clark had not presented evidence that the vehicle
was defective or unsuitable for its intended use. On Clark’s claims for breach of the
written warranty, the court instructed, on BMW’s request and over Clark’s objection, that
Clark was required to prove a “substantial impairment” of the vehicle’s use, value, or
safety for recovery, as set forth in CACI No. 3204. The jury was also presented with a
special verdict form requiring Clark to prove the defect substantially impaired the
vehicle’s use, value, or safety. It returned a verdict in favor of BMW by a vote of 11-1.
Clark filed a timely notice of appeal.


                               FACTUAL BACKGROUND


       Clark leased the vehicle from the dealership in June 2006. BMW provided a
written limited warranty for a period of the earlier of either 48 months or 50,000 miles.
The limited warranty stated that BMW “warrants 2006 U.S. specification vehicles . . .
against defects in materials or workmanship . . . .” BMW agreed to repair or replace any
such defective part within a reasonable time as long as Clark presented the vehicle to an
authorized service center upon the discovery of the defect. Clark presented the vehicle to
the dealership for repair on several occasions, as set forth below.
       Clark took the vehicle to the dealership on November 6, 2006, because the light
bulb out indicator and park lamp malfunction message had illuminated, the driver’s side
inside molding was not sitting flush with the door panel, there was a delay in shifting
from first to second gear and sometimes in shifting from second to third gear,2 and the
steering column made squeaking noises when turning. The dealership replaced the light
bulb and the molding. Clark was satisfied with these two repairs. The dealership found
no fault codes relating to the transmission. The dealership checked the steering wheel for
squeaking noises both on and off the ground, with the engine on and with the engine off,


       2   The car had an automatic transmission.

                                             3
but no noises were detected. The repair order recommended that Clark test-drive the
vehicle with the shop foreman, but he did not do so. Clark stated that the delay in
shifting and the squeaking in the steering wheel were ongoing concerns for him. He did
not recall experiencing any issues with the transmission after leaving the dealership, but
he stated that the issue was intermittent, and that the delay in shifting varied in degree.
       On October 17, 2007, Clark brought the vehicle to the dealership for routine
maintenance. The dealership replaced the wiper blades, which were worn. Clark
expressed no problems with the operation of the vehicle.
       On April 8, 2008, Clark brought the vehicle to the dealership for maintenance,
complaining of a lifter “ticking” noise, a delay in shifting from second to third gear, lack
of engagement in neutral, the steering column locking, and squeaking noises when
turning the steering wheel. The technician could not verify the lifter ticking noise, but
bled all the fluid out of the lifters. Clark did not experience the lifter ticking noises over
the next year. The technician road-tested the vehicle on the streets and freeway, but
could not duplicate the delay in shifting or lack of engagement in neutral, and found no
fault codes stored in the vehicle’s computer. To address the issue of the steering column
locking, the dealership reprogrammed the software. The technician also lubricated the
steering column, and Clark did not complain of the steering wheel squeaking again.
       Clark presented the vehicle to the dealership on October 6, 2008, because the fog
lamp had burnt out and the engine “idled rough.” He did not complain of lifter ticking
noises on this occasion. The dealership replaced the fog lamp. The technician road-
tested the vehicle and could not duplicate the rough idle. No fault codes were stored in
the computer.
       On March 16, 2009, Clark brought the vehicle to the dealership, again
complaining of lifter ticking noises. The dealership replaced the cylinder head, and Clark
never heard the noises again. Clark also complained that the engine was running rough
and the starter was making grinding noises, but the technician was unable to duplicate the
complaints, and no fault codes were stored in the computer. Clark complained that the
speaker was unclear. The technician replaced the speaker. Clark said that the vehicle

                                               4
nearly stalled at an intersection. The technician interrogated the computer system and
determined that Clark was not driving the vehicle as recommended, which had a negative
effect on the battery power. The dealership made recommendations as to how to improve
the battery charge.
       Clark purchased the vehicle in May or June 2009.
       On August 31, 2009, Clark brought the vehicle to the dealership for issues with the
steering wheel locking. The dealership replaced the steering column. There was never
an issue with the steering wheel locking again. Clark never had the vehicle towed due to
the steering wheel issue. He had to wait a while to start the car on several occasions, but
did not take the car to the dealership until August 31, 2009. Clark also reported noises
related to the idler pulley, which the dealership replaced. He complained of a grinding
noise in the engine, but the technician was unable to verify the complaint. Clark claimed
that the engine was running rough, but the complaint could not be duplicated, and there
were no fault codes stored.
       On September 29, 2009, Clark brought the vehicle to the service center
complaining that an air vacuum was leaking in the engine, he heard grinding or rotating
noises from the wheel area, the engine cover was loose and rattled, and he heard a
grinding noise from the starter when starting the vehicle. The technician was unable to
verify the air vacuum leak or noises from the wheel area. The engine cover valve was
secure. With respect to the starter, the intake box was loose, causing a rattling noise.
After it was secured the noise ceased.
       On October 6, 2009, Clark complained that the starter was making a grinding
noise when he started the vehicle. The dealership replaced the starter, and the problem
never occurred again. He also complained that the RPM needle vibrated when driving,
but the dealership could not verify the complaint.
       On December 30, 2009, Clark complained that the engine was running rough, the
front passenger wheel was squeaking, he heard an air leak in the engine area, and the low
brake fluid light had illuminated. The dealership had not previously been able to identify
any problems with the engine. The technician diagnosed the right motor mount as

                                             5
“weak,” which caused a rattling noise. He replaced the right motor mount. There were
no fault codes stored relating to the engine. The technician replaced the rear sensor to
address the front passenger wheel squeaking. The technician was unable to verify
Clark’s complaint that there was some sort of air leak in the engine. The technician
identified worn brake pads as causing the low fluid, and replaced the brake pads.
       On February 9, 2010, Clark brought the vehicle to the dealership because the front
passenger door would not unlock with the remote or the dash button, and he heard an “air
type” engine noise. The dealership replaced both front actuators and the left rear actuator
to resolve the locking issue, but was unable to verify the engine noise.
       On June 10, 2010, three days before the warranty expired, Clark brought the
vehicle to the dealership, complaining about a delay in shifting, air and other noises
coming from the engine, and a malfunctioning trunk door. The dealership replaced the
trunk dampeners, and they did not malfunction again. Clark reported that he had
difficulty starting the vehicle in the morning. The technician replaced the vehicle’s
battery. The technician test-drove the vehicle and inspected the transmission, but could
find no problems with the shifting. The only engine noise the technician could duplicate
was the air noise, which he found in an exemplar vehicle as well. The engine was
operating within specifications.
       On November 10, 2010, Clark brought the vehicle to the dealership because he
had to jump start the battery, the driver’s side door did not unlock with the comfort
remote when he pulled the handle, and he heard a vibration from the engine. The
dealership replaced the battery, and one of the comfort remotes, which was faulty. The
technician was unable to duplicate the vibration noise.
       On December 10, 2010, Clark brought the vehicle to the dealership complaining
that the vehicle jerked when the gears shifted, the driver’s side door did not unlock with
the comfort remote when he pulled the handle, and RPMs would drop at stoplights. The
dealership found a leak in the transmission wiring harness sleeve and replaced it, free of
charge. The dealership also replaced a faulty key.



                                             6
         In January 2011, the vehicle failed to accelerate and made a noise for
approximately 10 seconds when Clark drove it up an incline in a parking structure. Clark
parked the car, had dinner with his wife, and then drove the car without incident. He did
not hear the noise again and no warning lights illuminated. The dealership inspected the
transmission on January 4, 2011, and test-drove the vehicle. The technician found no
problems.
         Up until this point, Clark used the vehicle daily to go to work, run errands, and to
take pleasure rides through Malibu canyon and on Mulholland Drive. The vehicle never
stalled, there were no fluid leaks, no electrical problems, or problems with the engine.
The technicians never found a problem with the transmission, and the transmission never
failed. The technicians never found a defect in the vehicle that would cause it to run
rough.
         Clark filed a claim against BMW with the Better Business Bureau. The parties
participated in an arbitration. The arbitrator denied Clark’s request that BMW repurchase
the vehicle.
         Clark’s automotive service expert, Jackie Winters, testified that he inspected and
test drove the vehicle on February 1, 2012. Winters experienced a delay in shifting from
second to third gear, a harsh downshift, a vibration in the engine, and a squeaking noise
when the vehicle was parked and the steering wheel was turned all the way to the right or
left. Winters testified that the vibration and shifting were not what he would expect for
the vehicle. He was unable to record the vibration or shifting issues, but did make an
audio recording of the wheel squeaking when the vehicle was in park.
         On cross-examination, Winters testified that he detected no lifter ticking noises, no
fluid leeks, no problems with steering wheel locking, no squeaking of the steering wheel
while driving, no grinding noises from the starter, no delay in shifting from first to
second gears, and no problems with the motor mount, door locks, or battery. He stated
that he found no stored fault codes, though it would be possible to have a defect in the
engine despite an absence of fault codes. He did not compare the shifting to the
specifications for the vehicle. Winters did not experience any steering noises while

                                               7
driving and did not encounter any problems with the vehicle’s steering. He opined that a
motor mount would not cause a rough idle. Winters could not recall working on a
vehicle with the same engine and transmission, and did not compare Clark’s vehicle with
another vehicle of the same make and model.
          Shane Zapcic, BMW’s Regional After Sale Development Manager for the
Western Region, testified that he surveyed Clark for customer satisfaction on November
9, 2009, approximately five months after Clark purchased the vehicle. Clark rated his
service experience as a “100” on a scale of 1 to 5. He stated that all repairs had been
completed and that he would recommend the dealership to a family member or close
friend.
          Zapcic was responsible for denying Clark’s request that the dealership buy back
his vehicle. Zapcic concluded that buyback was not appropriate because all repairs had
been made in a reasonable and timely manner. Clark was never denied warranty
coverage, and all repairs were made free of charge.
          Randy Rodriguez, a technician at the dealership, worked on the vehicle on
November 10, 2010, December 10, 2010, and January 4, 2011. He inspected and test-
drove the vehicle and experienced no vibrations, noises, or problems with the shifting.
There were no fault codes stored in the vehicle’s computer. He found a minor oil leak
from the mechatronic sleeve during the December 10, 2010 visit, and replaced the sleeve.
Rodriguez explained that the mechatronic sleeve carries the wiring harness for the control
unit into the transmission and seals the transmission. The leak did not cause any
performance problems in the transmission.
          Shawn Kim, the dealership’s shop foreman, worked on the vehicle on November
6, 2006, prior to becoming the foreman, and saw the vehicle on the June 10, 2010 and
January 4, 2011 service visits. He found no problems with the engine or transmission,
and no codes were stored concerning either complaint. The transmission and engine were
operating normally. Kim explained to Clark that the transmission in the vehicle varied
from the transmissions in Clark’s previous vehicles. The transmission is designed for
maximum efficiency, and shifts to the highest appropriate gear as quickly and for as long

                                              8
as possible. The driver may experience a lag depending on how quickly and deeply the
gas pedal is compressed, but this is normal.
       Gary Barsegyan, a Regional Technical Engineer for BMW, explained that the
vehicle has a separate control unit for each system in the vehicle. The control units
monitor the systems constantly and communicate with one another if there is a problem
with one of the systems. When problems occur, fault codes, which describe the problem,
are set and stored. There are thousands of fault codes for the vehicle. Barsegyan
reviewed the service history of the vehicle and discovered no fault codes pertaining to the
reported rough idle, engine noise, or shifting delays.
       Barsegyan explained that the vehicle’s transmission is a six-speed electrohydraulic
transmission, which will shift differently depending on whether it is being driven
aggressively or conservatively. If there is a delay in shifting outside of specifications, a
warning light for the transmission will illuminate, and fault codes will be generated.
Barsegyan inspected and test-drove the vehicle on March 26, 2012, under a variety of
conditions, and made a video recording. He did not experience a rough idle or a delay in
shifting. Barsegyan testified that the small leak in the mechatronic sleeve repaired on
December 10, 2010, was not significant enough to cause the reported shifting issues, and
even if it had been, warning lights would have illuminated and fault codes would have
been generated. Barsegyan testified that when he test-drove the vehicle, well after
expiration of the warranty, it operated normally.


                                       DISCUSSION


Implied Warranty of Merchantability Causes of Action


       A trial court may grant a motion for nonsuit or directed verdict only if it
determines that, as a matter of law, the evidence presented by a plaintiff is insufficient to
permit a jury to find in his or her favor. (Nally v. Grace Community Church of the Valley
(1988) 47 Cal.3d 278, 291.) In making this determination, “the court may not weigh the

                                               9
evidence or consider the credibility of witnesses.” (Ibid.) It must accept as true the
evidence most favorable to the plaintiff, indulging every legitimate inference that may be
drawn from the evidence, and disregarding conflicting evidence. (Ibid.)
       Appellate review of an order granting a directed verdict is subject to de novo
review. (Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 669 (Hernandez).) “In
reviewing the denial of a motion for nonsuit or directed verdict, appellate courts, like trial
courts, must evaluate the evidence in the light most favorable to the plaintiff. [Citation.]”
(Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 263.) We affirm a trial court’s
grant of directed verdict “if a judgment for the defendant is required as a matter of law,
after resolving all presumptions, inferences and doubts in favor of the plaintiff.
[Citation.]” (Hernandez, supra, at p. 669.)
       “The Magnuson–Moss Warranty Act provides a right of action for a consumer
who is damaged by a warrantor’s failure to comply with an implied warranty that arises
under state law. (15 U.S.C. §§ 2301(7), 2310(d)(1).) In California, an implied warranty
of merchantability arises under the Song–Beverly Consumer Warranty Act: ‘Unless
disclaimed in the manner prescribed by this chapter, every sale of consumer goods that
are sold at retail in this state shall be accompanied by the manufacturer’s and the retail
seller’s implied warranty that the goods are merchantable.’ (Civ. Code, § 1792.) ‘The
“[i]mplied warranty of merchantability” or “implied warranty that goods are
merchantable” means that the consumer goods meet each of the following: [¶] (1) Pass
without objection in the trade under the contract description. [¶] (2) Are fit for the
ordinary purposes for which such goods are used. . . .’ (Civ. Code, § 1791.1, subd. (a).)”
(Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 24 (Isip).)
       “Unlike express warranties, which are basically contractual in nature, the implied
warranty of merchantability arises by operation of law. [Citation.] It does not ‘impose a
general requirement that goods precisely fulfill the expectation of the buyer. Instead, it
provides for a minimum level of quality.’ [Citations.]” (American Suzuki Motor Corp. v.
Superior Court (1995) 37 Cal.App.4th 1291, 1295-1296, disapproved on other grounds in
Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 442-443.) “‘The core test of

                                              10
merchantability is fitness for the ordinary purpose for which such goods are used.
[Citation.]’ [Citations.]” (Isip, supra, 155 Cal.App.4th at p. 26.) Fitness is established if
the product “is ‘in safe condition and substantially free of defects . . . .’” (Id. at p. 27.)
“Thus, a new car need not ‘be perfect in every detail’; rather, its implied merchantability
‘requires only that a vehicle be reasonably suited for ordinary use.’ (Keegan v. American
Honda Motor Co., Inc. (C.D. Cal. 2012) 838 F.Supp.2d 929, 945 [(Keegan)].)” (Brand v.
Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1546.) Although we have held
that the fact that a vehicle “provides transportation from point A to point B” is not always
sufficient to establish that the alleged defects do not violate the implied warranty of
merchantability (Isip, supra, at p. 27), the vehicle’s operability is an important
consideration. “Since cars are designed to provide transportation . . . where a car can
provide safe, reliable transportation, it is generally considered merchantable.” (Keegan,
supra, 838 F.Supp.2d at p. 945, quoting Carlson v. Gen. Motors Corp. (4th Cir. 1989)
883 F.2d 287, 297.)
       The implied warranty of merchantability covers a period of up to one year. (Civ.
Code, § 1791.1, subd. (c).) However, discovery and reporting of latent defects which
existed at the time of purchase but did not present themselves until after the one-year
period is not restricted to the one-year implied warranty period. (Mexia v. Rinker Boat
Co., Inc. (2009) 174 Cal.App.4th 1297, 1304-1305.) “In the case of a latent defect, a
product is rendered unmerchantable, and the warranty of merchantability is breached, by
the existence of the unseen defect, not by its subsequent discovery.” (Id. at p. 1305.)
       After presentation of evidence, BMW moved for directed verdict as to Clark’s
causes of action for breach of the implied warranty of merchantability under Magnuson–
Moss and Song–Beverly. Clark’s counsel argued that the ten-second loss of power in the
parking lot, which occurred after expiration of BMW’s express 48 month warranty, was
circumstantial evidence that a latent defect existed during the one-year period of the
implied warranty of merchantability. The trial court observed, “In seven years a ten-
second problem just doesn’t seem to me to be a [breach of the] warranty of
merchantability that’s not fit for the purpose that it was purchased for and that it doesn’t

                                               11
meet minimum standards of quality.” The trial court later ruled, “I am going to grant the
motion. The only alleged defect is that there was a delay in shifting from first to second
and at times from second to third gears, not that it didn’t work . . . [¶] So it’s clear to me
that it was merchantable during the first year and . . . would pass in the trade . . .” Clark
challenges the trial court’s ruling.
       Preliminarily, we reject BMW’s argument that Clark is barred by the statute of
limitations. BMW failed to raise the issue below, and we will not consider it on appeal.
(Berendsen v. McIver (1954) 126 Cal.App.2d 347, 351 [defendant must raise statute of
limitations by demurrer or answer or it is waived].)
       We conclude that the trial court properly granted the motion for directed verdict
on the implied warranty causes of action. Clark introduced no substantial evidence to
establish that the vehicle did not provide safe, reliable transportation. He testified that he
drove the vehicle regularly, and used it as transportation to work and to run errands.
Clark expressed no concerns about the safety of the vehicle and offered no proof that the
vehicle was unsafe. He testified to a single instance in which the car lost power for 10
seconds on an incline in a parking lot, after the four-year written warranty on the vehicle
had expired, and well after the one-year period of the implied warranty of
merchantability. He produced no other evidence indicating that the operability of the
vehicle was impaired. This case is readily distinguishable from Isip, supra, 155
Cal.App.4th at p. 27, where we concluded that “[a] vehicle that smells, lurches, clanks,
and emits smoke over an extended period of time is not fit for its intended purpose.”
Viewing the evidence in the light most favorable to Clark, we conclude that a judgment
in favor of BMW is required as a matter of law. The evidence shows that the vehicle
provided regular, reliable transportation, and that the issues complained of did not impact
Clark’s ability to use the vehicle for its ordinary purpose.




                                              12
Magnuson–Moss Written Warranty Cause of Action


          Following the presentation of evidence, Clark proposed special instruction No. 8
on breach of the written warranty under Magnuson–Moss. The proposed instruction
stated:
          “Craig Clark claims that he was harmed by BMW of North America, LLC’s
violation of its Written Warranty under the Magnuson–Moss Warranty Act. To establish
this claim, Craig Clark must prove all of the following:
          “1. That BMW of North America, LLC provided Craig Clark with a written
warranty for the vehicle;
          “2. That Craig Clark delivered the vehicle to BMW of North America, LLC or its
authorized repair facilities to repair a defect in the vehicle; and
          “3. That BMW of North America, LLC or its authorized repair facilities failed or
refused to repair the vehicle after a reasonable number of attempts, or after being
afforded a reasonable opportunity to do so.”
          Clark also proposed special instruction No. 14, based on Commercial Code section
2714, stating that the measure of damages for such a breach of written warranty was
“[t]he difference at the time and place of acceptance between the value of the goods
accepted and the value they would have had if they had been as warranted, unless special
circumstances show proximate damages of a different amount.”
          BMW’s counsel argued that CACI No. 3204, which requires substantial
impairment of the use, value, or safety of the vehicle, be given with respect to Clark’s
breach of written warranty claims under both Magnuson-Moss and Song-Beverly.
          Clark’s counsel argued that separate instructions and verdict forms were needed
for the Magnuson–Moss and Song–Beverly causes of action because the two have
differing burdens of proof: Song–Beverly requires proof of “substantial impairment” to
the vehicle, whereas Magnuson–Moss does not. Instructing the jury with CACI No. 3204
with respect to both causes of action would restrict Clark to recovery only if the vehicle
was “substantially impaired,” even though the warranty was not restricted to substantial

                                              13
impairment for coverage. Counsel further explained that a lesser recovery was available
under Magnuson–Moss.
       The trial court refused both of Clark’s proposed special instructions, electing to
give CACI No. 3204.3 The jury returned a special verdict in favor of BMW, finding that
the vehicle was not substantially impaired in use, value, or safety.


      Magnuson–Moss and Song–Beverly Have Different Elements and Provide for
Separate Remedies

       Clark contends the trial court erred by failing to separately instruct the jury on his
cause of action for breach of written warranty under Magnuson–Moss, or to provide the
jury with an appropriate special verdict form, thereby restricting him to recovery under
Song–Beverly. We agree with Clark that the trial court failed to properly instruct the jury
under Magnuson–Moss, but conclude that the error was harmless.
       Our colleagues in Division Three of the Second District recently held in Orichian
v. BMW of North America, LLC (2014) 226 Cal.App.4th 1322, 1330-1333 (Orichian),
that Magnuson–Moss and Song–Beverly create separate remedies for breach of written or
express warranties, with differing elements of proof. Magnuson–Moss regulates
warranties for products distributed in interstate commerce. It does not supplant state
consumer product warranties law, but rather supplements state law by providing
additional protections to consumers. (Ibid.) “‘Magnuson–Moss “calls for the application
of state written and implied warranty law, not the creation of additional federal law,”


       3  The jury was instructed as follows pursuant to CACI No. 3204 (“Substantially
Impaired” Explained) as follows: “In deciding whether a reasonable person would
believe that the vehicle’s defect, if any, substantially impaired the vehicle’s use, value, or
safety, you may consider, among other factors, the following: (a) The nature of the
defect; (b) The cost and length of time required for repair; (c) Whether past repair
attempts have been successful; (d) The degree to which the vehicle could be used while
awaiting repair; (e) The availability and cost of comparable transportation during the
repairs.”


                                              14
except in specific instances in which it expressly prescribes a regulating rule.’
[Citation.]” (Id. at p. 1330.)
        The Commercial Code and Song–Beverly, commonly known as the “Lemon
Law,” govern express or written warranties in California. (Orichian, supra, 226
Cal.App.4th at p. 1331.) Song–Beverly requires a plaintiff to prove that a defect
substantially impairs the use, value, or safety of a vehicle to establish breach of an
express or written warranty, whereas the Commercial Code does not. (Orichian, supra,
at p. 1331, fn. 9.) The remedies provided also differ. Under Song–Beverly, a
manufacturer must replace the vehicle or make restitution to the buyer if it is unable to
repair a new vehicle in conformance with an express warranty within a reasonable
number of attempts. (Civ. Code, § 1793.2, subd. (d).) Pursuant to the Commercial Code,
“[t]he measure of damages for breach of warranty is the difference at the time and place
of acceptance between the value of the goods accepted and the value they would have
had if they had been as warranted, unless special circumstances show proximate damages
of a different amount.” (Com. Code, § 2714, subd. (2).) “In a proper case any incidental
and consequential damages under Section 2715 also may be recovered.” (Id. at subd.
(3).)
        Song–Beverly specifically states that its remedies “are cumulative and shall not be
construed as restricting any remedy that is otherwise available . . .” (Civ. Code, §
1790.4.) Our Supreme Court has held that Song–Beverly “makes clear its pro-consumer
remedies are in addition to those available to a consumer pursuant to the Commercial
Code (Civ. Code, § 1790.3). . . .” (Murillo v. Fleetwood Enterprises, Inc. (1998) 17
Cal.4th 985, 990.) Because Song–Beverly requires a higher burden of proof than the
Commercial Code, and affords a different measure of recovery, we apply the relevant
provisions of the Commercial Code with respect to express or written warranties under
Magnuson–Moss. (Orichian, supra, 226 Cal.App.4th at p. 1332.)




                                             15
      Refusal to Instruct on Breach of Written Warranty Under Magnuson–Moss
and the Commercial Code Is Error

       A party is entitled to have the jury instructed on each viable legal theory supported
by substantial evidence if the party requests a proper instruction. (Soule, supra, 8 Cal.4th
at p. 572.) “We review de novo the question of whether the trial court’s instructions to
the jury were correct. [Citations.] In evaluating the contention that an instruction was
improperly refused, ‘we view the evidence in the light most favorable to the appellant. In
such cases, we assume that the jury might have believed the evidence upon which the
instruction favorable to the appellant was predicated.’ [Citations.]” (Maureen K. v.
Tuschka (2013) 215 Cal.App.4th 519, 526.)
       Although a court may refuse a proposed instruction that is “erroneous, misleading,
or otherwise improper . . . if the inaccuracy is minor and easy to correct and the failure to
do so would leave the jury inadequately instructed on an important issue[,]” such refusal
is error. (Orichian, supra, 226 Cal.App.4th at p. 1333.)
       “The essential elements of a cause of action under the Commercial Code for
breach of an express warranty to repair defects are (1) an express warranty [Citation] to
repair defects given in connection with the sale of goods; (2) the existence of a defect
covered by the warranty; (3) the buyer’s notice to the seller of such a defect within a
reasonable time after its discovery [Citation]; (4) the seller’s failure to repair the defect
in compliance with the warranty; and (5) resulting damages.” (Orichian, supra, 226
Cal.App.4th at pp. 1333-1334.) “A cause of action for breach of written warranty under
Magnuson–Moss also requires a written warranty as defined in the federal act. . . .” (Id. at
p. 1334.)
       Here, Clark’s proposed instructions were identical to the proposed instructions in
Orichian, supra, 226 Cal.App.4th at p. 1329. We agree with the Orichian court that the




                                              16
instructions covered the elements in dispute,4 “although some modifications would be
appropriate to ensure that each of the elements that we have set forth is clearly stated,
including the requirements of a defect covered by the warranty and defendant’s failure to
repair such a defect.” (Id. at p. 1334, italics omitted.) Because these inaccuracies are
minor and failure to give the instructions would leave the jury inadequately instructed on
an important issue, the trial court erred in refusing the instructions.


       The Error Was Not Prejudicial


       The existence of instructional error does not end the discussion, as our Supreme
Court has established that instructional error in a civil case is not per se reversible. “A
judgment may not be reversed on appeal, even for error involving ‘misdirection of the
jury,’ unless ‘after an examination of the entire cause, including the evidence,’ it appears
the error caused a ‘miscarriage of justice.’ (Cal. Const., art. VI, § 13.) When the error is
one of state law only, it generally does not warrant reversal unless there is a reasonable
probability that in the absence of the error, a result more favorable to the appealing party
would have been reached. (People v. Watson (1956) 46 Cal.2d 818, 835.)” (Soule,
supra, 8 Cal.4th at p. 574.) “The word ‘misdirection’ logically includes every kind of
instructional error. It seems manifest that incorrect, ambiguous, conflicting, or wrongly
omitted instructions may equally ‘misdirect’ the jury’s deliberations. Nothing in the
language or history of article VI, section 13 suggests that its requirement of actual
prejudice, determined by reference to ‘the entire cause, including the evidence,’ applies
to some forms of ‘misdirection,’ but not others.” (Id. at p. 579.)
       “The refusal of a proper instruction is prejudicial error only if ‘“it seems probable”
that the error “prejudicially affected the verdict.” [Citations.]’ [Citation.] ‘[W]hen
deciding whether an error of instructional omission was prejudicial, the court must also

       4 As in Orichian, supra, at p. 1333-1334, it appears to be undisputed that Clark’s
notice to BMW of the alleged defects was given within a reasonable time of their
discovery.

                                              17
evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect
of counsel’s arguments, and (4) any indications by the jury itself that it was misled. [Fn.
omitted.]’ [Citation.]” (Faigin v. Signature Group Holdings, Inc. (2012) 211
Cal.App.4th 726, 750, quoting Soule, supra, 8 Cal.4th at pp. 580-581.)
       Most significantly for purposes of this appeal, Soule rejects the theory that “the
erroneous denial of correct specific instructions covering a civil litigant’s supportable
‘theory of the case’ is ‘inherently’ prejudicial.” (Soule, supra, 8 Cal.4th at p. 574.)
“Cases that automatically applied that theory without reference to the actual record ‘lost
sight of the principal purpose and significance of . . . California’s constitutional provision
explicitly addressing the matter of reversible error. . . .’ [Citation.]” (Id. at p. 579.)
There is no structural error requiring reversal based on denial of a proper instruction “if a
civil litigant was permitted to introduce evidence, cross-examine witnesses, and present
argument before a fairly selected jury that rendered its honest verdict on the trial record. .
. .” (Ibid.)
       Our review of the record leads to the conclusion that it does not seem probable
that the denial of Clark’s proposed instruction prejudicially affected the verdict. Clark
“was permitted to introduce evidence, cross-examine witnesses, and present argument
before a fairly selected jury” in this case. (See Soule, supra, 8 Cal.4th at p. 579.) While
the precise theory of Clark’s case under Magnuson–Moss was not presented to the jury
for decision, Soule holds that we still must examine the entire record to determine if it
seems probable that Clark was prejudiced. (Id. at p. 580.) Given the state of the record,
we conclude Clark has not carried his burden of demonstrating prejudice.
       We focus on the key elements under Magnuson–Moss as contained in Clark’s
proposed instruction — whether BMW “failed or refused to repair the vehicle after a
reasonable number of attempts, or after being afforded a reasonable opportunity to do
so.” As counsel for Clark argued to the jury at the conclusion of the trial, “What this case
comes down to is who you believe. That’s what it comes down to.” Although answering
a question in the verdict different from that it would have answered under Magnuson–
Moss, it is apparent the jury by a vote of 11-1 believed BMW’s witnesses and rejected

                                               18
the testimony of Clark and his expert. This conclusion is consistent with the finding of
the arbitrator, who rejected Clark’s attempt to rescind the purchase based upon defects.
       Moreover, the evidence presented by BMW convincingly demonstrates that
BMW responded promptly to each of Clark’s complaints and never refused to make a
repair within a reasonable time of the vehicle being presented to its service center.
Clark’s own testimony evidences that the dealership repaired the vast majority of the
defects the first time that the vehicle was presented to the dealership for the defect in
question. Other complaints were resolved for a significant period of time after the first
visit, and permanently resolved following a second servicing. The dealership replaced
the vehicle’s battery after several years. When the new battery failed, the dealership
replaced it as well. The technician was unable to duplicate the lifter ticking noise by test-
driving the vehicle when Clark first complained of the problem, but bled the fluid out of
the lifters. Clark did not hear the noise again for approximately a year, and did not
complain of the noise during his next service visit. When he began to hear a lifter ticking
noise a second time, the technician replaced the cylinder head, and Clark never heard the
noise again. The technician was also unable to duplicate the starter noise when Clark
initially complained of it. When Clark complained about the noise on a subsequent visit,
the technician tightened the intake box, which had been causing a rattling noise. Shortly
thereafter, the dealership replaced the starter, and Clark never complained about it again.
Similarly, when Clark first complained about the steering wheel locking, the technician
reprogrammed the software, eliminating the problem. When Clark experienced a
problem with steering wheel locking approximately one year later, the technician
replaced the steering column, and the issue never occurred again.
       The only issues Clark complained of that were not resolved to his satisfaction
were the engine running rough and the delay in shifting. The dealership was never able
to verify either issue through road-testing, and it is undisputed that no fault codes were
stored in the car’s computer with respect to either complaint. The engine and
transmission vehicle always operated within standard specifications for the vehicle.



                                             19
       Clark’s expert witness reported a vibration and delay in shifting that Clark had
previously identified, but was unable to record either on video. He had no knowledge of
the parameters within which the engine and transmission were designed to operate,
opining only that they did not operate as he would expect. BMW’s witnesses described
the difference between the transmission of the vehicle and Clark’s previous vehicles,
explaining that there were instances in which a delay in shifting might be felt, but that the
delay was within specifications for the vehicle. The evidence overwhelmingly supports
the conclusion that the dealership promptly repaired all verifiable defects in the vehicle
when Clark presented the vehicle to the dealership for service of the specific defect.
Under this set of facts, it does not seem probable that the jury would have found that the
dealership refused or failed to repair a defect within a reasonable time. The instructional
error was nonprejudicial.


                                      DISPOSITION


       The judgment is affirmed. BMW is awarded its costs on appeal.




              KRIEGLER, J.


We concur:




              TURNER, P. J.                              MINK, J.*




       * Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

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