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Krotin v. Porsche Cars North America, Inc.

Court of Appeal of California, Second Appellate District, Division Two

August 18, 1995, Decided

No. B079295.

Opinion

 [*297]  [**11]   BOREN, P. J. 

This is an action arising under the Song-Beverly Consumer Warranty Act, Civil Code section 1790 et seq.,  [***2]  commonly referred to as California's "lemon law" (hereinafter, the Act). The sole issue on appeal is whether the trial court prejudicially erred in instructing the jury that the lessee of a vehicle "who justifiably rejects or revokes acceptance of a vehicle must do so within a reasonable time after the lessee discovers the grounds for rejection or revocation." We find that to establish breach of warranty obligations under the Act, a formal rejection or revocation of acceptance of the vehicle after discovery of defects or nonconformities is not required, as distinguished from the manufacturer failing to offer restitution or replacement of the vehicle, on its own initiative or upon prompting by the consumer, after a reasonable number of attempts by the manufacturer to remedy the defects at any time during the warranty period. Nonetheless, the erroneous instruction does not warrant reversal, as it was unlikely to have misled the jury and become a factor in its verdict.

 [*298]  FACTS

 CA(1)(1) Since the only contention on appeal relates to a jury instruction, ] "[i]n assessing an instruction's prejudicial impact, we cannot use the view of the evidence and inferences most favorable to the [***3]  [prevailing party]. [Citations.] Instead, we must assume the jury might have believed [appellant's] evidence and, if properly instructed, might have decided in [appellant's] favor. [Citations.]" ( Shell Oil Co. v. Winterthur Swiss Ins. Co. (1993) 12 Cal. App. 4th 715, 773 [15 Cal. Rptr. 2d 815].) Accordingly, we state the facts most favorably to the party appealing the instructional error alleged, in accordance with the customary rule of appellate review. ( Sills v. Los Angeles Transit Lines (1953) 40 Cal. 2d 630, 633 [255 P.2d 795].)

On October 3, 1987, Mikhail Krotin and Maya Krotin (hereinafter, the Krotins) signed a 60-month lease for a new 1987 Porsche 944. At the outset, the Krotins experienced problems driving the car in the morning after a cold start. After the car was initially started, it immediately died, and had to be restarted, sometimes several times. The car then proceeded very slowly even if the accelerator was floored. In fact, acceleration after a cold start caused the car to shake. The problem subsided only after driving the car for 10 to 15 minutes. During the first two months of the lease, the Krotins brought the car into the dealership four [***4]  times for repair of the problem. The dealership kept the car several days for service on each occasion. However, the cold-start problem persisted. As time passed, other problems developed. In November, a metallic sound began emanating from the engine on the front passenger side of the vehicle. Thereafter, the idle speed jumped up and down.

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38 Cal. App. 4th 294 *; 45 Cal. Rptr. 2d 10 **; 1995 Cal. App. LEXIS 895 ***; 95 Cal. Daily Op. Service 7333

MIKHAIL KROTIN et al., Cross-complainants and Appellants, v. PORSCHE CARS NORTH AMERICA, INC., Cross-defendant and Respondent.

Subsequent History:  [***1]  As Modified September 14, 1995. The Publication Status of this Document has been Changed by the Court from Unpublished to Published September 14, 1995 on Denial of Rehearing, Reported at: 1995 Cal. App. LEXIS 896.

Prior History: Superior Court of Los Angeles County, No. BC028475, Michael Berg, Judge.

Disposition: The judgment is affirmed. Each party is to bear its own on appeal.

CORE TERMS

manufacturer, warranty, buyer, replacement, consumer, repair, dealership, revoke, questions, reasonable time, revocation, cold-start, restitution, subdivision, instructional error, damages, reasonable number, present case, reimbursement, lemon, express warranty, prejudicial, persisted, conform, records, lessee

Civil Procedure, Standards of Review, Substantial Evidence, General Overview, Jury Trials, Jury Instructions, Antitrust & Trade Law, Consumer Protection, Vehicle Warranties, Lemon Laws, Commercial Law (UCC), Contract Provisions, Warranties, Acceptance of Goods, Revocations of Acceptance, Plain Error