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Kwan v. Mercedes-Benz of North America, Inc.

Court of Appeal of California, First Appellate District, Division Three

March 11, 1994, Decided

No. A059251.


 [*177]  [**372]   Anthony Kwan sued Mercedes-Benz of North America, Inc. (MBNA) for violation of the refund-or-replace provision of the Song-Beverly Consumer Warranty Act (the Act) ( Civ. Code, § 1790, 1793.2, subd. (d)(2)),  [***2]  1 arising out of Kwan's purchase of a new Mercedes-Benz. Kwan received a jury award of $186,000. MBNA appeals, claiming the court erred in its instructions defining a "willful" violation of the Act for purposes of its civil penalty provision (§ 1794, subd. (c)) and in allowing the jury to award damages for Kwan's emotional distress. We reverse in part and remand for a limited new trial on damages.

 [**373]  FACTS

Kwan bought a 1989 300E series Mercedes-Benz at European Motors, Ltd. (European Motors or the dealership) on October 30, 1989, for $46,370.24. The car had a 4-year, 50,000-mile warranty. Before the car was delivered to the dealership, MBNA's vehicle preparation center had repaired a dent in the door and replaced a damaged radio and surrounding wood console. Before sale, the dealership again replaced the radio, which was malfunctioning.

Kwan first brought the car back to European Motors for repair on November 20, complaining of [***3]  a gurgling sound coming from the front of the car and a tendency for the windshield to mist up when the car was started. The  [*178]  gurgling (a sound like that produced by pouring water from one glass to another) was a problem other owners of the same model had also reported. At that time, the dealership did not have a specific cure for the problem, but they bled the cooling system in order to eliminate any trapped air bubbles. The windshield misting was deemed normal, and no repair was made.

From December 1989 through May 1990, Kwan took the car to the dealership five times for repair under warranty. He complained on December 11 of the gurgling sound, the windshield misting, a missing seat-control button, and difficulty closing the right rear door; on March 2 of the gurgling, loose molding on a door pillar, difficulty starting the car when cold, and a loose brake pedal; on March 22 of the gurgling (for which on this occasion the dealership ordered a corrective kit that was now available from MBNA), stalling when the car was put into gear while cold, 2 continuing difficulty with the hard-to-close door, a gap in the pillar molding that was previously repaired, a harsh shift from [***4]  first to second gears, and an SRS (airbag) light coming on; on April 23 of the check-engine light staying on (for which the mechanic performed a diagnostic test and adjusted the engine), an inoperable electrical seat adjustment, a burnt-out taillight, and the gurgling sound (for which the mechanic installed the kit from MBNA); and on May 14 of the gurgling still occurring intermittently (for which the mechanic drilled clear a passage in the system), engine oil leakage, continuing difficulty closing the right rear door, noise from the brake pedal, and a rough running engine.

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23 Cal. App. 4th 174 *; 28 Cal. Rptr. 2d 371 **; 1994 Cal. App. LEXIS 218 ***; 94 Cal. Daily Op. Service 1841; 94 Daily Journal DAR 3343; 23 U.C.C. Rep. Serv. 2d (Callaghan) 99

ANTHONY KWAN, Plaintiff and Respondent, v. MERCEDES-BENZ OF NORTH AMERICA, INC., Defendant and Appellant.

Prior History:  [***1]  Superior Court of the City and County of San Francisco, No. 926894, Daniel M. Hanlon, Judge.

Disposition: The judgment is affirmed insofar as it adjudges MBNA in violation of Civil Code section 1793.2, subdivision (d)(2). The judgment is reversed as to damages, and the cause is remanded for a new trial on the question of the damages, including any civil penalty, to which Kwan is entitled; the superior court is directed to enter judgment on the amount so determined. The order and amended order awarding costs and attorney fees are affirmed. Kwan is to pay MBNA's costs on appeal.


damages, repair, willful, replacement, gurgling, warranty, refund, civil penalty, good faith, buyer, subdivision, dealership, cases, instructions, contracts, consumer, distress, check-engine, door, reasonable number, manufacturer, rescission, emotional, seller's, emotional distress damages, breach of warranty, mental distress, repair attempt, obligations, violations

Antitrust & Trade Law, Consumer Protection, Vehicle Warranties, General Overview, Business & Corporate Compliance, Buyer's Damages & Remedies, Limitation & Modification, Contracts Law, Sales of Goods, Warranties, Remedies, Criminal Law & Procedure, Acts & Mental States, Mens Rea, Willfulness, Vehicular Crimes, Reckless Driving, Elements, Torts, Negligence, Criminal Offenses, Workers' Compensation & SSDI, Defenses, Misconduct of Employee, Contracts Law, Contract Conditions & Provisions, Express Warranties, Business & Corporate Law, Distributorships & Franchises, Causes of Action, Commercial Law (UCC), Contract Provisions, Exclusions & Modifications, Seller's Damages & Remedies, Civil Procedure, Damages, Punitive Damages, Types of Damages, Punitive Damages, Breach, Excuse & Repudiation, Acceptance of Goods, Revocation of Acceptance, Sales (Article 2), Revocations of Acceptance, Buyer Duties & Rights, Buyer Remedies, Subject Matter, Goods, Rightful Rejection, Inspection Duty of Buyers, Right to Reject, Performance, Rights of Buyers, Consequential & Incidental Damages, Application & Construction, Damages, Contract Terms, Seller Remedies, Breach, Pain & Suffering, Emotional Distress, Communications Law, Overview & Legal Concepts, Privacy