In Ward v. Fleetwood Motor Homes (2009) 2009 WL 311407, the California Court of Appeal in an unpublished decision denied relief to a motor home buyer under the Song Beverly Act.  The case involved engine trouble which California purchasers of an RV had with their RV while en route to Mt. Rushmore.  Caterpillar, the manufacturer of the engine, paid $2,206 to rent a Suburban for the plaintiffs, paid their hotel expenses, which amounted to $1,047, and delivered and paid $1,000 of the rental fee for a rental motor home when one became available for them to use during the remainder of their trip. Caterpillar reimbursed approximately $3,600 of the approximately $4,600 that the plaintiffs claimed in out-of-pocket expenses.  The engine replacement was completed two weeks later, and the motor home was fully operational by July 11, 2006. The engine experienced no problems thereafter. Caterpillar offered the plaintiffs a one-way airplane ticket to South Dakota to pick up the motor home, which the plaintiffs rejected.  Fleetwood arranged for a contract driver to drive the motor home to  California, where it arrived on October 10, 2006  The trial court granted summary judgment to Caterpillar and, based on that ruling, granted judgment on the pleadings for the remaining defendants. 


The Court of Appeal affirmed.  First, the Court held that Song-Beverly applied, notwithstanding Caterpillar’s sale of the engine to the manufacturer in South Carolina.  “Caterpillar’s contention is without merit, because the “goods” in this case refers to the motor home, not the motor home’s component parts such as the engine, and it is undisputed that this motor home was sold in California. (See, e.g., Cummins, Inc. v. Superior Court (2005) 36 Cal.4th 478 (Cummins); see also § 1791, subd. (a) [“consumer goods” is defined as “any new product or part thereof that is used … primarily for personal, family, or household purposes”].)”


Second, the Court held that it need not decide whether Caterpillar breached the implied warranty of merchantability because the Plaintiffs were not damaged.  “Where the buyer has accepted the goods, sections 2714 and 2715 of the Commercial Code shall apply, and the measure of damages shall include the cost of repairs necessary to make the goods conform.”[footnotes omitted] Since, as we have seen, there is no admissible evidence that the Rhodes revoked acceptance, they are not entitled to rescission damages under section 1974, subdivision (b)(1). As to damages under section 1794, subdivision (b)(2) (where buyer has accepted the goods), it is undisputed that the “repairs necessary to make the goods conform” were made. In its summary judgment motion, Caterpillar showed that the Rhodes suffered no damages, in that Caterpillar paid the full cost of replacing the engine and paid for substitute transportation and lodging for the Rhodes. Once Caterpillar established the absence of damages for breach of the implied warranty of merchantability, the burden shifted to the Rhodes to show through admissible evidence that they were entitled to any further damages under section 1794, subdivision (b)(2).”


Finally, the Court held that Caterpillar breached no express warranty.  ““It shall be presumed that a reasonable number of attempts have been made [if][¶] … [¶][t]he vehicle is out of service by reason of repair of nonconformities by the manufacturer or its agents for a cumulative total of more than 30 calendar days[.]” (§ 1793.22, subd. (b).) Under section 1793.2, subdivision (c), “[t]he reasonable costs of transporting nonconforming goods after delivery to the service and repair facility until return of the goods to the buyer shall be at the manufacturer’s expense[ ].”In this case, it is undisputed that the motor home was repaired in a single attempt that took less than two weeks. The Rhodes argue that the motor home was out of service “by reason of the repair” (§ 1793.22, subd. (b)) for four months because Caterpillar violated its duty to pay the reasonable costs of returning it to them (§ 1793.2, subd. (c)). However, the undisputed facts establish that once the repairs were completed, Caterpillar offered to pay for a one-way airplane ticket to South Dakota to enable the Rhodes to pick up their motor home. We hold, as a matter of law, that Caterpillar’s offer to provide air transportation to pick up the motor home satisfies the requirement to pay the reasonable transportation costs under section 1793.2, subdivision (c). There is no triable issue of fact regarding breach of the express warranty.”


This decision is not citeable for publication.