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Lemon Law victory by Bryan Altman and The Altman Law Group

Ford’s Willful Violation of the Song-Beverly Act is Upheld on Appeal

UNPUBLISHED OPINION – Riley v. Ford Motor Company


This lemon law1 case involves a 2006 Ford F-250 truck equipped with a 6.0-liter Power Stroke V8 turbo diesel engine supplied by Navistar International Transportation Corporation.2 Defendant Ford Motor Company (Ford) lost at trial and now challenges the jury’s findings that (1) Ford had been given a reasonable number of opportunities to repair defects in the engine and its fuel injection system and (2) Ford’s failure to repurchase or replace the truck was a willful violation of the lemon law justifying the imposition of a civil penalty two times the amount of actual damages.

We conclude that (1) Ford has not demonstrated that the trial court committed prejudicial evidentiary or instructional error and (2) the jury’s finding that Ford’s violation was willful is supported by substantial evidence.

We therefore affirm the judgment.


On August 27, 2005, plaintiffs Donald and Diana Riley purchased a new 2006 Ford F-250 Super Duty truck equipped with a Navistar 6.0-liter diesel engine.3 The engine was equipped with a computer called the “power train control module” that, among other things, signaled the fuel injector control module (FICM) when to trigger the fuel injectors and how long to hold them open. The fuel injectors carry out the command by spraying fuel directly into the combustion chamber. The fuel injectors are powered by a high pressure oil pump.

The F-250’s engine, including the FICM, was covered by a 5-year/100,000-mile express powertrain warranty. The five-year warranty ran from the date of purchase and, therefore, expired on August 27, 2010. Other components of the truck were subject to other warranties with different warranty periods. The New Vehicle Limited Warranty, Bumper to Bumper Coverage covered three years or 36,000 miles, whichever occurred first.

Repair Work

On February 10, 2006, Riley took the F-250 (mileage 6,429) into a Ford dealership in response to a Ford recall notice. The recall repair work included recalibrating the power train control module, the FICM, and the transmission control module.

On December 26, 2006, Riley took the F-250 (mileage 17,079) to a Ford dealership for repairs because the engine would die after start up when cold. The dealership was not able to find a diagnostic trouble code when it connected to the F-250’s computer and did not otherwise identify a problem. The dealership checked the technical service bulletins4 issued by Ford and reprogrammed the power train control module and the transmission control module with the latest updates. Riley was told that he would hear a soft buzz when the engine is shut down, which was a normal sound created by the system clearing the injectors.

On January 3, 2007, the F-250 would not start, which stranded Riley on the way home from Las Vegas. The F-250 (mileage 17,526) was brought to a Ford dealership where it was discovered that there was low oil pressure to the fuel injectors. The technician found a snap ring was missing inside the high pressure oil pump that operated the injectors. The technician replaced the snap ring in accordance with a technical service bulletin, after which the F-250 would start and run whether the engine was hot or cold.

On April 27, 2007, Riley brought the F-250 (mileage 19,642) in because it was leaking power steering fluid. The dealership found and repaired a leak on the power steering return hose. This leak was not related to the engine or, more specifically, the fuel injection system.

On August 21, 2008, Riley brought the F-250 (mileage 24,228) to the dealership because of a problem with the fuel gauge. Specifically, the miles to empty was reading erratically and the gauge would not go all the way up when Riley filled the tank. The technician ran fuel gauge and pinpoint tests, determined the fuel sender had inaccurate readings, replaced the fuel sender, ran a retest, and found no problem.

Also, while the F-250 was with the dealership, the technician checked the power train control module and noticed the vehicle was still cycling its injectors (in accordance with the December 26, 2006, repairs). Ford’s latest technical service bulletins no longer used this approach for sticking injectors. The technician concluded the power train control module still had the old calibrations so he updated it to the latest calibrations listed in the technical service bulletins.

On November 20, 2008, Riley brought the F-250 to the dealership for the same fuel gauge problem. The dealership found special service message No. 19098, which stated that sulfur in the fuel might affect the fuel gauge and recommended the use of a fuel cleaner—specifically, a Techron fuel additive. The additive also would help keep the fuel injectors clean. The dealership gave Riley a copy of the special service message.5

On January 14, 2011, Riley brought the F-250 (mileage 37,154) to the dealership because the check engine light was on, it emitted black smoke and ran poorly when started cold in the mornings. The technician performed a diagnostic test and obtained a code for a failed FICM, along with codes showing all eight injectors had told the computer they had a problem. The technician located a technical service bulletin setting forth the procedure for confirming the problem and then changing the FICM. The technician’s comments on the service order stated that a FICM kit was installed and an O-ring replaced. When the FICM was rechecked, it ran normally. Ford treated this repair work as being covered by the 5-year power train warranty, even though the five-year period had expired on August 27, 2010.

BBB Claim

In February 2013, Riley contacted BBB Auto Line, a special automotive complaint resolution program independently operated by the Council of Better Business Bureaus, Inc.6 (Fedor v. Nissan of North America, Inc. (2013) 432 N.J.Super. 303, 306 [74 A.3d 977].) The F-250’s warranty booklet referred the buyer to the BBB Auto Line program “if your warranty concern has not been resolved using [Ford’s] three-step procedure.” Riley submitted a customer claim on the form provided by BBB Auto Line and requested a return of the money paid for the F-250. In March 2013, Riley received a letter from BBB Auto Line stating that “your complaint is not within the jurisdiction of the BBB AUTO LINE program” because the claim was made more than six months after the five-year warranty, which began on August 27, 2005, had expired. In August 2013, Riley filed this lawsuit.

Additional Repairs

On August 18, 2014—a little over a year after this lawsuit was filed—Riley brought the F-250 (mileage 54,576) to the dealership and reported the check engine light was on. The technician found a code for the eighth glow plug and replaced all four left bank glow plugs (i.e., the plugs for cylinders 2, 4, 6 & 8). Also, the power train control module, the FICM and the transmission control module were reprogrammed again, which was the fourth time for the power train control module and the third time for the FICM. Riley’s expert testified that glow plugs are used to start the diesel engine and keep it warm. The glow plug contains a wire that gets red hot and helps the fuel atomize and evaporate, which helps it burn in a cold engine. The expert also testified that the glow plug failed because of the extra stress caused by having to stay on longer to help the problem of the fuel injector not injecting the right amount of fuel at the right time.

In November 2014, Riley accidently put 7.13 gallons of gasoline into the F-250’s fuel tank. Riley realized his mistake before starting the engine, had the vehicle towed to a friend’s house, and then removed and emptied the fuel tank. The fuel tank was reinstalled and 10 gallons of diesel fuel were placed in the tank. The F-250 was started and ran without a problem when Riley drove it around town.

On November 10, 2014, the F-250 (mileage 56,751) was towed to the dealership because it would start, run rough, then shut off so it could not be driven. Codes were shown for the first and third fuel injectors, which passed an electrical test and failed a balance test. All four injectors on the same bank as the first and third were replaced. The service invoice states that (1) a fuel sample was taken, (2) evidence of gasoline in the fuel was found, (3) the fuel tank was removed, drained, and filled with 10 gallons of diesel, and (4) the fuel filters and filter cap was replaced.


The Complaint

On August 6, 2013, Riley filed a complaint alleging six causes of action, including a violation of the Song-Beverly Consumer Warranty Act, Civil Code section 1790, et seq. The complaint alleged that Riley made a timely request to be excluded from the class action settlement involving the Navistar 6.0-liter engine installed in the F-250. (See fn. 2, ante.)

The complaint contained detailed allegations chronicling Ford’s difficulties with the Navistar 6.0-liter engine, beginning on May 15, 2002, when Ford’s chief engineer of diesel engines identified multiple high risk items with the first 2003 model year vehicles equipped with that engine. The complaint also alleged that Ford’s analysis of the multitude of warranty claims on the troubled 6.0-liter diesel engine lead Ford to attribute the problem of poor combustion to the same root cause—injector sealing issues involving leaks between the fuel rail, combustion chamber and coolant jacket. The complaint alleged that, despite Ford’s knowledge of the root cause of the problem, it concealed that information from consumers and adopted a strategy of treating the symptoms rather than the underlying cause. Riley alleged that, under this “band-aid strategy,” Ford allowed dealerships to perform limited repair measures that did not properly remedy or resolve the underlying defect. This strategy reduced Ford’s warranty expenditures and helped conceal the underlying defect from the purchaser until the applicable warranty period expired.

Expert Testimony About Fuel Injectors

During the trial, Riley presented a forensic automotive expert, Thomas Lepper, to testify about the fuel injectors used in the 6.0-liter engine. Lepper stated that (1) he had performed about 7,000 vehicle inspections as an expert, (2) between 100 and 120 of those inspections related to lemon law cases, and (3) about 85 of those lemon law inspections were of Ford F-250’s. In conducting those inspections, he found problems with the 6.0-liter diesel engine related to the turbocharger, exhaust gas recirculation, fuel injectors, power train control module and FICM.

Lepper prepared for his testimony by reviewing the inspection documents and photographs, the repair orders for Riley’s F-250, technical service bulletins published by Ford, depositions in prior Ford lawsuits, emails sent between Ford engineers, and other documents relating to some procedures Ford is using to handle problems related to fuel injectors and the FICM.

Lepper testified that in 2006, Ford engineers were astounded by how much money Ford was spending on warranties for fuel injectors, which are expensive to replace. Lepper testified that the engineers were working on how to replace under the warranty only the injectors that physically failed at that time and how to use the programming in the FICM to get around the problem with the fuel injectors. Lepper illustrated the use of programming as follows:One example is there’s a little valve inside the fuel injector that opens to release the fuel. That valve had had too much tolerance, it moved too much and was getting stuck in its cylinder. It’s called `stiction.’ And the valve would kind of stick until the power got enough to open it to let the fuel go in, so they said instead of trying to change the injectors, make them with tighter tolerance and better quality stuff, what we’ll do is we’ll turn the FICM power up so we jam that injector to make that thing move even if it is trying to stick.

Lepper discussed an email from Ford’s director of North American Diesel stating that warranty spending on injectors was as much as $9.8 million per month and something could be done with the FICM to solve the problem with the injectors. Lepper testified that in 2006 Ford was uncomfortable with the amount of money spent replacing fuel injectors and Ford tried tweaking the calibrations of the FICM instead of replacing injectors. Lepper testified that it was his opinion that by January 2006 Ford still had not found a solution to the fuel injector problem. Lepper also testified that, based on his review of trial exhibit 57, he held the opinion that at the end of February 2007 there had been a tremendous problem with the fuel injectors on the 6.0-liter engine and it was still occurring. In addition, Lepper testified that Ford sued Navistar, the manufacturer of the 6.0-liter engine, as a result of the warranty spending on that engine.

The Jury Verdict

Riley’s characterization of Ford’s actions as a “band-aid approach” carried through to the closing arguments made in the November 2014 jury trial. Riley’s attorney argued that every single response of Ford was a “band-aid approach” and the technicians working on the vehicle were “doing what they’re told to do in the parameters of what they could do, and when the car comes in they do a little Band-Aid spot and this repair fixes it, but don’t lose the forest for the trees. The big picture is they didn’t fix it. They didn’t conform the vehicle to warranty. They couldn’t. It’s a defective operational system.”

The jury completed a special verdict form, unanimously finding that (1) the F-250 had defects covered by Ford’s express warranty that substantially impaired it use, value or safety to a reasonable buyer in plaintiff’s situation; (2) Ford failed to repair the defects covered by the written warranty after a reasonable number of opportunities to do so; (3) the defects were not caused by plaintiffs’ unreasonable use of the truck; and (4) Ford willfully violated the Song-Beverly Consumer Warranty Act by failing to repurchase or replace the truck.

The jury found the damages resulting from the failure to repair the defect were $46,799.62 (the purchase price of the vehicle, inclusive of sales tax, license fees, registration fees and other fees) plus $4,397 in incidental and consequential damages. These damages totaled $51,196.62. The jury found that plaintiffs had driven the truck 16,577 miles between the time they took possession of the truck and first time they delivered it to Ford for repairs.7 The jury also imposed a civil penalty in the maximum amount authorized by statute—that is, “two times the amount of damages.” (Civ. Code, § 1794, subd. (e)(1).)

On December 4, 2014, the trial court entered a judgment on jury verdict that implemented the statutory offset for mileage driven and thereby reduced the damages for breach of express warranty to $44,711.64, the civil penalty to $89,423.28, and the total damage award to $134,134.92.

Posttrial Motions

After entry of the judgment, Ford filed a motion for new trial and a motion for judgment notwithstanding the verdict. The motion for new trial asserted evidentiary and instructional error and claimed the trial court allowed plaintiffs to lump together unrelated repairs to show Ford had been given a reasonable number of opportunities to repair the defects. The motion for judgment notwithstanding the verdict challenged the jury’s finding of a willful violation and the resulting award of a civil penalty. In February 2015, the trial court held a hearing on these motions and denied them three days later.

In March 2015, Ford filed a timely notice of appeal challenging the judgment and the trial court’s denial of its posttrial motions.



A. Contentions of the Parties

1. Ford’s Contentions

Ford contends the trial court erred by admitting evidence that was irrelevant and unduly prejudicial. Ford argues that the nonconformity with the F-250’s warranty was related to the FICM and the injector system and, consequently, evidence of repairs of unrelated problems was irrelevant. In particular, Ford argues the April 2007 repair of a power steering fluid leak and the August and November 2008 repairs of a fuel gauge problem should not have been presented to the jury.

2. Riley’s Contentions

Riley contends the fact that the power steering fluid leak was not related to the engine was made clear to the jury. Consequently, Riley argues that the admission of evidence about the leak and its repair was not prejudicial to Ford. As to the erratic fuel gauge, Riley contends this was a symptom of the larger problem of the defective fuel system, which included the FICM and the injectors. Thus, Riley disagrees with Ford’s contention that the fuel gauge problems were not related to the defective fuel system.

B. Standard of Review

Appellate courts apply the abuse of discretion standard when evaluating rulings regarding relevancy under Evidence Code section 210. (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 147 [postwarranty repair was relevant to whether vehicle was repaired to conform with warranty during the warranty period] (Donlen); see People v. Waidla (2000) 22 Cal.4th 690, 717 [“appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence”].)

C. Power Steering Leak

It is undisputed that the leaking power steering fluid was not related to the engine and the engine’s problems with the delivery and combustion of fuel. Lepper testified during cross-examination that the fluid leak was not related to the engine, and it was repaired within a reasonable number of repair attempts. Ford’s attorney asked Lepper, “You’re not trying to intimate to the jury that this repair . . . counts for the engine, right?” Lepper answered, “Correct.” This testimony was referred to by Ford’s attorney during his closing argument when he stated: “Mr. Lepper looked at this repair history, and he took it down to the next issue, which was a power steering fluid leak. He wasn’t testifying that the vehicle was defective because of a power steering leak. He was focused on the engine.”

Despite Lepper’s testimony, Riley’s attorney referred to the power steering fluid leak in his closing argument. However, Riley’s attorney did not urge the jury to find the vehicle’s time at the dealership constituted an opportunity to repair the defect that was the basis of the lawsuit. Later, Riley’s attorney identified the defect being raised by arguing: “You heard the testimony regarding, specifically, the constant reprogramming of these computer modules [] dealing with the injectors. It’s a flawed, defective operational system. It’s not any one specific part. The system is flawed.”

Based on the arguments presented by counsel, the jury instructions given and the testimony presented, we conclude that the evidence about the power steering fluid leak was not prejudicial because it is not probable that the jury misused that evidence in determining that Ford had been given a reasonable number of opportunities to repair the defect relating to the engine and its problems with the delivery and combustion of fuel.

D. Inaccurate Fuel Gauge

1. August 2008

The admission of evidence relating to the August 2008 repair of a fuel gauge problem was relevant to the problem with the engine and the delivery and combustion of fuel. While the F-250 was at the dealership, a technician checked the power train control module and noticed the vehicle was still cycling its injectors, a process that had been programmed as part of the December 26, 2006, repair attempt. The technician noted that the latest technical service bulletins no longer recommended the cycling of injectors and, as a result, he updated (i.e., reflashed or reprogrammed) the power train control module and FICM to the latest calibrations. Thus, the technician actually performed a repair that was designed to deal with the same issue that had been addressed in December 2006. As a result, the August 2008 visit to the dealership counts as more than a repair opportunity—it was an actual repair attempt addressing the engine’s problem with the delivery and combustion of fuel.8 Furthermore, admission of evidence about the fuel gauge problem was appropriate to put the attempted repair into a factually accurate context, rather than leaving the jury wondering why the vehicle had been brought to the dealership in August 2008.

In summary, Ford has not established that the evidence relating to the August 2008 repairs was irrelevant to the issues presented to the jury. To the contrary, we conclude the evidence was relevant to whether Ford had been given a reasonable number of opportunities to repair the engine’s fuel injection system. In addition, the evidence of recalibration of the modules was relevant to the issues of whether the system was defective and whether the December 2006 repair attempt fixed that defect. These conclusions as to relevancy need not be supported by a lengthy discussion because Ford has made no attempt to explain why the August 2008 recalibrations had no relevance to these issues.

2. November 2008

The problem of an erratic fuel gauge occurred again in November 2008. In response to the problem, Ford recommended the use of a fuel additive to deal with sulfur build-up on the fuel level sensor and provided Riley a copy of special service message No. 19098.

Lepper asserted evidence about this repair visit was related to (1) whether Riley properly maintained the vehicle and (2) whether the other problems with the fuel system were caused by poor fuel quality. Riley’s following the recommendations in the special service message and his purchase of fuel additive was relevant to the issue of proper maintenance of the vehicle. Proper maintenance of the F-250 was addressed indirectly by the third question in the special verdict, which asked whether Riley’s unauthorized or unreasonable use caused the defect that was not repaired within a reasonable number of attempts. The answer to this question was not a foregone conclusion because Ford’s attorney raised the maintenance issue during closing argument. In addition, evidence about the use of a fuel additive was relevant because, as testified by Lepper, its use would clean the fuel injectors, which supports the inference that the malfunctions in the fuel system that occurred after Riley began using the additive was not caused by dirty fuel.

Therefore, we conclude that the evidence relating to the erratic fuel gauge in November 2008 and how each party responded to that problem were relevant to issues presented in this lawsuit. Consequently, the evidence was properly admitted.


A. Standard of Review

1. Independent Review of Instructions

Appellate courts apply a de novo standard of review when deciding whether the trial court’s jury instructions were proper, which is a question of law. (Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 617 (Harb).)

2. Rules of Law Governing the Rejection of Proposed Instructions

“A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court . . . must instruct in specific terms that relate the party’s theory to the particular case.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) Rejection of a proposed instruction that correctly states the law is not necessarily error. A court may refuse to give an otherwise correct instruction if it duplicates matters covered in other jury instructions. (City of Los Angeles v. Retlaw Enterprises, Inc. (1976) 16 Cal.3d 473, 490.)

3. Prejudice

An appellant who shows an instructional error occurred also must establish the error was prejudicial. (Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601, 613; Cal. Const., art. VI, § 13 [miscarriage of justice required for reversal].) Prejudice or a miscarriage of justice exists when there is “a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached.” (Soule, supra, 8 Cal.4th at p. 574.) In cases of instructional error, a reasonable probability that “the jury would have returned a more favorable verdict” is sufficient to establish prejudice. (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1073; see Code of Civ. Proc., § 475 [reversal is warranted where “a different result would have been probable if” the instructional error had not occurred].)

When assessing prejudice from instructional error, appellate courts are constitutionally required to conduct “an examination of the entire cause.” (Cal. Const., art. VI, § 13.) Under this constitutional requirement, courts consider, insofar as relevant, (1) the degree of conflict in the evidence on the critical issues; (2) whether the winning side’s argument to the jury may have contributed to the instruction’s misleading effect; (3) whether the jury requested rereading of the erroneous instruction or related evidence; (4) the closeness of the jury’s verdict; and (5) the effect of other instructions in remedying the error. (Soule, supra, 8 Cal.4th at pp. 570-571.) Thus, the court’s assessment “requires evaluation of several factors, including the evidence, counsel’s argument, the effect of other instructions, and any indication by the jury itself that it was misled.” (Id. at p. 574.)

B. Trial Court’s Approach to the Jury Instructions

The trial court’s written order denying Ford’s motion for new trial addressed Ford’s argument that its special jury instructions should have been given by stating:The court chose to use the CACI jury instructions in this matter, with few exceptions and modifications. Upon review of the offered special instructions and the applicable case law this court concluded that the CACI instructions proper[l]y and adequately apprised the jury of the issues presented at trial and the applicable law. This court concluded that most of the special instructions amount to argument or were already contained in existing CACI instructions.

As explained below, we agree with the trial court’s assessment of the special instructions proposed by Ford.

C. Rejected Instructions

1. Special Instruction No. 4

Ford proposed Special Instruction No. 4 to address repair attempts that were not related to the engine or involved in the post-warranty repair of worn parts. It stated in full:Ordinary maintenance and opportunities to repair complaints that were not covered by Ford Motor Company’s written warranty do not count towards your calculation of a reasonable number of repair opportunities. [¶] The expert’s inspection of the vehicle during the course of the lawsuit does not count as opportunities to repair, even if some diagnosis was done during the inspection.

Relying on CACI No. 3201, the trial court instructed the jury that the elements of Riley’s claim required proof that, among other things, (1) “the vehicle had a defect that was covered by the warranty”; (2) Riley delivered the vehicle to Ford “for repair of the defect”; (3) Ford “failed to repair the vehicle to match the written warranty after a reasonable number of opportunities to do so”; and (4) Ford did not promptly replace or buy back the vehicle. As to the number of repair opportunities, the trial court used CACI No. 3202 to instruct the jury as follows:Each time the 2006 Ford F250 was given to Ford Motor Company or its repair facility for repair counts as an opportunity to repair, even if it did not do any repair work. [¶] In determining whether Ford Motor Company had a reasonable number of opportunities to fix the 2006 Ford F250, you should consider all of the circumstances surrounding each repair visit. Ford Motor Company or its repair facility must have been given at least two opportunities to fix the truck.

The foregoing CACI instructions accurately stated the law governing repair opportunities. (See Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 799 (Robertson); Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208-1209.) Consequently, the questions presented by Ford’s proposed Special Instruction No. 4 are (1) whether it was a correct, nonargumentative instruction related to Ford’s theory of this particular case and (2) whether it duplicated matters covered in other jury instructions. (See pt. II.A.2., ante.)

First, we consider whether the proposed special instruction was limited to Ford’s theory of this case or, alternatively, addressed extraneous matters. The second sentence of the proposed instruction told the jury not to count an inspection performed by an expert as a repair opportunity. This was an extraneous statement of law because Ford has not identified an instance where any expert inspected the F-250 and Riley attempted to count that inspection as a repair opportunity. Therefore, the second sentence was surplusage that did not address a theory presented to the jury. (Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292, 303 [an instruction correct in the abstract may not be given where it is not supported by the evidence].) As a result, the trial court properly rejected that portion of the proposed instruction.

Second, the first sentence of the proposed special instruction, which identified situations not to be counted as repair opportunities, is an accurate statement of the law and fits Ford’s theory that some of the repairs occurred after the warranty had expired. Consequently, we consider whether that portion of the instruction duplicated the instructions given by the trial court. Following CACI No. 3201, the instructions given told the jury that Riley was required to prove “the vehicle had a defect that was covered by the warranty” and Ford “failed to repair the vehicle to match the written warranty after a reasonable number of opportunities to do so.” The instructions given accurately informed the jury of the relationship between the warranty, defects and repair opportunities. The jury would have understood these instructions to mean that the relevant repair opportunities involved only defects covered by the warranty and did not include repairs after the warranty had expired—that is, after there is no warranty to match.

Furthermore, Ford has not demonstrated the jury was misled into thinking the opportunity to repair a nonwarranty problem counted towards whether Riley had proven that Ford “failed to repair the vehicle to match the written warranty after a reasonable number of opportunities to do so.” Consequently, the proposed instruction restating the warranty-defect-repair opportunity relationship in the negative—specifically, that repairs of complaints not covered by the warranty do not count as an opportunity to repair the vehicle to match the warranty—was properly rejected by the trial court as duplicative.

2. Special Instruction No. 6

Ford proposed a special instruction based on language in Johnson v. Ford Motor Co. (2005) 35 Cal.4th 1191, which Ford contends addressed Riley’s attempt to lump together multiple, unrelated complaints. Special Instruction No. 6 stated in full:Ford Motor Company was not required to replace or repurchase the vehicle if the alleged nonconformity or nonconformities are minor or insubstantial. Among other things, the nonconformity must substantially impair the use, value, or safety of the vehicle. Not every customer complaint about a new motor vehicle, even if valid, rises to that level.

Again, this proposed instruction restates in the negative requirements contained in the instructions given to the jury. Based on CACI Nos. 3201 and 3204, the trial court instructed the jury that Riley had to prove a defect substantially impaired the F-250’s use, value, or safety to a reasonable person and identified factors the jury could consider in deciding the issue. Thus, there was no reasonable probability that the jury was misled into thinking that a minor or insubstantial nonconformity could be the basis for a replacement or repurchase of the vehicle. Consequently, we conclude the trial court properly rejected Special Instruction No. 6 as duplicative.

3. Special Instruction No. 9

Ford’s Special Instruction No. 9 addressed lumping problems together by stating: “Two or more insubstantial problems may not be added together to make a substantial one.”

First, we note that this proposed instruction does not fit neatly with the language used in the instruction given by the trial court. The proposed instruction does not use the term “defect,”9 but introduces the undefined term “problems.” The term “problems” is vague and ambiguous because it could be interpreted to mean symptoms, rather than the alleged defect. Consequently, the trial court properly rejected the proposed instruction and avoided the possibility that it, or arguments based on it, would mislead the jury. (See Harb, supra, 233 Cal.App.4th at p. 619 [concern about misleading the jury applied to ambiguously worded jury instructions].)

Second, the instructions given followed CACI No. 3201 and required Riley to prove “that the vehicle had a defect that was covered by the warranty and had substantially impaired its use, value, safety to a reasonable person.” The reference to “a defect” (which is singular) before the words “substantially impaired” does not create the impression that small defects can be accumulated to create the required substantial impairment. Also, the instruction given to the jury that was based on CACI No. 3204 identified some of the factors the jury could consider “[i]n deciding whether a reasonable person would believe that the vehicle’s defect, if any, substantially impaired the vehicle’s use, safety, or value.” Similar to the earlier instruction, this instruction’s term “the vehicle’s defect” is in the singular and does not create the impression that many insubstantial defects can be aggregated to create one substantial defect. Thus, the instructions given were not misleading and, as a result, the proposed instruction was not needed to clarify those instructions.

Third, a crucial factual issue in this case was whether the F-250’s various troubles involving the delivery and combustion of fuel were related to the same defect. Special instruction No. 9 was not tailored to assist the jury in deciding this specific question and, consequently, was not required to be given to address Ford’s particular theory on that issue.

In sum, we conclude that special instruction No. 9 was potentially misleading and added nothing to what the jury was told in other instructions. Therefore, the court’s decision not to give the instruction was correct.

4. Special Instruction No. 47—Postwarranty Repairs

Ford contends the trial court erroneously rejected special instructions it proposed to guide the jury’s consideration of Riley’s evidence and argument pertaining to post-warranty repairs—specifically, the repairs that occurred in 2014. Ford’s Special Instruction No. 47 stated: “In evaluating Donald and Diana Riley’s claims, you are not to consider any complaints, service visits, or repairs that occurred or were made after this lawsuit was filed on August 6, 2013.” We conclude this instruction is not an accurate statement of the law and, thus, the trial court properly rejected it.

The proposed instruction contains broad language that is directed at “Riley’s claims,” which could be understood to mean that it applied to all of the elements Riley was required to prove, rather than being limited to the element addressing whether Ford had been given a reasonable number of repair opportunities. As a result of its broad language, the proposed instruction was not an accurate statement of law. In Donlen, the court concluded that postwarranty repair evidence may be relevant to show the vehicle was not repaired to conform to the warranty during the warranty period. (Donlen, supra, 217 Cal.App.4th at p. 149.) Thus, if this instruction had been given, Ford could have referred the jury to its language and, contrary to Donlen, argued that the 2014 service visits could not be considered in evaluating whether Ford’s prior attempts actually had repaired the defect. Such an argument would have been contrary to law and, therefore, the trial court properly rejected the proposed instruction.

5. Special Instruction No. 50—Warranty Coverage

Ford’s Special Instruction No. 50 stated: “To recover, Donald and Diana Riley must prove that the nonconformity led to a malfunction of their vehicle that substantially impaired its use, value, or safety within the coverage period of Ford Motor Company’s express warranty.” This proposed instruction is redundant to the instruction that Riley was required to prove “that the vehicle had a defect that was covered by the warranty and had substantially impaired its use, value, [or] safety. . . .” The application of the given instruction’s phrase “covered by the warranty” was explained to the jury in an earlier instruction stating that Ford gave Riley a warranty “that covered direct injection diesel engine and component parts against defects . . . for 5 years after the warranty [start date], or 100,000 miles, whichever first occurs.”

Consequently, we conclude the instructions given adequately informed the jury about the time limits on the coverage provided by Ford warranty. Furthermore, giving the proposed instruction might have created confusion by giving the erroneous impression that only malfunctions that manifested themselves within the coverage period could be used to prove a nonconformity. (See Donlen, supra, 217 Cal.App.4th at p. 149 [a defect that first appears after the expiration of the warranty does not necessarily mean the defect did not exist when the product was purchased].) Therefore, we conclude that the trial court did not err in rejecting the duplicative and potentially misleading Special Instruction No. 50.


Ford presents two levels of challenges to the jury’s finding that Ford willfully violated the Song-Beverly Consumer Warranty Act. First, Ford contends the trial court committed instructional and evidentiary errors relating to the willfulness of its failure to repurchase the F-250. Second, Ford challenges the sufficiency of the evidence supporting the jury’s finding of a willful violation, arguing (1) no jury reasonably could infer Ford acted with subjective bad faith, (2) there were reasonable grounds for Ford to believe it had satisfied its warranty obligations and (3) evidence of general policies had no nexus to the decision not to repurchase Riley’s F-250 and, thus, could not constitute substantial evidence of punishable misconduct.

A. Overview of Willfulness and the Failure to Repurchase

1. Statutory Provisions

Section 1793.2, subdivision (d)(2) provides that if a manufacturer does not service or repair a new motor vehicle to conform to the applicable express warranty after a reasonable number of attempts, the manufacturer shall either promptly replace or repurchase the vehicle. A violation of the statutory rights of replacement or reimbursement entitles the buyer to actual damages. (§ 1794, subd. (b).) Furthermore, “[i]f the buyer establishes that the failure to comply was willful, the judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty which shall not exceed two times the amount of actual damages.” (§ 1794, subd. (c).) The Song-Beverly Consumer Warranty Act does not define the term “willful.”

2. Case Law

In Kwan v. Mercedes Benz of North America (1994) 23 Cal.App.4th 174 (Kwan), Justice Werdegar discussed the slipperiness of the term “willfulness” and concluded that a violation of the statutory obligation to replace the vehicle or refund the purchase price “is not willful if the defendant’s failure to replace or refund was the result of a good faith and reasonable belief the facts imposing the statutory obligation were not present.” (Id. at p. 185.) She also explained that “[a] decision made without the use of reasonably available information germane to that decision is not a reasonable, good faith decision.” (Id. at p. 186.)

Other districts of the Court of Appeal have adopted Kwan‘s definition of the term “willful.” (E.g., Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041, 1051. [Second App. Dist., Div. One]; Robertson, supra, 144 Cal.App.4th at p. 815 [Fifth App. Dist.]; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 136 [Third App. Dist.].) Accordingly, we conclude the definition of “willful” adopted in Kwan and confirmed by this court in Robertson sets forth the proper meaning of that term for purposes of section 1794, subdivision (c).

3. Jury Instructions

Kwan‘s definition of “willful” was incorporated into CACI No. 3244, which addresses the award of the civil penalty in cases involving a willful violation of the Song-Beverly Consumer Warranty Act. CACI No. 3244 provides in part: “`Willful’ means that [name of defendant] knew what [he/she/it] was doing and intended to do it. However, you may not impose a civil penalty if you find that [name of defendant] believed reasonably and in good faith that [describe facts negating statutory obligation].”

Based on CACI No. 3244, the provisions of the Song-Beverly Consumer Warranty Act, and existing case law, the trial court instructed the jury as follows:If Donald and Diana Riley have proved that Ford Motor Company’s failure was willful, you may impose a civil penalty against it. `Willful’ means that Ford Motor Company knew what it was doing and intended to do it. However, you may not impose a civil penalty if you find that Ford Motor Company believed reasonably and in good faith that it was able to conform the vehicle to warranty within a reasonable number of repair attempts.The penalty may be any amount you find appropriate, up to a maximum of two times the amount of Diana and Donald Riley’s actual damages.

The definition of willful given to the jury has an objective component (reasonableness) and a subjective component (good faith). “Subjective good faith means a state of mind denoting honesty of purpose and freedom from intention to defraud or mislead. [Citation.] The existence of good faith involves a factual inquiry into the party’s subjective state of mind, a fact that rarely is susceptible to direct proof and, therefore, involves the court in examining the circumstances that existed at the time of the action in question and drawing inferences from those circumstances about the party’s state of mind. [Citation.]” (People v. Accredited Surety Casualty Co. (2014) 230 Cal.App.4th 548, 560, fn. 9; see Cal. U.Com.Code, § 1201, subd. (20) [subjective good faith means honesty in fact].)10

Based on the statutory text, Kwan and Robertson, we conclude the trial court properly instructed the jury on the definition of “willful” when it relied on CACI No. 3244.

B. Special Instructions No. 18 & 19

Ford proposed two instructions that it contends were designed to prevent improper consideration of post-warranty repairs in determining the question of willfulness. Special Instruction Nos. 18 and 19 would have directed the jury that, in determining whether Ford Motor Company “willfully” refused to replace the F-250 or reimburse the purchase price, “you must only consider the information that Ford Motor Company knew or should have known at the time it made the decision” and “you must not consider any information, acts, or conduct that occurred or became available after Ford Motor Company made its decision.”

The jury instructions given by the trial court stated that Riley claimed Ford’s failure to repurchase was willful, defined willful to mean that Ford “knew what it was doing and intended to do it,” and stated no civil penalty could be imposed if the jury found Ford “believed reasonably and in good faith that it was able to conform the vehicle to warranty within a reasonable number of repair attempts.” When the instructions are considered as a whole, the requirement that Ford “knew what it was doing” would be understood to mean that Ford knew what it was doing when it decided not to repurchase the F-250. There is nothing in the instructions given to suggest that, contrary to commonsense, Ford’s decision retroactively could become “willful” based on information learned after the decision was made.

Therefore, we conclude that the jury instructions given adequately informed the jury that information received after the decision was not relevant to determining whether the decision was willful. Alternatively, assuming that Ford was entitled to the special instructions because those instructions related to a specific theory Ford was presenting in this case, we conclude that error was not prejudicial because Ford has not shown that a more favorable result was probable. (See Soule, supra, 8 Cal.4th at pp. 581-582 [error in failing to give defendant’s special instruction was not prejudicial because defendant’s theory that the force of collision was the sole cause of the plaintiff’s injuries was encompassed, in general terms, in “substantial factor” causation instruction].) Accordingly, the trial court did not commit prejudicial error in rejecting the special instructions stating that willfulness could not be decided based on information available after Ford made its decision.

C. Evidentiary Error

Ford contends that evidence relating to trial exhibits 36, 28, 31 and 79 should not have been admitted.

1. Trial Exhibit 36

Trial exhibit 36 is a 14-page document that provides information about Riley’s 2013 claim to the BBB. During closing argument, Riley’s attorney stated the exhibit “is the FMC 360, Ford’s internal documents” and referred to the seventh page to show that Ford was aware Riley had made a claim to the BBB and asked for a repurchase.

During the trial, Gregory West, an engineer who had worked for Ford since 1990, was asked about trial exhibit 36. West responded, “I believe it’s called FMC360.” Subsequently, West was asked, “This is a Ford internal document, correct?” West answered, “I believe it is, yes.”11 The trial court found the exhibit was a Ford document and admitted it into evidence.

Ford contends the exhibit was not properly authenticated. “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, § 1400.) A practice guide states: “As long as the proponent’s evidence would support a finding of authenticity, the writing is admissible. The fact that conflicting inferences can be drawn regarding authenticity goes to its weight as evidence, not its admissibility.” (2 Wegner, et al., Cal. Practice Guide: Civil Trial and Evidence (2016 The Rutter Group) ¶ 8:331, p. 8C-25.) We conclude conflicting inference could be drawn from West’s testimony about what he believed and one such inference is that his belief was well founded and the exhibit was in fact a document created by Ford. Therefore, we will not overturn the trial court’s finding that trial exhibit 36 was authentic. (See Ibid.)

2. Trial Exhibits 28, 31 and 79

Riley described trial exhibit 28 as Ford’s internal policies containing express instructions concerning what should be done when Ford receives notification of a BBB claim. The copy of the exhibit in the appellate record contains 11 pages, each of which is stamped diagonally with a copyright symbol followed by “Ford Motor Company, 2013.” In addition, each page bore the “Ford oval,” a company emblem containing the word “Ford” written horizontally in script.

Trial exhibit 31 was described by Riley as “Ford’s internal training materials that teach its customer service representatives that their `Primary Goal’ is to reduce R.A.V.’s, which is an acronym for ReAcquired Vehicles, i.e., buybacks.” The copy of the exhibit in the appellate record contains four pages, its first page has the Ford oval in the upper right hand corner, and all pages are stamped diagonally with three lines reading: “PRODUCED PURSUANT TO PROTECTIVE ORDER, ADAMS V. FORD MOTOR COMPANY, CASE NO. CIVRS 1000923.”

Trial exhibit 79 was described by Riley as “Ford’s internal training materials that teach its customer service representatives that Ford buys back vehicles only under `extreme circumstances.'” The copy of the exhibit in the appellate record contains two pages, each of which is stamped diagonally with a copyright symbol followed by “Ford Motor Company, 2011.” The first page contained the Ford oval and the heading, “Concern Resolution.” On the second page of the exhibit, item 2.e states: “Set realistic expectations for the customer.” The first entry under this item states: “Inform customers of pertinent policies. It is Ford’s policy to honor the new vehicle limited warranty and state Lemon Laws. FMC does not repurchase vehicles except in extreme circumstances.”

For purposes of this appeal, we assume that (1) these exhibits were not authenticated by a Ford employee or other witness and (2) Ford was not estopped from denying their authenticity.12 Consequently, we address whether Ford has demonstrated the admission of trial exhibits 28, 31 and 79 was prejudicial.

3. Trial Court’s Approach to Prejudice

The trial court’s written decision denying Ford’s motion for new trial included the following paragraph addressing the prejudice that may have resulted from the various errors raised by Ford:The Court finds that none of its rulings . . . during the trial of this case prevented Ford from having a full and complete trial on the merits of this action. Ford had a full and fair opportunity to challenge the evidence offered by the plaintiffs at trial, and in its closing argument to the jury Ford was afforded a second opportunity to argue that certain evidence offered by the plaintiffs should be disregarded. That this evidence offered by the plaintiffs was prejudicial to Ford’s case does not mean its use at trial amount[ed] to an `irregularity’ that warrants a new trial of this case.

4. Analysis of Ford’s Showing of Prejudice

An appellate court may not set aside a judgment or grant a new trial based on the improper admission of evidence “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) Under this provision, an appellant must affirmatively demonstrate prejudicial error to obtain relief from an appellate court. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) An appellant cannot carry its burden of demonstrating prejudicial error if it does not provide the appellate court with an adequate record of the lower court’s proceedings. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [appellate record was inadequate].)

In this case, the record presented by Ford does not allow “an examination of the entire cause, including the evidence” (Cal. Const., art. VI, § 13) relating to the question of willfulness because Ford’s appellant’s appendix omits evidence that Riley relied upon to show willfulness. Specifically, the appendix does not contain trial exhibit 34, which Riley described as “Ford’s internal warranty history referred to by the acronym, AWS, which Ford uses to keep a running log of all warranty repairs performed on every vehicle manufactured and sold by Ford.” In addition, the appellant’s appendix Ford submitted to this court did not include the declaration of Riley’s attorney, which appears to have addressed trial exhibit 34 as well as trial exhibits 28, 31, and 79.

Consequently, the record before this court does not contain all of the evidence relating to the willfulness of Ford’s statutory violation and, as a result, we cannot complete the constitutionally mandated review of the evidence to determine whether the admission of trial exhibits 28, 31, and 79 was prejudicial. Therefore, we conclude that Ford has failed to demonstrate prejudicial error. As a result, Ford is not entitled to a new trial limited to the issue of willfulness and whether the imposition of a civil penalty is appropriate—a new trial at which Ford likely would be required to present a witness who could authenticate the documents Ford produced during discovery.

D. Sufficiency of the Evidence

Ford contends the trial court erred in denying its motion for judgment notwithstanding the verdict because Riley presented no substantial evidence of Ford’s state of mind that could have supported the jury’s finding of a willful violation.

First, this argument as to the sufficiency of the evidence fails because, as discussed regarding prejudice, Ford has not presented an appellate record containing all of the evidence relevant to the issue of willfulness. (See Ballard v. Uribe, supra, 41 Cal.3d at p. 574.)

Second, the testimony of Lepper was sufficient to support the inference that Ford’s state of mind towards defective fuel injectors in the 6.0-liter engine was not honest in its purpose. The jury reasonably could have inferred that Ford chose to mask the problems caused by defective injectors in order to get a particular vehicle through its warranty period and save itself the expense of replacing the defective fuel injectors. More specifically, the jury reasonably could have inferred that (1) Ford used reprogramming of the FICM as a tactic pursued for an improper motive and (2) Ford’s state of mind about masking the problems created by the defective injectors carried over to its decision not to repurchase a vehicle. (See Gemini Aluminum Corp. v. Cal. Custom Shapes, Inc., supra, 95 Cal.App.4th at p. 1263 [bad faith means the action or tactic is being pursued for an improper motive].) Ford’s argument about the need for evidence showing bad faith with respect to Riley’s F-250 is unconvincing, because state of mind usually is proven by circumstantial evidence and evidence about Ford’s general approach to defective fuel injectors provides a reasonable basis for drawing inferences about its state of mind toward Riley’s F-250.

Third, Ford’s argument that the trial court erred in requiring Ford to prove its failure to act was not willful does not identify reversible error. The jury was properly instructed that “[i]f Donald and Diana Riley have proved that Ford Motor Company’s failure was willful, you may impose a civil penalty against it.” Thus, the jury’s finding of willfulness and its award of a civil penalty was not infected by a legal error relating to the burden of proof.

Fourth, Ford’s argument that civil penalties cannot be awarded because there were reasonable grounds for Ford to believe that it had satisfied its warranty obligations is too narrow to identify an error in the jury’s findings. The legal standard for a willful violation of the Beverly-Song Consumer Warranty Act requires the manufacturer to act both reasonably and in good faith. (Robertson, supra, 144 Cal.App.4th at p. 815; CACI No. 3244.) Ford’s argument about reasonableness fails because, among other things, it does not address Ford’s subjective state of mind and the jury’s implied finding that Ford acted in bad faith.


The judgment is affirmed. Plaintiffs shall recover their costs on appeal.

KANE, Acting P.J. and SMITH, J., concurs.


1. California’s vehicle “lemon law” is contained in the Song-Beverly Consumer Warranty Act, Civil Code section 1790, et seq. (Dagher v. Ford Motor Company (2015) 238 Cal.App.4th 905, 911, fn. 1.) Unlabeled statutory references are to the Civil Code.

The federal lemon law, the Magnuson-Moss Warranty Act, 15 United States Code section 2301, et seq., is not involved in this case. (See Cummins, Inc. v. Superior Court (2005) 36 Cal.4th 478, 484; 16 C.F.R. § 700 [interpretations of Magnuson-Moss Warranty Act].)2. Navistar’s engine was the subject of enough lawsuits that many were consolidated as a federal class action. (See In re Navistar 6.0L Diesel Engine Products Liability Litigation (J.P.M.L. 2011) 777 F.Supp.2d 1347 [consolidated actions alleged defects in the 6.0-liter diesel engine supplied by Navistar to Ford and used in certain 2003-2007 model year pickup trucks].) The class settlement covered model year 2003-2007 Ford vehicles equipped with a 6.0-liter Power Stroke diesel engine that, during the vehicle’s first five years in service or 100,000 miles, whichever came first, received one or more repairs to a fuel injector, the exhaust gas recirculation valve, the EGR cooler, the oil cooler, or the turbocharger. (In re Navistar Diesel Engine Products Liability Litigation (N.D.Ill. July 3, 2013, Case No. 11 C 2496 [MDL No. 2223]) 2013 U.S. Dist. LEXIS 189619, 2013 WL 10545508.) The plaintiffs in this case opted out of the class action.3. For convenience, we use the term “Riley” to refer to both of the plaintiffs and to Mr. Riley.4. A technical service bulletin helps the technicians repairing the vehicle by outlining a particular issue and the service procedure—that is, what to look for and how to fix it in the most efficient way.5. Riley’s expert reviewed receipts showing Riley bought the additive from the dealership. The expert interpreted the purchase of the additive as showing that Riley maintained the vehicle and did not ignore advice as to proper maintenance.6. The BBB Auto Line program has been certified by the Arbitration Certification Program, a bureau within the California Department of Consumer Affairs charged with certification and review of the qualified dispute resolution process set forth in the Tanner Consumer Protection Act, Civil Code section 1793.22. (Department of Consumer Affairs v. Superior Court (2016) 245 Cal.App.4th 256, 260; see Bus. & Prof. Code, §§ 472-472.5 [certification of third party dispute resolution processes for new motor vehicles]; Cal. Code of Regs., tit. 16, §§ 3396.1 to 3399.6 [arbitration certification program].) Arbitrators rendering a decision under a qualified program must take into account the written warranty and the rights and remedies conferred in regulations of the Federal Trade Commission contained in Part 703 of Title 16 of the Code of Federal Regulations. (Civ. Code, § 1793.22, subd. (d)(7).)7. The F-250’s odometer read 502 miles when purchased and 17,079 miles when taken to the dealership on December 26, 2006. The difference between these two figures is 16,577 miles.8. Stated in terms of Riley’s “band-aid” metaphor, the August 2008 repair replaced the “band-aid” applied in December 2006.9. The CACI instructions chose “defect” as the plain English synonym for the statutory term “nonconformity.” (Cf. CACI No. 3201 with § 1793.2, subds. (c), (d)(2)(C).)10. Ford quotes Gemini Aluminum Corp. v. Cal. Custom Shapes, Inc. (2002) 95 Cal.App.4th 1249 to define the absence of good faith: “`”[B]ad faith” means simply that the action or tactic is being pursued for an improper motive.'” (Id. at p. 1263.)11. Later, West was asked, “So this is an internal Ford document, correct, the Ford FMC360, is to your understanding, right?” West answered, “Yes, sir.” Thus, the statement in Ford’s opening brief that West had no knowledge of the document, did not recognize the document, and could not authenticate the document misrepresents West’s testimony.12. Riley states that the documents were produced by Ford during discovery in this case following a motion to compel. Riley’s appellate brief states: “Ford [denied the exhibits were authentic] by disobeying a subpoena and bringing in a company representative, who refused to acknowledge the very documents Ford had produced.” In response, Ford asserts that Riley did not support this estoppel argument with any citation to authority or the record.