Filed 10/1/20 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

RIGOBERTO RAMOS, 

Plaintiff and Appellant,

v.

MERCEDES-BENZ USA, LLC,

et al.,

Defendants and Respondents.

 B298958

 (Los Angeles County

 Super. Ct. No. BC608910)

ORDER MODIFYING OPINION

[Change in judgment]

THE COURT*: 

The opinion herein, filed on September 30, 2020, is 

modified as follows:

On page 11, at the end of the DISPOSITION add: No 

costs are awarded. 

There is a change in the judgment. 

____________________________________________________________

GRIMES, Acting P. J. STRATTON, J. WILEY, J.
Filed 9/30/20 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

RIGOBERTO RAMOS, 

Plaintiff and Appellant,

v.

MERCEDES-BENZ USA, LLC,

et al.,

Defendants and Respondents.

 B298958

 (Los Angeles County

 Super. Ct. No. BC608910)

APPEAL from a judgment and order of the Superior Court 

of Los Angeles County. David S. Cunningham, Judge. Affirmed.

Rosner, Barry & Babbitt, Hallen D. Rosner, Arlyn L. 

Escalante; Strategic Legal Practices and Payam Shahian for 

Plaintiff and Appellant.

No appearance for Defendants and Respondents. 

__________________________
2

SUMMARY

We hold that, under the Song-Beverly Consumer Warranty 

Act (Civ. Code, § 1791 et seq.; the Song-Beverly Act), popularly 

known as the “lemon law,” a buyer may not obtain restitution of 

the full price he paid for a new motor vehicle, where the 

manufacturer failed to complete repairs to a defect within 

30 days, but the defect did not substantially impair the vehicle’s 

use, value or safety. We affirm the judgment entered on the 

jury’s verdict. 

FACTS

Plaintiff Rigoberto Ramos leased a new 2013 MercedesBenz E350 from Mercedes-Benz of Beverly Hills on March 24, 

2013. 

A year later, in April 2014, plaintiff took the car to the 

dealer for the first time, because the car had been making 

squeaking and grinding noises when the steering wheel was 

turned to the right while backing up. The dealer was unable to 

duplicate the noise. The car was in the shop for one day.

Six months after that, in October 2014, plaintiff brought 

the car in because of a high-pitched noise from the front wheel 

area. The dealer confirmed the complaint and performed several 

repairs, including replacement of several parts. The service 

department also independently discovered cracked bushings and 

replaced them. The car was in the shop for 16 days. 

About two weeks after the October repair, on November 15, 

2014, plaintiff brought the car in again, reporting he continued to 

hear the grinding noise when the steering wheel was turned to 

the right while backing up. The dealer confirmed the noise 

occurred and performed repeated diagnostic road tests, but could 

not identify the cause. The dealer instructed plaintiff to continue 
3

driving the vehicle until further review by Mercedes-Benz. The 

car was in the shop for 18 days.

In December 2014, plaintiff asked Mercedes-Benz USA, 

LLC (the manufacturer) to repurchase the car, and on January 6, 

2015, the company declined to do so.

Nine months later, in October 2015, plaintiff took the car to 

the dealer, reporting the car was still making the same noise 

when he backed up and turned the steering wheel to the left. The 

dealer found the rack and pinion assembly was the source of the 

noise, replaced it and performed other repairs. The car was in 

the shop for nine days. 

Plaintiff returned the vehicle at the end of the lease term in 

May 2016. 

Meanwhile, in February 2016 plaintiff filed this lawsuit

against Mercedes-Benz USA, LLC and Mercedes-Benz of Beverly 

Hills under the Song-Beverly Act. (All statutory citations are to 

the Civil Code unless otherwise specified.) He alleged several 

causes of action, including failure to promptly replace the car or 

make restitution, after failing to repair the car to conform to 

express warranties after a reasonable number of attempts 

(§ 1793.2, subd. (d)); failure to commence repairs within a 

reasonable time and failure to repair the car so it conformed to 

the applicable warranties within 30 days (§ 1793.2, subd. (b)); 

and breach of the implied warranty of merchantability (§ 1791.1).

A jury trial resulted in a special verdict finding the car did 

not have a defect covered by the warranty that substantially 

impaired the vehicle’s use, value or safety, and the car was fit for 

ordinary purposes, but defendants failed to complete warranted 

repairs within 30 days. Specifically, the jury answered these 

questions. 
4

Question No. 3: “Did the vehicle have a defect covered by 

the warranty that substantially impaired the vehicle’s use, value 

or safety to a reasonable buyer in [plaintiff’s] situation?” The 

jury answered “No.”

Question No. 10: “Did [the manufacturer] or its authorized 

repair facility fail to complete repairs to a defect covered by the 

written warranty within 30 days to conform the 2013 MercedesBenz E350 to the applicable warranties?” The jury answered 

“Yes,” and found plaintiff’s incidental and consequential damages 

were $1,800. 

Question No. 17: “Was the motor vehicle fit for the 

ordinary purposes for which vehicles are used?” The jury 

answered “Yes.” 

The court entered judgment for plaintiff and against 

defendants for $1,800 on March 25, 2019. Plaintiff filed motions 

for a new trial, for partial judgment notwithstanding the verdict, 

and to vacate and enter a different judgment. Defendants filed 

motions to enter a different judgment and for judgment 

notwithstanding the verdict on the cause of action for failure to 

complete repairs within 30 days. 

All motions were denied, and plaintiff filed this appeal. 

DISCUSSION

Defendants did not file a respondents’ brief. We decide the 

appeal “on the record, the opening brief, and any oral argument 

by the appellant.” (Cal. Rules of Court, rule 8.220(a)(2).) 

Plaintiff contends the trial court erred when it refused to 

instruct the jury that restitution of everything plaintiff paid 

under his lease contract for the car could be awarded as the 

remedy for defendants’ failure to complete warranty repairs in 

30 days. As a consequence, on that cause of action the special 
5

verdict form asked the jury only: “What are [plaintiff’s] 

incidental and consequential damages?”

The question whether the Song-Beverly Act permits

restitution of the price paid for the car, as a remedy for a 

manufacturer’s failure to complete warranty repairs within 

30 days, is a question of statutory construction that we review de 

novo. We give statutory language “ ‘a plain and commonsense 

meaning,’ ” and we consider a statutory provision “in its statutory 

context,” not in isolation. (Kirzhner v. Mercedes-Benz USA, LLC 

(2020) 9 Cal.5th 966, 972, 977 (Kirzhner).)

We begin with the pertinent statutes.

Section 1793.2 governs the duties of a manufacturer 

making an express warranty. One of those duties appears in 

section 1793.2, subdivision (b). It provides that where repair of 

consumer goods is necessary “because they do not conform with 

the applicable express warranties,” the goods must be repaired 

“so as to conform to the applicable warranties within 30 days.” 

(We will refer to this as the 30-day repair requirement, or 

section 1793.2(b).)1

Another duty appears in section 1793.2, subdivision (d). “If 

the manufacturer . . . is unable to service or repair a new motor 

vehicle . . . to conform to the applicable express warranties after a 

reasonable number of attempts, the manufacturer shall either 

1 Section 1793.2(b) states, in pertinent part: “Where . . .

service or repair of the goods is necessary because they do not 

conform with the applicable express warranties, service and 

repair shall be commenced within a reasonable time by the 

manufacturer or its representative in this state. Unless the 

buyer agrees in writing to the contrary, the goods shall be 

serviced or repaired so as to conform to the applicable warranties 

within 30 days.”
6

promptly replace the new motor vehicle in accordance with 

subparagraph (A) or promptly make restitution to the buyer in 

accordance with subparagraph (B).” (§ 1793.2, subd. (d)(2).) (We 

refer to this as the replacement-restitution remedy, or 

section 1793.2(d).)

Section 1794 governs a buyer’s damages. It allows any 

buyer “who is damaged by a failure to comply with any obligation 

under this chapter or under an implied or express warranty or 

service contract” to bring an action for recovery of those damages

and other legal and equitable relief. (§ 1794, subd. (a).)

Section 1794, subdivision (b) sets the measure of a buyer’s 

damages: “The measure of the buyer’s damages in an action 

under this section shall include the rights of replacement or 

reimbursement as set forth in subdivision (d) of Section 1793.2, 

and the following: [¶] (1) Where the buyer has rightfully 

rejected or justifiably revoked acceptance of the goods or has 

exercised any right to cancel the sale, Sections 2711, 2712, and

2713 of the Commercial Code shall apply. [¶] (2) 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.” 

(Italics added.)

Because the jury found a violation of the 30-day repair 

requirement (§ 1793.2(b)), plaintiff argues the plain language of 

the just-quoted statutes entitles him to everything he paid under 

his lease contract plus incidental and consequential damages

(rather than only incidental and consequential damages). He 

also contends that he justifiably revoked acceptance of the car

(§ 1794, subd. (b)(1)), so that Commercial Code section 2711
7

applies, permitting him to recover the price he paid for the car. 

Neither of plaintiff’s contentions is correct. 

First, as the language italicized above shows, section 1794, 

subdivision (b) limits the replacement-restitution remedy to the 

circumstances “set forth in subdivision (d) of Section 1793.2.” 

Under section 1793.2(d), it is only when the manufacturer is 

unable to repair the car “to conform to the applicable express 

warranties after a reasonable number of attempts” that the duty 

to replace or make restitution arises. (§ 1793.2(d)(2).) Further, 

“[f]or the purposes of [section 1793.2(d)],” nonconformity is 

defined to mean “a nonconformity which substantially impairs 

the use, value, or safety of the new motor vehicle to the buyer or 

lessee.” (§ 1793.22, subd. (e)(1).) The statute says nothing about 

a replacement-restitution remedy for the section 1793.2(b)

violation of failing to complete repairs within 30 days.2

This conclusion is supported by Gavaldon v. 

DaimlerChrysler Corp. (2004) 32 Cal.4th 1246 (Gavaldon), where 

the Supreme Court held a service contract is not an express 

warranty, and section 1794 does not authorize the replacementrestitution remedy for breaches of service contracts. (Gavaldon,

at pp. 1250, 1262.) (Recall that, in addition to failure to comply 

with obligations under the statute, section 1794 authorizes 

damages for failure to comply with obligations “under an implied 

or express warranty or service contract.” (§ 1794, subd. (a).)) In 

2 Plaintiff’s car was in the shop for a total of 44 days during 

the period between April 2014 and October 2015, but no single 

repair visit extended for 30 days. We have not been asked to 

decide whether the 30 days of failure to complete repairs must be 

30 consecutive days. For purposes of this appeal, we assume 

plaintiff proved the 30-day failure to repair requirement without 

deciding the question.
8

Gavaldon, the Supreme Court rejected the plaintiff’s contention 

“that [section 1794,] subdivision (b) signifies that anyone injured 

under subdivision (a) may obtain the replacement/restitution 

remedy.” (Gavaldon, at p. 1262.) The court explained:

“But the statute on its face does not so read. The right to 

replacement or restitution is qualified by the phrase ‘as set forth 

in subdivision (d) of section 1793.2.’ It is most reasonable to 

assume that this qualification means that the remedy is subject 

to the provisions set forth in section 1793.2, subdivision (d) 

(section 1793.2(d)), otherwise the reference to section 1793.2(d) 

would be superfluous. [The plaintiff] argues in effect that only 

some of the provisions of section 1793.2(d) apply, but not the 

provision stating that the replacement/restitution remedy is 

available only for breach of an express warranty.” (Gavaldon, 

supra, 32 Cal.4th at p. 1262; id. at p. 1263 [“the legislative 

history confirms that the only reasonable reading of section 1794, 

subdivision (b) is that the replacement/restitution remedy applies 

only if the conditions of section 1793.2(d) are met”]; see also 

Kirzhner, supra, 9 Cal.5th at p. 986 [“The duty to promptly 

provide restitution arises only after the manufacturer is unable 

to repair the vehicle after being afforded the opportunity to make 

a reasonable number of repair attempts.”].)

Here, “the conditions of section 1793.2(d)” (Gavaldon, 

supra, 32 Cal.4th at p. 1263) were not met. As we have just 

observed, a nonconformity for purposes of section 1793.2(d) is a 

nonconformity that substantially impairs the use, value, or safety 

of the new car. (§ 1793.22, subd. (e)(1).) Plaintiff would have us 

construe the statute to require a replacement-restitution remedy 

for failure to repair, within 30 days, a defect the jury expressly 

found did not substantially impair the vehicle’s use, value or 
9

safety to a reasonable buyer in plaintiff’s circumstances. We see 

no basis in the statute, or in sound reason, to do so.

Second, plaintiff’s theory that section 1794, 

subdivision (b)(1) entitles him to restitution fares no better. 

Section 1794, subdivision (b)(1) provides “[w]here the buyer has 

rightfully rejected or justifiably revoked acceptance of the goods 

or has exercised any right to cancel the sale,” section 2711 of the 

Commercial Code “shall apply.” Section 2711 allows a buyer who 

“justifiably revokes acceptance” to recover “so much of the price 

as has been paid,” as well as “any expenses reasonably incurred 

in their inspection, receipt, transportation, care and custody.” 

(Cal. U. Com. Code, § 2711, subds. (1) & (3).) Plaintiff contends 

he revoked acceptance when he asked the manufacturer to buy 

back the car, and again when he filed his complaint. But the 

statute requires the buyer’s revocation of acceptance be 

justifiable, and here, the jury’s verdict foreclosed a finding that 

revocation of acceptance would have been justifiable. (§ 1794, 

subd. (b)(1).)

The jury’s verdict, finding no substantial nonconformity in 

the car, makes clear it would not have been justifiable for 

plaintiff to revoke acceptance, and that he had no “right to cancel

the sale.” (§ 1794, subd. (b)(1); see Cal. U. Com. Code, § 2608, 

subd. (1) [“The buyer may revoke his acceptance of a lot or 

commercial unit whose nonconformity substantially impairs its 

value to him . . . .”].)3

3 Plaintiff argues he did not have to show he revoked 

acceptance of the car “within a reasonable time” and “before any 

substantial change in condition” as required under section 2608 

of the California Uniform Commercial Code. This argument 

misses the point. The point in this case is that plaintiff’s asserted 
10

In short, plaintiff was only entitled to recover damages 

caused by the delay in repairing a nonconformity that did not

substantially impair the car’s use, value or safety. The trial court 

correctly concluded such damages do not include the 

replacement-restitution remedy under section 1793.2(d). Nor do 

they include damages that are available when a buyer justifiably 

revokes acceptance of goods under section 1794, 

subdivision (b)(1). There was no instructional error.

revocation of acceptance was unjustified at any time, because 

there was no substantial impairment of the value of the car. The 

argument is wrong on the law as well. A buyer seeking the 

replacement-restitution remedy of section 1793.2(d) need not 

revoke acceptance of the vehicle at any time to obtain that 

remedy. (Krotin v. Porsche Cars North America, Inc. (1995) 

38 Cal.App.4th 294, 303.) Justifiable revocation of acceptance 

under section 1794, subdivision (b)(1) is an alternate theory of 

recovery, as explained in Gavaldon, and the Commercial Code’s 

requirements apply to it. (Gavaldon, supra, 32 Cal.4th at 

pp. 1263-1264; id. at p. 1264 [“As can readily be observed, 

revocation of acceptance requires more and different actions of 

the buyer than is required under section 1793.2(d).”].) Plaintiff’s 

reliance on such cases as Mocek v. Alfa Leisure, Inc. (2003) 

114 Cal.App.4th 402 and Music Acceptance Corp. v. Lofing (1995) 

32 Cal.App.4th 610 is misplaced. Those cases involve the 

remedies for breach of implied warranty, which include the right 

to cancel the contract and recover amounts paid. (Mocek, at 

pp. 406-407; Music Acceptance, at p. 621; see also § 1791.1, 

subd. (d), § 1794; Cal. U. Com. Code, § 2711.) The jury here 

found there was no breach of implied warranty. 
11

DISPOSITION

The judgment is affirmed.

GRIMES, Acting P. J.

WE CONCUR:

STRATTON, J. 

WILEY, J.