Filed 4/30/21 Petrosian v. Mercedes-Benz USA CA2/1

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

NARINE PETROSIAN,

Plaintiff and Respondent,

v.

MERCEDES-BENZ USA, LLC, et al.,

Defendants and Appellants.

 B299629

 (Los Angeles County

 Super. Ct. No. BC685538)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Lia Martin, Judge. Affirmed.

Universal & Shannon, Jon D. Universal, James P. Mayo, 

Nejla Nassirian; Weinberg Wheeler Hudgins Gunn & Dial, Gary 

J. Toman for Defendants and Appellants.

The Bravo Law Firm, Nicholas A. Bravo; Law Office of 

Adam Zolonz, Adam Zolonz for Plaintiff and Respondent.

___________________________________
2

Respondent Narine Petrosian purchased a used vehicle 

from Keyes European, a car dealership, which was manufactured 

by Mercedes-Benz USA (collectively Mercedes). She later 

demanded pursuant to the Song-Beverly Consumer Warranty Act

that Mercedes-Benz repurchase the car, claiming it had a chronic 

engine clatter that Keyes was unable to fix. Mercedes-Benz 

declined to repurchase the car and Petrosian filed this lawsuit,

alleging Mercedes willfully violated its obligations under the act. 

The jury found in favor of Petrosian. Mercedes contends

insufficient evidence supported the verdict in several respects, 

and the trial court made numerous prejudicial errors. We affirm.

BACKGROUND

As this matter is before us on appeal from a judgment in 

favor of Petrosian after a jury trial, we view the evidence in favor 

of the judgment. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 

694.)

A. Vehicle Function

On August 5, 2015, Petrosian purchased a certified preowned 2013 Mercedes-Benz S-550 with 17,706 miles on it from 

Keyes European dealership for $76,116.88. The vehicle came 

with an original factory warranty through February 2017, and 

also a second warranty of one year beginning at the expiration of 

the original factory warranty. The terms of these warranties 

were not made part of the record at trial, and so far as we can tell 

do not appear in the record on appeal.

Most interaction with the dealer was by Petrosian’s father, 

Jack Petrosian, who was the car’s primary operator, referring to 

it at trial as “my car.” (We will refer to Narine as “Petrosian” and 

her father as “Jack Petrosian.”) During the test drive prior to 

purchase, Jack Petrosian inquired why the car made a rattling 
3

noise on cold startup. The salesman informed him the noise was 

normal for that vehicle. 

The day after the purchase, and again a week after that, 

August 7 and 13, 2015, Jack Petrosian presented the vehicle with 

complaints that a rattling noise came from the engine at cold 

startup, lasting approximately half a minute. Keyes was unable 

to verify the noise because the car had warmed up on the trips to 

the dealership, and generated no repair order document for these 

visits. 

More than a year after the purchase, Jack Petrosian 

presented the vehicle to Keyes five more times. 

On October 6 and 10, 2016, he again complained of the 

engine rattling noise. Keyes replaced the battery on October 6 

and the timing chain tensioner and check valve (another chain 

tensioning part) on October 10, 2016. 

On October 22, 2016, Keyes replaced a leaking washer fluid 

holder. 

On July 7, 2017, Jack Petrosian again complained about 

the rattling noise, and Keyes again replaced the timing chain 

tensioner. Jack also complained about a suspension noise, which 

the dealer was unable to duplicate and did not remediate. 

Finally, he complained about a stuck sun shade, which he decided 

not to have repaired because Keyes represented it was not 

covered by the warranty. That problem eventually resolved 

itself. 

On August 24, 2017, Jack Petrosian again complained 

about the engine rattling noise, which Keyes addressed by 

replacing the timing chain tensioner (for the third time) and 

camshaft adjuster. Jack also complained about an engine 
4

vibration, which Keyes addressed by replacing the engine and 

transmission mounts.

The rattling noise was never fixed, and existed when the 

parties’ experts inspected the vehicle in December 2018.

In late 2017, Petrosian submitted a claim to Mercedes for 

repurchase of the vehicle, which was denied.

B. Litigation

On December 4, 2017, Petrosian sued Mercedes-Benz and 

Keyes, asserting causes of action for breach of express warranty 

and breach of the implied warranty of merchantability. She 

alleged the vehicle was expressly warranted to be free from 

defects in material and workmanship, but had significant 

mechanical and electrical problems, and Mercedes-Benz willfully 

breached the warranty by refusing in bad faith to repurchase the 

car. Petrosian sought replacement of the car or restitution plus 

civil penalties under the Song-Beverly Consumer Warranty Act 

(also known as the California Lemon Law), Civil Code section 

1790 et seq.

During discovery, Mercedes propounded form 

interrogatories asking for identification of any persons with 

knowledge of the incident. Petrosian first answered “N/A,” but 

upon further request amended her answer to disclose herself and 

her mother—but not Jack Petrosian—as having knowledge of the 

car’s defects. 

At trial, documents revealed that the prior owner had made 

several calls for roadside assistance, had needed four battery 

jump starts, on July 1 and December 20, 2013, June 9, 2014, and 

June 4, 2015, and had replaced the battery at 4,000 miles. The 

vehicle had also produced “low-voltage” fault codes in dozens of 

control modules, indicating electrical components were receiving 
5

insufficient voltage. The car also experienced low-voltage fault 

codes over several modules when Petrosian owned it, and 

Petrosian had had to replace the battery again. 

Jack Petrosian testified he regularly drove the vehicle, 

referring to it several times as “my car.” He took it to Keyes the 

day after Petrosian bought it, and a week after that, both times 

complaining about the rattle, but Keyes told him the noise was 

normal and would go away. Petrosian then left without 

demanding that it be repaired. Mercedes contended these visits 

never occurred. 

Narine Petrosian testified she never drove the car more 

than five or 10 miles, but Jack Petrosian was the usual driver, “so 

he experienced all the problems more than [she] would.” She 

testified that she did not feel safe driving the car, and that it sat 

in the driveway for “days and months and weeks.” She would 

take it out “once in a while” “[j]ust to see if it’s still the same 

problem.”

A video recording of the engine was played for the jury. 

Clark Bauman, Mercedes’s expert, testified that the rattling 

noise it made on cold startup was normal, but Thomas Lepper, 

Petrosian’s expert, testified it was “quite clearly” abnormal. 

Lepper, who had worked on cars extensively for 50 years, 

including professional race cars, testified that the Mercedes-Benz 

S-550 was a world-class luxury car, “typically one of the best 

vehicles in the world,” and with one exception was the “biggest, 

most comfortable, most featured, most prideful car they make,”

with a listing price starting at $90,000. 

The rattling noise was a known problem at Mercedes-Benz, 

which had issued a “technical service bulletin” (TSB) titled 

“Rattling Noise After Engine Starts for Several Seconds.” The 
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TSB informed all Mercedes-Benz distributors that the problem 

could be resolved by replacing the timing chain tensioners and 

installing a check valve. Lepper testified that TSBs for a vehicle 

will appear on a dealer’s service technician’s computer when the 

vehicle’s VIN number is entered. 

Lepper identified elements of the engine noise heard by the 

jury: “You heard the starter go and the engine start to turn, and 

you heard that hammering sound when the engine first started 

cold, as the oil pumped up, established pressure in the chain 

tensioners, and pulled everything taut. [¶] And you heard 

probably the first just four or five seconds of that hammer that is 

the objectionable noise that’s telling us there’s a problem in that 

engine. It’s not maintaining that proper pressure to hold that 

timing chain and everything in the proper alignment.”

Lepper testified that the noise was caused by insufficient 

oil pressure to the timing chain tensioners. The Mercedes-Benz 

S-550 has a V-8 engine with four camshafts, which rotate when 

the engine runs, “timing” the intake and exhaust valves by 

pushing on and releasing them in sync with the pistons. A 

camshaft is turned by a chain, called the timing chain. The 

timing chain must remain taut, as a loose chain could jump teeth 

on the sprocket, possibly causing catastrophic engine failure, 

with pistons colliding with valves, piston rods exploding through 

the engine casing, and engine oil spraying the engine 

compartment, with an outside chance of oil landing on a hot 

catalytic converter and causing a fire. A loose timing chain may

rattle against the metal housing enclosing the system, and can 

lead to reduced fuel efficiency, increased engine wear, and 

damage to other components. 
7

A timing chain is kept taut by a hydraulic timing chain 

tensioner, which requires oil pressure to function. Oil pressure is 

lowest at cold startup but quickly increases as the engine 

operates. A check valve operates to help maintain oil pressure.

At higher speeds the camshaft must activate valves slightly 

earlier than at lower speeds for better power production. The 

camshaft adjuster accomplishes this by “advancing” the 

camshaft’s rotation slightly. It too requires oil pressure to 

function. 

Lepper testified there was no reason to replace the timing 

chain tensioners three times—on October 10, 2016 and July 7

and August 24, 2017—without giving some explanation why prior 

repairs did not work, for example because the repair parts were 

defective or the first mechanic made a mistake. That none of the 

repairs fixed the problem, which persisted even after Keyes 

replaced the camshaft adjuster in August 2017, indicated the 

problem resided somewhere else, although Lepper could not 

diagnose exactly where.

Lepper testified that examination of past as well as present 

electrical faults was necessary to understand the vehicle’s 

condition as a whole. Four “quick tests” (basically snapshots of 

the vehicle’s error code system) from 2013 to 2018 showed that 

the vehicle produced dozens of reappearing undervoltage error 

codes “all over th[e] car.” The car required a new battery at 4,000 

miles and another one on October 6, 2016, and the prior owner 

had called Mercedes’s roadside assistance number four times to 

request jump starts. 

Lepper testified that an S-Class Mercedes requiring four

jump starts in its first two years was unacceptable “in any way,”

and its history of electrical fault codes both before and after two 
8

batteries were replaced indicated that the car’s continuing lowvoltage codes could not be attributed to the battery. He testified, 

“This [many] problems, this many presentations, this many 

service issues, tells me there’s a real problem in that wiring 

harness in that car, and that’s just unacceptable. [¶] Again, this 

is an S-Class Mercedes. Four, maybe five jump-starts that we’ve 

documented, numerous batteries, short tests that show failures 

all over the place, that’s not right and not normal.” Lepper 

testified that the car exhibited “problem after problem. The same 

problems exhibiting. There’s no question here this was bad from 

day one.”

Lepper opined that it was unreasonable for Mercedes’s 

technicians not to proactively test the vehicle for faults when it 

was in their possession, to repeat repairs that did not work, and 

to fail to look for deeper causes. He testified that the technicians 

knew about the car’s electrical problems: “They knew it. Once 

they put the VIN number in their computer system, the last 

service history comes up, and it will show you the last few times 

it’s been in, and the technician or the service writer can check 

and see, ‘Why does this car keep coming in?’ [¶] ‘Oh, my. Here’s 

another battery.’ [¶] All this is known stuff. This is not a secret 

or something they didn’t know because it was somewhere else.” 

He testified, “I’m not going to accept anybody saying ‘We didn’t 

know,’ because it’s been brought in to Keyes over and over and 

over through most of this vehicle’s life.” He testified, “Why didn’t 

the tech say, ‘I got some problems here, boss. Give me some time 

to work on this’? [¶] Someone should have said here, ‘Here’s a 

repeated problem. Here’s a current problem. Let me fix this.’ 

It’s kind of how they earn their living, right? The dealership.”
9

Lepper testified that it was unreasonable for the number of 

repairs performed not to have fixed the car’s issues, and the 

unresolved issues impaired its value. He concluded that the 

“continuing electrical problems” and, independently, the 

“continuing engine problems have substantially impaired the 

safety of the vehicle” and “affected the use of the vehicle, partly 

because it’s been in the shop so many days and partially because 

the Petrosians have restricted their use of it because they’re not 

comfortable with the way that car has performed and failed on 

them.”

Mario Haro, Mercedes’s customer care manager, testified 

that he received Petrosian’s request for repurchase of the vehicle 

along with the repair records, but declined to consider records 

generated by the prior owner. Haro denied Petrosian’s claim on 

the ground that the car did not have a defect that substantially 

impaired its use, value or safety, which was not repaired after a 

reasonable number of attempts. 

The jury found defendants liable, and awarded Petrosian 

$73,015.12 (equal to the purchase price less a mileage offset) plus 

a $76,116.88 civil penalty for willful breach of the express 

warranty, and $76,116.88 for breach of implied warranty. 

Mercedes moved to vacate the judgment and moved for a 

new trial and for judgment notwithstanding the verdict (JNOV). 

The court granted the motion to vacate in part, finding the 

breach of express and implied warranty awards to be duplicative. 

It therefore vacated the award for breach of implied warranty but 

otherwise denied defendants’ motions, entering judgment for 

Petrosian in the amount of $149,132.
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DISCUSSION

A. Breach of Express Warranty

Mercedes contends the judgment must be reversed with 

directions to enter judgment in its favor because no evidence 

demonstrated that the car suffered a defect that substantially 

impaired its use. We disagree.

1. Legal Principles

The Song-Beverly Consumer Warranty Act obligates a 

manufacturer or its representative to service or repair a new car 

to conform with applicable express warranties within a 

reasonable number of attempts. (Civ. Code, § 1793.2, subd. 

(d)(2).)1 If the manufacturer fails to do so, it must either replace 

the car or make restitution to the buyer. (Ibid.) A used vehicle 

sold during the period of a transferrable new vehicle warranty is 

a new vehicle for purposes of the Song-Beverly Act. (Jensen v. 

BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 123.)

A nonconformity requiring a vehicle’s refund or 

replacement must “ ‘substantially impair the use, value, or 

safety’ ” of the vehicle. (Johnson v. Ford Motor Co. (2005) 35 

Cal.4th 1191, 1211; see also Lundy v. Ford Motor Co. (2001) 87 

Cal.App.4th 472, 478.) “Whether the impairment is substantial 

is determined by an objective test, based on what a reasonable 

person would understand to be a defect. [Citations.] This test is 

applied, however, within the specific circumstances of the buyer.” 

(Lundy, at p. 478.)

“Where findings of fact are challenged on a civil appeal, we 

are bound by the ‘elementary, but often overlooked principle of 

1 Undesignated statutory references will be to the Civil 

Code.
11

law, that . . . the power of an appellate court begins and ends 

with a determination as to whether there is any substantial 

evidence, contradicted or uncontradicted,’ to support the findings 

below.” [Citation.] We must therefore view the evidence in the 

light most favorable to the prevailing party, giving it the benefit 

of every reasonable inference and resolving all conflicts in its 

favor . . . .” (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) 

A judgment supported by substantial evidence will be upheld 

even if contrary evidence exists that might have caused the jury 

to render a different verdict. (In re Dakota H. (2005) 132 

Cal.App.4th 212, 228.) Substantial evidence is evidence of 

ponderable legal significance, reasonable, credible and of solid 

value. (Kuhn v. Department of General Services (1994) 22 

Cal.App.4th 1627, 1633.) The “judgment . . . is presumed to be 

correct on appeal, and all intendments and presumptions are 

indulged in favor of its correctness.” (In re Marriage of Arceneaux

(1990) 51 Cal.3d 1130, 1133.)

2. Application

Here, Lepper testified that Petrosian’s vehicle suffered 

persistent and substantial mechanical and electrical defects that 

damaged the battery, produced dozens of undervoltage faults, 

caused a “hammering sound” when the engine was started cold, 

and threatened to reduce performance, damage other 

components, and possibly cause a catastrophic engine failure. 

Petrosian testified she and her father would leave the car in the 

driveway unused, driving it only occasionally to see if the rattling 

noise had gone away. From this evidence the jury could 

reasonably conclude the car suffered a defect that substantially 

impaired the use, value, and safety of the vehicle.
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Mercedes argues that substantial impairment must exist 

from the buyer’s perspective, not from that of someone else, and 

evidence that Jack Petrosian primarily drove the car and took it 

in for repairs failed to show the car was defective from Narine’s 

perspective. The argument is without merit. A loud hammering 

noise in a world-class luxury car is defective from anyone’s 

perspective.

Mercedes argues without citation to authority that 

Petrosian was required to establish the precise terms of the 

warranty in order to show that the car failed to conform to the 

warranty, and her failure to do so necessitates that the judgment 

for breach of express warranty be reversed. The argument is 

without merit. To establish a warranty claim a plaintiff need 

only prove the substance of the warranty’s relevant terms. (See 

McKell v. Washington Mutual Inc. (2006) 142 Cal.App.4th 1457, 

1489.) Here, it was undisputed at trial that the car was covered 

by an express warranty that covered defects in parts and 

workmanship. Lepper testified that the car’s timing chain 

tensioning system and core electrical systems were defective. 

This sufficed. Mercedes adduces no evidence, and does not claim, 

that the timing chain and electrical systems were not covered by 

the warranty.

Mercedes argues the car’s defects cannot be deemed under 

an objective standard to have substantially impaired the car’s 

use, value, or safety because the start-up noise was normal and 

lasted only a few seconds, and the Petrosians never noticed the 

low-voltage errors, which manifested only in a bad battery that 

was promptly replaced as a normal maintenance item. This 

argument flatly ignores Petrosian’s evidence supporting the 

judgment. Lepper testified that the noise was not normal, but 
13

indicated a deeper mechanical problem, and the low-voltage 

errors and dead battery were symptomatic of an overarching 

electrical problem infecting dozens of the car’s components. We 

have no power on appeal to recharacterize the evidence in 

opposition to the judgment.

Mercedes argues without citation to authority that to 

establish the amount of restitution owed under section 1793.2,

subdivision (d)(2)(B), Petrosian had to establish the current payoff amount owed to the lender, Mercedes-Benz Financial Service. 

Petrosian’s adducing no evidence of this amount, Mercedes 

argues, necessitates that the restitution award be vacated. The 

argument is without merit. 

“In the case of restitution, the manufacturer shall make 

restitution in an amount equal to the actual price paid or payable 

by the buyer . . . .” (§ 1793.2, subd. (d)(2)(B).) The jury awarded 

Petrosian the purchase price less an offset for usage of the 

vehicle. Evidence of the purchase price, which was undisputed, 

established the amount of restitution owed. No evidence 

suggested that the amount “payable” would be less than the 

purchase price. For example, Mercedes adduced no evidence that 

Mercedes-Benz Financial Service offered to discount or forgive 

part of Petrosian’s car loan.

Citing only its own evidence and entirely disregarding 

Petrosian’s, Mercedes argues insufficient evidence supported the 

civil penalty because no evidence established that it breached the 

express warranty willfully as opposed to denying her claim 

reasonably and in good faith. We disagree.

A buyer of consumer goods who is damaged by a 

manufacturer’s failure to comply with its obligations under the 

Song-Beverly Act may recover a civil penalty of up to two times 
14

the amount of actual damages “[i]f the buyer establishes that the 

failure to comply was willful.” (§ 1794, subd. (c).) A 

manufacturer’s “failure to refund or replace [is] not willful if it 

reasonably and in good faith believed the facts did not call for 

refund or replacement.” (Kwan v. Mercedes-Benz of North 

America, Inc. (1994) 23 Cal.App.4th 174, 186.)

Here, Lepper testified at length that Mercedes knew the 

vehicle was defective but took no steps to repair the electrical 

system or seek the cause of the rattling noise. Haro testified that 

he reviewed the repair history insofar as Petrosian owned the 

car, but declined to review any record predating the dealer’s 

“certifying” inspection prior to its reselling the vehicle, thereby 

precluding any opportunity to observe most of the vehicle’s

history of electrical defects. This evidence was substantial, and 

supported the jury’s conclusion that Mercedes did not reasonably 

and in good faith believe that the facts called for no refund or 

replacement.

B. Breach of Implied Warranty

Mercedes argues insufficient evidence supported 

Petrosian’s claim for breach of implied warranty. We disagree.

“[E]very sale of consumer goods that are sold at retail in 

this state shall be accompanied by the manufacturer’s and the 

retail seller’s implied warranty that the goods are merchantable.

(§ 1792.) The warranty arises by operation of law.” (Mega RV 

Corp. v. HWH Corp. (2014) 225 Cal.App.4th 1318, 1330; see also 

American Suzuki Motor Corp. v. Superior Court (1995) 37 

Cal.App.4th 1291, 1295 (American Suzuki).) Merchantability 

means that the goods are “fit for the ordinary purposes for which 

such goods are used.” (§ 1791.1, subd. (a)(2).) Such fitness is 

shown if the product “is ‘in safe condition and substantially free 
15

of defects.’ ” (Isip v. Mercedes-Benz USA, LLC (2007) 155 

Cal.App.4th 19, 27.)

A buyer may bring a civil action for damages incurred due 

to breach of this implied warranty. (§ 1794, subd. (a); Brand v. 

Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1545

(Brand).)

Here, the same evidence establishing that Petrosian’s car 

suffered defects that substantially impaired its use, value, and 

safety established that it was not in a safe condition and 

substantially free of defects, and therefore was not “fit for the 

ordinary purposes for which such goods are used.” (§ 1791.1, 

subd. (a)(2).) The ordinary purpose for which a high-end luxury 

car is used is to drive safely in luxury. The jury could reasonably

have concluded that one cannot safely drive in luxury a car which 

exhibits a “hammering” rattle on startup, which suffers an 

unremediated timing chain problem that could lead to 

catastrophic engine failure, or which suffers electrical problems 

that could lead to damaged batteries, power accessories failing, or 

an unusually high number of calls for roadside assistance.

Quoting Brand, supra, 226 Cal.App.4th 1538, Lee v. Toyota 

Motor Sales, U.S.A., Inc. (C.D.Cal. 2014) 992 F.Supp.2d 962 (Lee),

and American Suzuki, Mercedes argues that a merchantable 

vehicle need only “ ‘ “provide safe, reliable transportation” ’ ”

(Brand, at p. 1547), and the implied warranty of merchantability 

is breached only if the vehicle fails to provide “a minimum level of 

quality,” i.e., suffers a defect that renders it “[un]fit for driving”

(Lee, at p. 980; American Suzuki, supra, 37 Cal.App.4th at p. 

1295). We disagree.

First, Mercedes neglects to honor Brand’s italicization of 

the word “safe,” holding that a merchantable vehicle must
16

“ ‘ “provide safe, reliable transportation.” ’ ” (Brand, supra, 226 

Cal.App.4th at p. 1547.) Brand held that a sunroof that opens 

and closes by itself could alone render a car unmerchantable, 

because “a reasonable jury could conclude that a vehicle sunroof 

that opens and closes on its own creates a substantial safety 

hazard,” in that it could infer “a driver suddenly distracted, 

buffeted, or even incapacitated by unexpected incoming rain, 

sleet, snow, dust, or blinding sun, or endangered by objects 

shooting through or out of the cabin.” (Ibid.) Here, Lepper 

testified that the timing chain defect could cause catastrophic 

engine failure while the car was being driven, which could lead to 

sudden loss of power, with an outside chance of a fire caused by 

engine oil landing on a hot catalytic converter. Based on this 

testimony, the jury could reasonably infer a driver suddenly 

distracted at speed by an engine explosion and fire.

The Lee court found that the plaintiffs could not allege the 

supposed defect actually resulted in any failure or that “they 

stopped using their vehicles.” (Lee, supra, 992 F.Supp.2d at p. 

980.) Here, in contrast, Lepper testified that the defect actually 

caused the timing chain to rattle against its housing and could 

lead to serious consequences, and Petrosian testified she had 

stopped driving the car.

In American Suzuki the plaintiffs sought class treatment of 

claims that vehicles breached the implied warranty of 

merchantability simply by being prone to rolling over, even 

though only a small minority of the plaintiffs’ vehicles had rolled 

over. (American Suzuki, supra, 37 Cal.App.4th at p. 1298.) The 

court held that in the context of vehicles having suffered no 

damage, a breach of implied warranty was too speculative to 

warrant class certification because “the vast majority” of the 
17

Suzuki vehicles “ ‘did what they were supposed to do for as long 

as they were supposed to do it.’ ” (Ibid.) The instant case, unlike 

American Suzuki, is before us after trial upon a set of facts 

supporting a finding of two serious vehicle defects, and does not 

turn on whether the damage is too speculative to support class 

treatment.

Therefore neither Brand nor Lee nor American Suzuki

stands for the proposition that all a merchantable luxury vehicle 

need do is get the driver from point A to point B. (See Isip v. 

Mercedes-Benz USA, LLC, supra, 155 Cal.App.4th at p. 27 [“We 

reject the notion that merely because a vehicle provides 

transportation from point A to point B, it necessarily does not 

violate the implied warranty of merchantability. A vehicle that 

smells, lurches, clanks, and emits smoke over an extended period 

of time is not fit for its intended purpose”].)

Mercedes argues Petrosian adduced no evidence of a defect 

that affected the vehicle’s “reliability, safety, or drivability.” But 

one would have to ignore the bulk of Petrosian’s evidence to so 

conclude.

Mercedes rebuts Lepper’s testimony point by point with 

that of Bauman, its own expert, styling Lepper’s evidence as 

speculative. We disagree and are neither free nor inclined to 

reweigh the evidence. 

Mercedes argues Petrosian failed to establish a breach of 

the implied warranty during the warranty period because she 

failed to take the vehicle in for repairs until more than a year 

after the purchase. We disagree.

The “duration of the implied warranty of 

merchantability . . . shall be coextensive in duration with an 

express warranty which accompanies the consumer goods, 
18

provided the duration of the express warranty is reasonable; but 

in no event shall such implied warranty have a duration of less 

than 60 days nor more than one year following the sale of new 

consumer goods to a retail buyer. Where no duration for an 

express warranty is stated with respect to consumer goods, or 

parts thereof, the duration of the implied warranty shall be the 

maximum period prescribed above.” (§ 1791.1, subd. (c).) 

“The implied warranty of merchantability may be breached 

by a latent defect undiscoverable at the time of sale. [Citations.] 

Indeed, ‘[u]ndisclosed latent defects . . . are the very evil that the 

implied warranty of merchantability was designed to remedy.’ 

[Citation.] In the case of a latent defect, a product is rendered 

unmerchantable, and the warranty of merchantability is 

breached, by the existence of the unseen defect, not by its 

subsequent discovery.” (Mexia v. Rinker Boat Co., Inc. (2009) 174 

Cal.App.4th 1297, 1304-1305 (Mexia).) 

The statute of limitations for an action for breach of 

warranty under the Song-Beverly Act is four years after the

cause of action has accrued. (Mexia, supra, 174 Cal.App.4th at 

pp. 1305-1306.) “A cause of action accrues when the breach 

occurs, regardless of the aggrieved party’s lack of knowledge of 

the breach. A breach of warranty occurs when tender of delivery 

is made . . . .” (Id. at p. 1306.) 

Here, Petrosian testified that the timing chain defect 

existed when she purchased the car, and Lepper testified that 

both the electrical and timing chain defects existed at that time. 

That Petrosian did not know about the electrical defect or seek 

repair of the timing chain defect does not mean they were 

nonexistent. The Song-Beverly Act “does not create a deadline 
19

for discovering latent defects or for giving notice to the seller.” 

(Mexia, supra, 174 Cal.App.4th at p. 1301.)

Mercedes argues Petrosian produced no “competent 

evidence that any defect rendering the vehicle unmerchantable 

existed during the durational period.” But again, one would have 

to ignore most of her evidence to draw such a conclusion.

C. Admission of the Testimony of Jack Petrosian

Narine and Jack Petrosian both testified that Jack was the 

primary driver of the vehicle and experienced most of its defects, 

yet when asked in an interrogatory to identify anyone with 

knowledge of the “incident,” i.e., the facts giving rise to the

complaint, Petrosian named only herself and her mother. 

Mercedes moved in limine to exclude any undisclosed witnesses 

from presenting evidence at trial. Petrosian, apparently 

recognizing that the generic motion would pertain to Jack 

Petrosian’s testimony, opposed the motion on the ground that 

Petrosian’s identity was “readily known” to Mercedes, as his 

name and phone number were listed on numerous repair records. 

He was therefore “not a secret witness,” Petrosian argued, 

Mercedes had simply made a deliberate litigation choice not to 

depose him. Petrosian argued that exclusion of Jack’s testimony 

would “irreparably prejudice” Petrosian’s claim.

The trial court at first deferred ruling on the motion, 

stating no party was to “mention or refer to the contested item of 

evidence . . . without first being granted permission by the court.”

Mercedes renewed its objection to admission of testimony 

by Jack Petrosian, both on the day before trial and during an 

interruption in his testimony. Petrosian opposed the objection, 

again arguing that Jack Petrosian was known to Mercedes 

because he presented the car five times for repair and was 
20

“identified on every single repair record.” The trial court denied 

the motion to exclude him, giving no explanation. 

Mercedes argues the court improperly admitted Jack 

Petrosian’s testimony, which rendered the trial fundamentally 

unfair. Although we certainly do not condone Narine Petrosian’s 

failure to disclose Jack’s identity as a person with knowledge, we 

need not determine whether admission of his testimony was error 

because even if the court had excluded his evidence, there is no 

reasonable probability the verdict would have been different.

“A verdict or finding shall not be set aside, nor shall the 

judgment or decision based thereon be reversed, by reason of the 

erroneous admission of evidence unless . . . the error or errors 

complained of resulted in a miscarriage of justice.” (Evid. Code, 

§ 353.) An evidentiary error results in a miscarriage of justice 

when the reviewing court, “ ‘after an examination of the entire 

cause, including the evidence,’ is of the ‘opinion’ that it is 

reasonably probable that a result more favorable to the appealing 

party would have been reached in the absence of the error.” 

(People v. Watson (1956) 46 Cal.2d 818, 836.)

Here, Jack Petrosian’s main contribution was that he 

complained about the engine rattle the day after purchase, and a 

week after that, which supported Narine’s claim that she 

presented the vehicle for repair within the 90-day implied 

warranty term. But as discussed above, to do so was unnecessary

because the testimony of both Narine Petrosian and Lepper 

established that both the electrical and timing chain defects 

existed when Petrosian purchased the car, and defendant’s own 

records demonstrated the car’s electrical faults. Jack Petrosian’s 

testimony was therefore cumulative, and no reasonable 
21

probability exists that its exclusion would have changed the 

verdict.

D. Trial Conduct

Mercedes contends the trial was infected by numerous 

errors that manifestly prevented a fair trial and amounted to a 

miscarriage of justice. It argues the trial court unfairly and 

arbitrarily limited the defense case-in-chief and closing 

arguments; scheduled the start of the trial on a date when 

defense counsel had multiple conflicts; permitted Narine

Petrosian to introduce evidence of prior owner records for the 

vehicle; instructed the jury that it need not return to complete 

the trial; prepared an erroneous special verdict form over a 

defense objection; improperly denied an instruction as to lack of 

maintenance; and provided the jury with erroneous instructions, 

including a series of “special instructions” prepared by Petrosian 

as to which Mercedes was not permitted to object.

1. Time Limitations

Mercedes argues that the trial “covered eight days,” of 

which Mercedes was allotted only two and one half hours for its 

case-in-chief. It argues this unfair and arbitrary time limitation

was insufficient, and compromised its fundamental right to 

present its case fully.

Administration of trials is within the sound discretion of 

the trial court (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385), 

and a judgment will be set aside only when errors result in a 

miscarriage of justice (Cal. Const., art. VI, § 13). “ ‘ “[A] 

‘miscarriage of justice’ should be declared when the court, ‘after 

an examination of the entire cause, including the evidence,’ is of 

the ‘opinion’ that it is reasonably probable that a result more 

favorable to the appealing party would have been reached in the 
22

absence of the error.” ’ ” (Linton v. Desoto Cab Company, Inc. 

(2017) 15 Cal.App.5th 1208, 1224.)

Here, Mercedes presents insufficient information for us to 

review its contention that the time allotted was insufficient. At 

the final status conference the parties agreed to take each 

witness only once and treat him or her as a cross-witness for each 

side. Mercedes indicated it intended to call “at least” five 

witnesses, namely Petrosian, Lepper, Bauman, Haro, and 

Andrew Campa, Keyes’s service manager. Mercedes called these 

witnesses, and only one other witness—Jack Petrosian—was 

called by either side.

Mercedes offers no citations to the record to show what 

time was given, why more was needed, what other witnesses it 

wished to call, or what objections it raised to any time limit. And 

other than arguing that the time allotted was “plainly”

insufficient, Mercedes makes no attempt to explain what more 

evidence it could have produced to change the verdict. We 

therefore have no basis upon which to conclude that eight trial 

days were insufficient to examine six witnesses. 

Nor do we apprehend, nor does Mercedes explain, why 12 

and a half minutes per side was insufficient for closing argument. 

Trial courts “have broad discretion to control the duration and 

scope of closing arguments.” [Citation.] [¶] We review a trial 

court’s decision to limit defense counsel closing argument for 

abuse of discretion.” (People v. Simon (2016) 1 Cal.5th 98, 147.) 

Mercedes making no attempt to explain what more it could have 

done after 12 and a half minutes of closing argument, we have no 

basis to conclude the trial court abused its discretion.
23

2. Trial Date

The record is similarly deficient for Mercedes’s claim that 

the trial date inconvenienced its attorney. Mercedes argues that 

the court set a date for trial that conflicted with his attorney’s 

participation in unspecified “other trials” in Orange County, 

which “significantly affected” the attorney’s trial preparation in 

this matter. Absent some further explanation, however, we 

cannot find the court abused its discretion in refusing to 

accommodate counsel’s calendar.

3. Evidence of Prior Owner Records

Without citation to authority, Mercedes argues the trial 

court abused its discretion in admitting of certain repair records 

of the vehicle’s prior owner, which it argues were irrelevant. We 

disagree. Lepper testified that a review of prior repair records 

was necessary to determine the nature of the present electrical 

defect. The records also demonstrated Mercedes’s awareness of 

potential problems with the vehicle at the time of sale.

4. Special Verdict Form 

Again citing no authority, Mercedes argues the court erred 

in sending to the jury a verdict form that quoted the language of 

section 1793.2, subdivision (d)(2)(B) as follows: “Question No. 6: 

What are Narine Petrosian’s damages? Calculate as follows: [¶] 

(a) Damages including the actual price paid or payable by the 

buyer, including charges for transportation and manufacturer 

installed items, but excluding nonmanufacturer items installed 

by a dealer or the buyer, and including any collateral charges 

such as sales or use tax, license fees, registration fees and other 

official fees.” Mercedes argues this caused the jury to award 

improper cost items such as unpaid finance fees and $895 for an 

optional surface protection product. 
24

Subdivision (d)(2)(B) of section 1793.2 provides in pertinent 

part the following: “In the case of restitution, the manufacturer 

shall make restitution in an amount equal to the actual price 

paid or payable by the buyer, including any charges for 

transportation and manufacturer-installed options, but excluding 

nonmanufacturer items installed by a dealer or the buyer, and 

including any collateral charges such as sales or use tax, license 

fees, registration fees, and other official fees . . . .”

It is unclear, and Mercedes fails to explain, how a jury 

instruction that quotes subdivision (d)(2)(B) of section 1793.2 

nearly verbatim could be an improper statement of the law. It is 

also unclear how a verdict form that instructs the jury not to 

award damages for nonmanufacturer items installed by the 

dealer caused the jury to award $895 for a nonmanufacturer item 

installed by the dealer. To the extent, as Mercedes argues, the 

jury simply and incorrectly awarded Petrosian the purchase 

price, which itself included improper charges, nothing suggests 

that the verdict form caused this error.

5. Instruction to the Jury that it Need Not Return

At the conclusion of testimony on March 12, 2019, the court 

advised the jury that although it had not discharged them, since 

they were previously told the trial would end that day and it had

not yet completed, it was up to them to decide whether they 

would return the following day to continue with the trial. All the 

jury opted to return. Mercedes argues it was prejudicial error to 

instruct the jury it need not return. We agree that any 

suggestion that the jury need not return would have been error, 

but as the jury in fact did return, the error caused no prejudice.
25

6. Jury Misconduct

Mercedes argues without citation to the record that the 

jury returned the verdict before the court answered a question 

the jury had posed: “How do we calculate damages under 

Question 4 for Breach of Implied Warranty?” No authority of 

which we are aware obligates a jury to await an answer to one of 

its questions before rendering a verdict. In any event, because 

the trial court vacated the implied warranty award, the issue is 

moot.

7. Instruction as to Lack of Maintenance

During the trial, Bauman testified that the vehicle was 351 

days past due on “maintenance,” referring to a photo he took 

during his inspection of the vehicle’s dashboard cluster on 

December 11, 2018, which reflected a message that the vehicle 

was 351 days past due on maintenance. The court refused to 

admit the photo on relevancy grounds, and refused to instruct the 

jury on the issue of lack of maintenance as a possible cause for 

the vehicle’s defects. Mercedes argues this constituted 

prejudicial error. We disagree.

A vehicle’s maintenance schedule covers all maintenance 

points, including such things as inspection and replacement of 

brake fluid and cabin filters. Absent some indication what 

maintenance was missed, if any, the jury had no basis upon 

which to conclude lack of maintenance contributed to the 

vehicle’s defects. 

8. Special Jury Instructions

The court gave the jury eight special jury instructions 

proposed by Petrosian. All pertained to issues discussed above, 

and Mercedes argues each represented a misstatement of the law 

for reasons we have rejected above. Mercedes contends it had no 
26

opportunity to object to the instructions. However, Mercedes’s 

only citation to the record supporting this contention reflects only 

that its attorney claimed he had no opportunity “today” to 

“address” the instructions. The record reflects that Petrosian’s 

counsel shared the instructions with defense counsel on 

December 28, 2018, three months before trial. Therefore, 

Mercedes had ample time to object to them, but did not do so.

E. Conclusion

For the reasons discussed above, the judgment is affirmed.

DISPOSITION

The judgment is affirmed. Respondent is to recover her 

costs on appeal.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

BENDIX, Acting P. J.

FEDERMAN, J.*

*

Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.