Filed 1/25/22 Duff v. Jaguar Land Rover North America CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

KEN DUFF,

Plaintiff and Appellant,

v.

JAGUAR LAND ROVER NORTH 

AMERICA, LLC,

Defendant and Respondent.

 D077537

 (Super. Ct. No. 37-2016-

00003200-CU-BC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Katherine A. Bacal, Judge. Affirmed.

Michael E. Lindsey for Plaintiff and Appellant.

Lehrman, Villegas, Chinery & Douglas, Kate S. Lehrman, 

Jacqueline A. Bruce-Chinery and Robert A. Philipson for Defendant and 

Respondent.

Ken Duff leased a new vehicle. After about 13 months into a three-year 

term, the vehicle began to experience mechanical and cosmetic issues. 

Because the vehicle was under warranty, Duff would take it to the dealer, 

and the dealer would make the necessary repairs. However, Duff 
2

experienced a mechanical failure while on the freeway, and the vehicle had to 

be towed to the dealer for repairs. The dealer determined that the vehicle 

needed to have the turbocharger and engine replaced. 

While the dealer was repairing the vehicle, Duff submitted a claim 

through the vehicle’s manufacturer’s (Jaguar Land Rover North 

America, LLC (Jaguar)) alternative dispute resolution process, demanding 

that he receive a replacement vehicle. Jaguar disagreed and prepared to 

arbitrate the matter, but the dispute resolution process did not proceed 

because Duff failed to submit the necessary paperwork.

Duff then sued Jaguar, alleging three causes of action under the SongBeverly Consumer Warranty Act (§ 1790, et seq.; Song-Beverly or the Act)

and one under the Magnuson-Moss Warranty Act (15 U.S.C. § 2301 et seq; 

Magnuson-Moss). However, because of several delays, the case did not go to 

trial until more than three years after Duff filed the complaint. Between the 

time the complaint was filed and the case went to trial, the lease on the 

vehicle expired. Nonetheless, Duff extended the lease and ultimately 

purchased the vehicle before trial commenced.

At a bench trial, the court found that Duff failed to prove any of his 

causes of action except for breach of the implied warranty of fitness under 

Song-Beverly. In determining what damages were available to Duff for the 

breach, the court made a factual finding that Duff accepted the vehicle when 

he purchased it after the lease expired. As such, the court concluded Duff 

was not entitled to restitution under Civil Code1 section 1794, 

subdivision (b)(1). Instead, the court determined that Duff could be awarded 

damages under subdivision (b)(2) of section 1794, but Duff had not proven 

1 Statutory references are to the Civil Code unless otherwise specified.
3

any damages under that subdivision. Consequently, the court awarded Duff 

$1 in nominal damages.

Duff appeals, arguing that the trial court violated Song-Beverly by 

failing to award him damages under section 1794, subdivision (b)(1). We 

conclude none of Duff’s arguments have merit and affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

Duff leased a new 2015 Land Rover Evoque from Land Rover San Diego 

on December 4, 2014. The lease term was 36 months and required a monthly 

payment of $500.88. In addition, Duff paid $5,600 upon signing the lease. 

Under the terms of the lease, Duff had the option to return the vehicle at the 

end of the lease or purchase it.

The vehicle was leased with a limited warranty, provided by Jaguar,

that covered defects in materials or workmanship for 48 months or 50,000 

miles, whichever came first. The vehicle also was subject to the implied 

warranty of merchantability, which existed for a year.

The lease contained a mileage allowance of 30,000 miles over the threeyear term. Thirteen months into the lease, Duff had driven the vehicle 

26,106 miles.

Duff experienced several problems with the vehicle, and he took it to 

Land Rover San Diego for a number of repairs. For example, on 

September 17, 2015, during the 20,000 mile maintenance service on the 

vehicle, the technician noticed the bulkhead insulation pad on the firewall 

was separating/delaminating. A replacement part was ordered and installed 

at a later date. Duff did not pay for this repair. 

On October 6, 2015, the overhead console/sunglass holder also was 

replaced. Duff did not pay for this repair. 
4

On January 6, 2016, Duff told Land Rover San Diego that the vehicle’s 

check engine light was on and that the vehicle would not shift into higher 

gears while his foot was on the gas pedal. The technician found that the 

turbocharger had failed and replaced it. In addition, the technician replaced 

the oxygen and oil temperature sensors. During these repairs, the vehicle 

was out of service for eight days. Duff did not pay for these repairs. 

On January 18, 2016, the vehicle was towed to Land Rover San Diego 

because the vehicle started shaking while driving on the freeway. The 

technician determined that the engine needed to be replaced. Because there 

was not an engine readily available, the vehicle was out of service for 24 days 

while repairs were being made. Duff was provided a loaner vehicle at no cost. 

In addition, like the previous repairs, Duff did not pay for the replacement of 

the vehicle’s engine.

While the vehicle was having its engine replaced, Duff decided to 

participate in one of Jaguar’s independent alternative dispute resolution 

programs and contacted BBB Auto Line to make a claim to either obtain a 

replacement vehicle or have Jaguar repurchase the vehicle.2 Jaguar did not 

believe the vehicle warranted repurchase; so, it opted to arbitrate the 

dispute. However, BBB Auto Line closed the claim because Duff did not 

return a signed customer claim form.3

2 The record is less than clear regarding what remedy Duff was seeking. 

During trial, Duff testified that he wanted the vehicle replaced. The 

documents in the record referring to Duff’s inquiry with BBB Auto Line 

indicate that he was demanding the repurchase of the vehicle.

3 At trial, Duff testified that he could not recall if he submitted the 

required paperwork to BBB Auto Line.
5

On January 29, 2016, Duff filed suit against Jaguar, alleging four 

causes of action: (1) violation of Song-Beverly for failure to repair defects 

within a reasonable number of attempts (§ 1793.2, subd. (d)); (2) violation of 

Song-Beverly for failure to repair defects within 30 days (§ 11793.2, 

subd. (b)); (3) violation of Magnuson-Moss; and (4) breach of express and 

implied warranties under Song-Beverly. In the complaint, Duff alleged he 

“ha[d] rightfully rejected and/or justifiably revoked acceptance of the vehicle, 

and ha[d] exercised a right to cancel the sale. By serving this Complaint, 

[Duff] does so again.”

Trial of this action was delayed and did not begin until January 15, 

2019, some three years after the complaint was filed. The lease for the 

vehicle expired on December 4, 2017, nearly two years before trial. Duff 

extended the lease, and, on March 28, 2018, Duff exercised the lease option 

and purchased the vehicle. The purchase price was $31,407.36 and was 

financed over 72 months at 4.69 percent interest for a total amount of 

$36,093.60.

After the bench trial concluded, the court announced its tentative 

decision on February 6, 2019. To this end, the court indicated that it found 

Duff only proved his fourth cause of action: breach of the implied warranty. 

However, it requested further briefing regarding whether damages should be 

awarded under the fourth cause of action. The court explained:

“It appears to the court that under Civil Code section 1794, 

there are two options for damages, depending on whether 

or not the plaintiff revokes. The court finds that the 

evidence that the plaintiff purchased the vehicle 

demonstrates that the plaintiff did not revoke, as a result, 

subsection (2) [of] 1794 applies where the buyer has 

accepted the goods.

“Commercial Code section 2714 and 2715 applies. The 

measure of damages appear to be the cost of the repair 
6

necessary to make the goods conforming and any incidental 

damages. The court finds that there are no costs to make 

the goods conforming, because the court finds that the 

defects have been repaired.

“The court also finds that no incidental damages were 

proven because the amounts incurred by plaintiff claimed 

as incidental damages would have been incurred, whether 

or not there were a defect and were not incurred as a result 

of the defect.

“So the question the court would have and I will entertain, 

if requested, further briefing on this issue only, if you want 

further briefing on this issue, then we’ll set up a time frame 

for that and the time frames I’ve already announced would 

be extended for further briefing.

“The question that the court would allow further briefing 

on is, if the court finds, as it has, that the damages are only 

equal to the cost to make the goods conforming and 

incidental damages, what else would plaintiff be entitled 

to?

That’s the question. In other words, I’m not—this is not a 

statement of decision question looking for additional 

briefing on anything else. It’s only as to whether—because 

I don’t believe this was addressed fully in closing argument 

—if the damages as set forth under Civil Code section 1794 

and as set forth under the Commercial Code sections 2714 

and 2715, and the court finds those damages have not been 

proven, is the plaintiff entitled to anything else?”

Duff’s counsel indicated that he wanted to brief the issue the court 

proposed but asked if he could “also brief the acceptance of—or the rejection 

of and revocation of acceptance[.]” The court declined to allow Duff to brief 

the issue of acceptance/rejection. In addition, Jaguar’s counsel agreed to brief 

the issue the court set forth as well.

At a hearing on March 29, 2019, the court indicated that the 

supplemental briefing submitted by the parties did not address its proposed 
7

issue but, instead, were further closing arguments. The court then found 

that nominal damages under section 3360 were appropriate and awarded 

judgment in favor of Duff in the amount of $1. It then asked Jaguar to 

prepare the statement of decision. 

While Duff’s counsel and the court were discussing the possibility of 

Duff filing an amended request for a statement of decision, the court 

explained it “did not find [Duff] credible regarding the continued use or

nonuse of the vehicle. Because I didn’t make that statement before and 

because that was addressed in the proposed request for a statement of 

decision, I wanted to make that now.”

In the court’s first statement of decision, it stated that Duff had 

purchased the vehicle before he filed the complaint. As such, the court found 

that Duff “had already accepted the vehicle before his purported rejection. As 

a result, the purported rejection was ineffective.” Duff objected to the 

statement of decision for multiple reasons. Relevant here, Duff took issue 

with the court’s determination that he purchased the vehicle before filing the 

complaint on January 29, 2016 when it was undisputed that he purchased 

the vehicle on March 28, 2018.

The court subsequently acknowledged that the statement of decision 

contained a “scrivener’s error.” The court agreed it was undisputed that Duff 

purchased the vehicle after the complaint was filed. Accordingly, the court 

stated the statement of decision should read “that [Duff] had leased the 

vehicle, extended the lease, and then purchased the vehicle after he filed his 

complaint. The Court concluded the purported rejection or revocation of 

acceptance by filing the complaint was ineffective because [Duff] accepted the 

vehicle. This conclusion is unchanged by the correction. [Duff’s] act of 

buying the vehicle at the end of the lease when he had no obligation to do so 
8

rendered the purported rejection ineffective.” The court then ordered Jaguar 

to submit a proposed, revised statement of decision to which Duff could object 

pursuant to the Rules of Court.

On December 9, 2019, the court issued a revised statement of decision. 

With respect to Duff’s first cause of action, for failure to promptly repurchase 

or replace new motor vehicle after reasonable number of repair opportunities 

(§ 1793.2(d)), the court found: “[T]here was no defect covered by the warranty 

that substantially impaired the use, value or safety of the vehicle that was 

not repaired in a reasonable number of repair attempts.” Regarding Duff’s 

second cause of action, for failure to begin repairs within reasonable time or 

to complete repairs within 30 days (§ 1793.2(b)), the court determined: “On 

each occasion the vehicle was presented for service, the repairs were 

commenced within a reasonable time and completed within 30 days.” The 

court also found that Duff had “failed to prove that he sustained any damages 

as a result of an alleged delay in repairs” because Jaguar “paid for the repairs 

to plaintiff’s vehicle and plaintiff was provided a loaner vehicle free of charge 

while the vehicle was at the dealer for repairs.” As to the third cause of 

action, for breach of express warranty under Magnuson-Moss, the court 

concluded that Duff “failed to prove that the defects in his vehicle were not 

repaired. All the defects in [Duff’s] vehicle were successfully repaired within 

a reasonable time after discovery. [Duff] also failed to prove any damages as 

a result of an alleged failure to repair his vehicle.” Additionally, the court 

found that Duff was barred from suing under Magnuson-Moss because he did 

not participate in Jaguar’s dispute resolution process with the BBB Auto 

Line before he filed suit, as required by title 15 United States Code 

section 2310(a)(3). 
9

Duff’s fourth cause of action was for breach of express and implied 

warranty under Song-Beverly. Regarding the cause of action for breach of 

express warranty, the court determined that “all defects were successfully 

repaired in a reasonable time, at no cost to” Duff and that Duff did not prove 

a breach of express warranty. However, the court found that Duff had proven 

a breach of the implied warranty under Song-Beverly because the 

turbocharger and engine had to be replaced: “Clearly a vehicle with a 

turbocharger and engine [that] fail is a vehicle not of the same quality as 

those generally acceptable in the trade and not fit for the ordinary purposes 

for which vehicles are used.”

The court observed that Song-Beverly provides two alternative 

measures of damages. Section 1794, subdivision (b)(1) states, “[w]here 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.” Section 1794, subdivision (b)(2) provides 

that “[w]here 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.” The court clarified that 

“[i]n sum, the measure under the first option is recovery of what was paid 

under the contract, while the measure under the second is the difference 

between the value of the goods accepted and the value they would have had if 

they had been as warranted, including the cost of repairs necessary to make 

the goods conform.”

The court then explained, in detail, why it determined that Duff 

accepted the vehicle, and thus, damages under Commercial Code 

sections 2714 and 2715 applied. It provided:

“While [Duff] would be entitled to a buyback if he revoked 

his acceptance or cancelled the lease, that did not occur. 
10

Putting aside that [Duff] did not prove his first cause of 

action under Civil Code section 1793.2(d), [Duff’s] acts 

made clear that he did not rightfully reject or justifiably 

revoke acceptance. Acceptance occurred when [Duff] had a 

reasonable opportunity to inspect the vehicle and signified, 

by his purchase, that he would retain it in spite of its 

nonconformity. [(]See Comm. Code, §§ 2606(1)(a) 

[acceptance occurs when the buyer after a reasonable 

opportunity to inspect the goods signifies that the goods are 

conforming or that he will retain them in spite of their 

nonconformity]; 10515(a) [analogous provision in context of 

a lease].[)]

“It is undisputed that [Duff] purchased the vehicle at the 

end of his three-year lease. Clearly [Duff] was not required 

to buy the vehicle in order to obtain a remedy. (See 

Martinez v. Kia Motors America, Inc. (2011) 193 

Cal.App.4th 187, 191 [(Martinez)] [no requirement that a 

plaintiff still possess a vehicle to bring a claim under the 

Song-Beverly Act].) [Duff’s] act of buying the vehicle at the 

end of the lease, even though he was under no obligation to 

do so, demonstrates that [Duff] accepted the vehicle and 

chose not to rescind the lease.

“[Duff] argued that he rejected the vehicle and/or revoked 

his acceptance by filing his Complaint. . . . However, 

[Duff] extended the lease and then purchased the vehicle

after he filed his Complaint. The purported rejection or 

revocation of acceptance by filing the complaint was 

ineffective because [Duff] accepted the vehicle. [Duff’s] act 

of buying the vehicle at the end of the lease when he had no 

obligation to do so rendered the purported revocation 

ineffective.”

The court then explained that Duff did not prove he was entitled to any 

damages for the breach of the implied warranty under Civil Code 

section 1794, subdivision (b)(2):

“In sum, [Duff] is not entitled to rescissory damages under 

the first option but he would be entitled to damages under 

section 1794[, subdivision (b)(2)]. The measure of damages 
11

under subsection [(b)](2) is the difference between the value 

of the vehicle he accepted and the value it would have had

if it had been as warranted, including the cost of repairs 

necessary to make the goods conform, together with any 

incidental or consequential damages. In this regard, [Duff] 

simply failed to provide the Court with sufficient evidence 

of his damages.”

The court entered judgment on February 5, 2020. Duff timely filed a 

notice of appeal.

DISCUSSION

Duff’s appeal here is very limited. He only argues that the trial court 

erred in failing to award him damages under section 1794, subdivision (b)(1) 

after the court found that he proved a breach of the implied warranty under 

Song-Beverly. He does not claim the court erred in determining that he did 

not prove his damages under section 1794, subdivision (b)(2). Thus, we limit 

the focus of our inquiry to the trial court’s determination that Duff was not 

entitled to damages under subdivision (b)(1).

Section 1794 describes two different remedies available for consumers 

seeking relief under Song-Beverly for a breach of the implied warranty of 

merchantability. If the buyer has rightfully rejected or justifiably revoked 

acceptance of the goods or has exercised any right to cancel the sale, “ ‘the 

buyer may . . . recover[ ] so much of the price as has been paid . . . .’ ” 

(Mocek v. Alfa Leisure, Inc. (2003) 114 Cal.App.4th 402, 406; see § 1794, 

subd. (b)(1).) However, “[w]here the buyer has accepted the goods, . . . the 

measure of damages shall include the cost of repairs necessary to make the 

goods conform.” (§ 1794, subd. (b)(2).) So, the remedies under Song-Beverly

hinge upon whether the buyer has rejected or accepted the goods. Further, 

it is only when the buyer has rightfully rejected the goods that the buyer can 

recover the purchase price or what he or she paid under the lease.
12

Below, the trial court found that Duff’s purchase of the vehicle after the 

lease expired, when he had no obligation to do so, proved that he accepted the 

vehicle. Consequently, based on this finding of fact, the court determined 

that he was not entitled to damages under section 1794, subdivision (b)(1). 

(See Comm. Code, §§ 2606, subd. (1)(a) [acceptance of goods occurs when the 

buyer after a reasonable opportunity to inspect the goods signifies to the 

seller that the goods are conforming or that he will take or retain them in 

spite of their nonconformity]; 10515, subd. (a) [acceptance of goods occurs 

after the lessee has had a reasonable opportunity to inspect the goods and the 

lessee signifies or acts with respect to the goods in a manner that signifies to 

the lessor or the supplier that the goods are conforming or that the lessee will 

take or retain them in spite of their nonconformity].) 

Yet, Duff does not challenge the court’s critical factual finding. 

Curiously, he represents that the facts here are undisputed, and we should 

apply a de novo standard of review. Specifically, Duff insists “[t]he 

undisputed evidence showed that Duff revoked acceptance and never 

withdrew that revocation.” A threshold problem with Duff’s contention is 

that the trial court explicitly found his claim that he rejected the vehicle “was 

ineffective because [Duff] accepted this vehicle.” The court explained that 

Duff’s “act of buying the vehicle at the end of the lease, even though he was 

under no obligation to do so, demonstrate[d] that [Duff] accepted the vehicle 

and chose not to rescind the lease.” On appeal, Duff still disputes that he 

accepted the vehicle by purchasing it. In other words, at the very least, he 

makes the implied argument that the court could not find he accepted the 

vehicle on the facts before it. Thus, he really is making a substantial 

evidence challenge to a factual finding. As such, we agree with Jaguar that 

the proper standard of review here is substantial evidence.
13

“In reviewing a judgment based upon a statement of decision following 

a bench trial, we . . . apply a substantial evidence standard of review to the 

trial court’s findings of fact.” (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 

981.) “On substantial evidence review, we do not ‘weigh the evidence, 

consider the credibility of witnesses, or resolve conflicts in the evidence or in 

the reasonable inferences that may be drawn from it.’ ” (Do v. Regents of 

University of California (2013) 216 Cal.App.4th 1474, 1492.) We do not 

substitute our deductions for that of the trial court. (Jameson v. Five Feet 

Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143.) When conducting a 

substantial evidence review, we view the whole record in a light most 

favorable to the judgment, we resolve all evidentiary conflicts in favor of the 

decision, and we draw all reasonable inferences in favor thereof. 

(CADC/RADC Venture 2011-1 LLC v. Bradley (2015) 235 Cal.App.4th 775, 

787.) “The substantial evidence standard of review is generally considered 

the most difficult standard of review to meet, as it should be, because it is not 

the function of the reviewing court to determine the facts.” (In re Michael G. 

(2012) 203 Cal.App.4th 580, 589.)

The most fundamental rule of appellate review is that the judgment or 

order challenged on appeal is presumed to be correct, and “it is the 

appellant’s burden to affirmatively demonstrate error.” (People v. Sanghera

(2006) 139 Cal.App.4th 1567, 1573.) “ ‘All intendments and presumptions are 

indulged to support it on matters as to which the record is silent, and error 

must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 

557, 564.) Here, although Duff does not argue that the court’s finding of 

acceptance is not supported by substantial evidence, he does imply that the 

court was incorrect to construe his purchase of the vehicle as acceptance. To 

this end, he claims that he maintained possession of the vehicle: (1) in 
14

response to Jaguar’s subpoena to produce the vehicle at trial; (2) to prevent 

the sale of a defective vehicle to the public without disclosure; and (3) out of 

concern about the safety of the vehicle. Yet, Duff’s argument overlooks the 

fact that he testified at trial that he had no intention of keeping the vehicle 

and only purchased it based on his safety concerns: “It was for safety, the 

reason I kept the car.” And the court rejected Duff’s contention that his 

purchase of the car was not acceptance, and we cannot reweigh this evidence 

on appeal.4 (See Do v. Regents of the University of California, supra, 216 

Cal.App.4th at p. 1492.)

Here, we conclude that substantial evidence supports the trial court’s 

factual finding that Duff accepted the vehicle. It is undisputed that, after the 

lease expired, Duff extended the lease and then purchased the vehicle. And 

Duff testified at trial that he did not consider returning the car once the lease 

expired, but instead, purchased the car “for safety” and that he kept the car 

to make sure that the public would be safe. He also testified that he had no 

intention of keeping the car if he lost the lawsuit, but he did not know “[w]hat 

4 There is no indication in the record that Duff testified that he 

purchased the vehicle to comply with Jaguar’s subpoena to produce the 

vehicle at trial. Indeed, Duff does not cite to anywhere in the record where 

he made that claim below. Instead, he appears to have created this 

argument on appeal. Accordingly, we do not consider it here. (See Nelson v. 

Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [“ ‘When an 

appellant fails to raise a point, or asserts it but fails to support it with 

reasoned argument and citations to authority, we treat the point as 

waived’ ”]; Premier Medical Management Systems, Inc. v. California Ins. 

Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [“ ‘ “ ‘[I]t is fundamental 

that a reviewing court will ordinarily not consider claims made for the first 

time on appeal which could have been but were not presented to the trial 

court’ ” ’ ”].)
15

[he would] do with it . . . yet.” Additionally, he admitted that he did not 

believe he had to purchase the vehicle to preserve his claims against Jaguar.5

In short, at trial, Duff, as the plaintiff, had the burden to prove the 

elements of a cause of action of breach of implied warranty under SongBeverly. As part of his burden, he was required to show what damages, if 

any, he was entitled to under section 1794. Duff argued he rejected the 

vehicle by virtue of his initial claim to Jaguar’s alternative dispute resolution 

procedure with BBB Auto Line as well as the allegations in the complaint 

that he rejected the vehicle. However, the court weighed this evidence 

against the fact that, after the lease expired, Duff extended the lease and 

then purchased the vehicle. Moreover, he purchased the vehicle over two 

years after he filed his complaint. Ultimately, the court found that Duff had 

accepted the vehicle and was not entitled to damages under subdivision (b)(1) 

of section 1794. This finding is supported by substantial evidence; Duff does 

not cogently argue otherwise. On this ground alone, we can affirm the 

judgment. Nevertheless, we briefly address Duff’s legal challenges to the 

judgment as well.

5 In addition, Duff’s repeated argument throughout his briefs that he 

purchased the vehicle out of safety concerns is not well supported in the 

record. The court noted that both parties’ respective expert witnesses agreed 

“that the vehicle was operating within specifications at the July 2017 vehicle 

inspection.” Further, the court observed that after the engine was replaced in 

January 2016, Duff never presented the vehicle for additional repairs. And 

the court found “there was no defect covered by the warranty that 

substantially impaired the use, value or safety of the vehicle that was not 

repaired in a reasonable number of repair attempts.” Here, Duff does not cite 

to the record to show what evidence, if any, was offered at trial proving the 

vehicle was unsafe except his bald assertion that he purchased the vehicle 

out of safety concerns. 
16

Although Duff does not adequately address the trial court’s factual 

finding that he accepted the vehicle, he advances purely legal arguments that 

assert the same unacceptable consequence: If we let this judgment stand, we 

will be undermining the consumer protections of Song-Beverly. Therefore, 

Duff argues the judgment should be reversed because it: (1) violates the “no 

waiver” rule under Martinez, supra, 193 Cal.App.4th 187; (2) treats lessees 

and purchasers differently in violation of section 1795.4, subdivision (b); 

(3) violates “established law” holding that continued use of a vehicle does not 

waive the right to demand replacement or reimbursement; and (4) permits 

defective vehicles to be sold to the general public without disclosure. We 

reject these contentions. 

Duff argues this case is like Martinez, supra, 193 Cal.App.4th 187. In 

that case, the court rejected the assertion that Song-Beverly required a buyer 

to maintain possession of the defective vehicle to obtain restitution under the 

statute. The court explained: “[N]owhere does the Act provide that the 

consumer must own or possess the vehicle at all times in order to avail 

himself or herself of these remedies. All the Act requires of the buyer is that 

the buyer ‘deliver [the] nonconforming goods to the manufacturer’s service 

and repair facility’ for the purpose of allowing the manufacturer a reasonable 

number of attempts to cure the problem. [Citations.] Once this delivery 

occurs and the manufacturer fails to cure the problem, the ‘manufacturer 

shall’ replace the vehicle or reimburse (make restitution to) the buyer. 

[Citations.] The Act says nothing about the buyer having to retain the 

vehicle after the manufacturer fails to comply with its obligations under its 

warranty and the Act. If the Legislature intended to impose such a 

requirement, it could have easily included language to that effect. It did not. 
17

‘We may not rewrite the section to conform to that unexpressed, supposed 

intent.’ [Citation.]” (Id. at p. 194, fns. omitted.)

Duff asserts the instant action is analogous to Martinez because, like 

the trial court there, the trial court in the instant action added a requirement 

to Song-Beverly. Specifically, Duff argues the trial court’s determination that 

he is not entitled to damages under section 1794, subdivision (b)(1) would add 

the requirement to the statute that all lessees of any vehicle must return the 

vehicle at the end of the lease term or waive damages under that subdivision. 

We do not see such a sweeping general principle arising out of the judgment 

in the instant action. The trial court here did not add any additional 

requirement to Song-Beverly. It simply made a necessary factual finding as 

required under section 1794 to determine what damages were available to

Duff for breach of the implied warranty. In other words, contrary to adding a 

requirement to Song-Beverly, the trial court merely followed the Act.

Similarly, we are not persuaded by Duff’s argument that the trial 

court’s finding that he was not entitled to damages under section 1794, 

subdivision (b)(1) violated Song-Beverly because it resulted in the unequal 

treatment of purchasers and lessees. Under Song-Beverly, a lessee has the 

same rights as a purchaser of goods. (See § 1795.4, subd. (b).) Here, Duff 

argues that a purchaser who still owned a vehicle at the time of trial would 

not be deprived of damages under subdivision (b)(1) of section 1794, but he, 

as a lessee, was so denied simply because he purchased the vehicle after the 

lease expired and owned it at the time of trial. Not so. Whether a plaintiff is 

a purchaser or a lessee of a vehicle, to recover what he or she paid for the 

vehicle, the plaintiff must prove he or she “rightfully rejected or justifiably 

revoked acceptance of the goods or ha[d] exercised any right to cancel the 

sale.” (§ 1794, subd. (b)(1).) Thus, Duff had to show that he rejected or 
18

revoked acceptance of the vehicle. The court found that he did not satisfy

this burden. Moreover, the court found that Duff had accepted the vehicle; 

so, he only was entitled to damages as set forth in section 1794, 

subdivision (b)(2). The court did not make this determination simply because 

Duff was a lessee who owned the vehicle at the time of trial. Rather, the 

court found Duff’s purchase of the vehicle, after the lease expired, evidenced 

his acceptance of it. In reaching this factual finding, the court did not find 

credible Duff’s claim that he only purchased the vehicle for “safety” reasons. 

In short, the court’s factual finding that Duff accepted the vehicle was not 

based on treating lessees and purchasers differently under Song-Beverly. To 

the contrary, the court simply made a factual finding based on the evidence 

presented at trial.

Next, Duff insists the judgment should be reversed because the trial 

court improperly found that his continued use of the vehicle constituted “reacceptance” of the vehicle, resulting in a finding that he waived damages 

that otherwise would have been available to him under subdivision (b)(1) of 

section 1794. (Cf. Jiagbogu v. Mercedes-Benz USA (2004) 118 Cal.App.4th 

1235, 1240-1241.) Duff’s argument, however, is off the mark. Although the 

court “did not find credible [Duff’s] testimony regarding his continued 

use/nonuse of the vehicle[,]” there is no indication in the record that the court 

found Duff accepted the vehicle based on his continued use of it. The court 

explicitly found that Duff accepted the vehicle as evidenced by his extension 

of the lease after it expired and his subsequent purchase of it: “[Duff’s] act of 

buying the vehicle at the end of the lease, even though he was under no 

obligation to do so, demonstrate[d] that [Duff] accepted the vehicle and chose 

not to rescind the lease.” Because the court did not base its finding that Duff 

accepted the vehicle based on his continued use of it, we summarily reject his
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argument that we must reverse the judgment on the grounds it violates the 

principle that continued use does not waive the right to demand replacement 

or reimbursement.

Finally, we are not persuaded by Duff’s argument that the judgment 

must be reversed because it violates the Automotive Consumer Notification 

Act (§ 1793.23; ACNA). “Civil Code section 1793.23 requires that the 

ownership certificate for a vehicle reacquired under the lemon law be ‘title 

branded’ with the inscription ‘Lemon Law Buyback’ and that a purchaser of 

the vehicle be notified that it is a lemon law buyback.” (R&B Auto Center, 

Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 333.) Here, Duff 

maintains that the judgment required him to return the vehicle at the end of 

the lease “so [it] could be sold at auction without disclosure” in violation of 

the ACNA. Further, he argues that “[b]ecause the Court denied [him] 

rescission,” Duff must “dispose of the defective vehicle” and Jaguar is able to 

“evade[ ] the disclosure and branding requirements of the ACNA.” Duff’s 

argument, however, again ignores the court’s factual finding that he accepted 

the vehicle. Because the court made that finding, Jaguar was not required to 

repurchase the vehicle, and thus, the ACNA did not apply. Moreover, we 

read nothing in the ACNA that relieves a plaintiff suing under Song-Beverly 

of its burden of proving that he or she rejected or revoked its acceptance of 

the subject goods.6

6 Duff also claims that Jaguar purposely delayed the trial past the lease 

expiration date essentially forcing Duff to purchase the vehicle. However, 

Duff did not testify at trial that Jaguar’s litigation tactics compelled him to 

purchase the vehicle. Nor does he cite to anywhere in the record where he 

made such an argument. Therefore, we do not consider this contention on 

appeal. (See Nelson v. Avondale Homeowners Assn., supra, 172 Cal.App.4th 

at p. 862; Premier Medical Management Systems, Inc. v. California Ins. 

Guarantee Assn., supra, 163 Cal.App.4th at p. 564.)
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In summary, the trial court made a factual finding that Duff accepted 

the vehicle when he purchased it after the lease expired although he had no 

legal obligation to do so. That finding is supported by substantial evidence. 

Further, we conclude that this factual finding as well as the judgment based 

on it did not violate Song-Beverly. When a plaintiff proves a breach of 

implied warranty under Song-Beverly, he or she is entitled to different 

damages depending on whether the plaintiff rejected or accepted the goods. 

Here, because the court determined Duff did not prove he rejected or revoked 

his acceptance of the vehicle (and, in fact, evidence proved he accepted the 

vehicle), he was not entitled to damages under section 1794, 

subdivision (b)(1). The court therefore complied with the requirements of 

Song-Beverly. There was no error.

DISPOSITION

The judgment is affirmed. Jaguar is entitled to its costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

IRION, J.

GUERRERO, J.