114 Cal.App.4th 402, G031180, Mocek v. Alfa Leisure, Inc.

Docket Nº:G031180
Citation:114 Cal.App.4th 402, 7 Cal.Rptr.3d 546
Opinion Judge:[9] The opinion of the court was delivered by: Rylaarsdam, Acting P. J.
Party Name:Mocek v. Alfa Leisure, Inc.
Attorney:[7] Turner, Reynolds, Greco & O'Hara, Frederick E. Turner and Glen R. Segal for Defendant and Appellant. [8] Anderson Law Firm, Martin W. Anderson and Ivy Tsai for Plaintiff and Respondent.
Case Date:December 15, 2003
Court:California Court of Appeals

Page 402

114 Cal.App.4th 402

7 Cal.Rptr.3d 546

DARRYL JON MOCEK, as Administrator, etc., Plaintiff and Respondent,


ALFA LEISURE, INC., Defendant and Appellant.


California Court of Appeal, Fourth District, Third Division.

December 15, 2003.

Appeal from a judgment and postjudgment order of the Superior Court of Orange County, Ronald L. Bauer, Judge. Motions to strike portions of appendix and reply brief; request for judicial notice. Judgment affirmed. Motions denied; request granted. Super. Ct. No. 01CC02085.

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[Copyrighted Material Omitted]

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Turner, Reynolds, Greco & O'Hara, Frederick E. Turner and Glen R. Segal for Defendant and Appellant.

Anderson Law Firm, Martin W. Anderson and Ivy Tsai for Plaintiff and Respondent.



Defendant Alfa Leisure, Inc. appeals from a judgment following a bench trial. The action arose from the purchase of a travel trailer by plaintiff Frank Mocek, now deceased. (Although the administrator of Mr. Mocek's estate has substituted in as plaintiff, we refer to Mocek as "plaintiff.") The trial court found that defects in the trailer constituted a breach of the implied warranty of merchantability and rendered a judgment in the amount of the purchase price, plus interest, conditioned upon plaintiff returning the trailer to defendant.

The trial court concluded that, where the implied warranty of merchantability is breached, applicable statutes do not require a buyer to give the seller an opportunity to repair before rescinding the purchase. Defendant contends plaintiff could not rescind his purchase without first giving it an opportunity to repair the defects. We agree with the trial court and affirm the judgment because, although a different rule may apply where there is a breach of an express warranty, there is no requirement the seller be given an opportunity to repair when the implied warranty of merchantability is breached.

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Plaintiff and his son each purchased the same model fifth wheel travel trailer manufactured by defendant. The trailers were delivered to them at a recreational vehicle park. They were required to sign documents and pay for the trailers before being given an opportunity to inspect them. After delivery, plaintiff's son, who had over 25 years' experience with travel trailers and had hooked up hundreds of trailers to electrical power, connected the trailers to the park's electricity supply. He experienced no problem with his own trailer. But shortly after he connected plaintiff's trailer to the power source, the electrical outlets and appliances ceased operating. When they turned on the TV/VCR in the trailer the next day, it started to smoke. Plaintiff's son then tried resetting the circuit breakers but sparks and smoke came from the breaker panel. Defendant arranged to have one of its technicians examine the trailer. After this examination, the technician told plaintiff he could not fix the trailer's electrical system in place; it would have to be moved to defendant's plant for repairs. He told plaintiff defendant would have to replace all of the appliances and would separately test each wire, and would do so at no charge to plaintiff.

Plaintiff refused to let defendant take the trailer to be repaired. He advised defendant that he wanted a new trailer or a refund of the purchase price. He stated he would have no confidence in a repaired trailer; the damage was "too extensive." He also stated "there [was] no way that I would be comfortable that the thing was truly repaired as if it were a brand[]new trailer." Defendant did not replace the trailer nor refund the purchase price; plaintiff never used the trailer and sued.

Plaintiff's judgment was based on breach of the implied warranty of merchantability under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.) (the Act) and was in the amount of the purchase price, with interest, conditioned upon a return of the trailer. The court also held for plaintiff under his cause of action for unfair competition (Bus. & Prof. Code, § 17200); but no separate damages were awarded under this statute and the appeal asserts no separate issues with respect thereto.



Defendant claims that, where the implied warranty of merchantability is breached, consumers may not rescind the purchase contract without first affording the manufacturer an opportunity to repair. The Act does not contain language supporting this claim; neither do the provision of the California

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Uniform Commercial Code (Commercial Code) incorporated in the Act to the extent they deal with the warranty of the merchantability. Defendant, recognizing this, wants us to look beyond the language of the Act and consider other parts of the Commercial Code, as well as the legislative intent, history, and commentary to both statutes. Defendant attempts to explain its contentions in a lengthy and complicated analysis. But, where the language of a statute is unambiguous, we may only look to its plain meaning unless this would frustrate its apparent purpose or lead to an absurd result. (Williams v. Superior Court (2001) 92 Cal.App.4th 612, 621 [111 Cal.Rptr.2d 918]; Souza v. Lauppe (1997) 59 Cal.App.4th 865, 874 [69 Cal.Rptr.2d 494].) Here the language of the statute is plain, a plain reading does not frustrate the apparent purpose of the statute, and no absurdity results. We therefore decline defendant's invitation that we engage in a hermeneutic exercise to demonstrate the statute means something other than what it says.

Overview of the Implied Warranty of Merchantability

As defined in the Act, an implied warranty of merchantability guarantees that "consumer goods meet each of the following: [¶] (1) Pass without objection in the trade under the contract description. [¶] (2) Are fit for the ordinary purposes for which such goods are used. [¶] (3) Are adequately contained, packaged, and labeled. [¶] (4) Conform to the promises or affirmations of fact made on the container or label." (Civ. Code, § 1791.1 (a).) "Unlike express warranties, which are basically contractual in nature, the implied warranty of merchantability arises by operation of law. [Citation.]... '[I]t provides for a minimum level of quality.' [Citations.]" (American Suzuki Motor Corp. v. Superior Court (1995) 37 Cal.App.4th 1291, 1295-1296 [44 Cal.Rptr.2d 526].) Thus, a breach of the implied warranty of merchantability means the product did not possess even the most basic degree of fitness for ordinary use. (Cal. U. Com. Code, § 2314, subd. (2).)

When there has been a breach of the implied warranty of...

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