Bowser v. Ford Motor Co.

• Decision Date: 11 May 2022
• Docket Number: E073609
• Citation: 78 Cal.App.5th 587,293 Cal.Rptr.3d 772
• Parties: Ralph BOWSER et al., Plaintiffs and Respondents, v. FORD MOTOR COMPANY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

78 Cal.App.5th 587

293 Cal.Rptr.3d 772

Ralph BOWSER et al., Plaintiffs and Respondents,

v.FORD MOTOR COMPANY, Defendant and Appellant.

E073609

Court of Appeal, Fourth District, Division 2, California.

Filed May 11, 2022

Certified for Partial Publication.^*

Lewis Brisbois and Paul Efstratis, San Francisco; and Jones Day, Nathaniel P. Garrett, San Francisco, David J. Feder, Los Angeles, Margaret A. Maloy, San Diego, and Emily F. Knox for Defendant and Appellant.

Rosner, Barry & Babbitt, Hallen D. Rosner, and Arlyn L. Escalante, San Diego; Knight Law Group, Roger R. Kirnos and Scot D. Wilson, Newport Beach; Greines, Martin, Stein & Richland, Cynthia E. Tobisman, Los Angeles, for Plaintiffs and Respondents.

OPINION

RAMIREZ, P. J.

Husband Ralph Bowser and wife Heidi Bowser bought a 2006 Ford F-250 Super Duty truck, with a 6.0-liter diesel engine (6.0L engine). Previously, they had owned a 2004 model of the same truck; that turned out to be a lemon. The dealership, however, assured them that Ford had "fixed" the problems. After the purchase, the truck — and especially the engine — required repair after repair. Until the engine warmed up, the truck was sluggish and would not accelerate; as a result, in two separate incidents, first Mr. Bowser and then Ms. Bowser were nearly rear-ended. The truck stalled twice on the freeway and once in an intersection. The alternator had to be replaced four times. After the truck had about 100,000 miles on it, the Bowsers largely stopped driving it; it mostly sat in their driveway.

The Bowsers' expert testified that, in his opinion, the 6.0L engine had defective fuel delivery and air management systems. Stuck or mistimed fuel injectors caused incomplete combustion. Unburned hydrocarbons built up on and eventually clogged up other components of the engine, including the turbocharger and the exhaust gas recirculation (EGR) valve. This resulted in stalling, poor acceleration, and part failures.

Over Ford's objections, the Bowsers introduced a number of internal Ford emails and presentations. These showed that Ford was aware that certain parts of the 6.0L engine, including fuel injectors, turbochargers, and EGR valves, were failing at excessive rates, and that Ford was struggling to find the root cause of some of these failures. Some of the emails said that this information should be kept secret.

The Bowsers sued Ford, asserting causes of action under the Song-Beverly Consumer Warranty Act ( Civ. Code, § 1790 et seq. [Song-Beverly or Song-Beverly Act]) and for common-law fraud. Ford conceded liability under the Song-Beverly Act. A jury found for the Bowsers on all causes of action. It awarded compensatory damages ($42,310.17 under the Song-Beverly Act; $43,084.68 for fraud), $84,620.34 as a statutory penalty under the Song-Beverly Act, and $253,861.02 in punitive damages. The Bowsers elected to recover compensatory damages under the Song-Beverly Act rather than for fraud. The trial court awarded them $836,528.12 in attorney fees plus $94,264.99 in costs.

Ford appeals. It contends that:

(1) The trial court erred by admitting the internal Ford documents, because they were inadmissible hearsay.

(2) The trial court erred by admitting depositions of four Ford employees taken in a previous class action, because they were inadmissible hearsay.

(3) The amount of the jury's award of damages on the fraud claims is not supported by the evidence.

(4) The compensatory damages awards on the Song-Beverly claim and on the fraud claims are inconsistent.

(5) The Bowsers cannot elect to recover compensatory damages under the Song-Beverly Act yet still recover punitive damages for fraud.

(6) The Bowsers cannot recover both a statutory penalty and punitive damages.

We find no prejudicial error. Hence, we will affirm.

ISTATEMENT OF FACTS

A. The Bowsers' Problems with the Truck.

Mr. Bowser worked as a realtor; Ms. Bowser was a stay-at-home mother until about 2013, when she began working as a realtor, too. They had three children.

In or around 2004, they bought a new Ford F-250 Super Duty truck with a 6.0L engine. They wanted a truck so they could tow a boat and take river vacations together. Ford claimed that the 6.0L engine was the longest lasting and had the best durability and the best performance in its class.

The 2004 truck "had multiple problems with power loss, multiple shutdowns[,] ... multiple exhaust issues, the turbos, EGRs, injectors." Finally, a dealership employee told the Bowsers that the dealership could not repair the truck and the Bowsers should file a claim with the Better Business Bureau (BBB). They did so.

As a result, in December 2005, Ford replaced the 2004 truck with a 2006 truck, which also had a 6.0L engine. The dealership assured the Bowsers that Ford had been working on the problems they had experienced "and they'd repaired and fixed all of those ...." Once again, Mr. Bowser reviewed literature at the dealership that said "the Ford Super Duty [was] the best in class, having the best performance, highest quality."

The purchase price of the 2006 truck was $43,084.68.¹ It came with a warranty for three years or 36,000 miles, with no deductible, plus a powertrain warranty for five years or 100,000 miles with a deductible of $100 per claim.

Mr. Bowser was the primary driver of the truck; it was his personal vehicle. The family also had a Ford Expedition; later, they traded that in on a Chrysler 300.

Starting in April 2006, the truck would lose power when going uphill; "it felt like the truck was stuck in low gear and there was a noise from the engine." Accordingly, in May 2006, when the truck had 5,733 miles on it, the Bowsers took it in to a dealership. The dealership told them the noise was from a fan and was normal; it could not reproduce the loss of power. It replaced a solenoid and a gasket in the transmission.

Also in May 2006, the horn started going off by itself. The Bowsers took the truck in to a dealership, which fixed the problem.

In November 2006, when the truck had 13,279 miles on it, the Bowsers brought the truck in to a dealership because the air conditioner would blow warm air. The dealership could not reproduce the problem.

In April 2007, when the truck had 19,470 miles on it, the Bowsers brought it in to a dealership because the air conditioning control panel had gone blank and one of the power windows made noise when going up and down. The dealership fixed these problems.

In October 2008, when the truck had 39,622 miles on it, the Bowsers brought it in to a dealership because the battery and check engine lights were going on and off. The battery was nearly dead, so the dealership replaced it.

In November 2008, the alternator had to be replaced.

In June 2009, at 51,324 miles, the Bowsers had the "first major incident" with the truck. Mr. Bowser was driving on the freeway at about 65 miles an hour when the engine shut down; thus, the power steering and power brakes also shut down. After he managed to bring it to a stop, still in lane, he turned the key and it started up again. He pulled over to the side of the freeway. It took him 15 minutes to calm down, start it again, and drive home. He took it in to a dealership, but they could not reproduce the problem. After that, the truck would be sluggish until the engine warmed up.

In August 2009, the alternator had to be replaced again.

In September 2010, Mr. Bowser stopped at a stop sign, made a right turn, and then was almost rear-ended because the truck would not accelerate. Hence, when the truck had 66,350 miles on it, he took it in to a dealership. He reported that, until the engine warmed up, the truck lacked power and would not accelerate. The dealership found that the fuel injector control module (FICM) was "burnt black" and two fuel injectors were misfiring. It replaced those parts.

In November 2010, the engine shut down on the freeway again. Mr. Bowser took it in to a dealership; it had 67,959 miles on it. He reported that, at times, the engine would crank but not start. The dealership found that the fuel pump and the plugs at the end of the fuel rails were leaking air. It replaced the fuel pump and the seals on three of the fuel injectors.

In December 2010, the powertrain warranty expired.

In November 2011, the engine shut down in an intersection. It took multiple tries to get it to restart. Mr. Bowser took it in to a dealership. The truck had 82,735 miles on it. He reported smoke and a loss of power. The dealership found oil in the coolant. The oil cooler had failed; also, the FICM power was weak. The dealership recommended cleaning the intake and EGR valves, taking the turbocharger apart and reconditioning it, and flushing the cooling system. If that did not work, the head gasket might be blown. The recommended repair was going to cost $4,900.

Mr. Bowser took the truck to another authorized repair facility for a second opinion. It confirmed that there was oil in the water, there were black burn marks on the FICM, and the EGR cooler had failed. It replaced the FICM, the EGR cooler, and the oil cooler (but did no work on the turbocharger).

At the facility's suggestion, Mr. Bowser called Ford customer service, which gave him a $2,000 "goodwill" service credit. Ford also got the facility to agree that it would charge warranty rates, which are lower than retail rates, for the repairs. Thus, the facility did the repairs for the $2,000 service credit plus $1,282.42.

Mr. Bowser continued to have problems with "stalling, ... lack of power, black smoke." In July 2012, at 90,942 miles, he took the truck in to an authorized repair facility. He reported that it "lack[ed] power when cold." The facility found that four fuel injectors were failing. Mr. Bowser declined the repair.

Once, when Ms. Bowser was driving the children to school, she stopped at a stop sign, then turned right, just as Mr. Bowser had done in September 2010; like him, she was almost rear-ended because the truck would not accelerate.

In November or December 2012, Ms. Bowser was driving with...