Carrau v. Marvin Lumber & Cedar Co.

• Decision Date: 26 October 2001
• Docket Number: No. A091880.,No. A091121.,A091121.,A091880.
• Citation: 93 Cal.App.4th 281,112 Cal.Rptr.2d 869
• Court: California Court of Appeals Court of Appeals
• Parties: Robert W. CARRATU et al., Plaintiffs and Appellants, v. MARVIN LUMBER AND CEDAR COMPANY, et al., Defendants and Appellants.

112 Cal.Rptr.2d 869

93 Cal.App.4th 281

Robert W. CARRATU et al., Plaintiffs and Appellants, v. MARVIN LUMBER AND CEDAR COMPANY, et al., Defendants and Appellants.

No. A091121.

No. A091880.

Court of Appeal, First District, Division 1.

October 26, 2001.

Review Denied January 29, 2002.

Austin Gibbons, Sean C. Conley, Gibbons & Conley, Walnut Creek, Attorneys for Plaintiffs and Appellants.

James J. Ficenec, Titchell, Maltzman, Mark & Ohleyer, San Francisco, Donald J. Brown, (Pro Hac Vice) Winthrop & Weinstein, P.A., Attorneys for Defendants and Appellants.

STEIN, Acting P.J.

Sometime in the late 1980's, Robert W. Carrau purchased over 50 windows from Marvin Lumber and Cedar Company (Marvin), a window manufacturer, which were incorporated into a residence Carrau built for himself and his wife in Orinda, California. The windows proved to be defective, and, on October 17, 1997, Carrau filed suit against Marvin, seeking damages on the theories, as relevant here, of products liability, breach of express and implied warranties and violation of the Song-Beverly Consumer Warranty Act, Civil Code sections 1790 et seq. (hereafter, the Song-Beverly Act).

The trial court granted summary adjudication to Marvin on Carrau's theory of breach of implied warranty, finding Carrau's claims under that theory to be timebarred. The remaining claims were tried to a jury, which returned a verdict in favor of Carrau on his claim of breach of express warranty, awarding him $200, and on his claim of strict products liability, awarding him $350,000. The jury, however, returned a defense verdict on Carrau's claim of breach of the Song-Beverly Act.

Marvin appeals from the order of the trial court denying Marvin's motion for a new trial or for judgment notwithstanding the verdict, contending that the evidence does not support the verdict, and that Carrau's claim of breach of express warranty was time-barred. We agree, and will reverse the judgment. Carrau cross-appeals, contending that the jury was prejudicially misinstructed on the Song-Beverly Act. Although we find error in the instructions, we further find that Carrau waived the point by failing to submit qualifying instructions, and that in all events any claim he might have had under the act also was time-barred.

FACTS

After purchasing a 22-acre parcel of property in Orinda in the late 1980's, Carrau and his wife designed and built a residence described by Carrau as the "culmination of all [his] work." The residence, which included over 50 wood-framed windows supplied by Marvin, was completed in late 1990. It is undisputed that the windows had been treated with an ineffective preservative, with the result that they were subject to premature rotting.

Carrau first noticed a problem with the windows in 1993 or 1994, when he found it necessary to replace the sill on one window and learned that a second window was leaking. There was evidence that the leaking caused some interior sheet rock to become wet and may have caused a stain on a carpet. Carrau repaired the window, and replaced some wallpaper that had been damaged by the leaking. There was evidence that Carrau also had to replace some exterior stucco.

Carrau did not at that time attribute the leaking and related problems to a defect in the windows. Sometime later, however, he learned that there was rot on the sash or frame of yet another window. At that point, Carrau contacted Marvin, which sent out a representative to survey all the windows. Following the survey, Marvin sent Carrau a letter, dated June 15, 1997, proposing to replace 26 of the windows, and asking Carrau to obtain bids for the work. Carrau obtained two bids, for $306,000 and $290,864, respectively, which included not only replacement of the windows themselves, but such things as landscaping removal and restoration, replastering, restoring interior faux painting finishes that would be damaged by the repairs, replacing moldings and replacing security systems. The bids were sent to Marvin, which responded by sending out its own contractor, who submitted a bid for $115,000, not including items such as removal and restoration of landscaping, that had been included in the bids obtained by Carrau. Carrau was not satisfied with the credentials of Marvin's contractor, and refused to permit that contractor to do the work unless Marvin agreed to guarantee that the residence would be perfectly restored.

In the meantime, Marvin had constructed and shipped the 26 windows. By this time, however, Carrau noticed that some additional windows, not covered by Marvin's proposal, were showing signs of deterioration. Carrau therefore sought bids to replace all of the windows. The two contractors originally contacted by him submitted bids for $479,510.33 and $439,003.00, respectively. A third contractor bid $298,596.13 for the replacement of the original 26 windows, plus $129,354.33 for the remaining windows.

Marvin refused to pay in accordance with the estimates obtained by Carrau, and refused to guarantee that the work, if done by its own contractor would restore the residence to a perfect condition. Marvin did, however, fabricate and deliver windows to replace all of Carrau's windows.¹

Carrau never actually replaced the windows. He put the house on the market in 1997. A residential real estate appraiser specializing in unusual and high-end properties such as Carrau's home, stated her opinion that the property, in an undamaged condition, would have sold for as much as $5.75 million. Carrau listed it at $6 million. He ultimately sold the residence, however, for $5,250,000, and as a part of that sale, further agreed to credit the purchasers with $426,000 to cover the costs of installing the replacement windows.

The purchasers replaced only four of the windows and ten sills. Their contractor dug out any rot discovered on the remaining windows and put in an epoxy product. He then installed a two-piece molding assembly over the windows, which enabled him to do the repairs and replacements without disturbing the interior finishes, the exterior stucco or much of the landscaping. The contractor retextured some sheet rock and treated the windows as necessary with Pentachloride, a wood preservative. The repairs cost approximately $100,000. There was evidence that of this price, the cost of the repairs to property other than to the windows themselves, such as the damage to the sheet rock, was "in the neighborhood of a couple of hundred dollars."

THE APPEAL

I. Breach of Warranty

The jury awarded Carrau $200 for breach of an express warranty, apparently concluding, that except for the damage to property other than the windows themselves, Marvin satisfied its warranty obligations by delivering the replacement windows. Marvin contends here, as it contended in moving for judgment notwithstanding the verdict, that the jury's finding of breach of warranty is not supported by substantial evidence. Marvin further contends that even if there is some evidence of breach of warranty, Carrau's suit on that theory was barred by the applicable statute of limitations. We agree.

Carrau did not produce any express warranty that accompanied the sale of the windows. It was, however, established that at all relevant times, Marvin sold its windows with a limited one-year warranty for millwork, and there was evidence that the windows at issue here were delivered with some kind of a warranty and had some type of quality assurance labels.² It is undisputed that no defect in the windows was discovered or reported until over one year had passed from the date of purchase. The standard one-year limited warranty, therefore, provides no support for the jury's verdict.

Carrau theorized, however, that it could be inferred that Marvin had provided Carrau with an express warranty guaranteeing that the windows would be free from defect for a period of 10 years. In support of this theory, Carrau produced evidence of a letter written to a homeowner by a customer service representative employed by Marvin, indicating that the company that provided the product used on the homeowner's windows "gives the finish for a 10-year life expectancy." A second letter, written to another homeowner, indicated that Marvin would write a 10-year warranty for a job with a minimum of 50 windows.³ Carrau asserted that it was likely that Marvin had provided him, as a purchaser of more than 50 windows, with a 10-year warranty. Carrau pointed out that Marvin had not produced the exact warranty provided to Carrau, arguing that it could be inferred that Marvin had provided Carrau with a favorable warranty, which was then conveniently lost. Finally, Carrau pointed out that after he complained, Marvin offered to replace the windows, which action, according to Carrau, indicated an understanding that the windows were still under warranty although the one-year period in the standard warranty long had passed.

Marvin responded by asserting that it offered to replace the windows not because it had a legal obligation to do so, but as a courtesy to Carrau. When asked about the letters produced by Carrau, a witness—who had worked for many years as a customer service representative with Marvin—confirmed that Marvin might, at the time of sale, enter into an agreement to provide some service to a customer even after the one year warranty period had expired. Marvin would do so, however, only if the customer specifically requested it, and even then Marvin would not agree to replace its products. Rather, Marvin might agree to help the buyer with any claim the buyer might have against the manufacturer of a substance used on Marvin's products. It is true that a judgment may be supported by inference. The inference however, "must be a reasonable conclusion from the evidence and cannot be based upon suspicion, imagination, speculation, surmise, conjecture or guesswork. [Citation.]" (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th...