Music Acceptance Corp. v. Lofing

• Decision Date: 24 January 1995
• Docket Number: No. C013400,C013400
• Citation: 39 Cal.Rptr.2d 159,32 Cal.App.4th 610
• Court: California Court of Appeals Court of Appeals
• Parties: MUSIC ACCEPTANCE CORP. et al., Plaintiffs, Cross-defendants, Respondents and Appellants, v. Dan LOFING et al., Defendants, Cross-complainants, Appellants and Respondents.

Page 159

39 Cal.Rptr.2d 159

32 Cal.App.4th 610

MUSIC ACCEPTANCE CORP. et al., Plaintiffs, Cross-defendants, Respondents and Appellants, v. Dan LOFING et al., Defendants, Cross-complainants, Appellants and Respondents.

No. C013400.

Court of Appeal, Third District, California.

Jan. 24, 1995.

Rehearing Denied Feb. 17, 1995.

As Modified Feb. 22, 1995.

Review Denied April 12, 1995.

Kemnitzer, Dickinson, Anderson & Barron and Roger Dickinson, Sacramento, for defendants, cross-complainants, and appellants.

Sedgwick, Detert, Moran & Arnold and Roger W. Sleight, San Francisco, for plaintiffs, cross-defendants, and appellants.

SPARKS, Associate Justice.

This case centers on the rights of a purchaser of a defective piano. Defendant and cross-complainant Dan Lofing (Lofing) purchased a Steinway grand piano from Sherman Clay & Co. (Sherman Clay), Steinway & Sons' (Steinway) Sacramento dealer, and received financing through Sherman Clay's finance company, Music Acceptance Corporation (MAC). ¹ Lofing became disenchanted with his piano after a variety of problems with the instrument became apparent. When his complaints to Steinway and Sherman Clay were not resolved, Lofing stopped making payments to MAC. MAC sued Lofing and his cosigner, Yumi Sim Cooper, for breach of contract. ² Lofing responded by filing a cross-complaint against MAC, Steinway, and Sherman Clay, alleging a number of causes of action, including violations of state and federal consumer protection laws.

The jury found in Lofing's favor on the cross-complaint, awarding him $8,550 against Steinway and $15,650 against Sherman Clay. However, the jury also found in MAC's favor on the complaint, awarding it $23,675 in damages, resulting in a net award to Lofing of On appeal, Lofing again asserts these verdicts are inconsistent and judgment must be entered in his favor on MAC's complaint. He also challenges the court's refusal to award him attorney fees, as well as the court's denial of his motion to tax costs. In a cross-appeal, Steinway contends there is no basis for the judgment against it, and MAC contends it was entitled to attorney fees. We reject the claims made in the cross-appeal and find Lofing's appeal meritorious. We shall therefore reverse the judgment entered in favor of MAC and remand for further proceedings on the question of attorney fees.

$525. Lofing filed numerous motions for postjudgment relief, asserting the verdicts were inconsistent as a matter of law since MAC was subject to the same claims and defenses that had been successfully raised against Steinway and Sherman Clay. The court denied Lofing's motions.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in a light most favorable to the jury's verdicts, the evidence at trial revealed the following: Lofing is an accomplished pianist and makes his living as an accompanist and piano teacher. In early 1984, he began to look for a better piano for his personal use. ³ He went to Sherman Clay, the local distributor for Steinway pianos, but the few pianos on the showroom floor did not impress him. A sales person, Rita Misener, told him a Steinway promotional sale would be coming up soon and many more pianos would be available. Lofing left his name and address to be notified of this event.

The Steinway sale was held at Sherman Clay in early April 1984. Lofing attended a reception at the store, where he spoke to Misener, and David Reuben, a Steinway vice-president. Lofing told Reuben he had heard there had been some problems with the bushings in Steinway grand pianos ⁴ but Reuben reassured him that the problems had been rectified. Lofing played 10 to 15 different pianos, and found a 7-foot model B Steinway grand piano whose tone he loved. Misener assured him the tone would become "larger and broader" over time, but that its basic "sweetness" would remain.

Lofing was unsure whether he could afford the piano, which was priced at $24,199. ⁵ Upon completing a credit application, he was told he would need a cosigner because his income was insufficient. Yumi Sim Cooper agreed to cosign the loan application and the financing was approved. The amount financed was $19,650.94, representing the purchase price plus sales tax, less a $6,000 allowance for a trade-in on Lofing's piano. The loan required 96 monthly payments of $338.20. In large, bold type it further provided: "Any holder of this consumer contract is subject to all claims and defenses which the debtor could assert against the seller of goods or services obtained pursuant hereto, or with the proceeds hereof."

The piano was delivered to Lofing's home the next week. He received a warranty from Steinway, which provided the company "will promptly repair or replace without charge any part of this piano which is found to have a defect in material or workmanship within five years" from the date of sale. Lofing was to contact the Steinway authorized dealer, i.e., Sherman Clay, or Steinway itself for any warranty service. ⁶ A Steinway booklet Lofing had been given stated: "The care of your Steinway will not be particularly time-consuming or expensive."

During the first month of ownership, Lofing noticed a deterioration in the action and tonal quality of the piano. He called Sherman Clay to request a tuning. Brad Larson, Sherman Clay's Steinway piano technician, tuned the instrument and sanded some parts, leaving sawdust around the piano. Within a few hours, the piano seemed out of tune again.

Four to five months later, the action remained stiff, and the tone was not what Lofing expected. Larson worked on the piano, but Lofing continued to notice a decline in the piano's tonal qualities. The piano sounded harsh, and no longer had the sweet quality that first attracted him. The piano's touch became increasingly uneven, requiring differing amounts of pressure on different keys to produce the same sound.

Lofing lived with the problems for a while because he felt uncomfortable complaining to Sherman Clay while teaching students referred by the store. In January 1985, Larson again worked on the piano for several hours, tuning it, voicing the instrument, and reaming the bushings. Problems persisted. In December 1985, Larson made two attempts to fix the piano, and concluded the piano "[h]ad some problems" that needed to be discussed with the Sherman Clay manager.

By this point, the piano was deteriorating at "a geometric pace." Keys stuck, the pedals were not working properly, and the instrument developed a "twang." Larson attempted to repair these problems on several occasions in early 1986. Each visit lasted three to four hours and involved extensive work, but Larson's efforts were unavailing. Lofing described the piano's sound as "beating garbage can lids," and believed the piano's touch had been destroyed, ruining his technique. The dampers stuck, requiring him on one occasion to physically push the dampers down to stop the strings from vibrating.

In March 1986, Lofing met at Sherman Clay with the store's manager, Larson, and the division manager for Steinway. Lofing was assured that Steinway would take care of any problems. Larson stated that while he had never done a repair job of this size, he was sure he could handle it. Lofing left the meeting believing the problems would be resolved.

By April, however, nothing had happened, and Lofing contacted an attorney. He hired several technicians to inspect and report on the piano. They all agreed the piano suffered from major problems involving the key frame, strings, hammers, action and bridge. The piano was deemed to have so many deficiencies that it was "basically unplayable."

Lofing no longer had faith in Sherman Clay or Steinway, and he wrote to Steinway seeking to return the piano in exchange for a refund of his payments less a reasonable rental fee. In June 1986, Steinway sent its chief technician, Bill Garlic, to inspect the piano. He found the piano was in "terrible condition" and expressed his surprise that it had ever left the factory. He believed the piano would have to be completely rebuilt. He said he would have to repair the piano at the factory or give Lofing a new piano.

Each piano is a unique instrument. According to several piano technicians, the types of repairs contemplated were so extensive that the rebuilt piano would no longer be the piano that Lofing had purchased, and might well have a completely different tone and touch. In July, after Garlic's inspection, Lofing renewed his request to return the piano and receive his money back.

Steinway first responded that it would either repair the piano to its original condition, or fly Lofing to New York to select a new instrument. Lofing refused this offer for a number of reasons. He wanted to find another piano he liked, not necessarily a Steinway. He was concerned because he had read articles suggesting an ongoing problem with bushings in Steinway pianos, and he did not want to have to continue his relationship with Sherman Clay or Brad Larson, the Sacramento Steinway representatives and technician.

Steinway wrote another letter agreeing to refund Lofing's purchase price, less an offset for the rental value of the piano during this period of time. Steinway assigned a rental value of $566.98 per month, resulting in Lofing Lofing stopped making payments on the piano. At this point, the piano was impossible to play and was ruining his technique. To mitigate his damages, Lofing sold the piano in 1988 for $7,000. He purchased a Kawai piano from another dealership for $7,939.48.

owing Steinway $1,082.24. Not surprisingly, Lofing did not find this proposal acceptable.

MAC filed a complaint for breach of contract, seeking the unpaid balance on the loan and attorney fees pursuant to the sales agreement. Lofing filed a cross-complaint against MAC, Sherman Clay and Steinway, alleging numerous causes of action, including breach of implied and express warranties under the Song-Beverly Consumer Warranty Act (Civ.Code, § 1790 et seq.)...