Robertson v. Fleetwood Travel Trailers

• Citation: 50 Cal.Rptr.3d 731,144 Cal.App.4th 785
• Decision Date: 07 November 2006
• Docket Number: No. F048123.,F048123.
• Court: California Court of Appeals
• Parties: Francis D. ROBERTSON et al., Plaintiffs and Respondents, v. FLEETWOOD TRAVEL TRAILERS OF CALIFORNIA, INC., Defendants and Appellants.

50 Cal.Rptr.3d 731

144 Cal.App.4th 785

Francis D. ROBERTSON et al., Plaintiffs and Respondents, v. FLEETWOOD TRAVEL TRAILERS OF CALIFORNIA, INC., Defendants and Appellants.

No. F048123.

Court of Appeal, Fifth District.

November 7, 2006.

Borton Petrini & Conron, Dale Dorfmeier and Robert A. Parkinson, Fresno, for Defendant and Appellant.

Rosner, Law & Mansfield and Douglas D. Law, San Diego, for Plaintiffs and Respondents.

OPINION

KANE, J.

Plaintiffs Lorna and Francis Robertson sued defendant Fleetwood Travel Trailers of California, Inc. (Fleetwood) under the Song-Beverly Consumer Warranty Act (the Song-Beverly Act) (Civ.Code, § 1790 et seq.),¹ based on a persistent water leak in their new Fleetwood travel trailer that was not repaired within a reasonable number of attempts. After extensive water accumulation was discovered in the underbelly of the trailer, the Robertsons concluded enough was enough and demanded that Fleetwood repurchase the trailer. Fleetwood did not do so, insisting it should be given an opportunity to repair the water damage. A jury found that Fleetwood violated the refund-or-replace provisions of the Song-Beverly Act and awarded the Robertsons damages of $22,000, plus a civil penalty of $16,000 for Fleetwood's "willful" failure to comply with its statutory obligations. The trial court awarded attorney's fees in the sum of $231,187.45. Defendant Fleetwood appeals, primarily contending it had no obligation to repurchase or replace the trailer under the Song-Beverly Act because it was never given a reasonable opportunity to repair the water damage, which it views as a separate matter from the water leak. We will reverse and remand with instructions to redetermine attorney's fees. In all other respects the judgment will be affirmed.

FACTS AND PROCEDURAL SUMMARY

On July 8, 2002, plaintiffs Lorna and Francis Robertson purchased a new 39-foot Wilderness travel trailer manufactured by Fleetwood. It was fully warranted by Fleetwood under a comprehensive two-year warranty. The owner's manual summarized the "full two year warranty" as follows: "Your new trailer, including the structure, plumbing, heating, electrical systems, and all appliances and equipment installed by the manufacturer, is warranted under normal use to be free from manufacturing defects in material or workmanship."

The Robertsons bought their travel trailer from Visalia RV Sales & Service (Visalia RV), an authorized dealership and repair facility for Fleetwood trailers and recreational vehicles. At the time of purchase, the Robertsons explained to Visalia RV that Mr. Robertson intended to live in the trailer at the Wooden Shoe Trailer Park, only a few blocks away from the dealership, but they did not have a tow vehicle. As a courtesy, Visalia RV delivered the trailer to the Robertsons at the Wooden Shoe Trailer Park. Later, when the Robertsons began to complain of the water leak problem, Visalia RV willingly sent a repairman out to the trailer park to conduct the repairs from there.

The trailer was used for Mr. Robertson to live in during his employment in the Visalia area. Lorna visited her husband at the trailer about once a month, and it was during her periodic visits that she made her calls or complaints about the water leak, as described hereafter.

Not long after their purchase the Robertsons began noticing a water leak or water build-up on the floor around the shower area of the trailer. Although the amount of water would vary, and sometimes two or three days would go by without seeing the puddles, the location and manner that the water formed would always be the same. In August of 2002, Lorna Robertson first telephoned Visalia RV to report the shower leak. Rather than requiring the Robertsons to bring their trailer back to the dealership for repairs, Allen Wood, the owner of Visalia RV, authorized its repairman Chuck Smith to perform the repairs at the Wood Shoe Trailer Park. Mr. Smith arrived on August 8, 2002, and attempted repair of the leak by adjusting the shower door and applying sealant on the base of the shower. His testimony was that he saw the shower door was not aligned right—it left a gap— and he believed that in correcting the alignment the leak had been fixed.² However, according to Lorna Robertson, who said she watched the entire repair, Mr. Smith never ran the water either prior to or after the attempted repair, and he never removed the paneling or "fascia" at the bottom of the shower to view the P-trap and drainage underneath in order to inspect for leaks. After the repair, the shower continued to leak in the same manner as before.

Lorna Robertson called back to complain about the same leak in September of 2002, but at that time Visalia RV could not send someone out on short notice and she needed to get back to Utah (their permanent residence), so the dealer indicated someone would come out and use the "pass key" to get into the trailer to perform repairs. She telephoned again in October of 2002 to report the same leak, but at that time the dealer was apparently unable to send a repairman. In January of 2003, she first noticed mold on the bedroom wall that abuts the trailer bathroom. She had no idea of its possible cause and did not give it much thought at the time. She simply cleaned the mold off with bleach and water.

In January of 2003, Lorna Robertson called Visalia RV to complain further about the continuing water leak near the shower and also to report something else—water was dripping from two spots in the front underneath area of the trailer. Visalia RV sent Mr. Smith out on January 24, 2003. Mrs. Robertson told him the shower continued to leak and also showed him the location of the two drips at the front of the trailer and the wet area where the water had saturated the dirt underneath the trailer. It had been raining, so Mr. Smith surmised it might be from the rain or from air conditioning condensation. Lorna Robertson replied that the drips were there before the rain, and that they had not used the air conditioning. Mr. Smith performed no repairs that day, but said he would come back another time (when it was not raining) to examine the water drips underneath the trailer and to repair the shower leak.

In February or March of 2003, Lorna Robertson noticed more mold in the trailer under the bathroom sink, on the floor of the kitchen cabinet and more in the back bedroom. These were the areas where the water leak reportedly ran.

Following another phone call from Mrs. Robertson to Visalia RV to complain about the continuing water leak near the shower, Mr. Smith returned to the trailer on March 10, 2003. Both Lorna and Francis Robertson were present. During this repair attempt, Mr. Smith resealed the shower once again. He testified that he found a small hole in the sealant and observed water leaking out of it, and so he resealed the area where the hole was found.³ He admits he did not perform a leak test after this repair, which failure was purportedly because he needed to let the sealant dry. In contradiction of Smith's testimony, Lorna Robertson, who was present with Mr. Smith during the repairs, never saw him run the shower at all. Nor did he give any indication that he had found a leak, but he merely told her he was putting sealant along the glass bottom wall of the shower "to see if that was where it was coming from." She also indicates it was during the March 10, 2003 visit that she had a discussion with Mr. Smith concerning the mysterious way the water would form or appear:

"[I]t would just kind of form right onto the floor right at the very bottom of this shower. There was never any trails. There was never anything else. We could not figure out where this water was coming from."

Upon hearing this information he seemed as "baffled ... as we were" with the leaking problem, but "he did try sealing every single place inside that shower over and over again."

During the March 10, 2003 repair visit, Mr. Smith also inspected the front, underneath area of the trailer where Mrs. Robertson reported dripping, and indicated it was something to keep an eye on, but no repair or further investigation was attempted by him.⁴ According to Mrs. Robertson, Smith said he would wait until he had a mat or creeper to slide under the trailer before he investigated further. The repair order written by Mr. Smith regarding the March 10, 2003 repairs stated candidly that the leaks under the trailer "could be due to the shower leak." His testimony acknowledged the statement in the repair order, and explained further that "if water leaks onto the floor, it's going to come out any possible outlet it can find down through the subfloor." Once again, after this repair visit, the shower continued to leak in the same manner as before.

In regard to the repair attempts noted above, it is significant that Robert Olson, Fleetwood's Technical Service Representative and technical expert at trial, testified that if a customer complained about leaks underneath a trailer, a trained technician would be expected to perform a pressure test and check the P-trap⁵ for leaking. Mr. Smith also testified that a water test was normal procedure for a shower leak.

In the ensuing months, Lorna Robertson made additional telephone calls to Visalia RV to report that the shower leak and the drips in front of the trailer were continuing. Then, in October of 2003, while she was cleaning hair out of the shower drain with tweezers, she noticed the drain pipe was moving and had apparently broken off. She contacted Visalia RV and Mr. Smith came out right away. When he removed the panel or fascia at the base of the shower, she could see the broken Ptrap which was completely severed from the shower drain due to a jagged crack. She noticed that the location on the P-trap or nut where the crack occurred was above the level of the trailer floor.⁶ On the other hand, it was Mr. Smith's testimony that the crack was below the level of the trailer...