Judge: Nathan Vu, Case: 2020-01154043, Date: 2022-09-26 Tentative Ruling
Motion for Judgment Notwithstanding the Verdict
Plaintiffs Brian Escalera’s and Jose Escalara’s motion for judgment notwithstanding the verdict is DENIED.
Plaintiffs Brian Escalera and Jose Escalara (collectively, Plaintiffs) move for judgment notwithstanding the verdict of the jury.
“Well-settled
standards govern judgments notwithstanding the verdict: ‘When presented with
a motion for JNOV, the trial court cannot weigh the evidence, or judge
the credibility of witnesses. If the evidence is conflicting or if several
reasonable inferences may be drawn, the motion for judgment notwithstanding
the verdict should be denied. A motion for judgment notwithstanding the
verdict of a jury may properly be granted only if it appears from the
evidence, viewed in the light most favorable to the party securing the verdict,
that there is no substantial evidence to support the verdict. If there is any
substantial evidence, or reasonable inferences to be drawn therefrom in
support of the verdict, the motion should be denied . . . . Accordingly, the
evidence . . . must be viewed in the light most favorable to the jury’s
verdict, resolving all conflicts and drawing all inferences in favor of that
verdict.’” (Osborn v. Irwin Memorial Blood Bank (1992) 5
Cal.App.4th 234, 258–259, citations omitted.)
Trial commenced in this case on April 5, 2022. On April 21, 2022, the jury rendered a verdict. The jury found, inter alia, that Plaintiffs’ vehicle had a defect covered by a written warranty that substantially impaired the Vehicle’s use, value, or safety to a reasonable buyer in their situation. (ROA 288, Exh. A, ¶ 3 [Joint Special Verdict Form].)The jury further found that the defect was caused by unauthorized, unreasonable use of the vehicle, or that a specific exclusion in the warranty applied. (ROA 288, Exh. A, ¶ 4 [Joint Special Verdict Form].)
Plaintiffs contend that the testimony of Defendant BMW of North America, LLC’s expert, Gabriel Garcia, was based on speculation and conjecture and, thus, there was not substantial evidence to support the jury’s verdict.
The
testimony of a single witness, including a single expert witness, may
constitute substantial evidence. However, “when an expert bases his or her
conclusion on factors that are ‘speculative, remote or conjectural,’ or on
‘assumptions ... not supported by the record,’ the expert’s opinion ‘cannot
rise to the dignity of substantial evidence’” (Johnson & Johnson
Talcum Powder Cases (2019) 37 Cal.App.5th 292, 314, citations
omitted.)
At trial, Defendant’s expert, Gabriel Garcia, testified that he had been a BMW Master technician for over 11 years. (Stefatos Decl., Exh. 2, 04/14/22 Trial Tr. at pp. 129:14-130:5 & 132:2133:3.) He reviewed the repair orders for Plaintiffs’ vehicle (Vehicle). (Id. at pp. 130:24-131:3.) He also inspected and drove the Vehicle in September 2021 and took pictures and video of the Vehicle. (Id. at pp. 133:14-134:19.) He did not note any problems with the Vehicle during the inspection or the drive. (Id. at pp. 134:23-137:6.) Mr. Garcia also performed diagnostic tests before and after the drive. (Id. at p. 137:22-25.) No fault codes related to engine operation were retrieved in the diagnostic tests. (Id. at p. 138:9-24.)
Mr. Garcia further testified that he found that the connector for the intake manifold pressure sensor was not properly secured when he inspected the vehicle. (Stefatos Decl., Exh. 2, 04.14.22 Trial Tr. at pp. 161:10-23 & 163:7-19.) The intake manifold pressure sensor is what is used for attaching an aftermarket tuner. (Id. at p. 167:12-16.) The aftermarket tuner manipulates the air pressure value from the intake manifold pressure sensor and sends a different value to the car’s computer, the D.M.E. (Id. at pp.167:22-168:23.)
As a result of the incorrect value given by the aftermarket turner, the D.M.E. instructs the turbocharger to increase the air pressure going into the engine. (Id. at pp. 168:19-169:7.) The turner adds extra air to the engine while the car’s computer adds more fuel, resulting increased power for the car. (Stefatos Decl., Exh. 3, 04.19.22 Trial Tr. at pp. 9:22-10:1.) The Vehicle’s engine is not designed to handle the increased pressure and the engine’s components can be damaged. (Stefatos Decl., Exh. 2, 04.14.22 Trial Tr. at p. 169:8-13; Stefatos Decl., Exh. 3, 04.19.22 Trial Tr. at p. 9:6-10.)
The increased pressure generated by an aftermarket tuner also causes oil to be sucked into the combustion chamber which results in smoke in the exhaust and noise that Plaintiffs complained about and recorded in a video. (Stefatos Decl., Exh. 3, 04.19.22 Trial Tr. at pp. 31:8-34:6.) The increased pressure damages the PCV system, which is not designed to handle 20 pound per square inch (p.s.i.) of pressure. (Id. at pp. 45:19-47:5.)
In addition, Plaintiff Brian Escalera had testified that Plaintiffs modified the vehicle by adding an aftermarket charge pipe, exhaust, and suspension. (Stefatos Decl., Exh. 1, 04.13.22 Trial Tr. at p. 69:3-6.) Mr. Garcia confirmed Mr. Escalera’s testimony that the Vehicle had been modified with an aftermarket exhaust, performance race-type suspension components, and charge air pipe. (Stefatos Decl., Exh. 2, 04.14.22 Trial Tr. at p. 161:5-9.)
Based on the repair records for the Vehicle, Mr. Garcia testified that the Vehicle generated a fault when it was being driven at 117 miles per hour with the throttle at 100%. (Stefatos Decl., Exh. 3, 04.19.22 Trial Tr. at p. 71:13-24.) Mr. Garcia explained that if the turbocharger had been deprived of oil, as Plaintiffs’ expert had claimed, it would have locked up or seized; however, the turbocharger in Plaintiffs’ vehicle did not lock up or seize. (Id. at pp. 78:16-79:18.)
In addition, Mr. Garcia testified that if the turbocharger was defective, there would have been oil residue on the exhaust side of the turbocharger but there was no oil residue. (Stefatos Decl., Exh. 5, 04.19.22 Trial Tr. at p. 98:13-25.) Mr. Garcia also identified a BMW service information bulletin which stated that a problem with engine noise relating to the crankcase can be misdiagnosed as a defective turbocharger; Mr. Garcia believed that this is what Plaintiffs’ expert did. (Id. at pp. 98:26-99:26.)
Mr. Garcia testified that BMW NA’s warranty did not cover damage caused by modification of the Vehicle or installation of any performance accessories or components attached to the Vehicle. (Stefatos Decl., Exh. 5, 04.19.22 Trial Tr. at pp. 114:18-115:2.) He testified that, if the dealer had known that an aftermarket tuner had been attached to the car, the repairs would not have been covered under warranty. (Id. at pp. 119:15-120:3.)
The loose intake manifold pressure sensor connection, a fresh handprint on the engine, and the charge pipe and other modifications to the car led Mr. Garcia to believe that an aftermarket tuner had been installed on the vehicle and removed when the Vehicle came in for repairs or service. (Stefatos Decl., Exh. 5, 04.19.22 Trial Tr. at pp. 140:4-7, 164:22-25, & 197:13-199:8.) Mr. Garcia explained that certain types of “plug and play” tuners are not detectable and are advertised as quick and easy to install and remove. (Id. at pp. 140:20-141:2.) No tools are required; a user would “just unclip and clip.” (Id. at p. 141:3-5.)
Mr. Garcia explained that the repair records for the Vehicle showed that the technicians who worked on the Vehicle suspected that a tuner had been connected but were unable to detect a tuner. (Stefatos Decl., Exh. 3, 04.19.22 Trial Tr. at p. 64:16-65:16.) Mr. Garcia opined that the tuner that was attached to the Vehicle could not be detected because it did not modify the Vehicle’s software and it left no trace once it had been removed. (Ibid.)
Viewing the evidence in the light most favorable to Defendant, the court finds that substantial evidence supports the jury’s verdict. Mr. Garcia’s conclusions are supported by evidence in the record and are not based on speculative, remote, or conjectural factors.
Plaintiffs also contend that Mr. Garcia should not have been allowed to testify as an expert in this case and that any testimony Mr. Garcia provided was inappropriate. An allegedly improper ruling to admit expert testimony is not a proper basis upon which to grant a motion for judgment notwithstanding the verdict. (See Donahue v. Ziv Television Programs, Inc. (1966) 245 Cal.App.2d 593, 610.)
Defendant shall give notice of this ruling.