COLE v. SEA RAY BOATS INC

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Court of Appeal, Second District, Division 5, California.

Leonard A. COLE, Plaintiff and Appellant, v. SEA RAY BOATS, INC., Defendant and Respondent.

No. B071942.

Decided: June 22, 1994

Lawrence J. Hutchens and Rodolfo A. Aguirre, Bellflower, for plaintiff and appellant. Crosby, Heafey, Roach & May and Richard A. McDonald, Los Angeles, for defendant and respondent.

Plaintiff and appellant Leonard A. Cole appeals from orders granting summary adjudication of issues and a motion in limine excluding evidence of certain damages, and the concomitant order transferring this action from superior to municipal court.   For the reasons set forth below, we construe the various orders as being appealable.   We affirm the order granting summary adjudication and reverse the order excluding evidence.   We also reverse the transfer order and remand this action to the superior court.

FACTS AND PROCEDURAL HISTORY

On October 15, 1987, plaintiff and appellant Leonard A. Cole (“Cole”) bought a new 24–foot boat from Valley Marine Center in Burbank.   The boat was manufactured by defendant and respondent Sea Ray Boats, Inc. (“Sea Ray”).   The total price of $27,802 included a trailer, sales tax and license fees.

The boat quickly showed numerous flaws, including leaks and a sagging deck.   Valley Marine Center (“the Dealer”) tried more than 17 times to repair the problems but could not.   On October 15, 1988, Cole sent a letter to Sea Ray setting forth each defect, the attempts to correct them, and a plea for assistance.   Cole admits that he suffered all of his actual and appreciable harm and does not dispute that the statute of limitations began to run as of that date.

Cole sued Sea Ray and the Dealer on January 5, 1990.   His first cause of action was against Sea Ray alone and sought money damages and a civil penalty for breach of warranty pursuant to Civil Code section 1794.1  The second cause of action against the Dealer for rescission was dismissed by Cole with prejudice in July 1990.

Sea Ray brought a motion for summary judgment on May 28, 1992, contending that the complaint was barred by the one-year statute of limitations found in Code of Civil Procedure section 340, subdivision (1).   By minute order dated June 26, 1992, the trial court granted summary adjudication in favor of Sea Ray as to Cole's claim for double damages under section 1794, subdivision (c), holding that such damages were a penalty and therefore governed by the one-year limitations period.   Cole's complaint was allowed to proceed insofar as it sought actual damages under subdivision (a), which was governed by a longer limitations period.

On August 3, 1992, the first day of trial, the court granted Sea Ray's motion in limine to exclude any evidence that Cole sustained incidental and consequential damages.   The basis for the motion was Sea Ray's written warranty, which expressly disclaimed any liability for such damages.   If the motion in limine were granted, Sea Ray asked the court to transfer the action to municipal court, based on evidence that Cole's damages were less than the superior court's $25,000 jurisdictional minimum and the transfer was ordered at the same time.

Cole raises the following issues on appeal:  1) actions under the Act are governed by the four-year statute of limitations contained in California Uniform Commercial Code section 2725;  and 2) the Act does not permit the exclusion of incidental or consequential damages in a consumer warranty.   In addition to its opposition brief, Sea Ray has brought a motion to dismiss the appeal on the ground that none of the three orders which Cole contests is appealable.

DISCUSSION

1. The Orders Are Appealable

Sea Ray correctly observes that orders granting motions in limine, summary adjudication of issues, or transferring an action from superior to municipal court are not ordinarily appealable.  (Code Civ.Proc., §§ 400, 904.1.)   Sea Ray also notes that the notice of appeal was filed more than 60 days after the order granting summary adjudication, which is beyond the jurisdictional deadline for taking an appeal.  (Cal.Rules of Court, rule 2(a).)   As a result, Sea Ray argues that Cole was obligated to proceed by writ and asks that we dismiss this appeal.

In the usual transfer situation, the superior court determines whether the damages sustained will necessarily fall below its jurisdictional minimum of $25,000.  (See, e.g., Yousafzai v. Hyundai Motor America, et al. (1994) 22 Cal.App.4th 920, 922–924, 27 Cal.Rptr.2d 569:  [claim valued below jurisdictional minimum by judicial arbitration;  simple transfer order made based on appraisal of cause of action being transferred, not based on superior court ruling which severs a claim, only reviewable by extraordinary writ].)

 In such a case, the action is transferred to the municipal court.   (Walker v. Superior Court (1991) 53 Cal.3d 257, 264, 269–270, 279 Cal.Rptr. 576, 807 P.2d 418;  Code Civ.Proc., § 396.)   In making that determination, the trial court is forbidden to consider the merits of the action.  (Id., at pp. 269–270, 279 Cal.Rptr. 576, 807 P.2d 418.)   The transfer orders at issue in Walker were made at pre-trial status conferences by judges who looked at the amount of judicial arbitration awards and settlement offers to conclude that the amounts in controversy were in fact less than $25,000.

 The party aggrieved by the transfer order may seek a writ of mandate within 20 days to overturn the order.  (Code Civ.Proc., § 400.)   If, while the action is pending before the municipal court, it later appears that the amount in controversy is greater than $25,000 and therefore beyond that court's jurisdiction, the action must be transferred to the superior court.   (Code Civ.Proc., § 396.)   If the municipal court refuses a request to retransfer, that decision is reviewable by petition for extraordinary writ.   (Code Civ.Proc., § 400;  Campbell v. Superior Court (1989) 213 Cal.App.3d 147, 155, 261 Cal.Rptr. 509.)   If the municipal court did not have jurisdiction of an action which properly belonged in the superior court and entered judgment, review may be had in the appellate department of the superior court.   While that court may not order the superior court to assume jurisdiction, it can reverse the municipal court judgment for lack of jurisdiction and order the municipal court to transfer the case to the superior court.  (Cowles v. City of Oakland (1959) 167 Cal.App.2d Supp. 835, 841, 334 P.2d 1069.)

While the normal transfer situation thus affords the aggrieved party various opportunities for appellate review, there is no such opportunity when the transfer was ordered because of superior court legal rulings which eliminated claims rather than from a mere evaluation of the value of an action as a whole.

 Municipal court rulings are reviewed by the appellate department of the superior court, which has final jurisdiction.  (Code Civ.Proc., § 77, subd. (e);  Unemp. etc. Com. v. St. Francis etc. Assn. (1943) 58 Cal.App.2d 271, 274, 137 P.2d 64.)   The Court of Appeal does not have jurisdiction to hear appeals from the municipal court.  (Id., at pp. 274–275, 137 P.2d 64;  McMurtry v. Lucero (1954) 122 Cal.App.2d 636, 636–637, 265 P.2d 164.)   Likewise, the appellate department of the superior court may not review orders of the superior court made in its capacity as a trial court of original jurisdiction.  (Uptain v. Duarte (1988) 206 Cal.App.3d 1258, 1261–1262, 254 Cal.Rptr. 150.)

 When a superior court ruling on a legal issue removes certain claims, taking the action below that court's jurisdictional minimum, a transfer of the action to municipal court makes those rulings appealable.  (Uptain v. Duarte, supra, 206 Cal.App.3d at pp. 1261–62, 254 Cal.Rptr. 150:  [partial judgment on the pleadings granted;  remaining cause of action had prayer for relief within municipal court's jurisdiction and transfer ordered];  Davis v. Taliaferro (1962) 206 Cal.App.2d 764, 766, 24 Cal.Rptr. 197:  [when action first filed in municipal court is transferred to superior court because of cross-complaint in excess of municipal court's jurisdictional minimum, the superior court order dismissing the cross-complaint and transferring the matter back to municipal court is deemed a final judgment which is appealable];  Keenan v. Dean (1955) 134 Cal.App.2d 189, 192–193, 285 P.2d 300:  [same].)

In general, interlocutory orders are not appealable since they may be reviewed on appeal from the final judgment.  (Uptain v. Duarte, supra, 206 Cal.App.3d at p. 1261, 254 Cal.Rptr. 150.)   The rationale for the Uptain–Keenan–Taliaferro exception to the general rule is that the superior court has relinquished jurisdiction over the proceeding and no forum to review the superior court rulings would exist since neither the municipal court nor the appellate department of the superior court has the power to review them.   (Uptain v. Duarte, supra, 206 Cal.App.3d at pp. 1261–1262, 254 Cal.Rptr. 150.)   It is a rule which this court has chosen to follow.  (Val's Painting & Drywall, Inc. v. Allstate Ins. Co. (1975) 53 Cal.App.3d 576, 579, 126 Cal.Rptr. 267.)

Though a petition for writ of mandate may be sought, the court can choose to deny the petition and thus effectively cut off any appellate review.  (See Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1269, 1271, 258 Cal.Rptr. 66:  [appellate courts deny 90 percent of petitions seeking extraordinary relief and even error by the trial judge does not ensure that a writ petition will be granted].)   By treating the orders as appealable final judgments, we thus guarantee review.   Appeals may be taken from an appealable order or judgment “as defined in the statutes and developed by the case law.”   (Lavine v. Jessup (1957) 48 Cal.2d 611, 613, 311 P.2d 8, emphasis added.)

 This rule has special force in connection with the superior court's order granting Sea Ray's motion for summary adjudication of issues.   A party who has had summary adjudication ordered against it may seek writ review, but must do so within 20 days after a notice of ruling was served.  (Code Civ.Proc., § 437c, subd. (l ).)  That time limit is mandatory.  (Barth–Wittmore Ins. v. H.R. Murphy Enterprises, Inc. (1985) 169 Cal.App.3d 124, 136, 214 Cal.Rptr. 894.)

 Here, the order granting summary adjudication against Cole was entered on June 26, 1992, and notice was served the same day.   By the time the superior court eliminated Cole's claim for consequential damages and transferred the matter to municipal court on August 3, 1992, the mandatory time period for writ review of the summary adjudication order had elapsed.

Of course, Cole was not obligated to seek a writ and could have waited for a final judgment in the superior court before obtaining appellate review of that order.   Should the matter proceed to judgment in the municipal court, however, review will not be possible since the appellate department of the superior court can not review the superior court's trial court order granting summary adjudication and because this court has no appellate jurisdiction over municipal court actions.

The trial court's order here granting the motion in limine and transferring the action to municipal court was, in effect, a final judgment of dismissal as to Cole's claims for a civil penalty and for incidental and consequential damages and is appealable.  (Uptain v. Duarte, supra, 206 Cal.App.3d at p. 1262, 254 Cal.Rptr. 150.)   Since the order granting summary adjudication did not become a final judgment and therefore appealable until the motion for transfer was granted, the appeal was therefore timely.

2. The Claim For Double Damages Is Time–Barred

Section 1794 states, in relevant part:  “(a) Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.  ․

“(c) If the buyer establishes that the failure to comply was willful, the judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty which shall not exceed two times the amount of actual damages․”

The statute of limitations for an action on a penalty or forfeiture is one year unless the statute prescribes a different limitation.  (Code Civ.Proc., § 340, subd. (1).)  The statute of limitations for an action created by statute other than a penalty or forfeiture is three years.  (Code Civ.Proc., § 338, subd. (a).)  Statutes which provide for recovery of damages additional to actual losses incurred, such as double or treble damages, are considered penal in nature.  (G.H.I.I. v. MTS, Inc. (1983) 147 Cal.App.3d 256, 277, 195 Cal.Rptr. 211.)

Sea Ray contends that:  section 1794, subdivision (c) imposes a penalty;  no limitations period is specified;  for statute of limitations purposes subdivision (c) is severable from the rest of section 1794;  as a result, Cole's claim for double damages under that section is time-barred since the complaint was filed nearly 15 months after his cause of action accrued.

Cole argues that the double damages provision is discretionary, not mandatory, and therefore not a penalty under Holland v. Nelson (1970) 5 Cal.App.3d 308, 85 Cal.Rptr. 117.   He also argues that the decision in Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 285 Cal.Rptr. 717 established that the Act is governed by the four-year statute of limitations in California Uniform Commercial Code section 2725.

The Holland court considered the statute of limitations in an action by a dance studio customer for breach of the Dance Act, section 1812.50 et seq.   Under section 1812.62, a buyer of dance lessons may have judgment entered “for three times the amount at which the actual damages are assessed․”  Defendants appealed the judgment entered for the plaintiff on the ground that the action was barred by the one-year statute of limitations.

The court of appeal affirmed, holding that the provision for treble damages was not a penalty because it was discretionary, not mandatory.  (Holland v. Nelson, supra, 5 Cal.App.3d at p. 312, 85 Cal.Rptr. 117.)

The Ninth Circuit rejected Holland in Ashland Oil Co. Of Cal. v. Union Oil Co. Of Cal. (9th Cir.1977) 567 F.2d 984, a decision under the Emergency Petroleum Allocation Act of 1973, 15 U.S.C. § 754(a)(1).   By incorporation of the Economic Stabilization Act, 12 U.S.C. § 1904, a plaintiff suing under the Petroleum Allocation Act was entitled to actual damages and—in a separate subdivision of that statute—up to three times of any overcharge, in the court's discretion.   Because Congress did not specify a statute of limitations, California law was applied to determine one.

Relying in part on Stone v. James (1956) 142 Cal.App.2d 738, 299 P.2d 305, the Ninth Circuit held that a statute which contained separate provisions for both actual and treble damages could be governed by separate statutes of limitations.2  The Holland court's belief that a treble damages provision was not a penalty if it were discretionary was “contrary to the weight of California authority concluding that statutes permitting recovery in excess of actual damages are penal in nature.  [¶] Thus, although the Holland court was correct in concluding that a claim for actual damages is not one for a penalty, we decline to accept the distinction it would draw between a mandatory and permissive award of treble damages with reference to the applicable limitations period.   The preponderance of California law establishes that an award in excess of compensatory damages, whether discretionary or not, is to be considered a penalty for the purposes of its limitations statute.”  (Ashland Oil Co. Of Cal. v. Union Oil Co. Of Cal., supra, 567 F.2d at pp. 991–993, footnotes omitted.)

The court in G.H.I.I. v. MTS, Inc., supra, 147 Cal.App.3d 256, 195 Cal.Rptr. 211 had to determine the statute of limitations for locality price discrimination under the Unfair Practices Act.  (Bus. & Prof.Code, §§ 17031, 17040.)  Business & Professions Code section 17070 provided for the recovery of actual damages, while section 17082 of the same code said that a successful plaintiff “shall be entitled” to treble damages.

The G.H.I.I. court agreed with the Ninth Circuit in Ashland that the claim for actual damages was not an action for a penalty or forfeiture but was instead for compensation and therefore subject to the three-year limitations period of Code of Civil Procedure section 338, subdivision (a).   The claim for treble damages was for a penalty, however, and was subject to the shorter limitations period of Code of Civil Procedure section 340, subdivision (1).   The Ashland rationale applied with even more force to these facts since the provisions were contained in entirely separate statutes which were therefore “patently severable.”  (G.H.I.I. v. MTS, Inc., supra, 147 Cal.App.3d at pp. 278–279, 195 Cal.Rptr. 211.)

The court noted the decision in Holland but distinguished it because the treble damage provision in Business & Professions Code section 17082 was mandatory.   The G.H.I.I. court also quoted Ashland for the proposition that Holland was contrary to the weight of California authority.   (G.H.I.I. v. MTS, Inc., supra, 147 Cal.App.3d at p. 278, fn. 14, 195 Cal.Rptr. 211.)

Finally, the court in Menefee v. Ostawari (1991) 228 Cal.App.3d 239, 278 Cal.Rptr. 805 considered an action for wrongful termination of a tenancy under San Francisco's rent control law, which provided the tenant with an action for, among others, “money damages of not less than three times actual damages․”

The Menefee court tried to reconcile the decisions in Holland, Ashland and G.H.I.I. by stating the following principles:  1) Statutes which provide for mandatory recovery of additional losses beyond actual damages, such as treble damages, are penal in nature and subject to the one-year limitations period (citing to Holland, Ashland and G.H.I.I.);   2) some statutory schemes contain separate, independent provisions for recovery of both actual and additional damages.   In such a case, different limitations period apply to each, with additional damages subject to the one-year limitations period (citing only to G.H.I.I.);   3) where a statute gives the trial court discretion to award additional damages, claims based on that statute are not governed by the one-year statute of limitations (citing only to Holland );  and 4) if the allowance of additional damages in such a statute is mandatory, then the statute provides for a penalty and is governed by the one-year limitations period.  (Menefee v. Ostawari, supra, 228 Cal.App.3d at p. 243, 278 Cal.Rptr. 805, emphasis added.)   Based on those principles, the Menefee court concluded that the San Francisco rent control ordinance imposed a mandatory penalty which was governed by Code of Civil Procedure section 340, subdivision (l ).  (Id., at p. 244, 278 Cal.Rptr. 805.)

While it may not seem possible to reconcile all of these decisions, their facts provide a satisfactory framework for doing so.  Menefee and Holland are alike in that the additional damages provisions of both statutes were part of the actual damages provisions and were not severable.  (Plaintiff suing under the Dance Act may have judgment “entered for three times the amount at which the actual damages are assessed․”  Civ.Code, § 1812.62, subd. (a);  San Francisco's rent control ordinance permits the tenant to sue for “money damages of not less than three times actual damages․”)  The additional damages provision in Holland was discretionary while the one in Menefee was mandatory.

In both Ashland and G.H.I.I., regardless of whether they were mandatory or discretionary, the additional damage provisions were separate from the actual damages provisions, either because they were in separate statutes or in different subdivisions of the same statute.

 Thus, if a statutory scheme provides for both actual damages and additional damages in either different statutes or separate subdivisions of the same statute, the two types of damages are severable for statute of limitations purposes.   The additional damages provision is a penalty, governed by Code of Civil Procedure section 340, subdivision (1) unless the Legislature specifies otherwise.

Where a statute combines the right to actual and additional damages in the same sentence, however, so that the two are not severable, the statute becomes penal if the additional damages are mandatory.   If not, the statute retains its remedial character in determining the appropriate statute of limitations.

The decision in Holland makes sense when viewed in this context.   To convert a remedial statute into a penalty for statute of limitations purposes simply because the court has the option of awarding additional damages would defeat its remedial purpose.   It has long been the law, however, that even discretionary additional damages provisions are penalties.  (Ashland Oil Co. Of Cal. v. Union Oil Co. Of Cal., supra, 567 F.2d at p. 992, fn. 20 and cases cited therein.)   When such a provision is severable from an actual damages provision, it makes little sense to say that a penalty is not really a penalty simply because it need not be imposed.  (Accord Holland v. Nelson, supra, 5 Cal.App.3d at p. 312, 85 Cal.Rptr. 117:  [“It appears to us, however, that the provision in Civil Code section 1812.62, allowing the court the option of granting judgment for treble damages, is not to be construed as converting the statutory right of action into one for penal damages.”].)

 Accordingly, since subdivision (c) of section 1794, which provides for discretionary double damages, is separate from the actual damages provision of subdivision (a), the former is a penalty governed by the one-year limitations period of Code of Civil Procedure section 340, subdivision (1).

In so holding, however, we do not rest exclusively on the distinctions framed by the Holland—G.H.I.I.—Menefee line of cases.   One fact not present in any of those cases is that the Legislature here has expressly described the double damages provision as a “civil penalty.”  (§ 1794, subd. (c).)

As originally enacted, section 1794 allowed consumers injured by a willful violation of the Act to bring an action for the recovery of damages and “ ‘(a) Judgment may be entered for three times the amount at which the actual damages are assessed․’ ”  (Gomez v. Volkswagen of America, Inc. (1985) 169 Cal.App.3d 921, 925, 215 Cal.Rptr. 507.)   In short, section 1794 was originally identical to section 1812.62 of the Dance Act, as construed in Holland, but was later amended to place the additional damages provision in a separate subdivision and specifically describe it as a “civil penalty.”   Under well-known canons of statutory interpretation, it is clear that the Legislature intended section 1794, subdivision (c) to serve as a penalty.3  If it had wanted, the Legislature could have prescribed a longer limitations period under Code of Civil Procedure section 340, subdivision (l ) but chose not to.   That choice is binding on us and the trial court correctly granted summary adjudication as to that portion of Cole's complaint.

In so holding, we do not depart from Justice Epstein's well-reasoned decision in Krieger v. Nick Alexander Imports, Inc., supra, 234 Cal.App.3d 205, 285 Cal.Rptr. 717, which established that the four-year statute of limitations in California Uniform Commercial Code section 2725 applied to actions under the Act.   The Krieger court considered an action by a car buyer against the dealer for breach of warranty under both the Act and common law theories of recovery.

The question before the Krieger court was whether the three-year statute of limitations for actions based on a statute (Code Civ.Proc., § 338, subd. (a)) applied to actions under the Act.   There was no indication that the plaintiff sought a civil penalty under section 1794, subdivision (c) and that issue was never discussed.   Because the Act is, by its terms, designed to supplement the California Uniform Commercial Code (§ 1790.3), the court applied that code's four-year limitations period.  (Krieger v. Nick Alexander Imports, Inc., supra, 234 Cal.App.3d at pp. 212–214, 285 Cal.Rptr. 717.)

Since the Krieger court did not discuss the more specific question of whether the Act's civil penalty provision was governed by a different limitations period, its decision is not authority on that point.  (Ginns v. Savage (1964) 61 Cal.2d 520, 524, 39 Cal.Rptr. 377, 393 P.2d 689.)   In any event, since the California Uniform Commercial Code does not provide for penal damages (Cal.U.Com.Code, § 1106;  Krieger v. Nick Alexander Imports, Inc., supra, 234 Cal.App.3d at p. 212, 285 Cal.Rptr. 717), we find it doubtful that the limitations period for breach of warranty provided by that code has any application to the issue here.

3. Consequential And Incidental Damages May Not Be Disclaimed

 Sea Ray's express warranty disclaimed any liability for incidental or consequential damages.   Based on this, the trial court granted Sea Ray's motion in limine to exclude any evidence that Cole incurred such damages.

Section 1790.1 of the Act provides:  “Any waiver by the buyer of consumer goods of the provisions of this chapter, except as expressly provided in this chapter, shall be deemed contrary to public policy and shall be unenforceable and void.”

Section 1794 sets forth the measure of damages as follows:  “(b) The measure of the buyer's damages in an action under this section shall include the rights of replacement or reimbursement as set forth in subdivision (d) of Section 1793.2, and the following:  [¶] (1) Where the buyer has rightfully rejected or justifiably revoked acceptance of the goods or has exercised any right to cancel the sale, Sections 2711, 2712, and 2713 of the Commercial Code shall apply.  [¶] (2) Where the buyer has accepted the goods, Sections 2714 and 2715 of the Commercial Code shall apply, and the measure of damages shall include the cost of repairs necessary to make the goods conform.”   Under section 1793.2, subdivision (d), Cole was entitled to receive the amount of the purchase price as damages, less the value of his actual use of the boat.4

California Uniform Commercial Code section 2714, subdivision (3) permits a buyer who has accepted nonconforming goods to recover incidental and consequential damages.  California Uniform Commercial Code section 2715 defines such damages as including, among others, “any other reasonable expense incident to the delay or other breach.”

California Uniform Commercial Code section 2719 permits a seller to limit or exclude liability for consequential damages unless it is unconscionable.   “Limitation of consequential damages for injury to the person in the case of consumer goods is invalid unless it is proved that the limitation is not unconscionable.   Limitation of consequential damages where the loss is commercial is valid unless it is proved that the limitation is unconscionable.”  (Cal.U.Com.Code, § 2719, subd. (3).)  Because the rights conferred by the Act are determined by reference to the Commercial Code, except where the two are in conflict, Sea Ray contends that the provisions of California Uniform Commercial Code section 2719 became part of the Act, permitting its liability disclaimer.

The court in Krieger v. Nick Alexander Imports, Inc., supra, 234 Cal.App.3d 205, 285 Cal.Rptr. 717, discussed the history and purpose of the Act, starting with the differences between the Act and the Commercial Code.   While the Commercial Code provides certain remedies, others are notably absent:  “Punitive damages are not available.   A seller is permitted to limit its liability for defective goods by disclaiming or modifying a warranty.   [Citation.]  [¶] These provisions of the code are limited in providing effective recourse to a consumer dissatisfied with a purchase.   They make no provision for punitive damages, attorney's fees, consequential damages beyond those attendant to a substitute purchase, or for court supervised performance of warranties.  [Citation.]”  (Id., at pp. 212–213, 285 Cal.Rptr. 717, emphasis added.)

In contrast, the Act “regulates warranty terms, imposes service and repair obligations on manufacturers, distributors, and retailers who make express warranties, requires disclosure of specified information in express warranties, and broadens a buyer's remedies to include costs, attorney's fees, and civil penalties.  [Citations.]  It supplements, rather than supersedes, the provisions of the California Uniform Commercial Code.  [Citations.]”  (Krieger v. Nick Alexander Imports, Inc., supra, 234 Cal.App.3d at p. 213, 285 Cal.Rptr. 717.)

The Krieger court thus implied in dicta that while consequential damages could be waived under the Commercial Code, they were intended to become a vital part of the Act, which sought to broaden consumer remedies.

Cole chose to accept rather than return the boat, and his measure of damages is set forth in section 1794, subdivision (b)(2), which states that the consequential damages provision of the Commercial Code “shall apply.”   Nowhere does that section provide for the express waiver of California Uniform Commercial Code sections 2714 and 2715.  Commercial Code section 2719, which permits consequential damages to be waived, is not mentioned.

 In contrast, section 1795.4 of the Act, which extends a manufacturer's warranties to the lessee of consumer goods, allows a lessor who re-leases goods to a new lessee to disclaim “any and all warranties created by this chapter by conspicuously disclosing in the lease that these warranties are disclaimed.”   (§ 1795.4, subd. (e).)  When the Legislature has allowed for the disclaimer of any warranty within the Act, it has done so expressly, as required by section 1790.1.   Under section 1794, the consequential damage provisions of the Commercial Code “shall” apply.   In the absence of a provision permitting a waiver of the right to such damages, we conclude that the Legislature intended to preclude manufacturers from disclaiming them in their express warranties.5

The motion in limine was therefore improperly granted and the trial court's order is reversed.   Since the order transferring the action to municipal court was predicated on Cole's inability to recover consequential damages, that order is also reversed and the matter is remanded to the superior court.

DISPOSITION

For the reasons set forth above, the order granting summary adjudication is affirmed.   The orders granting Sea Ray's motion in limine and transferring this action to municipal court are reversed and the matter is remanded to the superior court.   Appellant to recover his costs on appeal.

I respectfully dissent from my colleague's conclusion that an order of transfer to the municipal court after orders granting an in limine motion limiting the admissibility of evidence and summary issue adjudication is appealable.   Therefore, I would dismiss the appeal because:  there is no constitutional right to raise the propriety of the transfer order;  no statute permits an appeal under these circumstances;  decisional authority prohibits an appeal of the orders under review;  this is the quintessence of an interlocutory appeal;  and plaintiff had an equitable remedy by means of a petition for writ of mandate available to him to challenge the transfer order which he chose not to use.

Subject to constitutional limitations, there is no federal or state constitutional right to appeal.  (Lindsey v. Normet (1972) 405 U.S. 56, 77, 92 S.Ct. 862, 875, 31 L.Ed.2d 36;  Trede v. Superior Court (1943) 21 Cal.2d 630, 634, 134 P.2d 745;  Superior Wheeler C. Corp. v. Superior Court (1928) 203 Cal. 384, 386, 264 P. 488.)   Plaintiff has not raised any due process or equal protection questions concerning his right to appeal in the present case.   Accordingly, there is no constitutional right to raise the issues presented by plaintiff in the present case.

Further, the California Supreme Court has repeatedly held that the right to appeal is wholly statutory.  (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 709, 135 Cal.Rptr. 392, 557 P.2d 976 [“a judgment or order is not appealable unless expressly made so by statute”];  Skaff v. Small Claims Court (1968) 68 Cal.2d 76, 78, 65 Cal.Rptr. 65, 435 P.2d 825 [“a party possesses no right of appeal except as provided by statute”];  People v. Keener (1961) 55 Cal.2d 714, 720, 12 Cal.Rptr. 859, 361 P.2d 587, disapproved on another point in People v. Butler (1966) 64 Cal.2d 842, 844, 52 Cal.Rptr. 4, 415 P.2d 819 [“an order is not appealable unless declared to be so by the Constitution or by statute”];  People v. Valenti (1957) 49 Cal.2d 199, 204, 316 P.2d 633, disapproved on another point in People v. Sidener (1962) 58 Cal.2d 645, 647, 25 Cal.Rptr. 697, 375 P.2d 641 [“the right of appeal is statutory and a judgment ․ is not appealable unless it is expressly made so by statute”];  Modern Barber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 728, 192 P.2d 916 [“the Legislature has the power to declare by statute what orders are appealable, and, unless a statute does so declare, the order is not appealable”];  Trede v. Superior Court, supra, 21 Cal.2d at p. 634, 134 P.2d 745 [there being no constitutional right of appeal;  “the appellate procedure is entirely statutory and subject to complete legislative control”];  Superior Wheeler C. Corp. v. Superior Court, supra, 203 Cal. at p. 386, 264 P. 488 [“right of appeal is statutory and may be granted or withheld”].)   There is no statute that provides for the appealability of the orders under review in this case, either singularly or in conjunction with one another.   In fact, none of those rulings are appealable under established California decisional authority.  (Yousafzai v. Hyundai Motor America (1994) 22 Cal.App.4th 920, 923–926, 27 Cal.Rptr.2d 569 [transfer to municipal court];  Nye v. 20th Century Ins. Co. (1990) 225 Cal.App.3d 1041, 1043–1044, fn. 1, 275 Cal.Rptr. 319 [summary issue adjudication];  Fraser–Yamor Agency, Inc. v. County of Del Norte (1977) 68 Cal.App.3d 201, 207, 137 Cal.Rptr. 118 [evidentiary ruling].)   Accordingly, in the absence of a statute providing for appeal under these circumstances, dismissal of these proceedings is the appropriate disposition.

Moreover, the present case is a classic example of an interlocutory appeal.   Plaintiffs have not taken steps to set the municipal court case for trial.   As a result, they are securing rulings on evidentiary and summary issue adjudication motions prior to trial.   Such interlocutory review is inconsistent with established California appellate processes.  (Code Civ.Proc., § 904.1, subd. (a)(1);  Knodel v. Knodel (1975) 14 Cal.3d 752, 760, 122 Cal.Rptr. 521, 537 P.2d 353.)   The test of an interlocutory judgment was described by the California Supreme Court as follows:  “This court has held with respect to the finality, and consequent appealability, of declaratory judgments that ‘[a]s a general test, ․ it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.’  [Citation.]”  (Olson v. Cory (1983) 35 Cal.3d 390, 399, 197 Cal.Rptr. 843, 673 P.2d 720.)   There remains material issues to be decided including questions of liability and damages in the present case.

Finally, plaintiff could have sought review of the transfer order by filing a petition for writ of mandate with this court pursuant to Code of Civil Procedure section 400.   Plaintiff did not do so.   Accordingly, plaintiff was not without a remedy;  he chose to waive it by not pursuing it.   As a result, for all of these reasons, I would dismiss the present appeal.

FOOTNOTES

1.   Civil Code section 1794 is part of the Song–Beverly Consumer Warranty Act (“the Act”).  (Civ.Code, § 1790 et seq.)   Unless otherwise indicated, all future statutory references are to the Civil Code.

2.   The Stone court considered an action under section 2982, which governs the obligation to return prepaid finance charges on auto loans.   Under the version of subdivision (d) then in effect, a car buyer under a conditional sales contract could pay off the entire debt before it matured and was entitled to get back any prepaid finance charges.   If the seller did not make the required refund, subdivision (e) allowed the court to refund the entire purchase price.The latter provision was held to be a penalty, subject to the one-year statute of limitations of Code of Civil Procedure section 340, subdivision (l ).   Subdivision (d) was severable for purposes of the determining the correct limitations period.  (Stone v. James, supra, 142 Cal.App.2d at pp. 739–740, 299 P.2d 305.)   The court did not question that an action to recover prepaid finance charges under subdivision (d) would be governed by a two-year limitations period but, since the complaint was filed more than two years after the disputed transaction, sustained a demurrer to the entire complaint.

3.   We must ascertain the intent of the Legislature and if the words of a statute are clear, the court should not add to or alter them to accomplish a purpose which does not appear on the face of the statute or from its legislative history.  (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698, 170 Cal.Rptr. 817, 621 P.2d 856.)  “Where the Legislature uses different language in similar statutory provisions, it is presumed it did so advertently and had a different legislative intent with regard to each provision.  [Citations.]  Moreover, every word or phrase in a statute must be given meaning and effect.”  (Interinsurance Exchange v. Spectrum Investment Corp. (1989) 209 Cal.App.3d 1243, 1258, 258 Cal.Rptr. 43.)  “In general, ‘a substantial change in the language of a statute ․ by an amendment indicates an intention to change its meaning.’  [Citation.]  It is presumed changes in wording and phraseology were deliberately made [citation] and that different meanings were intended when different words were used [citation].”  (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1059, 1 Cal.Rptr.2d 195.)

4.   The boat's purchase price was $24,000.   The evidence showed that Cole claimed consequential damages of approximately $8,100 on top of that sum as follows:  $2,000 for a trailer bought at the time of purchase;  $1,802 in sales tax, document and license fees;  and $4,299.97 for other expenses, including property taxes, monthly payments, storage fees and insurance.

5.   Sea Ray contends that section 1793 somehow permits it to disclaim liability for consequential damages.   That section merely states that a manufacturer can make express warranties but, in doing so, can not disclaim its implied warranties.   It is silent as to the measure of damages permitted for a breach of any warranty and is therefore inapplicable.We also find Sea Ray's reliance on the decision in Office Supply Co., Inc. v. Basic/Four Corp. (E.D.Wis.1982) 538 F.Supp. 776 to be misplaced, since that opinion covered a transaction between merchants under the Commercial Code and not the sale of consumer goods, which is governed by the Act.

GODOY PEREZ, Associate Justice.

ARMSTRONG, J., concurs.