Facts

On Jan. 22, 2005, plaintiff Hussain Khawaja purchased a new 2005 Lexus GS300 from Lexus of Westminster. After three months and 3,138 miles, plaintiff took the vehicle to the dealer complaining of rattle noises from the dashboard and driver's door. The dealer verified the noises and performed repairs. Plaintiff returned a month and a half later complaining of continued rattle noises from the dash and driver's door. The dealer was unable to duplicate the noises from the dash, but found a noise in the driver's door and repaired it.

Over the next six months, Khawaja returned to the dealer on five occasions complaining of continuing noises from the dash and driver's door. The dealer could not duplicate the noises, but on one occasion did find a rattle in the rear package tray, which was repaired.

In total, the vehicle had been subject to repairs for noise complaints seven times, and was at the dealer for 49 days during the first 18 months/18,000 miles of use.

Plaintiff ultimately hired an attorney, who requested that Lexus repurchase the vehicle under the Song-Beverly and Magnuson-Moss Warranty Acts, contending that the noises in the dash and driver's door had not been repaired. Lexus declined to repurchase the vehicle.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that Lexus failed to repair the noises in his dash and driver's door. He claimed that the conditions constituted a substantial impairment to the use and value of the vehicle. He filed a complaint against Toyota Motor Sales, U.S.A., Inc. (distributor for Lexus) seeking revocation and asserting violations of the Song-Beverly and Magnuson-Moss Warranty Acts.

Under these theories, plaintiff claimed that Lexus was unable to repair the problems after a reasonable number of attempts. (Because of the number of repair attempts and days out of service, plaintiff claimed that he was entitled to a presumption of a defect under the Song-Beverly Act.) He sought restitution in the amount of $53,000 under the Song-Beverly claim and diminution of value of $13,500 under the Magnuson-Moss claim.

DEFENDANT'S CONTENTIONS:
Lexus contended that it promptly repaired the noises in the plaintiff's vehicle and denied that there was a condition which substantially impaired the use or value of the vehicle.

Defendant acknowledged the number of repair visits, but claimed that it was unable to duplicate the noises on at least three occasions. With regard to the number of days that the vehicle was at the dealer, Lexus claimed that 21 of those days was due to plaintiff's failure to pick up the car after service was completed.

Finally, defendant disputed plaintiff's right to restitution under the Song-Beverly Act and challenged the basis of plaintiff's diminution in value claim.

Settlement Discussions

Plaintiff to trial, plaintiff had demanded $18,500 cash, with plaintiff to keep the vehicle. Defendant had served a C.C.P. Section Code 998 offer to compromise in the amount of $1,000.

Result

Defense verdict.

Other Information

Defendant has filed a cost bill for $5,041.52.

Deliberation

three hours.

Poll

Song-Beverly - Express Warranty: 11-1 for defendant; Song-Beverly - Implied Warranty: 12-0 for defendant; Magnuson-Moss - Express Warranty: 11-1; Magnuson - Implied Warranty: 12-0 for defendant; Revocation of Acceptance: 12-0 for defendant.

Length

five days