Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCV21063
HOCH, J.In this action for breach of express and implied warranties in the sale of a Fleetwood travel trailer, plaintiffs Erik V. Kreizenbeck and Rikki N. Kreizenbeck appeal from summary judgment (Code Civ. Proc., § 437c) entered in favor of defendant Dan Gamel’s Rocklin RV Center (Gamel), the retailer that sold plaintiffs the trailer. Plaintiffs’ principal contention on appeal is that delamination (bubbling paint) on the exterior of the trailer constituted a breach of express and implied warranties entitling plaintiffs to rescind or revoke the purchase under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq. (the Act)) because, even though the delamination problem was fixed, the trailer was out of service for a long time. We affirm the judgment.
Undesignated statutory references are to the Civil Code.
While this appeal was pending, we granted plaintiffs’ request to dismiss another defendant -- manufacturer Fleetwood Travel Trailers of California, Inc., a subsidiary of Fleetwood Enterprises, Inc. (Fleetwood) -- due to its liquidation in bankruptcy and a bankruptcy court order permanently enjoining litigation against Fleetwood. The dismissal of Fleetwood does not resolve the case against Gamel, because (1) a retailer has separate liability for breach of the implied warranty of merchantability (§ 1792); and (2) the express written warranty in this case provided for dealer liability. We discuss post the effect of Fleetwood’s dismissal on Gamel regarding alleged breach of express warranty.
SUMMARY JUDGMENT STANDARDS
To obtain summary judgment, a defendant must show that it has a complete defense to the claim or that the plaintiff cannot establish a necessary element of the claim. (Code Civ. Proc., § 437c, subd. (p).) If the defendant meets that burden, the burden shifts to the plaintiff to show a triable issue of material fact as to that element or defense. (Ibid.) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).)
The burden of persuasion remains with the party moving for summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 861.) “When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true (id. at p. 851), or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence.’ (Id. at p. 854.) We review the record and the determination of the trial court de novo. [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.)
“‘First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claims and justify a judgment in movant’s favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue....’” (Waschek v. Dept. of Motor Vehicles (1997) 59 Cal.App.4th 640, 644.)
THE PLEADINGS
On May 25, 2007, plaintiffs filed against Gamel and Fleetwood a “COMPLAINT FOR DAMAGES BASED ON VIOLATION OF [THE] ACT; RESCISSION AND RESTITUTION; REVOCATION OF ACCEPTANCE.” Plaintiffs alleged three “causes of action” labeled: (1) violation of the Act; (2) rescission and restitution based on breach of express and implied warranties and failure of consideration; and (3) revocation of acceptance based on breach of express and implied warranties and failure of consideration.
As noted by Gamel, plaintiffs’ three “causes of action” set forth a single cause of action for return of the trailer’s purchase price under three related theories of recovery stemming from the express and implied warranties. “‘A cause of action consists of (1) a primary right possessed by the plaintiff and a corresponding primary duty imposed upon the defendant, and (2) a delict or wrong committed by the defendant which constitutes a breach of such primary right and duty. [Citation.]’” (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364, italics omitted.) “[I]f a plaintiff states several purported causes of action which allege an invasion of the same primary right he has actually stated only one cause of action.” (Ibid.) However, “the phrase ‘cause of action’ is ‘often used indiscriminately to mean what it says and to mean counts which state differently the same cause of action, ...’ [Citations.]” (Slater v. Blackwood (1975) 15 Cal.3d 791, 796.)
The first count, for violation of the Act, alleged that on March 11, 2006, plaintiffs purchased from Gamel a travel trailer manufactured by Fleetwood -- a 2006 Gear Box LSV 335FS -- for a purchase price of $82,663. The trailer came with an express written warranty undertaking to preserve or maintain the utility or performance of the motor home and an implied warranty of merchantability (fitness for ordinary purposes) and fitness for a particular purpose. Plaintiffs discovered the trailer was “defectively manufactured, designed or assembled” and attempted to act on the warranties. In March 2007, defendants violated the Act and the express and implied warranties, in that they “failed to repair the following complaint(s) within 30 days and after a reasonable number of attempts, includ[]ing but not limited to: door side sidewalls fiberglass is delaminating.” Plaintiffs sought “damage[s]” of $82,663 (the purchase price), plus a civil penalty of double the actual damages, plus attorney fees.
The Act defines “motor home” as “a vehicular unit built on, or permanently attached to, a self-propelled motor vehicle chassis, chassis cab, or van, which becomes an integral part of the completed vehicle, designed for human habitation for recreational or emergency occupancy.” (§ 1793.22, subd. (e)(3).) The Vehicle Code defines a motor vehicle as something that is self-propelled. (Veh. Code, § 415.)
The second count, for rescission and restitution against Gamel based on breach of the express and implied warranties and failure of consideration, alleged, “Despite numerous demands by Plaintiff to do so, Defendant FLEETWOOD... has failed and refused to perform the conditions of their warranties with Plaintiffs, in that they have failed to repair the subject trailer so that it is in a drivable condition even after a reasonable number of attempts at repair.”
The third count, against Gamel for revocation of acceptance based on breach of express and implied warranty and failure of consideration, alleged, “Despite numerous demands by Plaintiffs to do so, Defendant FLEETWOOD... has failed and has refused to perform the conditions of their warranty with Plaintiffs, in that they have failed to repair the subject trailer so that it is in a drivable condition even after a reasonable number of attempts at repair.”
Defendant filed an answer denying the allegations.
THE SUMMARY JUDGMENT MOTION
On January 18, 2008, defendants (Gamel and Fleetwood) filed a motion for summary judgment or summary adjudication, on the grounds that plaintiffs could not establish any breach of the express or implied warranty allowing them to rescind the contract or revoke acceptance.
Defendants asserted as undisputed facts:
On March 11, 2006, plaintiffs bought the trailer from Gamel. It came with a one-year express warranty, warranting the trailer “including the structure, plumbing, heating and electrical systems, all appliances and equipment installed by the manufacturer” to be “free from manufacturing defects in material or workmanship.” The express warranty also said, “By agreement with the manufacturer, the dealer is obligated... to repair or replace any parts necessary to correct defects in material or workmanship.”
In November 2006, plaintiffs brought the trailer to Gamel, complaining about delamination on one exterior wall, screws missing from the ceiling fan, dents in refrigerator door panels, a discolored mini-blind on the window, and a loose cabinet. In December 2006, Gamel told plaintiffs the trailer was ready, except for the delamination problem, which needed to be fixed at a Fleetwood facility. Plaintiffs left the trailer with Gamel. In February 2007, Fleetwood transported the trailer to their facility in Rialto. In March 2007, the trailer was returned to Gamel. However, plaintiffs did not pick up the trailer until May 2007. Everything was fixed, except that the missing screws in the ceiling fan were not replaced. Plaintiffs complained about two new items (regarding an exterior fuel pump and a broken rubber stop) but never reported these items to Gamel or Fleetwood within the one-year warranty period.
Defendants submitted deposition testimony of Erik Kreizenbeck, acknowledging that all reported problems were fixed when he picked up the trailer in May 2007, except for the missing screws in the ceiling fan. He acknowledged he never complained to defendants about the two new items.
Fleetwood’s service manager John Thompson submitted a declaration, describing his expertise in the design and testing of trailers, and attesting he inspected plaintiffs’ trailer on January 9, 2008, and “[t]here is currently no delamination problem with the GearBox in question. Delamination is nothing more than bubbling of the paint at discrete locations on the exterior of the unit. When delamination occurs, it is an aesthetic issue only, and does not impair the issue [sic] of the unit in any way.”
Regarding the ceiling fan, Thompson attested, “My inspection of the ceiling fan showed that while some screws are missing, the fan itself is operable. The missing screws in the ceiling fan do not impair the use and operation of the GearBox.”
Defendants cited authority that a defendant’s failure to repair a nonconformity is an essential element a plaintiff must prove to pursue an action under the Act for breach of express warranty. Defendants asserted the foregoing points disposed of all of plaintiffs’ claims (violation of the Act, rescission, and revocation of acceptance under the Commercial Code).
THE OPPOSITION
Plaintiffs opposed the summary judgment motion. We disregard plaintiffs’ evidence to which the trial court sustained defense evidentiary objections, including plaintiffs’ evidence that delamination is a structural defect, because plaintiffs do not challenge the trial court’s evidentiary rulings on appeal. (Code Civ. Proc., § 437c, subd. (c) [in determining summary judgment motion, court disregards evidence to which court has sustained evidentiary objections]; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [although our review of summary judgment is de novo, it is limited to issues adequately raised and supported in appellants’ brief].)
Plaintiffs argued there were two repair attempts of the delamination, one by Gamel and one by Fleetwood, and they took too long, entitling plaintiffs to rescind the contract. Plaintiff Rikki Kreizenbeck submitted a declaration, attesting Gamel had the trailer for 102 consecutive days (from November 2, 2006, to February 12, 2007), during which Gamel attempted repairs. On February 12, 2007, the trailer was delivered to Fleetwood for delamination repair. The trailer was out of service for at least 120 consecutive days, from November 2, 2006, to sometime in March 2007.
In response to defendants’ assertion that the missing screws in the ceiling fan did not impair the use and operation of the trailer, plaintiffs responded with a declaration from Rikki Kreizenbeck that “[w]e did not operate the fan in the subject GearBox due to its dangerous condition. The fan was never repaired.”
THE REPLY
Defendants’ reply argued there was only one repair attempt but agreed (subject to and without waiving evidentiary objections) that Gamel was unable to repair the delamination problem at its facility.
THE RULING
The trial court granted summary judgment to Gamel and Fleetwood, stating in its April 15, 2008, written ruling:
“[Section] 1793.2 relates to the sales of goods, whereas § 1793.22 relates to the sale of motor vehicles. The latter contains a presumption that, if a motor vehicle has been out of service more than thirty days, that a reasonable number of repair attempts have been made. The former does not contain that presumption. The subject trailer is not a motor vehicle. Vehicle Code § 415.
“It is undisputed that plaintiffs delivered the trailer to Dan Gamel RV on or about November 2, 2006.... In December, 2006, defendant Dan Gamel RV advised plaintiffs that the delamination issue would need to be addressed at the Fleetwood facility.... The delamination repair was completed by Fleetwood, and plaintiffs eventually retrieved the trailer after it had been returned to Dan Gamel RV.... The court concludes that these facts represent one repair effort. Therefore a claim under the [] Act is precluded.
“It is further undisputed that neither the exterior fuel pump, nor the rubber door stop, were reported to the defendants within the warranty period.... No cause of action will therefore lie under express or implied warranty theories as to these items.
“It is undisputed that all other items, except the fan, were repaired by Dan Gamel RV in one repair effort.... As to the final item, the fan with screws missing, the plaintiffs’ subjective thought that [the ceiling fan] was ‘dangerous’ is not sufficient to show a triable issue of fact.”
Plaintiffs appeal from the ensuing judgment.
DISCUSSION
Plaintiffs contend the delay in repairing the delamination problem entitles them to rescind the contract under the Act, and the trial court erred in ignoring the distinctions between express and implied warranties under the Act. We conclude plaintiffs fail to show grounds for reversal.
I. Breach of Express Warranty
Plaintiffs argue an express warranty violation can occur when defective goods are not repaired within 30 days or after a reasonable number of attempts. Plaintiffs contend breach of the express warranty entitled them to rescind the contract and get their money back, because the repairs took a long time. We disagree.
We first consider the effect of the dismissal of Fleetwood from this lawsuit. The Act calls for “the manufacturer” (not the retailer) to replace goods or reimburse the purchase price for breach of express warranty (§ 1793.1, subd. (d)(1)), though the manufacturer and retailer are treated as a single entity for purposes of calculating the number of repair attempts. (Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 889.) However, the express warranty in this case said, “DEALER’S OBLIGATIONS [¶] By agreement with the manufacturer, the dealer is obligated to maintain the trailer prior to retail sale, to perform a detailed predelivery inspection and to repair or replace any parts necessary to correct defects in material or workmanship.” Based on the express written warranty, the dismissal of Fleetwood does not affect Gamel’s potential liability for breach of express warranty.
A. Delamination
Under the Act, “[a] plaintiff pursuing an action [] has the burden to prove the following elements: (1) the product had a defect or nonconformity covered by the express warranty; (2) the product was presented to an authorized representative of the manufacturer for repair; and (3) the manufacturer or its representative did not repair the defect or nonconformity after a reasonable number of attempts. [Citation.]” (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 798-799, italics added [substantial evidence supported jury’s finding that manufacturer failed to repair nonconformity after reasonable number of attempts].)
Failure to repair is an essential element of plaintiffs’ claim. The Act calls for reimbursement of the purchase price for breach of an express warranty only “if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties” after a reasonable number of attempts. (§ 1793.2, subd. (d)(1).) “[W]here an express warranty is breached, the Act sets out an extensive scheme requiring manufacturers to repair ([]§ 1793.2), and the buyer has a concomitant duty to allow a reasonable number of opportunities for repair before it can demand a replacement of the goods or reimbursement [citations].” (Mocek v. Alfa Leisure, Inc. (2003) 114 Cal.App.4th 402, 407 (Mocek).) Here, the delamination was repaired. Thus, the nonconformity at issue was fixed. Therefore, there is no basis for a breach of express warranty and no basis for the rescission plaintiffs seek, regardless of whether there was one repair attempt or two repair attempts.
Section 1793.2, subdivision (d)(1), states: “Except as provided in paragraph (2) [new motor vehicles], if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that amount directly attributable to use by the buyer prior to the discovery of the nonconformity.”
Plaintiffs focus on the delay in completing the repairs. They point out the Act prohibits unreasonable delay, stating, “service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days. Delay caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.” (§ 1793.2, subd. (b).)
Plaintiffs seek to invoke a provision of the Act applicable to new motor vehicles only -- section 1793.22 -- which creates a presumption a nonconformity is unfixable if the vehicle is out of service for repairs for an extended period of time. (§ 1793.22, subd. (b) [if motor vehicle is out of service for repairs for more than 30 days, it shall be presumed a reasonable number of attempts have been made to conform it to express warranty].) However, section 1793.22 is limited to motor vehicles. The Act excludes from the definition of “motor vehicle” the portion of a motor home not devoted to propulsion. (§ 1793.22, subd. (e).) The trailer at issue here is a “consumer good” under the Act, not a “motor vehicle.” A “consumer good” under the Act is defined as “any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables.” (§ 1791, subd. (a); National R.V., Inc. v. Foreman, supra, 34 Cal.App.4th at p. 1079 [Act applies to motor home coaches as “consumer goods, ” not as motor vehicles].)
Section 1793.22 (known as the Tanner Consumer Protection Act), states in subdivision (b): “It shall be presumed that a reasonable number of attempts have been made to conform a new motor vehicle to the applicable express warranties if, within 18 months [or 18, 000 miles], one or more of the following occurs: [¶] (1) The same nonconformity results in a condition that is likely to cause death or serious bodily injury if the vehicle is driven and the nonconformity has been subject to repair two or more times by the manufacturer or its agents, and the buyer or lessee has at least once directly notified the manufacturer of the need for the repair of the nonconformity. [¶] (2) The same nonconformity has been subject to repair four or more times by the manufacturer or its agents and the buyer has at least once directly notified the manufacturer of the need for the repair of the nonconformity. [¶] (3) The vehicle is out of service by reason of repair of nonconformities by the manufacturer or its agents for a cumulative total of more than 30 calendar days since delivery of the vehicle to the buyer.”
Section 1793.22, subdivision (e), provides: “‘New motor vehicle’ means a new motor vehicle that is bought or used primarily for personal, family, or household purposes.... ‘New motor vehicle’ includes the chassis, chassis cab, and that portion of a motor home devoted to its propulsion, but does not include any portion designed, used, or maintained primarily for human habitation....”
Accordingly, the provision regarding new motor vehicles does not apply here. In any event, it would not help plaintiffs, because the delamination repair was completed.
B. Ceiling Fan
Plaintiffs’ appellate briefs make no argument about the ceiling fan, and therefore we may treat the matter as forfeited with respect to breach of express warranty. “Although our review of a summary judgment motion is de novo, it is limited to issues which have been adequately raised and supported in plaintiffs’ brief. [Citations.] Issues not raised in an appellant’s brief are deemed waived or abandoned. [Citation.]” (Reyes v. Kosha, supra, 65 Cal.App.4th at p. 466, fn. 6.)
Plaintiffs’ abandonment of the ceiling fan issue is apparent in their appellate briefing. Under the heading of express warranty, plaintiffs’ opening brief on appeal says that since the repairs were not “completed” until March 2007, the trial court erred in granting summary judgment by failing to consider the delay as a triable issue of fact. Thus, plaintiffs concede the repairs covered by the express warranty were “completed.” The opening brief also says: “The critical issue for consideration here as to Plaintiffs’ express warranty claim under... section 1793.2(d)(1) is whether or not one (1) repair attempt that lasts one hundred twenty (120) days is sufficient to constitute a ‘reasonable number of attempts.’” As to rescission and revocation of acceptance, plaintiffs’ opening brief describes the “defects” and “nonconformity” as delamination. Moreover, plaintiffs’ reply brief does not dispute the assertion in Gamel’s brief that plaintiffs have forfeited any issue about the ceiling fan by failing to address it.
We conclude plaintiffs have forfeited any contention that the ceiling fan’s missing screws constituted a breach of the express warranty under the Act.
II. Implied Warranty
An implied warranty may be for merchantability (fitness for an “ordinary” purpose) or fitness for a “particular” purpose. (§ 1791.1.) Plaintiffs’ complaint alleged both but did not specify any particular purpose. Fitness for a particular purpose “envisages a specific use by the buyer which is peculiar to the nature of his business whereas [fitness for ordinary use]... go[es] to uses which are customarily made of the goods in question.” (American Suzuki Motor Corp. v. Superior Court (1995) 37 Cal.App.4th 1291, 1295, fn. 2, criticized on other grounds in Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 442.) Here, plaintiffs alleged they bought the trailer for their personal use, and plaintiffs’ appellate brief says the ordinary purpose of the trailer is for traveling and human habitation. On appeal, plaintiffs do not argue, and we need not address, fitness for a “particular purpose.”
Plaintiffs argue the trial court erred in concluding that repair of the trailer precluded any claim under the Act. We agree with plaintiffs that repair of a nonconformity does not necessarily preclude a claim for breach of implied warranty under the Act. (Mocek, supra, 114 Cal.App.4th at pp. 406-408.) Nevertheless, any error by the trial court did not prejudice plaintiffs so as to warrant reversal of the judgment. (Cal. Const., art. VI, § 13 [no judgment shall be set aside unless trial court error resulted in miscarriage of justice]; Code Civ. Proc., § 475 [same].) As we explain below, there was no breach of implied warranty.
“Under [the Act], every retail sale of ‘consumer goods’ in California includes an implied warranty by the manufacturer and the retail seller that the goods are ‘merchantable’ unless the goods are expressly sold ‘as is’ or ‘with all faults.’ [Fn. omitted.] ([]§§ 1791.3, 1792 .) Merchantability, for purposes of [the Act], means that the consumer goods: ‘(1) Pass without objection in the trade under the contract description. [¶] (2) Are fit for the ordinary purposes for which such goods are used. [¶] (3) Are adequately contained, packaged, and labeled. [And] [¶] (4) Conform to the promises or affirmations of fact made on the container or label.’ ([]§ 1791.1.) ‘“The core test of merchantability is fitness for the ordinary purpose for which such goods are used.”’” (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1303 (Mexia).) “Such fitness is shown if the product ‘is “in safe condition and substantially free of defects”....’ [Citation.]” (Ibid. [setting statute of limitation for lawsuits under the Act]; American Suzuki Motor Corp., supra, 37 Cal.App.4th at p. 1296 [implied warranty does not promise to fulfill buyer’s expectations but instead provides for minimum level of quality].)
Section 1792 provides that, unless disclaimed in the manner prescribed by the Act, “every sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer’s and the retail seller’s implied warranty that the goods are merchantable, ” and the retail seller has a right of indemnity against the manufacturer.
Plaintiffs argue the question whether consumer goods are fit for ordinary purposes presents a question of fact, precluding summary judgment. (Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 27.) However, a question of fact may be decided as a matter of law on summary judgment if, under undisputed facts, there is no room for a reasonable difference of opinion. (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687.)
Plaintiffs failed to present admissible evidence refuting the declaration of Fleetwood’s service manager that the delamination (which had been fixed) was “an aesthetic issue only.” On the admissible evidence, there is no room for a reasonable difference of opinion that the delamination issue did not render the trailer unfit for ordinary purposes.
Other than delamination, plaintiffs’ appellate briefs make scant argument regarding the other problems in connection with breach of implied warranty. Their opening brief says, “The ordinary purpose of a trailer is for traveling and human habitation.... [¶]... [¶] [Case law] holds that whether or not goods are fit for the ordinary purposes for which such goods are used is a question of fact. Accordingly and as a matter of law the trial court cannot conclude that there has been no violation of the implied warranty because the GearBox has only been subject to repair on one attempt.... Since the undisputed evidence in this case was that the GearBox trailer had several defects including delamination of its side walls, a genuine issue of triable fact exists as to whether or not the trailer was fit for its ordinary purpose.” (Emphasis omitted.)
However, the other problems that arose within the one-year implied warranty period (§ 1791.1, subd. (c) [implied warranty duration shall be coextensive with express warranty, not to exceed one year]) did not render the trailer unfit for ordinary purposes. In the trial court, plaintiffs admitted it was undisputed that the refrigerator dents, loose cabinet, and window blind, did not impair the use or operation of the trailer. Plaintiffs admitted that they did not report the exterior fuel pump and a broken rubber stop within the one-year warranty period.
As to the ceiling fan, the trial court found that “plaintiffs’ subjective thought that such was ‘dangerous’ is not sufficient to show a triable issue of fact.” For the following reasons, we uphold the trial court’s judgment.
Safety is an appropriate consideration for a claim that a product is not fit for ordinary purposes under an implied warranty claim. (Mexia, supra, 174 Cal.App.4th at p. 1303 [fitness is shown if the product is in a safe condition and substantially free of defects].) Defendants submitted John Thompson’s declaration that the fan operated despite the missing screws, and the missing screws did not “impair the use and operation of the GearBox itself.” Defendants knew plaintiffs claimed the fan was unsafe. Therefore, defendants should have addressed safety in their moving papers. (Code Civ. Proc., § 437c, subd. (c) [burden on moving party].)
Nevertheless, under the circumstances of this case, we are satisfied the judgment need not be reversed.
Plaintiffs’ opposition contained Rikki Kreizenbeck’s declaration that “[w]e did not operate the fan in the subject GearBox due to its dangerous condition.” However, in deposition Erik Kreizenbeck answered yes to the question that “the only physical problem with the coach that caused you concern and stopped you from using it” was the delamination. We are aware that, in reviewing summary judgment, “we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [plaintiff’s] evidentiary submission while strictly scrutinizing defendant[’s] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor. [Citation.]” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Nevertheless, a party cannot create an issue of fact by a declaration prepared for purposes of a summary judgment motion which contradicts prior discovery responses. (Jacobs v. Fire Ins. Exchange (1995) 36 Cal.App.4th 1258, 1270.)
Given these circumstances and plaintiffs’ forfeiture of the ceiling fan safety issue by failing to raise it in their appellate brief (Reyes v. Kosha, supra, 65 Cal.App.4th at p. 466, fn. 6), we see no basis for reversing the judgment due to the ceiling fan’s missing screws.
We conclude there was no breach of the implied warranty of merchantability.
III. Rescission Under Section 1689
Plaintiffs’ appellate brief says their second count, which alleged rescission/restitution due to defendants’ failure to repair the trailer to a “drivable condition” after a reasonable number of attempts, was based on failure of consideration under section 1689.
Section 1689 provides in subdivision (b): “A party to a contract may rescind the contract in the following cases: [¶]... [¶] If the consideration for the obligation of the rescinding party fails, in whole or in part, through the fault of the party as to whom he rescinds.”
Plaintiffs’ appellate brief cites delamination as the only defect supporting rescission, and they have therefore forfeited any other defects as a basis for rescission. (Reyes v. Kosha, supra, 65 Cal.App.4th at p. 466, fn. 6.) Thus, under the heading of rescission and revocation of acceptance, plaintiffs’ appellate brief says, “it is undisputed that the GearBox suffered from defects in materials and workmanship, i.e.: sidewall delamination, attributable to FLEETWOOD that caused over [120] days of repair efforts and loss of use, ” and “[p]laintiffs would be entitled to revoke acceptance of the GearBox in this case since the nonconformity, i.e.: sidewall delamination, was not seasonably cured and the delamination, by its nature, is difficult to discover.”
Plaintiffs expect to be able to rescind the contract because the repair took too long. However, a party may rescind a contract for failure of consideration only if the failure of consideration by the other party is material or goes to the essence of the contract. (Wyler v. Feurer (1978) 85 Cal.App.3d 392, 403-404.) If a breach is one that can be readily compensated in damages, the breach will not justify rescission. (Integrated, Inc. v. Alec Fergusson Electrical Contractor (1967) 250 Cal.App.2d 287, 296.) Here, the nonconformity at issue (delamination) was repaired and therefore would not justify rescission. A delay in performance of a contract may constitute a material failure of consideration only if time is of the essence, i.e., if prompt performance is, by the express language of the contract or by its very nature, a vital matter. (City of Larkspur v. Marin County Flood Control and Water Conservation Dist. (1985) 168 Cal.App.3d 947, 954.) Here, the contract did not expressly make time of the essence, and we know time was not of the essence to plaintiffs, because Fleetwood returned the trailer to Gamel in March 2007, but plaintiffs did not pick up the trailer until May 2007. Under these circumstances, the delay in repair did not constitute a material failure of consideration justifying rescission.
IV. Revocation of Acceptance
Plaintiffs say their third count, which alleged revocation of acceptance due to defendants’ failure to repair the trailer to a “drivable condition even after a reasonable number of attempts at repair, ” was based on California Commercial Code section 2608. However, Commercial Code section 2608 says revocation of acceptance is allowed only if the nonconformity “substantially impairs [the] value” of the product.
Commercial Code section 2608 provides in part: “(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it [without discovery of a latent nonconformity or on the reasonable assumption the nonconformity would be cured]. [¶] (2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.”
As with rescission under section 1689, plaintiffs’ appellate brief cites delamination as the only defect supporting revocation of acceptance. Contrary to the complaint’s allegation that defendants failed to repair the trailer, the undisputed evidence showed the delamination problem was fixed. Because there was no substantial impairment of value, we need not further address Commercial Code section 2608.
DISPOSITION
The judgment is affirmed. Defendant Dan Gamel’s Rocklin RV Center shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: BLEASE, Acting P. J., HULL, J.