Free Reply to Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

THE CAVANAGH LAW FIRM
A Professional Association 1850 NORTH CENTRAL AVENUE SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

Kerry M. Griggs, SBN 016519 [email protected] Patrick G. Rowe, SBN 018591 [email protected] Attorneys for Defendant Fleetwood UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA LANE SENNETT, Plaintiff, vs. FLEETWOOD MOTOR HOMES OF CALIFORNIA, INC., and WORKHORSE CUSTOM CHASSIS, Defendants. Pursuant to Rule 56, Fed. R. Civ. P., Defendant Fleetwood Motor Homes of California, Inc. ("Fleetwood"), by and through undersigned counsel, hereby replies to Plaintiff Lane Sennett's Response to Fleetwood's Motion for Summary Judgment. This Reply is supported by the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. PLAINTIFF IS CONFUSED ABOUT THE SUBSTANTIVE LAW THAT GOVERNS HER CLAIMS. A. Since the subject written warranty is not designated as a full warranty, the Magnuson-Moss substantive "reasonable number of repair attempts" standard is inapplicable. DEFENDANT FLEETWOOD'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT (ORAL ARGUMENT REQUESTED) NO. CV04 0161 PHX ROS

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
:1209610-1

LAW OFFICES

In its September 9, 2005 Order, this Court correctly ruled that "(E)xcept in the specific instances in which (the MMWA) expressly prescribes a regulating rule, the Act calls for the application of state written and implied warranty law, not the creation of additional federal law." See September 9, 2005 Order. As such, the Court applied choice 1
Document 156 Filed 11/30/2005 Page 1 of 20

Case 2:04-cv-00161-ROS

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

of law rules and determined Nevada law applies to Plaintiff's implied warranty claims. The applicability of state warranty law is particularly appropriate in this case, since the only instance in which the MMWA might be seen to prescribes a regulating rule is in the context of a "Full Warranty." Because Fleetwood provided only a "Limited Warranty" in the subject case, the MMWA's "reasonable number of repair attempts" standard is inapplicable. Rather, state warranty law controls.1 In Traynor v. Winnebago Industries, Inc., No. CV 03-2082-PHX-DGC, Judge David Campbell recently ruled that the MMWA "reasonable number of repair attempts" substantive standard did not apply to alleged breaches of Winnebago's Limited Warranty: The Act distinguishes between full and limited warranties. While section 2304 of the Act imposes minimum federal warranty standards for `full warranties' and provides remedies for their breach ... a limited warranty is not subject to § 2304 and thus not subject to the Act's substantive remedies, including a refund of the ... purchase price." See August 3, 2005 Order, at pp. 2:22-25, 3:1, (citations omitted), attached hereto as Exhibit "A". Judge Campbell concluded that "the Act's reasonable attempts and time standards do not apply in this case because Winnebago gave Plaintiff only a limited warranty." Id., at 3:11-13. In Goelz v. Winnebago Industries, Inc., No. CV-03-1290-PHX-SRB, Judge Susan R. Bolton recently ruled on Defendant Winnebago's Motion for Summary Judgment, which also dealt in part with the issue of what standard to apply regarding alleged breaches of Winnebago's Limited Warranty. Specifically, Judge Bolton noted, "As with implied

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LAW OFFICES

warranties, the MMWA requires the Court to look to state law for breach of written warranty claims made under the Act." See August 2, 2005 Order, at p. 7:22-23, attached hereto as Exhibit "B". Judge Bolton went on to state that "in such an action, a court looks to the terms of the warranty, and evaluates them in accordance with the basic rules of contract interpretation." Id., at pp. 7:28-8:1. Based on the language of Winnebago's Limited
Given the dearth of reported cases on these issues, the court should consider the recent analysis of other Arizona District Court Judges. It should be noted, however, that the Traynor ruling is currently the subject of a motion for reconsideration. Still, Fleetwood is persuaded that it's key holdings, addressed herein, should not be subject viable attack.
:1209610-1

1

2
Document 156 Filed 11/30/2005 Page 2 of 20

Case 2:04-cv-00161-ROS

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

Warranty's "repair or replace" provision (similar language to Fleetwood's warranty), Judge Bolton held that "a breach can occur if, during the course of normal use and within the warranty period, the owner of the RV discovers a defect which it promptly brings to Winnebago's attention, and Winnebago either refuses or fails to repair or replace the defective part." Id., at p. 9:9-12. B. The Magnuson-Moss Act certainly does not federalize all simple breach of warranty litigation, nor does it otherwise create a preemptive substantive federal common law scheme for such cases.

Judge Bolton's Order contained additional insightful analysis regarding the application of the MMWA: Plaintiff argues that his implied warranty claims are not rooted in state law, but in the MMWA itself, and therefore, Arizona's requirement of contractual privity does not apply. Plaintiff's argument confuses the creation of a federal cause of action with the creation of an entirely new area of federal substantive law governing all aspects of warranties. The MMWA created the former, not the latter. As such, in an action under the MMWA, courts apply state substantive law, `except as expressly modified' by the Act. Unless a plaintiff can point to an `express modification' in the Act evidencing Congress' intent to displace state law, a court must apply state law." Id. at 5:21-5:25, 6:3 (citations omitted). Accordingly, in this case, Plaintiff's repeated

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16

LAW OFFICES

references to the Magnuson-Moss Act's substantive "reasonable number of repair attempts" 17 18 19 20 21 22 23 24 25 26 27 28
2

standard are wholly inappropriate2. C. At its heart, this is a simple breach of contract (warranty) suit, governed by substantive state law.

It should be noted that Plaintiff's Amended Complaint is void of any reference to causes of action brought specifically pursuant to Nevada law. Plaintiff merely asserted general common law breach of warranty claims. Despite that deficiency, Fleetwood will address these respective claims pursuant to the applicable Nevada statutes. 1. Implied Warranty of Merchantability

For a breach of warranty claim, a plaintiff must prove that a warranty existed, the
Plaintiff also alleges a cause of action pursuant to 16 C.F.R. §700.5. That regulation does not provide Plaintiff with a cause of action. Rather, it refers to the law- section 110 of the MMWA, or 15 U.S.C. § 2310- that does provide him with a cause of action. This was recently pointed out by Judge John W. Sedwick, in Weber v. Fleetwood Motor Homes, CIV 03-2606 PHX JWS. See October, 2005 Order, at pg. 4-5, attached hereto as Exhibit "C".
:1209610-1

3
Document 156 Filed 11/30/2005 Page 3 of 20

Case 2:04-cv-00161-ROS

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

defendant breached the warranty, and the defendant's breach was the proximate cause of the loss sustained. Nevada Contract Services, Inc. v. Squirrel Companies, 119 Nev. 157, 68 P.3d 896 (Nev. 2003). Unless excluded or modified by N.R.S. 104.2316, a warranty that goods shall be merchantable is implied in a contract for their sale. See N.R.S. 104.2314(1). Merchantable goods are those at least fit for the ordinary purposes for which they are used. Havas v. Love, 89 Nev. 458, 459, 514 P.2d 1187, 1188 (Nev. 1973); see also N.R.S. 104.2314(2). The remedies and damages available under this article for breaches of the implied warranty of merchantability can be contractually limited by the parties. See N.R.S.

104.2316(4). An agreement may provide for remedies in substitution of those provided by this article, and may limit or alter the measure of damages recoverable under this article, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts. See N.R.S. 104.2719(1)(a). If the agreement provides that the substituted remedy is exclusive, then it is the sole remedy. See N.R.S. 104.2719(1)(b). Consequential damages may be limited or excluded. See N.R.S. 104.2719(3). An express warranty is created by an affirmation or promise made by the seller to the buyer which relates to the goods and becomes a part of the basis of the bargain. See N.R.S. 104.2313. Fleetwood's Limited Warranty constituted an express warranty by

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LAW OFFICES

Fleetwood. Warranties, whether express or implied, are to be construed as consistent with each other and as cumulative, but, if such a construction is unreasonable, the intention of the parties determines which warranty is dominant. See N.R.S. 104.2317. In ascertaining that intention, express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose. See N.R.S. 104.2317(3). When Plaintiff agreed to purchase the subject RV, which was covered by Fleetwood's Limited Warranty, the parties modified the statutory implied warranty of merchantability with respect to the available remedies and damages in the event of a breach. Specifically, Fleetwood's warranty limited Plaintiff's remedy to repair or replacement of :1209610-1 4
Case 2:04-cv-00161-ROS Document 156 Filed 11/30/2005 Page 4 of 20

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

any parts necessary to correct defects in material or workmanship. See SOF, ¶ 19, p. 7:1-4. It should be noted that N.R.S. 104.2719(1)(a) specifically states that a "repair and replace" remedy as an acceptable substitute. Plaintiff agrees that "(T)he only remedy (Fleetwood's) `limited warranty' provides for is repair or replacement of defective parts." See Plaintiff's Response, at p. 12:11-13. This was the exclusive remedy provided for in the agreement and, as such, it is the sole remedy available to Plaintiff under N.R.S. 104.2719(1)(b). Fleetwood's warranty also forecloses the possibility of consequential damages. See SOF, ¶ 19, p. 7:24. N.R.S. 104.2719(3) specifically states that a limitation of consequential damages where the loss is commercial (as opposed to losses for injury to the person) is not unconscionable. Under this section parties are left free to shape their remedies to their particular requirements and reasonable agreements limiting or modifying remedies are to be given effect. See N.R.S. 104.2719, "Purposes" No. 1. As such, if, under Nevada statute,

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LAW OFFICES

Fleetwood is held to have provided an implied warranty of merchantability, Plaintiff's available remedies are still limited by the applicable written warranty. Nevertheless, as discussed below, Fleetwood has not breached the implied warranty of merchantability because Fleetwood has performed under the warranty and the Fleetwood-warranted elements of the RV are fit for ordinary purposes. 2. Implied Warranty of Fitness for a Particular Purpose

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there may be (unless excluded or modified) an implied warranty that the goods shall be fit for such purpose. See N.R.S. 104.2315. A "particular purpose" differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which the goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in :1209610-1 5
Case 2:04-cv-00161-ROS Document 156 Filed 11/30/2005 Page 5 of 20

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

question. See N.R.S. 104.2315, "Purposes of Changes" No. 2. Fleetwood was not a party to the sales contract. Therefore, Fleetwood had no reason to know of any particular (specific/peculiar) use by the Plaintiff. As such, there could be no reliance by Plaintiff. In fact, Plaintiff appears confused as to her implied warranty claim. Specifically, she stated that "the ordinary purpose and particular purpose of a motor home is mobile housing, lodging, cooking, and entertainment." See Plaintiff's Response, at p. 10:25-27. If anything, these enumerated uses are merely ordinary purposes of the motor home, as there is nothing peculiar about such uses. II. UNDER ANY CONCEIVABLY-APPLICABLE LEGAL "BREACH" STANDARD, FLEETWOOD SHOULD PREVAIL AS A MATTER OF LAW. A. The argument that Fleetwood is responsible for alleged chassis-related defects cannot be maintained in good faith, as it has consistently been discredited by the Courts (no matter how many times Plaintiff's counsel have tried to advance it). 1. Fleetwood's limited written warranty expressly excludes chassisrelated defects; Plaintiff's attempt to ignore the warranty's exclusions sections is disingenuous, at best.

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LAW OFFICES

Plaintiff's Response repeatedly attempts to muddy the waters regarding the alleged chassis defects, arguing that Fleetwood warranted the entire RV, including the chassis. Attempting to make the coach manufacturer liable for the chassis, or other excluded components, is a weary legal argument that Plaintiff's counsel has consistently and unsuccessfully tried to make in the past, and is taking yet another run at in this matter. Numerous courts, including the District Court of Arizona, have rejected the argument that the end-stage motor home manufacturer should be deemed liable for alleged defects in the vehicle's chassis where the chassis was excluded from the motor home manufacturer's warranty. See Fleetwood's Motion for Summary Judgment § II(B). Fleetwood's Limited Warranty was clearly labeled as such. Plaintiff's argument that the Court should hold that Fleetwood warranted the entire motor home, including the chassis, simply because the words "motor home" were used within the heading of the warranty documents, as opposed to listing every single part of the RV that was being warranted, is a hollow argument.
:1209610-1

Plaintiff's focus completely ignores the subheading 6
Filed 11/30/2005 Page 6 of 20

Case 2:04-cv-00161-ROS

Document 156

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

"WHAT IS NOT COVERED BY THIS WARRANTY," printed in all capital bold letters. See SOF, at §19. Here, the written warranty lays out that "the automotive chassis system (including the chassis and drive train), tires and batteries" are were not covered items. Immediately after that limiting statement, the warranty states that these elements of the RV are "covered by the separate manufacturers of these components." Id. Workhorse was the manufacturer and warrantor of the chassis. Importantly, Plaintiff acknowledged the fact that the chassis was warranted by Workhorse when she signed the Workhorse chassis delayed warranty start document. See FWDR0198, attached hereto as Exhibit "D". Plaintiff's assertion that Fleetwood has advocated a "bag of parts" defense is unsubstantiated. Separate coach and chassis warranties are standard in the motor home industry. Fleetwood and Workhorse had every right to divide warranty responsibilities among themselves. In fact, this is a benefit to the consumer, since each entity can focus on its strengths. Fleetwood has no particular expertise in automotive chassis repair; Workhorse does. Further, it cannot be overstated that Plaintiff's purchase of the motor home was a fully-documented, integrated, commercial transaction. Plaintiff cannot set it aside just because she now claims to not like what she agreed to. If Plaintiff was not happy with the deal's terms, she was free to look elsewhere or forego the transaction. Nobody forced her to buy the motor home. However, she apparently decided she wanted it and agreed to the offered terms, which included the coach/chassis warranty distinction. 2. Even the De Shazer case, relied upon by Plaintiff in support of her "ambiguity" argument, directly supports the coach/chassis warranty distinction.

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LAW OFFICES

Plaintiff's contra proferentum theory ignores the basic legal principle that a contract must be read in its entirety. A contract must be construed so as to give effect to all of its provisions; as a corollary, one provision of contract will not be construed so as to render another provision meaningless. Norman v. Recreation Centers of Sun City, Inc., 156 Ariz. 425, 427-428, 752 P.2d 514, 516-517 (Ariz. Ct. App. 1988). See also Central Arizona Water Conservation Dist. v. U.S., 32 F.Supp. 2d. 1117 (D. Ariz. 1998) (contract must be construed in its entirety, rather than from reading one provision in isolation from the rest of :1209610-1 7
Case 2:04-cv-00161-ROS Document 156 Filed 11/30/2005 Page 7 of 20

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

the contract); and Bailey v. Monaco Coach Corp., 350 F.Supp.2d 1036 (N.D. Ga. 2004) (applying rule to read contract provisions harmoniously to interpretation of a motor home warranty). It is clearly not appropriate to look at just the coverage section in interpreting the meaning of Fleetwood's Limited Warranty, which also included clearly labeled exclusions, as discussed above. Plaintiff cites De Shazer v. National RV Holdings, Inc. as authority supporting its contra proferentum argument that Fleetwood's Limited Warranty was ambiguous and should therefore be construed against Fleetwood to include coverage for the chassis. 391 F.Supp.2d 791, 2005 WL 1745444 (D.Ariz. 2005). Plaintiff's reliance is completely

misplaced, and, in fact, likely exceeds the bounds of credible argument. In De Shazer, the plaintiff brought a breach of warranty action regarding a recreational vehicle against National RV, the final stage RV manufacturer, and Freightliner, the manufacturer of the subject vehicle's chassis system. Id. National RV provided the plaintiff with a "Limited One-Year/Three-Year Warranty," and the parties disputed whether that warranty covered the plaintiff's alleged defects. The De Shazer warranty provided, among other things: WARRANTY COVERAGE: This warranty covers your motor home, which includes the structural components, plumbing, airconditioning/heating, and electrical systems fabricated, assembled or installed by National RV Inc., to be free under normal use from manufacturing defects in material or workmanship. *** ITEMS COVERED UNDER SEPARATE WARRANTIES: Your motor home contains numerous appliances that are covered by their respective manufacturer warranties. Please refer to the individual owner's manuals provided at the time of delivery for all pertinent information. Items covered under separate warranties include but are not limited to: microwave, stove, furnace, refrigerator, water heater, roof-mounted airconditioner, etc. *** ITEMS NOT COVERED: The following items are not covered by this warranty: 1) Chassis components; drive train components, tires, portions of the automotive air-conditioning system, and batteries. These items are covered by the warranties of their respective manufacturers. The De Shazer Court noted ambiguity within the warranty because, although the

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LAW OFFICES

:1209610-1

8
Document 156 Filed 11/30/2005 Page 8 of 20

Case 2:04-cv-00161-ROS

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

warranty stated that certain items were "covered under separate warranties," it did NOT state that these items were excluded from its own warranty, which could arguably have provided coverage for these same items as "fabricated, assembled or installed by National RV." Id. at 796. As such, the Court construed the ambiguity against National RV, and held that those items listed under the heading "ITEMS COVERED UNDER SEPARATE WARRANTIES" could also be covered by National RV's warranty. Id. Of course, none of this has anything to do with the matters at issue in the present case, which involve the coach/chassis distinction. Indeed, as concerns the coach/chassis distinction, the De Shazer case completely guts Plaintiff's current arguments. Just as here, the De Shazer plaintiff contended that National RV's warranty language "ITEMS NOT COVERED" was also ambiguous and, therefore, the chassis exclusion should be construed against National RV in favor of coverage. Id. The Court DID NOT AGREE with that argument. Rather, the Court held that, while National RV certainly sold the Tradewinds motor home as one complete unit, the warranty specifically excluded some items from coverage. Id. As such, National RV's warranty DID NOT cover alleged chassis defects, which were encompassed by Freightliner's chassis warranty. Id. In other words, Plaintiff's counsel needs to give up on their agenda to hold end-stage manufacturers responsible for chassis defects. They can no longer make this argument in good faith. 3. There is nothing mysterious about the coach/chassis warranty distinction, which is standard in the industry and clearly outlined in the documents surrounding this fully-integrated commercial transaction.

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18 19 20 21 22

LAW OFFICES

Plaintiff was provided with the Fleetwood Owner's Information Package at the time of sale. See SOF, ¶ 19. The package contained, among other maintenance and warranty 23 items, the Fleetwood Owner's Manual and the Workhorse Chassis Operator's/Owner's 24 Guide/Manual. See Photographs of Fleetwood Owner's Information Package exemplar, 25 attached hereto as Exhibit "E". The Fleetwood Owner's Manual clearly and repeatedly 26 pointed out the fact that Fleetwood only warranted the coach, and Workhorse separately 27 warranted the chassis. See Exhibit "F"; see also Fleetwood Owner's Manual, attached 28
:1209610-1

9
Document 156 Filed 11/30/2005 Page 9 of 20

Case 2:04-cv-00161-ROS

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

hereto as Exhibit "G". In addition, the Fleetwood Owner's Manual repeatedly referred Plaintiff to the Workhorse Chassis Operator's Guide/Manual for information regarding chassis-related issues. See Exhibit "H"; see also Exhibit "G". Plaintiff acknowledged the fact that the chassis was warranted by Workhorse when she signed the Workhorse chassis delayed warranty start document. See FWDR0198, attached hereto as Exhibit "D". There is nothing mysterious about the fact that the coach and chassis are covered under separate warranties and by separate owner's manuals. Contact information for

Fleetwood Service Centers and Manufacturing Plants was also provided for Plaintiff's use if she had any questions regarding Fleetwood and/or Workhorse warranty coverage. See Exhibit "G", at FW00206. Further, the Workhorse Operator's/Owner's Guide/Manual, that was provided to Plaintiff contains the following: "WCC New Chassis Limited Warranty." Repairs Covered: The warranty covers repairs to correct any chassis defect related to materials or workmanship occurring during the Warranty Period. Needed repairs will be performed using new or remanufactured parts. Basic Chassis Coverage: Chassis coverage includes the chassis frame, axel, engine, transmission, brakes, steering, suspension, and certain electrical components, as supplied by WCC. These components are covered for 3 years or 46,000 miles, whichever comes first ... See Exhibit 4 to Fleetwood's Motion for Summary Judgment, at p. 328. Workhorse

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18

LAW OFFICES

supplemented that basic coverage statement with a diagram illustrating the covered portions 19 of the RV, which were labeled as follows: "instrument panel, steering wheel and system, 20 engine, transmission, frame, axel, fuel tank, brakes, leaf springs, exhaust system, tires and 21 wheels, and suspension and springs." See Id., at 327. 22 In this action, Plaintiff has alleged the following defects: "interior trim, exterior 23 trim, engine, electrical system, steering/suspension, bathroom door, cabinet door, water 24 leak, shower stall, dying in flight, stalling in flight, closet door, air conditioning compressor, 25 fuel tank, fuel pump, generator hose, serpentine belt, and belt tensioner, and leaking 26 bedroom slide." See Plaintiff's Amended Complaint, at pp. 4:23-28, 5:1-7, attached hereto 27 as Exhibit "I"; see also Exhibits 10 and 11 to Fleetwood's Motion for Summary Judgment. 28
:1209610-1

10
Document 156 Filed 11/30/2005 Page 10 of 20

Case 2:04-cv-00161-ROS

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

Based on the Fleetwood and Workhorse warranty coverage terms, each of these alleged defects can clearly be classified as either "Fleetwood-covered items" or "Workhorsecovered items." The following group of Plaintiff's alleged defects fall within the classification of "Workhorse-covered items" because they are all engine, steering, or fuel-related defects: "engine, steering/suspension, dying in flight, stalling in flight, air conditioning compressor, fuel tank, fuel pump, generator hose, serpentine belt, and belt tensioner." Plaintiff contends that these items are at issue here, and that they were either not excluded by Fleetwood's warranty, or that it is unclear which warranty covers them. See Plaintiff's controverting SOF, ¶¶ 13, 15, 17. Despite Plaintiff's attempts to muddy the waters, these were chassis-related items covered by Workhorse's warranty. Coverage is confirmed by Workhorse's VIN Repair History. See Exhibit 5 to Fleetwood's Motion for Summary Judgment. Workhorse effectuated the repairs of these items, and such items are therefore a non-issue as to the resolution of Fleetwood's pending Motion for Summary Judgment. The remaining Fleetwood-related allegations consist of: "interior trim, exterior trim, electrical system, bathroom door, cabinet door, water leak, shower stall, closet door, leaking bedroom slide." B. Fleetwood has fully honored its warranty obligations. 1. There is no evidence that Fleetwood failed to correct a material Fleetwood-warranted defect which it was given a reasonable opportunity to address during the applicable Fleetwood warranty term.

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18 19 20 21 22

LAW OFFICES

In the interest of clarifying the repair history of the subject RV for the Court, Fleetwood has created a Repair Summary to provide the Court with pertinent information 23 regarding the only "Fleetwood-covered items" upon which repairs were attempted, pursuant 24 to Fleetwood's warranty, during Plaintiff's ownership of the RV. See Repair Summary, 25 attached hereto as Exhibit "J". The Repair Summary was compiled based on Fleetwood's 26 review of the work orders (See Work Orders, at FWDR0172-FWDR0144-FWDR0147, 27 attached hereto as Exhibit "K") and warranty claim payment documentation from Fleetwood 28
:1209610-1

11
Document 156 Filed 11/30/2005 Page 11 of 20

Case 2:04-cv-00161-ROS

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

(See Fleetwood "Current Claim Summary," at FW00022-FW00023, and "Claim Line Item History," at FW00024-FW00096, attached hereto as Exhibit "L") and Workhorse (See Workhorse's VIN Repair History, Exhibit 5 to Fleetwood's Motion for Summary Judgment). Based on the records, the first and only repair attempts for five of the "Fleetwoodcovered" items mentioned in the repair documentation, were non-structural repairs conducted after the RV had been driven over 21,200 miles (See Repair Summary items- 11) banging, fender loose; 12) back-up camera goes black; 16) generator; 22) kitchen faucet leak; and 24) city water inlet leak). See Exhibit "J"; see also Exhibit "K", Work Order #16664, dated 9/23/03, at FWDR0144-FWDR0147. These repairs were performed on items that had not been presented to Fleetwood within ten days of the expiration of the 15,000mile warranty period and, as such, were performed as a customer accommodation beyond Fleetwood's obligations under the warranty. See Exhibit 9 to Fleetwood's Motion for Summary Judgment. Therefore, those five items listed above are not relevant to Plaintiff's claims against Fleetwood. That leaves us with twenty-three remaining "Fleetwood-covered" items identified in the records to be addressed (although Plaintiff has not alleged that Fleetwood has failed to remedy ALL of these items). To that end, Fleetwood retained Bryan Gaughan as an expert to inspect the subject RV, and to address all these alleged defects. See Fleetwood's Motion for Summary Judgment, at §I(D); see also Exhibit 12 to Fleetwood's Motion for Summary Judgment. Mr. Gaughan concluded that all of the items listed in the aforementioned Repair Summary were successfully repaired and/or were functioning normally, with only three minor exceptions. See Exhibit 12 to Fleetwood's Motion for Summary Judgment. These exceptions merely require two replacement screws and a drawer adjustment to resolve. Id. Additionally, Mr. Gaughan noted that the generator operated properly, but that it took approximately five seconds to shut down and might need maintenance performed. Id. He did not find the generator to be defective. Id. As previously noted, repairs to the generator were performed after the expiration of the warranty as a customer accommodation and, as :1209610-1 12
Case 2:04-cv-00161-ROS Document 156 Filed 11/30/2005 Page 12 of 20

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LAW OFFICES

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

such, any lingering issue is irrelevant to Fleetwood's Motion for Summary Judgment. Finally, Mr. Gaughan noted that the alleged leak over the driver's seat was a result of Plaintiff's failure to keep up with sealant maintenance. Id. Such maintenance is a customer responsibility under the Fleetwood warranty. See Exhibit 3 to Fleetwood's Motion for Summary judgment. Therefore, any lingering sealant maintenance issue is also irrelevant to Fleetwood's Motion for Summary Judgment. In addition to the twenty-eight "Fleetwood-covered" items mentioned in the repair records, Mr. Gaughan also addressed other items that Plaintiff claimed, during her deposition, to have had problems with (although these items were never mentioned in the repair records). See Exhibit 12 to Fleetwood's Motion for Summary Judgment. Mr. Gaughan specifically inspected these items and determined that they had been repaired and/or were functioning normally. Id. Plaintiff argues that "defects continue to exist," and that "expert testimony is not required to prove a defect." See Plaintiff's Response, at §III(D) and §IV. Plaintiff stopped using the vehicle in February of 2004. See SOF, ¶ 27. She has not inspected the RV since that date. Id. As such, she has no foundation to support any testimony regarding the current condition of the RV, including the existence or non-existence of any alleged defects. Plaintiff has submitted the report of her expert, William Trimmell, in support of her claims that the RV currently suffers from defects, and that those defects have caused the RV to diminish in value. Mr. Trimmell is even further removed than the Plaintiff in this respect, as he has NEVER inspected or even seen the RV. Nevertheless, Mr. Trimmell submits his opinion that the RV currently suffers from defects. Deficiencies of Mr. Trimmell's opinions are discussed in more detail below (See infra, at §III(C). Plaintiff argues that Fleetwood's "real argument here to this end is that Plaintiff needs to identify a precise defect or malfunction and the reason therefore." See Plaintiff's Response, at §IV. Plaintiff cites Nevada Contract Services v. Squirrel Companies, Inc., 119 Nev. 157, 68 P.3d 896, 900 (Nev. 2003), as authority supporting the contention that her testimony alone is sufficient to support her claim. :1209610-1 13
Case 2:04-cv-00161-ROS Document 156 Filed 11/30/2005 Page 13 of 20

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LAW OFFICES

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

A review of Squirrel shows its inapplicability to this case, and exposes Plaintiff's misrepresentation of Fleetwood's argument. That case involved a liquor dispensing system. Id. Although not all the alleged product malfunctions in Squirrel could be reproduced during discovery, the parties agreed as to the existence of some alleged malfunctions. Id. at 898. As such, the only issue considered by the Squirrel Court was the degree of specificity required for Plaintiff to sustain its causation burden when claiming a breach of an express or implied warranty. Id. at 897. Specifically, the question presented to the Court was whether the Plaintiff was required to prove the precise technical cause of the alleged malfunction of the product at issue. Id. As Plaintiff noted, the Court held that a plaintiff is not required to prove the technical cause. Id. Rather, the Court held that a plaintiff must show that a product's malfunction was likely caused by a breach of warranty. Id. The case at bar can clearly be distinguished. In Squirrel, the Court's analysis was based on an assumption that defects were in fact present within the product. As previously noted, the Defendants in that case conceded that there were malfunctioning elements of the product. The dispute in that case was not the existence of defects, it was whether the malfunctions were caused by defects versus misuse. In the case at bar, on the other hand, Fleetwood has not conceded any current defects in the RV. Quite the opposite. Fleetwood is not requesting that Plaintiff present evidence of the "precise technical cause" of the alleged defects. Rather, Plaintiff has failed to produce evidence that any alleged defects are in existence. Fleetwood's duty under the warranty was to repair or replace defects within the 15,000-mile warranty period. Neither Plaintiff, nor her expert, have submitted evidence that Fleetwood has not resolved every defect for which Fleetwood was given notice during that 15,000-mile period. As such, Plaintiff has failed to carry her burden. 2. As previously discussed (See supra §I(A)), the number of times Fleetwood-warranted elements of the coach were subject to repairs is legally and factually irrelevant under the circumstances of this case.

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

LAW OFFICES

Plaintiff grossly overstates Fleetwood's obligations under its Limited Warranty when she asserts that the warranty was breached when the first defect arose. See Plaintiff's 28
:1209610-1

14
Document 156 Filed 11/30/2005 Page 14 of 20

Case 2:04-cv-00161-ROS

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

Response, §III, at pg. 8:13-19. Clearly, as previously discussed, the terms of this fullyintegrated commercial transaction required Fleetwood to repair or replace defective parts, subject to the limitations within its limited warranty. Fleetwood's duty to repair or replace only extended through One-Year/15,000 miles. During that 15,000-mile period, Fleetwood performed pursuant to the terms of the warranty. See supra §II(B)(1). In fact, Fleetwood voluntarily provided Plaintiff with benefits beyond the terms of its warranty by performing goodwill repairs on the RV beyond the 15,000-mile limitation. See id.3 Pursuant to the terms of the subject warranty, the applicable standard to be applied in this case is whether Fleetwood failed to repair or replace a Fleetwood-warranted item that it was given the chance to cure during the 15,000-mile warranty period. See supra §II(B)(1). Ironically, even applying a "reasonable number of repair attempts" standard, the Court can still determine, as a matter of law, that Fleetwood did not breach its Limited Warranty. Again, Fleetwood did not manufacture or warrant the vehicle's chassis. Thus, the alleged chassis defects cannot be considered in determining whether Fleetwood repaired alleged defects within a reasonable number of attempts. Plaintiff brought the motor home to repair facilities on nine occasions over the course of 12 months. However, as explained in Fleetwood's Motion for Summary Judgment, and §II(B)(1) of this Reply, all Fleetwoodwarranted components were successfully repaired. Furthermore, most of the items required only one or two repair attempts, with only two items requiring three attempts. See Id. The position advocated by Plaintiff would lead to ridiculous results as concerns complex products such as motor homes. A consumer could claim the warranty has been breached because he or she took the vehicle in for repairs three or four different times over the course of his first year of ownership, even if those items were all different and all very minor in nature. For example, a loose mirror in January, a wobbly dinette table in May, unglued wallpaper in August, and a damaged blind in December could feasibly lead to a
3

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LAW OFFICES

See also Cippolone v. Liggett Group, Inc., 505 U.S. 504, 525 (1992) ("A manufacturer's liability for breach of an express warranty derives from, and is measured by, the terms of that warranty"); Hasek v. DaimlerChrysler Corp., 319 Ill.App.3d 780, 788 (Ill.App. 2001) ("since express warranties are contractual in nature, the language of the warranty itself is what controls and what dictates the obligations and rights of the various parties.").
:1209610-1

15
Document 156 Filed 11/30/2005 Page 15 of 20

Case 2:04-cv-00161-ROS

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

claim for breach of a limited warranty, under such an untenable standard. Three repair attempts to two items over the course of one year hardly constitutes a failure to repair or replace a defective part to any type of vehicle, let alone a motor home.4 In Hines v. Mercedes-Benz, 358 F.Supp.2d 1222 (N.D. Ga) (in which plaintiff was represented by the same law firm as the Plaintiff in this matter), numerous items were repaired in one attempt (as is the case here); two items (tire pressure monitor and seat back) were repaired in two attempts; and two items (driver's seat and alarm system), required three attempts. Id. at 1231. The Court granted summary judgment in favor of Mercedes, noting: This Court disagrees with Plaintiff that the question of whether repairs were made within a reasonable time always requires a jury determination. Though genuine issues of fact with regard to this question can and do exist, in such a case as this, no reasonable jury could find that Defendant . . . required an unreasonable amount of time to complete the repairs on any of the defects. Id. at 1232. Compared to the automobile in Hines, components in Plaintiff's motor home

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14

LAW OFFICES

appear to have undergone a comparable number of repairs. Therefore, even accepting 15 Plaintiff's improper "repair attempts" standard, this Court should dismiss this case as a 16 matter of law. 17 18 19 20 21 22 23 24 25 26 27 28
It should be noted that, factually, cases involving automobiles are not directly applicable to the resolution of recreational vehicle warranty disputes. Because recreational vehicles are obviously more complex and include far more components than a typical automobile there is a greater likelihood that any given item in a recreational vehicle may need to be repaired. Even the Arizona legislature has recognized this distinction, exempting recreational vehicles from the state's so-called "Lemon Law." A.R.S. § 44-1261(C).
:1209610-1

3.

Plaintiff certainly had the right to drive her motor home approximately 21,000 miles during the first six months of ownership, but she must recognize that this accelerated the expiration of her Fleetwood warranty, even though Fleetwood later voluntarily paid for some out-of-warranty "customer accommodation" repairs.

Plaintiff drove the vehicle over 21,000 miles during the first six months of ownership. Fleetwood's Limited Warranty expired at 15,000 miles. At some time between the repairs conducted on 6/23/03 (mileage was 14,773) and those conducted pursuant to the Workhorse warranty on 8/26/03 (mileage was 20,990), Fleetwood's Limited Warranty
4

16
Document 156 Filed 11/30/2005 Page 16 of 20

Case 2:04-cv-00161-ROS

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

expired. Therefore, some of the repairs were performed as a customer accommodation (repairs conducted beginning 9/23/03; mileage was 21,218), and not pursuant to the terms of the warranty. See supra §II(B)(3); see also Exhibit 9 to Fleetwood's Motion for Summary Judgment. Plaintiff received the benefit of her bargain with Fleetwood. Fleetwood kept its promise (and even went beyond) to take care of its product free of charge during the first 15,000 miles. See id. Plaintiff simply accelerated the expiration period of the warranty by putting a relatively high number of miles on the coach in a relatively short period of time. The fact that it took some time for Fleetwood to correct alleged defects during the warranty period does not constitute a breach. III. FLEETWOOD'S LIMITED WRITTEN WARRANTY DIRECTLY GOVERNS THE DAMAGES ELEMENTS OF PLAINTIFF'S CLAIMS, WHICH ALSO FAIL AS A MATTER OF LAW. A. Even if Plaintiff were to prove a simple breach of Fleetwood's limited written warranty, it would not entitle her to incidental and consequential damages, or any damages beyond the terms of the warranty itself.

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LAW OFFICES

Plaintiff argues that her use during the first year of ownership was impaired over 50% due to "traveling for, waiting for, and suffering repairs," and that amount of time was unreasonable. As previously discussed, Plaintiff drove the vehicle over 21,000 miles during the first six months of ownership. Fleetwood's Limited Warranty expired at 15,000 miles. Based on Fleetwood's review of the work orders, it has determined that a mere 25 "down days" were attributable to Fleetwood-warranted repairs during the warranty period. See Exhibit "J"; see also Exhibit "K"; Exhibit 5 to Fleetwood's Motion for Summary Judgment. Quite frankly, even a portion of those were arguably attributable to Workhorsewarranted items because the June 3, 2003 repair visit included a mixture of Fleetwood and Workhorse items. Further, only three out of the ten items that Fleetwood repaired postexpiration of the 15,000 mile warranty period, were items that had been previously worked on during the warranty period. See Exhibit "K", Work Order #16664, dated 9/23/03, at FWDR0144-FWDR0147. The remaining seven items were presented for the first time after warranty expiration.
:1209610-1

17
Document 156 Filed 11/30/2005 Page 17 of 20

Case 2:04-cv-00161-ROS

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

In light of these facts, the vast majority of Plaintiff's alleged "down-days" are not attributable to Fleetwood-warranted items. See Exhibit 6 to Fleetwood's Motion for

Summary Judgment; see also Correspondence authored by Plaintiff, dated September 3, 2003, attached hereto as Exhibit "M". Rather, these "down-days" are attributable either to repairs for Workhorse-warranted items, or to repairs performed by Fleetwood as a customer accommodation. Fleetwood should not be penalized for exceeding its duties pursuant to the terms of the warranty. Nevertheless, any attempt by Plaintiff to increase her alleged damages by making a claim for incidental and consequential damages should be rejected as a matter of law. Pursuant to Nevada law (See N.R.S. 104.2719(3)), Plaintiff is not entitled to any incidental or consequential damages under the terms of the Fleetwood warranty. In the section labeled WHAT IS NOT COVERED BY THIS WARRANTY, Fleetwood's Limited Warranty, stated: This warranty does not cover: Transportation to and from dealer or Fleetwood Service Center location, loss of time, inconvenience, commercial loss, loss of use, towing charges, bus fares, vehicle rental, incidental charges such as telephone calls or hotel bills, or other incidental or consequential damages. Plaintiff argues that Fleetwood's Limited Warranty failed of its essential purpose, thus all coverage disclaimers are invalid. This is a losing argument, both legally and factually. Fleetwood honored its warranty. As previously discussed, Fleetwood's expert has thoroughly inspected the subject RV and noted only a few extremely minor issues, along with one customer maintenance issue. See supra §II(B)(1). Plaintiff, on the other hand, has presented absolutely no evidence that any defects alleged in her Complaint, or during her deposition, are currently present. Accordingly, incidental and consequential damages are not recoverable. See Fleetwood's Motion for Summary Judgment § II(E). B. For the reasons addressed above, Plaintiff has not shown that the Fleetwood warranty "failed of its essential purpose," which would be required for the Court to even consider allowing a damages claim beyond the terms of the Fleetwood limited written warranty.

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LAW OFFICES

Fleetwood successfully repaired all of the allegedly defective items covered under
:1209610-1

18
Document 156 Filed 11/30/2005 Page 18 of 20

Case 2:04-cv-00161-ROS

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

the warranty. Even during his inspection (after the expiration of the non-structural warranty term), Mr. Gaughan noted only a three minor issues. Plaintiff must be held to the terms of Fleetwood's Limited Warranty and precluded from recovering any incidental and consequential damages. See Anderson v. Newmar, 319 F. Supp.2d 943, 948-949 (D. Minn. 2004) ("There is simply no evidence that the repair or replacement provisions in the warranties for Anderson's motor home failed of their essential purpose and thus no reason to invalidate the accompanying limitations on consequential damages."); Three-Seventy Leasing Corp. v. Ampex Corp., 528 F.2d 993, 998 (5th Cir. 1976) (upholding contractual limitations on damages under the U.C.C.); supra. C. Plaintiff's "diminution of value" argument is meaningless, especially in view of the fact that her expert has never even seen the motor home.

T HE C AVANAGH L AW F IRM , P.A.

11 12

The burden of establishing damages lies on the injured party. Central Bit Supply, Inc. v. Waldrop Drilling & Pump, Inc., 102 Nev. 139, 142, 717 P.2d 35, 37 (Nev. 1986); 13 Dinwiddie Construction Co. v. Campbell, 81 Nev. 469, 406 P.2d 294 (Nev. 1965). Plaintiff 14 has failed to present evidence sufficient to support a finding that Fleetwood breached its 15 Limited Warranty. 16 Plaintiff has submitted the report of her expert, William Trimmell, as "evidence" 17 supporting her damages claim. 18 Judgment. Mr. Trimmell's report fails to establish a claim for diminished value for the 19 following reasons: 20 21 22 23 24 25 26 27 28
:1209610-1

LAW OFFICES

See Exhibit 15 to Fleetwood's Motion for Summary

1)

His opinions were based solely on his review of the purchase documents and repair history of the vehicle, and Plaintiff's allegations of defects as relayed to him during an interview. There was never an objective analysis performed. He never inspected the vehicle and therefore has no foundation upon which to opine regarding the current status of any alleged defects. He failed to attribute proportions of the diminished value figure to Fleetwood-warranted items, versus Workhorse-warranted items. His diminished value figure was calculated as the difference between the top retail value of the RV today and his "estimated present day value" of the RV. N.R.S. 104.2714 states that such a calculation is to be made using values at the time and place of acceptance. Therefore, he miscalculated the figure. 19
Document 156 Filed 11/30/2005 Page 19 of 20

2) 3)

Case 2:04-cv-00161-ROS

1 2 3 4 5 6 7 8 9 10
1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

Mr. Trimmell's opinions are so lacking in foundation that they could not possibly be admitted as evidence upon which a jury could award damages for an alleged diminished value. Plaintiff likewise cannot present testimony regarding the repair status of the alleged defects because she too has no information to offer regarding the vehicle's current condition. As such, Plaintiff has failed to present any evidence regarding the current status of the allegedly defective items. She cannot possibly meet her burden of proof regarding damages. IV. CONCLUSION. WHEREFORE, in view of the foregoing, Fleetwood respectfully requests that the Court grant summary judgment in its favor. RESPECTFULLY SUBMITTED this 30th day of November, 2005. THE CAVANAGH LAW FIRM, P.A. By: s/Kerry M. Griggs Kerry M. Griggs Patrick G. Rowe Attorneys for Defendant Fleetwood CERTIFICATE OF SERVICE I hereby certify that on November 30, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF Registrants: Marshall Meyers, Esq. Krohn & Moss, Ltd. 111 West Monroe, Suite 711 Phoenix, AZ 85003 Attorneys for Plaintiff Negatu Molla David Williams BOWMAN AND BROOKE, LLP 2901 N. Central Avenue, Suite 1600 Phoenix, AZ 85012-2761 Attorneys for Defendant Workhorse Custom Chassis By: COURTESY COPY hand delivered this same day to: The Honorable Roslyn O. Silver U.S. District Court, District of Arizona
:1209610-1

T HE C AVANAGH L AW F IRM , P.A.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LAW OFFICES

s/Jacque Andersen

20
Document 156 Filed 11/30/2005 Page 20 of 20

Case 2:04-cv-00161-ROS