Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Jennifer Basola (#23158) KROHN & MOSS, LTD. 5055 Wilshire Blvd., Suite 300 Los Angeles, CA 90036 (323) 988-2400 (866) 385-5215 (facsimile) Attorney for Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA LANE SENNETT ) Case No. CV 04-0161 PHX ROS ) Plaintiff, ) vs. ) PLAINTIFF'S RESPONSE TO ) DEFENDANT'S MOTIONS IN WORKHORSE CUSTOM CHASSIS, ) LIMINE RE REFERENCE TO LLC, ) VIOLATIONS OF 16 C.F.R. §§ 700.5 Defendant. ) AND 702.3 ) ) (Assigned to Honorable Roslyn O. Silver) ) ) I. PLAINTIFF HAS THE UNFETTERED RIGHT TO TESTIFY AS TO HIS VALUATION OF THE SUBJECT MOTOR HOME DURING THE RELEVANT TIME BECAUSE HE IS/WAS THE OWNER OF THE PROPERTY. Workhorse seems to acquiesce diminished value is the standard remedy for a

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warranty breach but also seems to argue this is exclusively a Code remedy inapplicable to this claim. Exactly where the diminished value arises from is inconsequential as diminished value is also the standard measure outside the Code. Isenberg v. Lemon, 84

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Ariz. 340; 327 P.2d 1016 (1958). Plaintiff as the owner of the Motor Home at all relevant times is competent to testify as to the value of the same at all relevant times even if Plaintiff has "no expertise" in appraising value of automobiles. City of Elko v. Zillich, 683 P.2d 5 (holding "[t]he general rule is that a property owner, because of his

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ownership, is presumed to have special knowledge of the property and may testify as to its value."); Lucini-Parish Ins., Inc. v. Buck, 836 P.2d 627 (holding "[o]wner may testify as to value of his property.); Jowdy v. Guerin, 457 P.2d 745 (holding "[o]wner of property can testify concerning value of such property even if owner is not qualified as an expert, and fact that owner is not expert goes to weight of evidence and not competency); United California Bank v. Prudential Ins. Co. of America, 681 P.2d 390 (holding "[o]wner of property has, by definition, knowledge of components of value that are useful in ascertaining value, and owner, no less than "expert" can base his opinion of value on that knowledge"); Board of Regents of University, etc. v. Canon, 342 P.2d. 207 (holding "[i]n condemnation proceedings, owner of property in question is always competent to testify as to its value, and any explanation of how he arrived at that value merely goes to weight of his evidence); Ricker v. Hopkins Chevrolet, Inc., 147 Ga. App. 358 (1978); Burch v. Lawrence, 150 Ga. App. 351, 258 S.E.2d 35 (1979) (weight and credibility of lay person opinion testimony is for the jury to decide). See also Story Parchment Paper Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (1931); Acheson

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v. Shafter, 490 P.2d 832 (Ariz. 1971); Town and Country Chrysler Plymouth v. Porter, 464 P.2d 815 (Ariz.App. 1970) F.R.E. 602 Cmt. 5; F.R.E. 701. In making the diminution in value assessment, Plaintiff need not be mathematically precise.

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[A]lthough damages may not be calculable with mathematical exactitude, so long as the plaintiff introduces some evidence which is sufficient to allow a reasonable estimate of damages, it is incumbent upon the trier of fact to determine a monetary award which will adequately compensate the plaintiff. The rule which precludes the recovery of speculative

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damages applies only where the fact of damages is uncertain, and not where the amount of damages is uncertain. Great West Food Packers, Inc. v. Longmont Foods Co., 636 P.2d 1331, 1333 Colo.App., 1981 (emphasis added) (citations omitted). Madisons Chevrolet, Inc. v Donald, 109 Ariz. 100 (AZ 1973); Story Parchment Paper Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (1931). Mathematical certainty as to amount of damages is not required because mathematical certainty as to the amount of damages is not possible. The valuation of a promised performance is far from a simple matter, both because the concept of value is itself variable and because the performances that may be promised are capable of endless variety. As used [to calculate damages], the value of a promised performance or other subject matter is the amount of money that can be obtained or must be given in exchange therefore by bargaining. This amount is not single, definite, or unchangeable. It varies with the persons who bargain and with the time, place, and circumstances under which they bargain. The subject matter to be valued may be one the like of which is a common subject of exchange or one that is not. There may be an established market place for the purpose and sale of such a commodity or there may be none. The amount of money that can be obtained in exchange by a seller is not identical with the amount that must be paid by one who wishes to buy. A. Corbin, Corbin on Contracts §1004, 38-39 (1964). Part of the reason diminution in value is a difficult concept to make concrete is the fact "value" is undefined by the Code under this particular circumstance. As one court stated

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There is no code definition of value applicable to [section 2714(2)]. The general definition of value in [section] 1201(44) obviously has no relevance here since it looks to the characteristics of an entirely different transaction. The value criterion in [section 2-714(2)] is confusing because it serves two very different functions. One use of value is to measure the utility of the defective goods received. Value also serves

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to define the other component in the compensation equation, the value of the goods as warranted with which the goods as delivered are to be compared. Carlson v. Rysavy, 262 N.W.2d 27, 30-31 (S.D. 1978). Certainly, if the Code has not provided a concrete definition for "value," courts would be hesitant to impose such a requirement on a plaintiff. Cognizant of the abstract nature of this remedy, it is the policy of courts to allow "a full, rather than a restricted, recovery" when a warranty has been breached. Warren v. Guttanit, Inc., 317 S.E.2d 5 (N.C. App.1984). The rationale here is derived from the very nature of a warranty. Thus, if Plaintiff proves breach, but not damages with the requisite level of specificity (which is virtually none), Medasys Acquisition Corp. v. SDMS, P.C. 203 Ariz. 420, 55 P.3d 763 (Ariz. 2002) (construing, "broadly the `actual damages' needed to support [an] award as including the alteration of one's position to one's detriment), Plaintiff would still be entitled to "nominal damages" as the concept of nominal damages is for this precise reason. See 9th Cir. Model Instruction 7.6. For these reasons, Plaintiff prays this Honorable Court deny Workhorse's Motion in

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Limine on this issue.
RESPECTFULLY SUBMITTED on this 19th day of September, 2006.

By: _s/Jennifer Basola_____ Jennifer Basola KROHN & MOSS, LTD. 111 West Monroe, 711 Phoenix, AZ 85003 Attorney for Plaintiff(s) Filed on this 19th day of September, 2006, with:

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United States District Court CM/ECF system Copy sent via US mail on this 19th day of September, 2006, to: Hon. Roslyn O. Silver United States District Court, District of Arizona Sandra Day O'Connor U.S. Courthouse 401 West Washington Street Phoenix AZ 85003 Copy sent via US mail this 19th day of September, 2006 to: Mr. Negatu Molla Attorney Bowman and Brooke, L.L.P. 2901 North Central Avenue, Suite 1600 Phoenix AZ 85012-2761 __s/Cathy Bopp_______ Cathy Bopp

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