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Full Opinion
I concur for the following reasons:
The trial court found the FMC form contract clauses disclaiming warranties and limiting damages were unconscionable. The issue on appeal is whether this finding is supported by substantial evidence. If the trial court’s application of the doctrine of unconscionability is supported by substantial evidence, it was correct in keeping the reverse side of the contract from the jury. (See Civ. Code, § 1670.5 and comments.)
Facts fly as “thick as autumnal leaves that strow the brooks of Vallombrosa,” in support of the trial court’s conclusion these contract clauses were oppressive, contrary to oral representations made to induce the purchase, and unreasonably favorable to the party with a superior bargaining position. No experienced farmer would spend $32,000 for equipment which could not process his tomatoes before they rot and no fair and honest merchant would sell such equipment with representations negated in its own sales contract.
A petition for a rehearing was denied September 24, 1982, and appellant’s petition for a hearing by the Supreme Court was denied December 15, 1982. Richardson, J., was of the opinion that the petition should be granted.
