Judge: Anne Richardson, Case: 20STCV41519, Date: 2023-09-14 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 20STCV41519    Hearing Date: February 9, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings Framing Motion

Plaintiffs Ian Zachary Botnick, Candy Michelle Botnick, and Mary Jones sued Defendants BMW of North America, LLC (BMW) and Does 1 through 10 pursuant to an October 29, 2022 Complaint alleging claims of (1) Violation of Song-Beverly Act – Breach of Express Warranty, (2) Violation of Song-Beverly Act – Breach of Implied Warranty, and (3) Violation of Song-Beverly Act Section 1793.2(b).

Motion Before the Court

On May 2, 2023, the Court ruled on a motion for summary judgment or adjudication filed by BMW against the Complaint’s three causes of action, granting the motion as to the latter two claims, but denying as to the first cause of action.

On October 20, 2023, BMW filed a renewed motion for summary judgment of the Complaint’s sole operative claim: the first cause of action for Violation of Song-Beverly Act – Breach of Express Warranty (renewed MSJ). The motion is premised on new evidence upon which BMW seeks a renewed determination regarding summary judgment of the breach of express warranty claim.

On November 2, 2023, Plaintiffs filed a motion for leave to amend the Complaint to add two new claims to the pleadings. On December 27, 2023, BMW opposed that motion, and on January 3, 2024, Plaintiffs replied before the Court granted the motion on January 10, 2024.

On January 10, 2024, Plaintiffs filed their First Amended Complaint (FAC).

On January 26, 2024, Plaintiffs opposed the renewed MSJ.

On January 31, 2024, BMW replied to the opposition.

BMW’s renewed MSJ is now before the Court.

Evidentiary Objections

In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review. (Code Civ. Proc., § 437c, subd. (q).) Evidentiary objections not made either in writing or orally shall be deemed waived. (Code Civ. Proc., § 437c, subd. (b).)

Reply Objections to Opposition Evidence

Objections: All OVERRULED as not material to disposition of motion.

Motion for Summary Judgment or Adjudication

Legal Standard

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact for trial or that the moving party is entitled to a judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c).) A party may also seek summary adjudication of select causes of action, affirmative defenses, claims for damages, or issues of duty, which may be made by a standalone motion or as an alternative to a motion for summary judgment and proceeds in all procedural respects like a motion for summary judgment, but which must completely dispose of the challenged cause of action, affirmative defense, claim for damages, or issue of duty. (Code Civ. Proc., § 437c, subds. (f)(1)-(2), (t).) The moving party bears the initial burden of production to make prima facie showing no triable material fact issues. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) This burden on summary judgment or adjudication “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Id. at p. 850, fn. 11.) If the moving party meets this burden, the burden shifts to the opposing party to make a rebuttal prima facie showing that a triable issue of material fact exists. (Id. at p. 849.) “[I]n ruling on motions for summary judgment courts are to ‘“liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”’ [Citations].” (Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 760.)

I.

Complaint, First Cause of Action, Violation of Song-Beverly Act – Breach of Express Warranty: DENIED; Alternatively, MOOT.

The Court DENIES summary judgment.

First, “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) Here, the Complaint’s first cause of action does not limit itself to express warranty relief pursuant to Civil Code section 1793.2, instead seeking relief pursuant to “Civil Code sections 1790 et seq.” (Complaint, ¶ 19, italics omitted.) Relief pursuant to Civil Code section 1795.5 for breach of express warranties connected to used vehicles is therefore within the scope of the first cause of action, a conclusion that is logically sound where the Complaint itself recognizes that the Vehicle was purchased used. (See Complaint, ¶ 8.) BMW’s renewed MSJ challenges the Complaint’s first cause of action only insofar as it alleges a breach of express warranty for a new vehicle under the SBA, not for a used vehicle under the SBA. (See Mot., pp. 6-7 [only two references to Civ. Code § 1795.5 or similar and failing to make argument for no breach of used vehicle express warranty].) The motion is thus fatally limited (Code Civ. Proc., § 437c, subd. (f)(1)), something noted in passing by the Court in its May 2, 2023 order (5/2/23 Minutes, p. 6). Moreover, while California courts interpreted now-superseded California law as permitting summary adjudication of alternative bases for a cause of action pled in a single count (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855), those decisions came prior to a modification to the statutory scheme, which now provides that “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty” (Code Civ. Proc., § 437c, subd. (f)(1)). (See Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1094, fn. 2 [questioning application of Lilienthal in light of practical challenges and changes to the statutory scheme re: disposing of entire cause of action, defense, claim of damages, or duty].)

While the above basis is dispositive, the Court notes two other flaws in the motion. First, “a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Code Civ. Proc., § 437c, subd. (f)(2).) Here, on May 2, 2023, the Court denied summary adjudication of the Complaint’s first cause of action in part because BMW had failed to attach a declaration showing that BMW has no relationship with CarMax. (5/2/23 Minutes, pp. 5-6.) BMW now brings this renewed MSJ on the ground that BMW now presents new evidence that conclusively establishes that it has no business relationship at all with CarMax. (See, e.g., Mot., p. 2, Notice, ¶¶ (1)-(3).) However, the motion does not properly explain why these declarations were not attached to BMW’s February 16, 2023 motion for summary judgment or adjudication. (See Mot., pp. 2-3 [merely arguing that Court has discretion to hear this motion but not addressing failure to attach evidence to prior motion].) The renewed MSJ therefore does not satisfy subdivision (f)(2).

The Court finds it important to note that even if evidence to the above effect had been attached to BMW’s February 16, 2023 motion, the Court would have still denied that motion for the reason discussed in the preceding paragraph, a fact specifically in the Court’s May 2, 2023 order. (See Complaint, ¶¶ 8, 19; 5/2/23 Minutes, p. 6 [“the first cause of action does not limit itself to express warranty relief pursuant to Civil code section 1793.2”].)

Last, in the alternative, the Court determines that BMW’s renewed motion was mooted by Plaintiff’s filing of a FAC on January 10, 2024. (See Perry v. Atkinson (1987) 195 Cal.App.3d 14, 17-18 [finding “court improperly granted summary adjudication as to the fraud and deceit cause of action in [the] first amended complaint” where “[t]he record reflect[ed] the court granted [plaintiff] leave to file [a] second amended complaint with respect to her causes of action for fraud and deceit and intentional infliction of emotional distress,” and once “[plaintiff] did so, that complaint superseded her first amended complaint,” making the trial court’s “summary adjudication order [re: the first amended complaint’s claims for fraud and deceit] … void”].) 

Conclusion

Defendant BMW of North America, LLC’s Renewed Motion for Summary Judgment/Adjudication Regarding Plaintiff’s First Cause of Action for Breach of Express Warranty Under the Song-Beverly Act is DENIED.

In the alternative, the Court determines the motion is MOOT.