Judge Bruce G. Iwasaki, Case 20STCV29081 2023-05-16 Tentative Ruling

Tentative Ruling: Summary adjudication is granted on the first, second, third, and fourth causes of action and denied on the fifth cause of action

This is an action brought under the Song-Beverly Act by Plaintiff Milton Aparicio (Plaintiff or Aparicio) against Defendants Mercedes-Benz USA, LLC (Mercedes-Benz) and Keyes European (Keyes) (collectively, “Defendants”) alleging defects in the 2019 Mercedes-Benz (Vehicle) he leased from Keyes. The Complaint sets forth claims for (1) violation of Civil Code section 1793.2(d), (2) violation of Civil Code section 1793.2(b), (3) violation of Civil Code section 1793.2(a)(3), (4) breach of express written warranty, and (5) breach of implied warranty.

Defendants move for summary judgment or, alternatively, adjudication of all claims. Defendants assert (1) Plaintiff cannot establish any of her causes of action because Mercedes-Benz made a compliant, pre-complaint offer to repurchase Plaintiff’s vehicle and (2) all of Plaintiff’s causes of action fail because he has not suffered damages. Defendants also assert (1) Plaintiff’s second cause of action fails because no single visit lasted more than 30 days and (2) Plaintiff’s third cause of action fails because there is no evidence of insufficient parts and service literature during his repair history.

Plaintiff opposes the Motion, contending that the offer was not valid, prompt, or consistent with the Song-Beverly Act’s requirements because he could not elect a remedy. He also asserts that Defendants acted willfully. Summary adjudication for the second cause of action is improper because defendants do not address the “reasonable time” requirement of Civil Code section 1793.2(b). Summary adjudication for the implied warranty is improper because Defendants did not address it. Plaintiff does not oppose summary adjudication to the third cause of action.

Defendants reply, reiterating many of the same arguments. Defendants add that because Mercedes-Benz made a valid, pre-suit repurchase offer that complied with the Song-Beverly Act, Plaintiff cannot recover for breach of implied warranty.

Plaintiff requests judicial notice of the unpublished opinion Kadkhoda v. Daimler Vehicle Innovations U.S., LLC, No. B293587 (Cal. Ct. App. Oct. 27, 2020). Neither a party nor the Court may cite or rely upon an unpublished California Court of Appeal opinion. (Cal. Rules of Court, rule 8.1115.) The request for judicial notice is denied.

Plaintiff’s objection to the Cormier declaration is overruled because Defendants later filed an executed declaration.

Plaintiff’s objections to the Gurocak declaration are overruled. The declaration established sufficient foundation to authenticate both the February 19, 2020 letter, and the email exchange between Plaintiff and Mercedes-Benz. Plaintiff’s hearsay objection is also overruled. No specific passages are targeted, but most of the portions are verbal acts, questions, or directives, and thus are not statements of fact offered for the truth of those facts. Plaintiff’s email that he was no longer interested in pursuing a remedy for the vehicle’s alleged defects is admissible under Evidence Code section 1220. The other grounds for objections also lack merit.

Defendants’ objections to the Pardo declaration are overruled. An adverse party’s deposition testimony may be submitted in a motion for summary judgment.

An opposing Separate Statement must comply with the requirements of California Rule of Court, rule 3.1350(e), (f) and (h). The opposing Separate Statement must indicate if a fact is unequivocally disputed and, if so, state the opposing fact with a citation to admissible evidence. The rules do not permit a fact to be “disputed in part,” nor is argument permitted in an opposing Separate Statement. (Page v. Miracosta Community College District (2009) 180 Cal.App.4th 471, 479, fn. 2 [arguments in Separate Statement are ineffective in raising triable issues]; Collins v. Hertz Corp. (2006), 144 Cal.App.4th 64, 73.) If a party opposing summary judgment fails to comply with the requirements in a separate statement, the court, in its discretion, may grant the motion. (Code Civ. Proc., § 437c,¿subd. (b)(3).)

Plaintiff’s counsel does not unequivocally state whether each fact is disputed and instead makes evidentiary objections, which is not the proper subject of a separate statement. For example, in Separate Statement 3, counsel states, “Disputed as to declarant’s characterization of the visit beyond his recitation of a record authenticated in his capacity as a custodian.” The objections do not raise issues of fact.

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c,¿subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp.¿(1992) 7 Cal.App.4th 1110, 1119.)

The moving party has the initial burden of production to make¿a prima facie¿showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make¿a prima facie¿showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c,¿subd. (p)(2).) A defendant moving for summary judgment may meet its initial burden by proving that for each cause of action alleged, Plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)

“ ‘A plaintiff pursuing an action under the [Song-Beverly] Act has the burden to prove that (1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element).’ ” (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 152.)

If the manufacturer is unable to repair the vehicle to conform to the applicable express warranty after a reasonable number of attempts, “the manufacturer shall either promptly replace the new motor vehicle in accordance with subparagraph (A) or promptly make restitution to the buyer in accordance with subparagraph (B). However, the buyer shall be free to elect restitution in lieu of replacement, and in no event shall the buyer be required by the manufacturer to accept a replacement vehicle." (Civ. Code, § 1793.2, subd. (d)(2).)

“[I]n order to prevail on [] Song-Beverly Act claims against [defendant], Plaintiff must prove that (1) his vehicle had defects that affected the use, value or safety of the vehicle that [defendant] could not repair to conform to the applicable warranty after a reasonable number of repair attempts, and (2) assuming Plaintiff can prove his vehicle was not repaired after a reasonable number of repair attempts, that [defendant] did not promptly offer to repurchase or replace Plaintiff's vehicle. (Gonzalez v. Ford Motor Co. (C.D. Cal. Oct. 23, 2019, LA CV 19-00652 PA (ASx)) 2019 WL 6122554 at p. *5; See generally Civ. Code §§ 1793.2(d)(2)(A)–(C).)

Defendants contend that Aparicio cannot meet the second element because Mercedes-Benz promptly offered to repurchase the vehicle. They rely on Dominguez v. American Suzuki Motor Corp. (2008) 160 Cal.App.4th 59, 60, which held that the manufacturer complied with Song-Beverly obligations based on pre-suit repurchase offer and was therefore entitled to summary judgment and noting that plaintiff filed suit solely to recover the civil penalty and/or attorney fees.

In Dominguez, the plaintiff requested replacement of, or restitution for, a motorcycle due to mechanical problems. (Dominguez, supra, 160 Cal.App.4th at p. 55.) One week later, Suzuki responded and requested that the motorcycle be brought in and inspected. After being unable to replicate the problem, Suzuki sent a letter agreeing to repay the full purchase price. After discussions with counsel, Suzuki sent a second letter, which acknowledged plaintiff’s counsel’s request for attorney’s fees, and provided an updated settlement figure with reduced attorney’s fees. Several weeks later, Suzuki sent a third letter reiterating the proposed total figure, followed by plaintiff filing the lawsuit. (Id. at p. 56.)

Suzuki moved for summary judgment; the trial court denied the motion. The court of appeal reversed, noting that the suit was about the recovery of civil penalties and attorney’s fees as “[t]here was no evidence [manufacturer] failed to comply” with the Song-Beverly Act. (Dominguez, supra, 160 Cal.App.4th at p. 59.) The offer was also “prompt” in part because section 1793.2, subdivision (d)(1) did not require a manufacturer to repurchase the vehicle at a specified time. (Id. at p. 60.) The Dominguez court indicated there was no evidence that the manufacturer acted willfully, considering that only six weeks elapsed between the time of the requested replacement and when the manufacturer made its first offer to repurchase the motorcycle. (Id. at pp. 59-60.) Moreover, the buyer had not complained that the number of attempts to repair the vehicle (at least five) was unreasonable. (Id. at p. 59.)

Here, on February 4, 2020, Plaintiff Aparicio called Mercedes-Benz to request a repurchase of the vehicle. (Gurocak Decl. ¶ 5.)[1] Two weeks later, on February 19, Mercedes-Benz made an offer to repurchase and advised Aparicio to have available a copy of the vehicle’s current registration and purchase contract for Stericycle Expert Solutions (Stericycle), Mercedes-Benz’s transfer agent. The letter stated that Mercedes-Benz “has reviewed the service history and agrees to repurchase the subject vehicle…. [Defendant’s transfer agent] will prepare a repurchase offer in accordance with your state lemon law statutes and handle the transaction moving forward….. ¶ Our goal is to complete this process including the surrender of your vehicle as soon as possible.” (Id. at ¶ 7, Ex. I.)

Two days later, on February 21, Stericycle contacted Aparicio and requested more information to process the repurchase. (Id. at 9, Ex. J.) On February 25, after receiving no response, Stericycle contacted Aparicio again and requested more information. (Ibid.) After no response, on March 4, Stericycle asked if Plaintiff would like to proceed with the repurchase. (Ibid.) From March 4, 2020, to April 16, 2020, Stericycle called Plaintiff numerous times at the phone number he provided to Mercedes-Benz and left multiple voicemails but did not receive a call or email back from Plaintiff. (Ibid.) On May 6, 2020, Stericycle emailed Plaintiff, and this time, Plaintiff responded by email, “I am no longer interested. I will be very busy the next few days will call you, next week.” (Ibid; capitalization omitted.) On May 7, 2020, Stericycle followed up by email, and Plaintiff responded by email, stating, “No longer interested.” (Ibid.) On August 3, 2020, Aparicio filed suit. (Cowden Decl. ¶ 2, Ex. A.)

Before requesting that Mercedes-Benz repurchase the vehicle, Aparicio brought the vehicle for repairs twice.

Defendants contend that Mercedes-Benz’s buyback offer was prompt after Aparicio contacted Mercedes-Benz requesting a repurchase on February 4, 2020. The undisputed evidence supports this. On February 19, 2020, Mercedes-Benz’s letter unequivocally stated that it would repurchase the subject vehicle. (Gurocak Decl. ¶ 7, Ex. I.) A buyback offer tendered within 14 days of the buyer's request is prompt as a matter of law. (Dominguez, supra, 160 Cal.App.4th at p. 60 [finding six weeks between the demand and offer to be prompt]; Gonzalez, supra, 2019 WL 6122554, at p. *6 [finding an offer to be prompt when made within 50 days of plaintiff’s phone call expressing frustrations with the vehicle].)

In opposition to the motion, Plaintiff Aparicio does not even discuss Dominguez. Instead, he argues that Mercedes-Benz’s offer was not valid, Mercedes-Benz forced a remedy, and Mercedes-Benz did not act promptly.

Plaintiff cites general contract law principles in support of his assertion that the February 19, 2020, letter is not a valid offer. (Opposition, pgs. 3-5.) However, merely because information must be obtained from the offeree or third parties does not render the offer untimely or invalid. (Gonzalez, supra, 2019 WL 6122554, at p. *6 [a temporary offer letter informing the customer that his vehicle qualified for replacement or repurchase and stating the negative equity on a trade-in vehicle would be deducted from any downpayments did not bar finding of promptness].) Here, Plaintiff delayed in responding to Mercedes-Benz’s efforts to move forward with the repurchase. Aparicio failed to provide Mercedes-Benz with the requested information and did not respond to emails and phone calls from Stericycle, the transfer agent. Finally, in May 2020, three months after Defendant’s repurchase offer, Aparicio emailed: “I am no longer interested.”

Plaintiff asserts that the February 19, 2020, letter gives him repurchase as the only option while he stated, in early February 2020, that he wanted another vehicle. (Decl. Pardo ¶ 4, Ex. 2.) First, no communication from Plaintiff makes at all clear that he demanded a replacement vehicle. Indeed, his memory on the subject is unreliable. Second, it cannot be reasonably inferred from the February 19, 2020, letter that Mercedes-Benz was only offering Plaintiff the repurchase option. Third, any miscommunication was due to Plaintiff’s lack of response. He did not reply that he wished for a replacement rather than repurchase. Aparicio’s only responsive communication was to declare his lack of interest in pursuing a pre-litigation solution.

Plaintiff argues that Mercedes-Benz’s duty to make prompt restitution (or replacement) is affirmative, arises at the time of failure to conform within a reasonable number of attempts, and does not depend on a request from the consumer. He primarily relies on Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334 (Santana), Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785 (Robertson), and Lukather v. General Motors LLC (2010) 181 Cal.App.4th 1041 (Lukather).

In Santana, the plaintiff alleged a willful violation of the Song-Beverly Act because the repair to the vehicle was “intentionally inadequate”– while the manufacturer made a repair to the bridge operation of the vehicle, this same repair would later cause a new problem with the fuel pump. (Santana, supra, 56 Cal.App.5th at p. 347.) In addition, the manufacturer argued that it refused the plaintiff’s request to repurchase the vehicle in good faith because the plaintiff made the request after expiration of the warranty. However, the appellate court noted that the “manufacturer’s duty to repurchase a vehicle does not depend on a consumer’s request, but instead arises as soon as the manufacturer fails to comply with the warranty within a reasonable time.” (Ibid.) In other words, the duty to repurchase the vehicle arose when the manufacturer failed to comply with the warranty, which stemmed from the earlier obligation to fix the bridge operation issue. (Id. at p. 347-348.)

The issue in this case is not that Mercedes-Benz failed to address an earlier issue such that their obligations to repurchase the vehicle was triggered. Rather, Mercedes-Benz promptly responded with a repurchase offer after Aparicio requested it. Moreover, Plaintiff brought the vehicle in for repair only twice. Thus, Santana is inapposite.

Plaintiff cites Robertson for the proposition that a second visit can trigger the manufacturer’s obligation to repurchase or replace the vehicle. (Robertson, supra, 56 Cal.App.5th at 799.) However, it does not follow from Robertson that a second visit triggers the manufacturer’s obligation in any situation.

Plaintiff cites Lukather for the proposition that a month is more than sufficient time to repurchase or replace a vehicle. However, Lukather is inapposite. Lukather requested that GM repurchase his vehicle on March 8, 2007. (Lukather, supra, 181 Cal.App.4th 1041 at 1044.) On several occasions after making this request, Lukather was told by GM that he “would not be able” to get his money back. (Id. at 1047.) Lukather was then told “it would take several months for GM to decide whether to buy back” his vehicle. (Id.) On April 12, 2007, after GM denied Lukather's repurchase request several times, Lukather filed a complaint against GM. (Id.) Six weeks after the lawsuit was filed, GM “made a repurchase offer.” (Id. at 1048.) The court determined that GM “did not act promptly in offering to repurchase the Cadillac,” where GM waited 78 days to make a repurchase or replace offer, and only made the offer after Lukather filed a lawsuit. (Id.) The court took issue with GM's attempts to persuade Lukather to take a replacement vehicle rather than the repurchase he requested, and found GM “stalled and frustrated Lukather's attempts to obtain restitution for many weeks.” (Id. at 1049.)

In the present case, there is no evidence Mercedes-Benz ever denied Plaintiff's request for a repurchase or a replacement of his vehicle, or told Plaintiff that it could not comply with his request. Instead, Mercedes-Benz offered to repurchase two weeks after Plaintiff called to state that he “doesn’t want this vehicle.” Further, unlike in Lukather, Mercedes-Benz did not wait until Plaintiff brought a lawsuit to extend its offer. Rather, Plaintiff told Mercedes-Benz that he was uninterested in it buying the car back, and instead, filed this lawsuit.

The Court finds that Defendant promptly complied with its statutory obligations.

Plaintiff argues that defendants do not address the “reasonable time” requirement of Civil Code section 1793.2, subdivision (b). Civil Code section 1793.2, subdivision (b) requires only that a vehicle manufacturer complete any single repair attempt within 30 days. (Schick v. BMW of N. Am., LLC (9^th Cir. 2020) 801 F. App'x 519, 521.) It is undisputed that Mercedes-Benz never took longer than 30 days to complete any single repair attempt. (Moghaddam Decl., pgs. 3-5, ¶¶ 3, 5-14, Ex. L.) Thus, this claim fails.

Defendants argue that there is no evidence from Plaintiff’s repair history of any instance of Mercedes-Benz failing to provide parts or service literature to dealership staff. It is undisputed that Keyes European had the parts and literature it needed for Plaintiff’s repairs. (Moghaddam Decl., pg. 6, ¶ 8.) Plaintiff has not opposed summary adjudication to this cause of action.

Plaintiffs argue that defendants do not address the fifth cause of action for breach of implied warranty. In their reply, Defendants add that because Mercedes-Benz made a valid, pre-suit repurchase offer that complied with the Song-Beverly Act, Plaintiff cannot recover for breach of implied warranty.

In vehicle sales, the implied warranty of merchantability “means that the goods ‘[p]ass without objection in the trade under the contract description,’ and are ‘fit for the ordinary purposes for which such goods are used.’ ” (Brand v. Hyundai Motor Am. (2014) 226 Cal.App.4th 1538, 1545.) “[A] new car need not ‘be perfect in every detail’; rather, its implied merchantability ‘requires only that a vehicle be reasonably suited for ordinary use.’ ” (Id. at p. 1546.) A plaintiff must show that at the time of purchase “the product did not possess even the most basic degree of fitness for ordinary use.” (Mocek v. Alfa Leisure, Inc., 114 Cal.App.4th 402, 406.) For a vehicle, this means whether it was fit for driving and the “ordinary purpose of providing transportation.” (American Suzuki Motor Corp. v. Superior Court (1995) 37 Cal.App.4th 1291, 1296.)

Even if a manufacturer offers to repurchase a vehicle, a cause of action for breach of implied warranty can survive independent of the express warranty claim because there is no requirement that the buyer “give the seller an opportunity either to repair or to replace the defective goods.” (Mocek, supra, 114 Cal. App. 4th at p. 407; see also Clarke v. Carmax Auto Supertores CA, LLC (C.D.Cal., July 24, 2017, No. CV 16-704 JAK (DTBx)) 2017 U.S. Dist. Lexis 186378, at *8; Hatami v. Kia Motors America, Inc. (C.D.Cal., Apr. 20, 2009, No. CV 08-226 DOC (MLGx)) 2009 U.S. Dist. Lexis 45514, at *4 [“Defendants’ argument that Plaintiff’s [implied warranty] claims ‘lack merit’ because Defendants made an offer to repurchase the vehicle pursuant to their express warranty obligations under Section 1793.2(d)(2) is unconvincing.”).)

Defendants do not separately argue why summary adjudication is appropriate for the breach of implied warranty claim; instead, the same arguments are advanced that because Mercedes-Benz made an offer to repurchase the Vehicle, all other claims fail. The Song-Beverly Act sets out specific requirements for different claims. (See generally Civ. Code, § 1792 et seq.) Defendants have failed to meet their initial burden by not providing any argument as to how Plaintiffs have failed to produce evidence negating an essential element of their case or by showing that Plaintiffs will be unable to carry their burden of persuasion at trial.

Accordingly, because Defendants have not carried their burden to show that Plaintiff lacks evidence to support their implied warranty claims, the Court denies summary adjudication on the fifth cause of action.

Because the breach of implied warranty is the only claim remaining, the civil penalty does not apply. (Civ. Code, § 1794, subd. (c).) Thus, the issue of willfulness is moot.

Summary adjudication is granted to the first, second, third, and fourth causes of action and denied to the fifth cause of action.

[1] This is based on a call log. Aparicio testified that he did not recall asking Defendant to repurchase the vehicle or for another vehicle. (Aparicio depo. 84:19 - 85:1.)

Department 58