Judge Bruce G. Iwasaki, Case Number: 21STCV09414, Date: 2024-05-16 Tentative Ruling

Tentative Ruling: The Motion for Summary Judgment is denied.

The Motion for Summary Adjudication is denied as to the second and third causes of action. The Motion for Summary Adjudication is granted as to the fifth cause of action.

This matter arises from the purchase of an allegedly defective 2015 Ford Edge (the “Subject Vehicle”). On March 10, 2021, Plaintiff Sassan Salehipour (“Plaintiff”) filed a Complaint against Defendants Ford Motor Company (“Ford”), Advantage Ford Lincoln (“Advantage”) (collectively, “Defendants”) alleging causes of action for: (1) violation of subdivision (d) of Civ. Code § 1793.2; (2) violation of subdivision (b) of Civ. Code § 1793.2; (3) violation of subdivision (a)(3) of Civ. Code § 1793.2; (4) breach of express written warranty pursuant to Civ. Code §§ 1791.2(a) and 1794; and (5) breach of the implied warranty of merchantability pursuant to Civ. Code §§ 1791.1, 1794, and 1795.5.

Plaintiff alleges that he purchased the Subject Vehicle on or about July 17, 2015 from Defendant Advantage, which was manufactured and/or distributed by Defendant Ford. (Complaint, ¶ 9.) Plaintiff received various warranties in connection with the purchase of the Subject Vehicle. (Complaint, ¶ 10.) Plaintiff received warranties including, but not limited to, a 3 year/36,000 miles bumper to bumper warranty and a 5 year/60,000 miles powertrain warranty, which covers the engine and transmission. (Complaint, ¶ 10.) During the warranty period, the Subject Vehicle contained or developed defects including, but not limited to, defects causing an oil leak, defects causing a tire to lose air, and defects requiring the resealing of the front engine cover. (Complaint, ¶ 11.) Plaintiff alleges that Defendant Ford and its representatives in this state have been unable to service or repair the Subject Vehicle to conform to the applicable express warranties after a reasonable number of attempts. (Complaint, ¶ 12.) Plaintiff alleges that he discovered Defendants’ wrongful conduct alleged in the Complaint shortly before the filing of the Complaint as the Subject Vehicle continued to exhibit symptoms of defects following Defendant Ford’s unsuccessful attempts to repair them. (Complaint, ¶ 8.) Defendant Ford failed to provide restitution pursuant to the Song-Beverly Consumer Warranty Act. (Complaint, ¶ 8.)

Defendants now move for summary judgment or, alternatively, summary adjudication as to the second, third, and fifth causes of action in the Complaint. Given that Defendants do not move for summary judgment as to the entire Complaint, Defendants have filed, for operative purposes, a motion for summary adjudication.

Plaintiff objects to paragraph 4 of the declaration of Reeti H. Patel in support of the motion. The objection is overruled.

Defendants object to paragraph 3 of the declaration of Rabiya Tirmizi in support of the opposition. The Court sustains the objection to the sentence beginning “Despite these warranty…” (p. 2, lines 16-18.). In other respects, the objection is overruled.

An opposing Separate Statement must comply with the requirements of California Rule of Court 3.1350(e), (f) and (h). Counsel must respond to “[e]ach material fact” and if it disputed, “must unequivocally state whether that fact is ‘disputed’ or ‘undisputed” on the right side of the page directly opposite the fact in dispute. (Cal. Rules of Court, rule 3.1350(f)(1), (f)(2).)

Plaintiff failed to comply. In the Separate Statement, Plaintiff improperly inserted legal argument in some of their responses. The Separate Statement is not the proper place for objections or argument and Plaintiff’s counsel is admonished to comply with Rules of Court. To the extent Plaintiff purported to dispute Defendants’ statement of undisputed facts without offering evidence but merely making legal arguments, the Court deems the statements of fact undisputed. (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5^th 865, 876 [courts should “not hesitate to disregard attempts to game the system by the opposing party claiming facts are ‘disputed’ when the uncontroverted evidence clearly shows otherwise”].)

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(p)(2).)

“The summary judgment procedure should be used with caution and any doubt as to the propriety of granting summary judgment should be resolved in favor of the party opposing the motion.” (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1510.) “Motions for summary adjudication are procedurally identical to motions for summary judgment.” (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1290.)

Defendants contend that Plaintiff cannot establish his second cause of action because he cannot establish that any repair took longer than 30 days to complete. Plaintiff argues that a triable issue of fact exists as to the second cause of action. As to the third cause of action, Defendants argue that Plaintiff fails to present any facts that Defendant Ford failed to make sufficient literature and replacement parts to authorized service and repair facilities during the express warranty period. Plaintiff argues that a triable issue of fact exists as to the third cause of action.

For the second cause of action, Civil Code section 1793.2, subdivision (b) states “[w]here those service and repair facilities are maintained in this state and service or repair of the goods is necessary because they do not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days. Delay caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.” To state a cause of action under Civ. Code § 1793.2, subdivision (b), Plaintiff must show that Defendant Ford failed to “complete any single repair attempt within 30 days.” (Schick v. BMW of North America, LLC (9^th Cir. 2020) 801 Fed.Appx. 519, 521, emphasis in original.) Civil Code section 1793.2, subdivision (d)(1), provides that “if the manufacturer or its representative . . . does not service or repair the goods to conform to the applicable express warranties after a reasonable number of repair attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that amount directly attributable to use by the buyer prior to the discovery of the nonconformity.” Civ. Code § 1794, subdivision (b) provides that “[w]here the buyer has rightfully rejected or justifiably revoked acceptance of the goods or has exercised any right to cancel the sale, Section[] 2711 . . . of the Commercial Code shall apply.” (Ramos v. Mercedes-Benz USA, LLC (2020) 55 Cal.App.5th 220, 225.) Where a buyer rightfully rejects or justifiably revokes acceptance with respect to goods, the buyer may cancel the contract and recover “so much of the price as has been paid.” (Comm. Code, § 2711, subd. (1).)

As to the third cause of action, Civil Code section 1793.2, subdivision (a)(3) requires that a manufacturer must “[m]ake available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.”

Pursuant to the second cause of action, Plaintiff alleges that Defendant Ford and its representative failed to commence the service or repairs within a reasonable time and failed to service or repair the Subject Vehicle so as to conform to the applicable warranties within 30 days. (Complaint, ¶ 19.) Plaintiff did not extend the time for completion of repairs beyond the 30-day requirement. (Complaint, ¶ 19.) Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the Subject Vehicle, and has exercised a right to cancel the purchase. (Complaint, ¶ 21.)

Defendants present evidence that none of Plaintiff’s repair visits for the Subject Vehicle—either singularly or collectively—took more than 30 days to complete. (Statement of Undisputed Fact (SUF), 1SUF1, 2-13.)[1] Defendants cite to evidence indicative of four repair visits all of which lasted less than one day, four days, six days, or eleven days to complete. (1UMF3, 5, 7, 8, 9, 10, 11, 12.)

Plaintiff presents the following evidence: Plaintiff declares that he presented the Subject Vehicle to Defendant Ford’s authorized repair facilities on at least four occasions for warranty repairs, which did not successfully fix the Subject Vehicle. (Salehipour Decl., ¶ 8; Exh. 3.) Plaintiff declares that the Subject Vehicle was out of service for a total of 75 days for various concerns related to the Subject Vehicle. (Salehipour Decl., ¶¶ 10-21; Exh. 3.) In fact, Plaintiff declares that on August 22, 2020, he took the Subject Vehicle to Defenant Ford’s authorized repair facility for, among other concerns, a rattling noise and lack of acceleration and the Subject Vehicle was out of service for 41 days. (Salehipour Decl., ¶ 18; Exh. 3.) Despite the warranty repair opportunities, Defendant Ford did not conform the Subject Vehicle to its warranties and Plaintiff continued to experience symptoms of the Subject Vehicle’s defects. (Id. ¶ 22.)

Initially, the Court notes that Plaintiff’s citation to Milicevic v. Fletcher Jones Imports, Ltd. (9th Cir. 2005) 402 F.3d 912 is inapposite as it interprets Nevada law. Plaintiff, however, has presented evidence to show a triable issue of material fact as to the second cause of action. Plaintiff has presented evidence that—both singularly and collectively—repair attempts took more than 30 days to complete.

Pursuant to the third cause of action, Plaintiff alleges that Defendant Ford failed to make available at its authorized service and repair facilities sufficient literature and replacement parts to effect repairs during the express warranty period. (Complaint, ¶ 24.) Plaintiff alleges that Defendant Ford knew of its obligation to provide literature and replacement parts sufficient to allow its repair facilities to effect repairs during the warranty period, yet Defendant Ford failed to take any action to correct its failure to comply with the law. (Complaint, ¶ 25.)

As to the failure to provide sufficient service literature and replacement parts, Plaintiff provides evidence that he has continued to experience issues with the Subject Vehicle even after the last repair. (Salehipour Decl., ¶ 22.) Defendants argue that “Plaintiff produced no evidence in discovery regarding any failure by Ford to provide sufficient literature or replacement parts.” (Memorandum of Points and Authorities at p. 7:24-26.) Plaintiff sets forth numerous visits to Defendant Ford’s authorized repair facility and unsuccessful attempted warranty repairs. (Salehipour Decl., ¶¶ 9-20; Exh. 3.)

Furthermore, “[e]vidence that a problem was fixed for a period of time but reappears at a later date is relevant to determining whether a fundamental problem in the vehicle was ever resolved.” (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 149.) On summary adjudication, the court must consider all the evidence and draw inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Given that the Subject Vehicle continued to experience ongoing problems, such as engine defects, after being presented for repairs, an inference is created that sufficient literature and/or replacement parts were not provided by Defendant Ford to Defendant Advantage. As such, triable issues of fact exist as to whether: (1) any repair presentation took more than 30 days to complete; and (2) Defendant Ford provided sufficient literature and replacement parts to Defendant Advantage. For those reasons, summary adjudication is denied as to the second and third causes of action.

Under Civil Code section 1791.1, subdivision (c), the duration of an implied warranty of merchantability “shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer.” “‘Implied warranty of merchantability’ or ‘implied warranty that goods are merchantable’ means that the consumer goods meet each of the following: [¶] (1) Pass without objection in the trade under the contract description. [¶] (2) Are fit for the ordinary purposes for which such goods are used. [¶] (3) Are adequately contained, packaged, and labeled. [¶] (4) Conform to the promises or affirmations of fact made on the container or label.” (Civ. Code, § 1791.1, subd. (a).)

“[T]he implied warranty ensures not simply that a product substantially free of defects, but in particular that a vehicle . . . is in safe condition.” (Brand v. Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1547 (Brand).) “This minimum guarantee in the implied warranty of merchantability protects not only the vehicle purchaser, but other motorists, passengers, pedestrians, and the public generally.” (Ibid.) “[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.” (Ibid.) “A merchantable vehicle under the statute requires more than the mere capability of just getting from point ‘A’ to point ‘B’.” (Id. at p. 1546.)

The Song-Beverly Act “supplements, rather than supersedes, the provisions of the California Uniform Commercial Code.” (Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 213.) “The Act itself contains no express limitations period for a civil action. Section 2725 of the California Uniform Commercial Code provides for a four-year limitations period for breach of warranty.” (Id. at pp. 213-214.) Under this statute, “(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. … [¶] (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” (Cal. U. Com. Code, § 2725, subds. (1), (2), italics added.) “There are no hard and fast rules for determining what facts or circumstances will compel inquiry by the injured party and render him chargeable with knowledge.” (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 597.) “A cause of action for breach of warranty of future performance . . . accrues upon discovery of the breach.” (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 642.) “[T]he statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done wrong to her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.)

Defendants assert that the fifth cause of action is time-barred because Plaintiff purchased the Subject Vehicle on July 17, 2015—which is the date of delivery—and therefore the implied warranty cause of action expired on July 17, 2019. (Memorandum of Points and Authorities at p. 8:24-27.) Plaintiff filed the instant action on March 10, 2021, which Defendants argue is almost one year after the statute of limitations expired. (Memorandum of Points and Authorities at p. 8:27-9:2.)

Here the 36 month and five-year warranties explicitly cover the future performance of the vehicle. Accordingly, under California Uniform Commercial Code section 2725, subdivisions (1) and (2), the implied warranty of merchantability “cause of action accrues when the breach is or should have been discovered.” Plaintiff indicates that as a result of the ongoing problems with the Subject Vehicle, he discovered that Defendant Ford and its authorized repair facilities never permanently repaired or successfully fixed the Subject Vehicle during the warranty, despite having given them a reasonable number of opportunities to do so. Plaintiff is not an automotive expert and relied on the expertise of Defendant Ford’s certified technicians who informed him on each visit that the Subject Vehicle was repaired. Defendant Ford failed to disclose the existence of any defect. (Salehipour Decl., ¶ 23.)

Defendants’ statute of limitations argument rests on the assertions that the implied warranty claim accrues upon the vehicle’s delivery and the delayed discovery doctrine does not apply. First, because the California Uniform Commercial Code limitations period applies, the cause of action may accrue when the breach is or should have been discovered. Moreover, resolution of the “statute of limitations is normally a question of fact.” (Paredes v. Credit Consulting Services, Inc. (2022) 82 Cal.App.5^th 410, 427.)

Second, whether the delayed discovery rule applies to this claim is far from settled. To be sure, Nguyen v. Nissan North America, Inc. (2020) 487 F.Supp.3d 845 supports Defendants’ position that the delayed discovery doctrine does not apply to implied warranty of merchantability claims. But other district courts have concluded that delayed discovery may toll the statute of limitations for breach of implied warranty. ((Smith v. Ford Motor Co. (N.D.Cal. Feb. 4, 2020, No. 19-cv-05170-CRB) 2020 WL 609864,*4 [“[T]he majority of courts that have considered this issue . . . have found that the implied warranties at issue could extend to the future performance of goods and thus that California law does not ‘obviously foreclose’ the application of the ‘delayed discovery’ theory”]; Yeager v. Ford Motor Co. (N.D.Cal. Jan. 8, 2020, No. C 19-06750 WHA) 2020 WL 95645, *3.)

An issue of fact exists concerning the date Plaintiff reasonably could have discovered breach of the implied warranty. This precludes summary adjudication based on the statute of limitations.

Defendants, however, also contend that the fifth cause of action fails because Plaintiff cannot establish the element of breach. Specifically, Defendants argue that the implied warranty expired one year after Plaintiff purchased the Subject Vehicle on July 17, 2015 and Plaintiff first presented the Subject Vehicle for non-maintenance warranty repair on August 19, 2016. (Memorandum of Points and Authorities at p. 10:18-23; 4SUF3.) The Court notes that “[t]he implied warranty of merchantability may be breached by a latent defect undiscoverable at the time of sale.” (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304-05.) “In the case of a latent defect, a product is rendered unmerchantable, and the implied warranty of merchantability is breached, by the existence of the unseen defect, not by its subsequent discovery.” (Id. at p. 1305.)

Here, Plaintiff has presented no evidence that an oil leak, battery replacement, or any of the non-warranty issues in the Subject Vehicle, such as rattling noises and lack of acceleration, were a latent defect. Plaintiff’s citation to Mexia v. Rinker Boat Co., Inc., supra, 174 Cal.App.4th 1297 is inapposite as it does not support Plaintiff’s contention as to latency. In Mexia, where a boat needed repairs approximately 27 months after purchase for corrosion issues under written warranties, the Mexia court held, in reversing the trial court order sustaining a demurrer without leave to amend, that “there is no evidence in the record one way or the other as to whether the alleged defects existed at the time of sale” and that “evidence produced at the later stages of the case could show that the corrosion was due to improper maintenance, [and] it is also possible that [appellant] can present evidence that the corrosion was due to a defect that existed at the time of sale but remained latent and undiscoverable for two years.” (Mexia v. Rinker Boat Co., Inc., supra, 174 Cal.App.4th 1297, 1308.)

Plaintiff presents no evidence that the warranty-related oil leaks and battery issues, or the other non-warranty related repairs for, among other issues, rattling noises and leaking coolant, or any other breach of the merchantability warranty existed during the one year following sale. Plaintiff did not present the Subject Vehicle for repair under warranty until over one year after he purchased the Subject Vehicle.

In contrast, issues that arise during the first year of ownership such as brake noises, hesitant transmission shifting, and white smoke emitting from the exhaust are deemed breaches of the implied warranty of merchantability. (Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 27.) Moreover, when a vehicle’s sunroof began opening spontaneously two days after purchase, it was deemed a breach of the implied warranty of merchantability. (Brand, supra, 226 Cal.App.4th at p. 1550.) While neither Brand nor Isip addressed latent defects, the purported defects at issue here did not manifest themselves until well after the Subject Vehicle was sold. Plaintiff has not presented any evidence that the oil leaks or any other purported maintenance issues with the Subject Vehicle existed within one year of sale but could not have been discovered until later.

A party can move for summary judgment or summary adjudication “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 854.) Plaintiff has failed to present any evidence that a latent defect existed at the time of sale. In fact, in the opposition, Plaintiff merely argues that Defendants do not meet their burden to disprove latency. (Opp’n at p. 11:1-8.) It is undisputed that Plaintiff first presented the Subject Vehicle for warranty repair over one year after purchase.

The Court therefore finds that Plaintiff has not created a triable issue of fact as to breach because Plaintiff has not presented any evidence of a breach of the warranty of merchantability during the term of that warranty. Plaintiff was required produce substantial responsive evidence and cannot rely on speculation to establish a triable issue of material fact. (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 415.) Plaintiff has failed to do so concerning the issue of breach.

On those bases, the Court grants Defendant summary adjudication on the fifth cause of action for breach of the implied warranty of merchantability.

The motion for summary judgment is denied. Summary adjudication is denied as to the second and third causes of action in the Complaint. The Court grants summary adjudication as to the fifth cause of action in the Complaint.

[1] The first number in the citation is the “Issue No.” raised in the Separate Statement of Facts. Thus, 1SUF1 refers to Issue No.1, Statement of Undisputed Fact 1. The separate statement is not sequentially numbered so the Court adopts this citation format for the separate statement for clarity purposes and to avoid confusion.

Department 58