Judge Bruce G. Iwasaki, Case Number: 21STCV26927, Date: 2023-10-12 Tentative Ruling

Matter: Motion for Summary Judgment, or, in the alternative, Motion for Summary Adjudication

This is an action under the Song-Beverly Act in which Plaintiff Corine Cano (Plaintiff) alleges defects in a 2020 Chevrolet Malibu (Vehicle). Plaintiff purchased the Vehicle on August 20, 2020. Plaintiff brought the Vehicle for service to GM’s authorized repair facility on numerous occasions. The Complaint asserts breaches of express and implied warranties against General Motors, LLC (Defendant or GM).

Defendant GM now moves for summary judgment, or, in the alternative, summary adjudication on the claims for express warranties (first and third causes of action) and the breach of implied warranties (second cause of action).

Plaintiff opposes the Motion.[1] In the alternative, Plaintiff seeks a continuance pursuant to Code of Civil Procedure section 437c, subdivision (h).

Plaintiff’s request for continuance is denied. The Court grants the motion for summary judgment.

Defendant’s objection to Plaintiff’s evidence is ruled as follows: Objections nos. 1-22 are sustained.

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).)

Plaintiff does not dispute that she purchased the Vehicle used. Her complaint states that she “purchased a used 2020 Chevrolet Malibu.” The retail installment sales contract identified the Vehicle as “used,” and the odometer disclosed 5993 miles on it when Plaintiff purchased it. Rather, Plaintiff argues that this used vehicle can be deemed “new” under the Song-Beverly Act because the new car warranty had not expired.

Defendant GM moves for summary judgment on the grounds that because the Vehicle was purchased used, the Song-Beverly Act does not apply under a recent Court of Appeal decision, Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (Rodriguez).

Plaintiff opposes the Motion, contending that Rodriguez is not binding because the California Supreme Court has granted the petition for review. Plaintiff contends that Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112 (Jensen) governs, which held that cars sold with a balance remaining on the manufacturer’s warranty constitute a “new motor vehicle” under the Song-Beverly Act.

Defendant GM moves for summary adjudication on Plaintiff’s first and third causes of action, alleging breach of express warranty and violation of Civil Code section 1793.2. GM contends that Plaintiff’s claims fail as a matter of law because Plaintiff did not buy the vehicle as a “new motor vehicle.”

“ ‘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.)

GM’s argument for summary adjudication relies heavily on Rodriguez and distinguishes Jensen.[2] At issue in both Rodriguez and Jensen is the meaning of “new motor vehicle” under the Song-Beverly Act. In relevant part, the statutory language states:

“New motor vehicle” includes the chassis, chassis cab, and that portion of a motor home devoted to its propulsion, but does not include any portion designed, used, or maintained primarily for human habitation, a dealer-owned vehicle and a “demonstrator” or other motor vehicle sold with a manufacturer’s new car warranty.” (Civ. Code, § 1793.22, subd. (e)(2), [italics added].)

In Rodriguez, the “sole issue in the case [was] whether the phrase ‘other motor vehicle sold with a manufacturer’s new car warranty’ covers sales of previously owned vehicles with some balance remaining on the manufacturer’s express warranty.” The plaintiff in Rodriguez purchased a used truck from a third-party used car dealership that had 55,000 miles on it. The plaintiff did not purchase any additional warranties, though the original powertrain warranty was still in effect at the time of purchase. (77 Cal.App.5th at p. 209.) The trial court granted the vehicle manufacturer’s motion for summary judgment because the vehicle was “used.”

The Fourth District affirmed the order, finding that the statutory text and legislative history supported its reasoning that a used vehicle with some balance of the original warranty was not a “new motor vehicle” under the Song-Beverly Act. (Id. at pp. 219-223.) Specifically, the Rodriguez court reasoned that section 1793.22, subdivision (e)(2) referred to a list of “two vehicles (dealer-owned vehicles ‘and’ demonstrators) followed by an adjectival clause qualifying or describing those vehicles.” It explained that the lack of a comma in the phrase “dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer’s new car warranty” suggested that the latter phrase “or other motor vehicle” was “intended to function as a catchall provision to cover a narrow class vehicle – the previously driven, but basically new (i.e., not previously sold) car.” (77 Cal.App.5th at p. 220.)

The Court of Appeal further noted that it was unclear whether the third-party dealership issued any warranties to plaintiffs, “but that would be the only way they could seek a refund or replacement under the Act.” (Id. at p. 223.) The court concluded “that the phrase ‘other motor vehicles sold with a manufacturer’s new car warranty’ refers to cars sold with a full warranty, not to previously sold cars accompanied by some balance of the original warranty.” (Id. at p. 225.)

The Rodriguez court discussed Jensen, supra, 35 Cal.App.4th 112. In distinguishing the earlier case, it concluded that Jensen was “correctly decided,” but its interpretation of section 1793.22 should be limited to the specific facts before it. (Rodriguez, supra, 77 Cal.App.5th at p. 224.)

In Jensen, the plaintiff leased a vehicle from a manufacturer-affiliated dealer. The vehicle had been driven 7,565 miles. The salesman incorrectly represented that it “had been used as a demonstrator for the dealership.” (35 Cal.App.4th at p. 119.) The lease was issued with a “36,000-mile warranty on top of the miles already on the car.” The Jensen court concluded that “the words of section 1793.22 are reasonably free from ambiguity” because “[t]he use of the word ‘or’ in the statute indicates ‘demonstrator’ and ‘other motor vehicle’ are intended as alternative or separate categories of ‘new motor vehicle’ if they are ‘sold with a manufacturer’s new car warranty.’” (Id. at p. 123.) The court noted the “peculiar grammatical structure” of the section and further reviewed the amendments, documents relating to legislative proceedings, and the overall statutory scheme, concluding that “section 1793.22 includes cars sold with a balance remaining on the new motor vehicle warranty.” The court cited to the “Act’s purpose as a remedial measure” and to protect “‘any individual to whom the vehicle is transferred during the duration of a written warranty.’” (Id. at p. 126.) Jensen concluded that under section 1793.22, “cars sold with a balance remaining on the manufacturer’s new motor vehicle warranty are included within its definition of ‘new motor vehicle.’” (35 Cal.App.4th at p. 123.)

In contrast to Rodriguez, the Jensen court did not emphasize the lack of a comma in the phrase “dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer’s new car warranty,” but instead focused on the word “or” to hold that this phrase created an additional category of “new motor vehicle.” (Ibid.) Thus, while Rodriguez concluded that the clause defined two additional types of vehicles as “new,” the Jensen Court concluded that the clause defined three: dealer-owned vehicles, demonstrators, and other vehicles sold with a manufacturer’s new car warranty.

In distinguishing Jensen, the Rodriguez court emphasized that “Jensen involved a lease by a manufacturer-affiliated dealer who issued a full new car warranty along with the lease.” (Rodriguez, supra, 77 Cal.App.5th at p. 223 [original italics].) Allowing that Jensen was “correctly decided,” Rodriguez commented that its statutory interpretation should be limited to the unique facts in that case: the manufacturer had issued a full warranty at the time of sale.

Several other cases in the Fourth District have distinguished Jensen on similar grounds. (Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 340, n.4 [questioning Jensen’s broad holding that “every car sold with any portion of a new-vehicle warranty remaining is a new motor vehicle] (Kiluk); Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 923 [limiting Jensen to the facts in the case which involved a lease from the dealer, not a private party].)^{^[3]} Further, as explained in Kiluk v. Mercedes-Benz, LLC (2019) 43 Cal.App.5th 334, the court found that, under section 1795.5, “[t]he same protections generally apply to sale of used goods accompanied by an express warranty, except that the distributor or retail seller is bound, as opposed to the manufacturer, and the duration of the implied warranty of merchantability is much shorter.” (Id. at 336.)

Not surprisingly, Plaintiff argues that Jensen should govern here and Defendant GM argues that Rodriguez applies.

Defendant GM bears the burden of persuasion to demonstrate there is no triable issue of fact. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 845.) As a manufacturer, GM may face liability under the Song-Beverly Act if it “sells directly to the public” by partnering with a dealership to sell used vehicles directly to the public.” (Kiluk, supra, 43 Cal.App.5th at p. 340.) By doing so, a manufacturer can “step[] into the role of a retailer and [may be] subject to the obligations of a retailer under section 1795.5,” which is the same as a manufacturer under section 1793.2. (Kiluk, supra, 43 Cal.App.5th at p. 340.)

Here, Defendant GM argues that the first and third causes of action fail under Song-Beverly Act because, like the plaintiff in Rodriguez, the Plaintiff purchased the Vehicle used and the Vehicle was not purchased from a manufacturer-affiliated dealer and without a new manufacturer warranty.

As noted, the Complaint alleges that Plaintiff purchased the Vehicle “used.” (Compl., ¶ 8 [“On August 20, 2020, Plaintiff purchased a used 2020 Chevrolet Malibu.”] [Emphasis added]; see also Oaks Decl., ¶ 4, Ex. A [Retail Installment Sale Contract specifying vehicle was being sold “Used”].) Further, Defendant’s evidence shows that Rydell Chevrolet delivered the Vehicle “new” to its original owner(s) on July 24, 2019, with 9 miles on the odometer. (DSS 5 [Oaks Decl., Ex. B].) Therefore, the Vehicle was sold at least twice before it was purchased by Plaintiff: first to National Car Rental from Rydell Chevrolet and was later sold to Advantage Auto Sales before it was purchased by Plaintiff. (Oaks Decl., ¶¶ 4, 7, Exs. A-B.)

Additionally, the undisputed evidence shows that Plaintiff purchased the Vehicle from Advantage Auto Sales, Inc. (Advantage). (DSS 2.) Defendant submits evidence that Advantage Auto Sales, Inc. is not a GM-authorized dealership. (DSS 4.)

As noted, Plaintiff does not dispute she bought the used Vehicle from Advantage—not GM. In an attempt to tie GM to Advantage in order to attach liability under Song-Beverly, Plaintiff suggests the following convoluted theory of ownership and liability:

“Plaintiff purchased the vehicle from Advantage Auto Sales, Inc., which acquired the Subject Vehicle from an auto auction. Based on information and belief, Michael Chevrolet was the previous owner, and the Enterprise Family, however, is the first and sole registered commercial owner prior to the Plaintiff’s purchase. Enterprise family routinely conducts business with GM, and served as GM’s agent. Its subsidiaries, National Car Rental and EAN Holdings LLC are service agents of GM, respectively with the BAC number of 139812 and 126389. Moreover, EAN Holdings LLC conducted the pre-delivery inspection on July 25, 2019. Additionally, Advantage first acquired the Subject Vehicle under GM’s Fleet Purchase Risk Program. BAC is a unique dealer number assigned by GM to each dealership, with which the dealership can log in to GM Approved Dealer Service Equipment (https://gmdesolutions.com/), as “GM Dealer Shopper.” The website also listed the mailing address for GM Equipment Program.” (Opp. 9:25-10:7; PSS 4.)

Plaintiff does not submit direct evidence that Advantage GM-authorized dealership. Nor is the following even circumstantial evidence of a relationship between GM and Advantage. The evidence supporting this theory is speculative and, most importantly, inadmissible.

As Plaintiff did not dispute GM’s evidence with admissible evidence, GM’s evidence that the Vehicle is “used” and not purchased from GM-affiliated dealer is undisputed. Based on the foregoing, there is no triable issue of material fact in dispute with respect to GM’s evidence that Plaintiff purchased the Vehicle used from a GM-authorized dealer.

Further, Defendant GM submits evidence that Plaintiff here did not receive any new or additional warranty coverage from GM; instead, she received from GM only the balance of coverage under the Warranty that GM issued when the vehicle was delivered new to the original owner(s). (DSS 6-7; Compl., ¶ 8 [“Express warranties accompanied the sale of the Subject Vehicle to Plaintiff by which GENERAL MOTORS LLC undertook to preserve or maintain the utility or performance of Plaintiff’s vehicle or to provide compensation if there was a failure in such utility or performance.”].)

Plaintiff disputes this evidence by relying on the statement of an unknown Advantage sales personnel who stated that Vehicle would be covered by GM’s applicable new motor vehicle consumer warranties. (PSS 7 [Cano Decl., ¶¶ 4-6].) As noted in the Court’s evidentiary rulings above, this hearsay evidence is inadmissible.

Based on the foregoing, there is no material fact in dispute and the undisputed evidence shows that GM did not issue Plaintiff a new car warranty when she purchased the vehicle.

The facts presented here are closer to those in Rodriguez and different from those in Jensen. The Court need not decide which case to follow; it is guided by them both. Both support the conclusion that Plaintiff – who was not issued a manufacturer’s new vehicle warranty when she bought an admittedly used vehicle[4] – cannot be deemed to have purchased a new motor vehicle.

Accordingly, the Court grants Defendant’s motion to summarily adjudicate the first and third causes of action for breach of express warranty.

Defendant also moves for summary adjudication of Plaintiff’s second cause of action, alleging breach of implied warranty under the Song–Beverly Act, fails as a matter of law because plaintiff bought the vehicle used and GM was not a “distributor or retail seller of used consumer goods in [the] sale” of the used vehicle to Plaintiff.

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. (2003) 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.)

Defendant argues that this claim fails because Plaintiffs did not purchase the used vehicle from GM. Plaintiff, in opposition, contends that the Vehicle was a “new motor vehicle” and the implied warranties under Civil Code sections 1792 and 1793 apply.

“[I]n the sale of used consumer goods, liability for breach of implied warranty lies with distributors and retailers, not the manufacturer, where there is no evidence the manufacturer played any role in the sale of the used car to plaintiff.” (Ruiz Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 398 (Nunez).) “[O]nly distributors or sellers of used goods—not manufacturers of new goods—have implied warranty obligations in the sale of used goods.” (Id. at p. 399 [italics in original].)

As discussed above, the Vehicle here is a used Vehicle. Defendant GM’s evidence shows that Plaintiff purchased the Vehicle used from Advantage, which was not a GM-affiliated dealer. Defendant has met its initial burden of showing through evidence that it is only the manufacturer of this used Vehicle.

Plaintiff argues that the Vehicle was purchased new from GM dealer-owned commercial rental fleet vehicle. (Yang Decl., ¶¶ 5-11, Exhs. 1-8.) Again, as noted above, Plaintiff does not submit admissible evidence to support this material fact. Moreover, as GM agues, “[a] vehicle sold in a fleet for commercial use—here, as a rental vehicle—does not suddenly become “new” when later sold to a consumer.” (Reply 2:26-27.) Plaintiff fails to meet her burden to raise a triable issue of fact in dispute to counter Defendant’s showing.

Request for Continuance pursuant to Section 437c(h), Request for Leave to Amend, and Request for a Stay

In the alternative, Plaintiff requests relief pursuant to Code of Civil Procedure section 437c, subdivision (h), on the grounds that further essential discovery relating to the GM’s Fleet Purchase Risk Program, GM’s administration, policies, and procedures for use and maintenance, of applicable warranties for dealer-owned GM vehicles fleet vehicles is necessary.

Code of Civil Procedure section 437c, subdivision (h), “mandates a continuance of a summary judgment hearing upon a good faith showing by affidavit that additional time is needed to obtain facts essential to justify opposition to the motion.” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253–254; Code Civ. Proc., § 437c, subd. (h) [“[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, [or] order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just”].)

“Continuance of a summary judgment hearing is not mandatory, however, ... when the submitted affidavit fails to make the necessary showing under [Code of Civil Procedure] section 437c, subdivision (h).” (Cooksey, supra, 123 Cal.App.4th at p. 254.) The necessary showing is: “(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.” (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623 abrogated on other grounds by Marathon Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 974, 987, fn. 6.) In connection with the third requirement, “[t]here must be a justifiable reason why the essential facts cannot be presented. An inappropriate delay in seeking to obtain the facts may not be a valid reason why the facts cannot then be presented.” (Cooksey, supra, 123 Cal.App.4th at p. 257.) Thus, a majority of courts have held “that lack of diligence may be a ground for denying a request for a continuance of a summary judgment motion hearing.” (Ibid.)

Here, Plaintiff’s position that this additional discovery may lead to facts essential to opposing the motion for summary judgment is entirely speculative, based largely on “information and belief.” (Yang Decl., ¶¶ 9-20.) Those statements, lacking personal knowledge, are inadmissible and cannot support an issue of fact. (Evid. Code, § 702 [witness testimony inadmissible without personal knowledge]; Kellett v. Kellett (1934) 2 Cal.2d 45, 48 [“affidavit made upon information and belief is hearsay and no proof of the facts stated therein”].)

Notably, Plaintiff seeks a large swath of documents suggesting that the discovery is nothing more than a fishing expedition. (Yang Decl., ¶ 22.) Further, the declaration in support does not justify the delay in obtaining this discovery. (Yang Decl., ¶¶ 24-25.) This matter has been pending since July 22, 2021. Plaintiff’s evidence shows no attempts to undertake the relevant discovery until May 8, 2023 – approximately two months before the motion for summary judgment was filed and a mere six months before trial. (Yang Decl., ¶ 25.) Additionally, there are no discovery motions currently pending and, at the time of this hearing, the discovery cutoff date will be only days away.[5] Nothing suggests that the additional discovery Plaintiff seeks could not have been obtained sooner with reasonable diligence.

Code of Civil Procedure section 437c, subdivision (h) is intended “ ‘[t]o mitigate summary judgment's harshness’ ” (Frazee v. Seely (2002) 95 Cal.App.4th 627, 634) “for an opposing party who has not had an opportunity to marshal the evidence.” (Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 770.) Plaintiff had such an opportunity.

Plaintiff also seeks leave to file a first amended complaint to add “the material facts encompassing the commercial/business relationship between GM and Enterprise Family, GM’s Fleet Purchase Risk Program, and the new warranties issued by GM at the time of Plaintiff’s purchase.” As the Court noted above, these so-called “material facts” are insufficient to create a triable issue of material fact and also lacking in any evidentiary support. It is unclear why the Court would allow amendment to plead facts that Plaintiffs cannot substantiate with evidence in order to circumvent this deficiency at the time of a motion for summary judgment. Likewise, the Court declines to stay the matter pending the Supreme Court review of Rodriguez. As argued in the Reply, when granting review, the Supreme Court declined to de-publish the Court of Appeal opinion, thereby allowing this Court to rely on this case. (Rodriguez, July 13, 2022, S274625.)

The request for continuance is denied. The request for leave to amend is denied. The request for a stay is denied.

Defendant’s motion for summary judgment is granted. Defendant GM is ordered to prepare, serve, and lodge a proposed Judgment within fifteen days of the hearing on the motion.

[1] The Opposition concedes it was filed one court day late and requests relief from this mistake. (Opp. 13:17-8.) The Court will consider the untimely Opposition.

[2] The California Supreme Court has granted review of Rodriguez but declined to de-publish this case; as such, this case can only be cited for its persuasive value. (Cal. Rules of Court, rule 8.1115(e)(3).)

[3] Despite the Jensen Court’s conclusion that the “other motor vehicle” provision of section 1793.22, subdivision (e)(2) is “reasonably free from ambiguity” (35 Cal.App.4th at p. 123.), this Court finds the text obscure. The statute’s “peculiar grammatical structure” (Ibid.) has yielded contrary appellate interpretations. Our Supreme Court may soon clarify the matter. This Court finds that the Rodriguez analysis persuasively highlights the broader implications and unanswered questions that arise from the Jensen court’s conclusion that a used car with the balance of a manufacturer’s new car warranty is a new motor vehicle. Until a more definitive ruling is issued, this Court seeks to harmonize the two precedents. Rodriguez did so, after a fashion, concluding that Jensen was correct based on its facts.

[4] Although Plaintiff now argues the Vehicle is not “used,” the Compliant admits this fact and Defendant’s evidence also supports this finding.

[5] Code of Civil Procedure section 2024.020 requires litigants to complete discovery proceedings at least 30 days before trial and that discovery motions be heard at least 15 days before the date initially set for the trial of the action in question. (Code Civ. Proc., § 2024.020, subd. (a).)

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