Judge Bruce G. Iwasaki, Case Number: 21STCV36514, Date: 2024-04-18 Tentative Ruling

Responding Party: Defendant General Motors

Tentative Ruling: The motion for summary adjudication is granted as to the eleventh, fifteenth, eighteenth, nineteenth, twentieth, twenty-second, and twenty-third affirmative defenses. The motion is moot as to the twenty-first and twenty-fifth affirmative defenses, and is denied as to the remaining affirmative defenses.

On October 4, 2021, Plaintiffs Robert Drummond and Robert Drummond, MD, PHD, P.C. filed the operative Complaint against Defendant General Motors, LLC (Defendant GM) and Symes Cadillac, Inc. for (1) breach of express warranty under Song-Beverly Act, (2) breach of implied warranty under Song-Beverly Act, and (3) negligent repair.

Plaintiffs now move for summary adjudication of the twenty-five defenses in Defendant GM’s Answer to the Complaint. Defendant opposes the motion.

The motion for summary adjudication is granted in part, denied in part, and moot in part.

GM’s objections to Plaintiffs’ evidence are ruled as follows: Nos. 1-14, 26, 29 and Nos. 15-25, 27-28, 30 are overruled.

“The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467; Code Civ. Proc. § 437c, subd. (c).)

I. GM’s Request for Denial or Continuance of the Motion for Summary Adjudication:

In addition to opposing the motion for summary adjudication on the merits, GM requests relief pursuant to Code of Civil Procedure section 437c, subdivision (h), on the grounds that facts that are essential to its opposition may exist but cannot be presented.

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.)

On February 13, 2023, GM noticed the deposition of Plaintiff Robert Drummond to take place on April 4, 2023. (Major Decl., ¶ 17, Ex. F.) Plaintiff objected, indicating that he would not be appearing at the unilaterally set deposition date. (Major Decl., ¶ 18, Ex. G.) Reply evidence indicates that when GM's counsel requested alternative dates, Plaintiffs provided five alternative dates on May 17, 2023. (Goethals Reply Decl., ¶ 3.) Plaintiffs did not hear back from Defendant regarding the deposition until March 2024.

On August 1, 2023, Plaintiffs filed this motion for summary adjudication of GM’s affirmative defenses. At the time, trial was set for October 4, 2023 – less than seventy-five days away. In order to allow adequate time to hear the motion for summary adjudication, the trial date was continued to July 15, 2024. The new hearing date for the motion for summary adjudication was then set for April 18, 2024.

On March 21, 2024, less than a month away from the new motion for summary adjudication hearing date, GM contacted Plaintiffs to meet and confer regarding a date for the deposition of Plaintiff Robert Drummond. (Major Decl., ¶ 19.) This was the first time Plaintiffs had heard from GM’s counsel regarding deposition since the original deposition noticed date.

On October 3, 2023, GM served its demand for expert witness information and writings on Plaintiffs. (Major Decl., ¶ 20, Ex. H.)

On March 21, 2024, GM also served a request to inspect Plaintiff’s Vehicle by GM’s Expert to occur on April 29, 2024. (Major Decl., ¶ 21, Ex. I.)

GM argues that Plaintiffs have not produced essential evidence through formal discovery in advance of GM’s Opposition deadline, including the testimony of Plaintiffs and the Subject Vehicle for inspection. (Major Decl., ¶ 23.)

However, the evidence shows no diligence by GM to obtain this discovery in preparation for this motion for summary adjudication – despite having ample time to do so. This action has been pending since October 4, 2021. Moreover, GM was aware of this motion for summary adjudication as early as August 2023 but waited nearly seven months to actively pursue the relevant discovery that it now claims is essential to opposing this motion – when it was, as a practical matter, too late to obtain the discovery to incorporate in GM’s opposition. GM has had ample time to take any necessary discovery and has failed to do so.

The request for a continuance or denial pursuant to Code of Civil Procedure section 437c, subdivision (h) is denied.

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, .... 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).)

In their role as Plaintiffs moving for summary adjudication of GM’s affirmative defenses, Plaintiffs must show that there is no merit to the affirmative defenses. (Code Civ. Proc., § 437c, subd. (f); Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 977-978.) If Plaintiffs meet their burden of production, the burden shifts to GM to show the existence of a triable issue of fact with respect to that affirmative defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

GM cannot rely on “mere allegations or denials,” but must “set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) Nonetheless, “[a]ll doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment. [Citation.]” (Ingham v. Luxor Cab Co. (2001) 93 Cal.App.4th 1045, 1049.)

Here, Plaintiffs mainly rely on the fact that they propounded Requests for Admissions (RFA), along with corresponding Form Interrogatory (FROG) No. 15.1, to determine what facts, persons, or documents GM has to support any of its affirmative defenses. Plaintiffs also propounded Request for Production of Documents (RFP) No. 24 which requested “Any-and-all DOCUMENTS which support the affirmative defenses as set forth in YOUR Answer to Plaintiffs' Complaint” and various special interrogatories that ask for facts and documents related to some of GM's defenses such as unreasonable or unauthorized use or aftermarket parts.

Plaintiffs argue that, in response to this specific discovery, Defendant GM failed to identify a single fact, witness, or document to support any of its Affirmative Defenses, including specifically its first through twenty-fifth Affirmative Defenses.

On this basis, Plaintiffs argue that they have “negate[d] an essential element of the defense or establish[ed] the defendant does not possess and cannot reasonably obtain evidence needed to support the defense.” (See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900.)

Plaintiffs argue that GM’s first affirmative defense fails because “[GM] has made no challenge to the pleadings in over two years of litigation” and because GM’s response to FROG 15.1 “states GM has no facts and points to documents GM did not produce.” (PSS 2-3.)

Summary adjudication of this issue is not proper. As noted above, summary adjudication is proper only as to affirmative defenses.

“An affirmative defense is new matter that defendants are required to plead and prove.” (Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 424.) In contrast, the failure to state a claim “ ‘is not a proper affirmative defense, but rather asserts a defect in [the plaintiff's] prima facie case.’ [Citations.] ... The defense of failure to state a claim is, in essence, an argument that the plaintiff has not met its burden of alleging the elements of its claims.” (LL B Sheet 1, LLC v. Loskutoff (2019) 362 F.Supp. 3d 804, 818.)

Moreover, the defense of failure to state a cause of action can be raised at any time, including for the first time on appeal. (Code Civ. Proc., § 430.80, subd. (a); Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 7, fn. 2; Falahati v. Kondo (2005) 127 Cal.App.4th 823, 831, fn. 18.)

Twenty-Fourth Affirmative Defense for Failure to State Cause of Action for Civil Penalties:

GM’s Twenty-Fourth Affirmative Defense states that the Complaint fails to state sufficient facts to warrant the imposition of civil penalties if replacement or repurchase of the subject vehicle was not appropriate under the circumstances then known or if GM offered to repurchase the subject vehicle.

In moving for summary adjudication, Plaintiffs argue that GM’s responses to FROG 15.1 offers no facts to support this defense. (PSS 143.) However, like the First Affirmative Defense, this defense challenges the adequacy of Plaintiffs’ Complaint.

For the same reasons as the First Affirmative Defense, the motion for summary adjudication of this defense is procedurally improper and must be denied.

GM’s Twelfth Affirmative Defense reads “GM is informed and believes, and therefore alleges, that any breach of warranty […] by GM, if any, were neither the cause in fact nor the proximate cause of Plaintiffs’ damages. Rather, any alleged breach was only secondary, inconsequential, indirect and in no way contributed to or caused Plaintiffs’ alleged damages.”

An affirmative defense is required where the defendant must raise “new matter” outside of the complaint in order to meet the allegations of the complaint, the new matter must be set forth in an affirmative defense. (Jetty v. Craco (1954) 123 Cal.App.2d 876, 880 [new matter is defense which is not disclosed by the pleadings].) “[W]here matters are not responsive to essential allegations of the complaint, they must be raised in the answer as ‘new matter,’ “ which is “something relied on by a defendant which is not put in issue by the plaintiff.” (Walsh v. West Valley Mission Community College Dist. (1998) 66 Cal.App.4th 1532, 1546.) Thus, the distinction between a denial and an affirmative defense is that “[a]ny facts which tend to disprove some one of [the] allegations [of the complaint] may be given in evidence under the denial; any fact which does not thus directly tend to disprove some one or more of [the] allegations cannot be given in evidence under the denial.... All facts which do not thus directly tend to disprove some one or more of these averments, but tend to establish a defense independently of them, cannot be offered under the denial; they are new matter and must be specifically pleaded.’ “ (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 383, fn. 4.)

This defense, like the failure to state a claim, merely challenges Plaintiffs’ ability to prove an essential element of Plaintiffs’ claim and, thus, is not an affirmative defense.

The motion for summary adjudication of this defense is therefore procedurally improper and denied.

GM’s Answer alleges that Plaintiff’s claims “are barred because Plaintiffs failed to allow GM an opportunity to cure GM's breach.”

Strangely, in moving for summary adjudication of this defense, Plaintiffs take the position that “[t]here is no requirement that Plaintiffs allow Defendant to cure other than taking the vehicle to the dealership for repair.” (PSS 7.)

However, it is well-established that a defendant manufacturer must have been given a reasonable number of opportunities to repair the Subject Vehicle. (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 798–799.) Inherent to this requirement is that Plaintiffs must allow a repair attempt by GM to occur; it is not enough that the vehicle be brought for a repair but then prevented from performing it.

Moreover, in opposition, GM submits evidence that Plaintiff declined repairs. On August 20, 2020, Plaintiffs presented the Subject Vehicle for repair due to a noise in the suspension; the repair technician advised Plaintiffs to “replace brace” but “customer declined at this time.” (Castruita Decl., Ex. 8.) Likewise, on October 26, 2020, “customer states noise coming from suspension customer requests no repairs to be performed.” (Castruita Decl., Ex. 9). At a subsequent visit on November 27, 2020, Plaintiffs elected to tow their vehicle rather than have it repaired. (Castruita Decl., Ex. 10 [“12/1/2020 – 4:25pm client called back and will tow vehicle”]).

Based on this opposition evidence, there is a triable issue of material facts in dispute. The motion for summary adjudication is denied.

GM’s Third Affirmative Defense for Mitigation states, that Plaintiffs’ alleged damages, if any, are the result, in whole or in part, of Plaintiffs’ failure to exercise care to reduce or mitigate damages.

Plaintiffs argue that the only offset allowed under the Song-Beverly Act (SBA) is the statutory mileage offset. (PSS 10 [citing Williams v. FCA US LLC (2023) 88 Cal.App.5th 44, 61[1] and Jiagbogu v. Mercedes-Benz USA (2004) 118 Cal.App.4th 1235, 1243-1244].) As such, they argue, GM’s affirmative defense for mitigation does not apply as a matter of law and must be dismissed.

Plaintiffs’ interpretation of the law is too narrow. In Jiagbogu, the court rejected a defendant manufacturer's arguments that common law and statutory principles of rescission and equitable offset limit the remedies under the Act. (Jiagbogu, at p. 1242, 13 Cal.Rptr.3d 679.) The court held that the defendant manufacturer “could be entitled to an equitable offset,” but “only if the offset does not conflict with provisions of the Act.” (Jiagbogu, at p. 1242.) In the facts specific to Jiagbogu, the Court found that an offset for continued use of a vehicle after requesting replacement or restitution would conflict with the provisions of the Act. (See Jiagbogu, supra, 118 Cal.App.4th at pp. 1243–1244.) In reaching this conclusion, the court noted that section 1793.2, subdivision (d)(2) expressly provides for an offset for use of the vehicle prior to the buyer first delivering the vehicle for repair, and otherwise “comprehensively addresses” the relief to which a buyer is entitled, including replacement and restitution, specified taxes, fees, and costs, and other incidental damages. (Jiagbogu, at p. 1243.) “This omission of other offsets from a set of provisions that thoroughly cover other relevant costs indicates legislative intent to exclude such offsets.” (Id. at pp. 1243–1244.)

Based on this analysis, Plaintiffs’ conclusion that only mileage offset is permitted is overly broad and ignores the specific analysis that must be undertaken to determine whether certain defenses or mitigations may be applicable.

Because Plaintiffs offer no evidence on their motion for summary adjudication of this affirmative defense – only an undeveloped legal argument (PSS 9-10) – the motion for summary adjudication on this ground is denied.

Ninth Affirmative Defense for Misuse of Product and Thirteenth Affirmative Defense for Unauthorized Use:

GM’s Ninth Affirmative Defense for Misuse of Product states any issues or injuries were “directly and proximately caused and contributed to by the misuse of and the unreasonable and improper use of GM’s product.”

“Product misuse, an affirmative defense, is a superseding cause of injury that absolves a tortfeasor of his or her own wrongful conduct only when the misuse was “ ‘so highly extraordinary as to be unforeseeable.’ ”” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1308 [quoting Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 685]; see also Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573, fn. 9 [complete defense of superseding cause appropriate when “an independent event intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible”]; see generally CACI No. 1245 [“Affirmative Defense—Product Misuse or Modification”].)

GM’s Thirteenth Affirmative Defense for Unauthorized Use of the Product, provides “all damages, if any, allegedly sustained or suffered by Plaintiffs, were proximately caused and contributed to by Plaintiffs’ use of the subject vehicle for a purpose to which the subject vehicle was not intended to be used.”

Under Song-Beverly, a breach of the warranty of merchantability occurs when a good becomes unfit for the ordinary purpose for which it is used. (Civ. Code, § 1791.1, subd. (a). “[A]n exception occurs when the defect or nonconformity is caused by the buyer's unauthorized or unreasonable use under Civil Code section 1794.3.” (Jones v. Credit Auto Center, Inc. (2015) 237 Cal.App.4th Supp. 1, 10.) Moreover, the New Vehicle Limited Warranty applicable here expressly excludes coverage for damage to or misuse of the vehicle. (DAF [Major Decl., Ex. J]).

In opposition, GM submits evidence Plaintiffs modified the Subject Vehicle. (DSS 32 [Major Decl., Exs. C, D, E; Castruita Decl., Ex. 13]; DSS 70.) Thus, triable issues of fact exist as to whether Plaintiffs failed to exercise reasonable care with their vehicle, including when they modified the Subject Vehicle, and whether such a failure caused or increased their damages.

In support of the motion for summary adjudication, Plaintiffs submit evidence the Subject Vehicle was purchased on July 12, 2017. (PSS 16.) Plaintiffs filed the instant action on October 4, 2021. (PSS 17.) Plaintiff argues that a claim cannot be made until its authorized repair facilities have been given at least two opportunities to repair the vehicle, which did not occur until June 10, 2020. (PSS 18, 10.) Pursuant to California Commercial Code section 2725, parties have four years to bring a claim under the SBA. (PSS 15.) Thus, the claim was timely.

This evidence does not shift Plaintiff’s initial burden. As the opposition notes, a cause of action accrues when the plaintiff discovers or should have discovered the breach of warranty. (Comm. Code, § 2725(2); Yi v. BMW of North America, LLC (C.D. Cal., May 24, 2018, No. 2:17-CV-06467-SVW) 2018 WL 3359016, at *4 [“a plaintiff's claim accrues when he discovers or should have discovered the breach.”].) Thus, in contrast to the argument in the moving papers, the statute of limitations does not begin to run specifically following a specific number of repair attempts.

Here, the Complaint alleges that “[t]he vehicle was delivered to Plaintiffs with serious defects and nonconformities to warranty and developed other serious defects and nonconformities to warranty including, but not limited to suspension, body and engine issues.” (Compl., ¶ 12.) Thus, the breach of warranty allegedly occurred on July 12, 2017 – although Plaintiffs overcome a statute of limitations issue through delayed discovery.

Plaintiffs had four years to bring a claim under Song-Beverly. (Motion p. 14:4-5). Yet, they did not file suit until October 2021, more than four years after they purchased the Subject Vehicle.

In moving for summary adjudication of this affirmative defense, Plaintiffs – relying in part on their statute of limitations accrual argument – contend that there can be no showing of unreasonable delay because this action was filed “just over a year after any possible claim could have occurred” based on the second repair on the Subject Vehicle occurring on June 10, 2020.

As discussed above, this legal argument is incorrect. Moreover, the separate statement evidence does not shift Plaintiffs’ initial burden of negating an essential element of GM’s affirmative defense for laches. (PSS 20-23.)

Seventh Affirmative Defense for Failure of Performance and Tenth Affirmative Defense for Alteration of Product:

GM’s Seventh Affirmative Defense expressly states, “GM is informed and believes, and therefore alleges, that any failure to perform the obligations as described in the Unverified Complaint resulted from Plaintiffs’ failure to perform as required by the contract and warranty. Performance by Plaintiffs of their obligations is a condition precedent to the performance of GM’s obligations.”

GM’s Tenth Affirmative Defense for Alteration of Product states “[a]ny damage to the subject vehicle was caused or created by changes or alterations to the vehicle, after GM manufactured and sold the vehicle, by persons other than GM or any of its agents, servants, or employees, barring Plaintiffs’ recovery in this action.”

In support of its motion for summary adjudication, Plaintiffs submit evidence that they took the Vehicle to a GM authorized repair facility for repair eight times. (PSS 25.) The Vehicle was never repaired to conform to warranty. (PSS 26.)

Plaintiff acknowledges that an “offsite GM employee noted that engine calibrations were different than stock and with that fact alone, voided the warranty.” (PSS 37, 60, 77, 96, 113.) However, Plaintiff argues that this is insufficient to show that any modifications Plaintiffs made damaged or otherwise affected the parts of the vehicle that were defective. (PSS 39, 62, 79, 98, 115.)

In opposition, GM contends that Plaintiffs’ modifications to the Subject Vehicle caused unwarrantable damage to the Subject Vehicle. (DSS 26, 35-49 [Jensen Decl. ¶¶ 4, 5]). GM also contends that, alternatively, Plaintiffs failed to permit GM to repair the Subject Vehicle.

There is triable issue of material fact in dispute as to these affirmative defenses. The motion for summary adjudication is denied.

Fourth Affirmative Defense for Contributory Negligence, Unclean Hands, Assumption of Risk, Fourteenth Affirmative Defense for Estoppel, Sixteenth Affirmative Defense for Comparative Negligence, and Seventeenth Affirmative Defense for Assumption of Risk:

GM’s fourth affirmative defense for Contributory Negligence, Unclean Hands, Assumption of Risk provides that Plaintiffs’ claims are barred in whole or part by Plaintiffs’ negligence, unclean hands, fault, assumption of risk or otherwise from any and all legal or equitable relief against GM.

GM’s fourteenth affirmative defense for estoppel states Plaintiffs are estopped from obtaining the relief sought by virtue of Plaintiffs' acts and conduct in connection with the matters in the Complaint.

The sixteenth affirmative defense for comparative negligence claims Plaintiffs' damages were the direct and proximate result of the conduct of Plaintiffs or Plaintiffs' agent, employees, and invitees, in that they negligently, carelessly, recklessly, knowingly, and willfully operated, maintained, serviced, directed, and otherwise controlled all operations and maintenance of Plaintiffs' vehicle.

Finally, the seventeenth affirmative defense for assumption of risk alleges that the risks and dangers of Plaintiffs' conduct were known to Plaintiffs, but Plaintiffs conducted themselves in such a manner as to expose themselves, and remain exposed, to such risks and dangers, and by doing so, assumed all the risks attendant to that conduct.

In seeking summary adjudication of these defenses, Plaintiff argues that GM's responses to FROG 15.1 offers no facts to support these defenses and the only permissible offset available under the SBA is an offset for mileage.

As discussed above, there are triable issue of material facts in dispute arising from Plaintiff’s modification of the Subject Vehicle. Further, Plaintiff’s legal argument as to limitations on available affirmative defenses is not well-taken.

GM’s eighth affirmative defendant for apportionment states that all injuries and damages were proximately caused and contributed to by the superseding, intervening acts, or omissions of persons other than GM.

Plaintiffs contend that this defense fails a matter of law because the “only offset that Defendant is allowed is the statutory mileage offset.” (Mot., 15:10-11 [citing PSS 30 [citing Williams v. FCA US LLC and Jiagbogu v. Mercedes-Benz USA]].)

For the reason discussed above with respect to the third affirmative defense for mitigation, this undeveloped legal argument fails as a matter of law. The motion for summary adjudication is denied.

Eleventh Affirmative Defense for Disclaimer and Fifteenth Affirmative Defense for Waiver:

GM’s eleventh affirmative defense for disclaimer provides that, before and at the time of the alleged acts, omissions, and conduct of GM, GM expressly disclaimed, negated, and excluded all warranties of the type alleged by Plaintiffs of any type, express or implied.

GM’s fifteenth affirmative defense for waiver states that Plaintiffs have waived Plaintiffs' rights to obtain the relief sought.

Plaintiff submits evidence that GM's responses to FROG 15.1 offers no facts to support any claim that GM could or did disclaim any warranty Plaintiffs have alleged whether implied or express. (PSS 51.) GM cannot point to any facts that support that Plaintiffs ever waived any warranty related to the subject vehicle (PSS 52.)

Defendant GM contends that Plaintiffs waived their rights to coverage under the warranty when they modified the Subject Vehicle and otherwise abused and misused the vehicle. (Major Decl., Exs. C, D, E; Jensen Decl. ¶¶ 4, 5.)

Defendant GM provides no legal authority that the evidence submitted in opposition may support either disclaimer or waiver. Thus, the Court grants summary adjudication of the eleventh and fifteenth affirmative defenses.

Eighteenth Affirmative Defense for Qualified Third-party Dispute Resolution Process, and Nineteenth Affirmative Defense for Good Faith Belief in Legality of Actions:

Plaintiffs argue that Defendant GM's responses to FROG 15.1 offers no facts to support theses defenses. (Mot., 18:7-14; 18:17-22.)

In opposition, GM also provides legal argument that these defenses may be viable defenses to Plaintiffs’ claims. (Opp., 20:23-7.) For example, GM argues that Plaintiff must demonstrate GM willfully failed to repurchase or replace their vehicle. “Willful” means that GM knew of its legal obligations and intentionally declined to follow them. (CACI 3244.) GM argues that its actions cannot be “willful” if it had a “reasonabl[e] and in good faith belie[f] in the legality of its actions.”

However, GM need not rely on an affirmative defense to present evidence at the time of trial that its actions were not willful since the willfulness is an element that must be proven to support Plaintiffs’ claim. (Opp., 21:15 [“Plaintiffs can only recover civil penalties under Civil Code § 1794(c) if they are able to prove . . ..”].) Therefore, GM’s opposition, which relies solely on argument is not well taken.

Thus, the Court grants summary adjudication of the eighteenth and nineteenth affirmative defenses.

Twenty-First Affirmative Defense pursuant to Civil Code section 1791.1., subdivision (c):

In moving for summary adjudication of this defense, Plaintiffs concedes that they cannot sue under the implied warranty because their first repair was more than a year after the purchase of the Vehicle. (PSS 135.) Plaintiffs represent that they will dismiss this cause of action. (PSS 136.)

In response, Defendant GM agrees to dismiss the twenty-first affirmative defense. Summary adjudication of this issue is moot.

GM’s twenty-third affirmative defense provides Plaintiffs failed to provide notice pursuant to Civil Code section 1794(e)(3); therefore, Plaintiffs are barred from asserting the presumptions in Civil Code section 1793.22 and from recovering civil penalties pursuant to Civil Code section 1794(e).

In moving for summary adjudication of the Twenty-Third Affirmative Defense for Failure to Provide Notice, Plaintiffs contend that they are not suing under Civil Code section 1794(e). (PSS 141.) Instead, Plaintiffs contend that Defendant's violation of its obligations under the SBA were willful under 1793.2 and 1794(c). (PSS 142 [Castruita Decl., ¶ 17, Ex. 14 [Compl. ¶¶ 33, 35]].) Thus, this defense does not apply.

The Opposition does not address whether notice is required under this statute where Plaintiffs are not seeking relief under Civil Code section 1794(e). No material evidence is submitted in opposition either.

In its twentieth affirmative defense, GM asserts that it intends to avail itself of the reduction authorized by Civil Code section 1793.2(d)(2)(c) if GM is found to violate the civil code.

In moving for summary adjudication, Plaintiffs argue that GM's responses to FROG 15.1 offers no facts to support this defense. (PSS 133.)

Providing no evidence in opposition, GM contends that discovery is ongoing. (Opp., 22:9-20.) GM has failed to raise a triable issue of material fact in dispute.

GM’s twenty-second affirmative defense for consent states that the repair process to Plaintiffs’ Vehicle was appropriate and proper and is believed to have been done with Plaintiffs' consent.

In moving for summary adjudication, Plaintiffs argue that GM's responses to FROG 15.1 offers no facts to support this defense. (PSS 137.) Plaintiffs claim that GM also cannot identify any “admissible evidence to demonstrate that Plaintiffs ever gave consent to have the issues he had in the vehicle or for GM to refuse to repair them under warranty.” (Mot., 19:8-9 [citing PSS 138].)

The opposition does not specifically address this affirmative defense (Opp., 14:24-16:5), and submits no evidence in opposition (DSS 137-139).

In its twenty-fifth affirmative defense, GM asserts that it presently has insufficient knowledge or information to form a belief as to whether it may have additional, as yet unstated, affirmative defense available and, therefore, reserves the right to assert affirmative defenses if discovery indicates that they would be appropriate.

GM’s opposition indicates that in order to prevent waiver of any unalleged affirmative defenses, it reserved the right to raise a defense that later becomes available based on additional facts and evidence obtained during the course of litigation.

However, GM also agrees, in the alternative, to withdraw this affirmative defense. GM has presented no evidence to support any “as of yet” unalleged affirmative defenses. Therefore, the Court will consider this affirmative defense dismissed.

[1] This pincite is inaccurate and it is unclear what Plaintiffs intended to specifically cite.