Judge Bruce G. Iwasaki, Case Number: 23STCV13085, Date: 2025-01-23 Tentative Ruling

Responding Party: Plaintiff James Baker

Tentative Ruling: The motion for summary adjudication is granted as to the first and fifth causes of action.

On June 8, 2023, Plaintiff James Baker (Plaintiff) filed a Complaint against Defendant CAVT, LLC dba Cerritos Nissan (Defendant Cerritos Nissan) and Old United Casualty Company (Old United). On November 1, 2023, Plaintiff filed the operative First Amended Complaint, alleging causes of action for (1) violations of the Consumers Legal Remedies Act, (2.) intentional misrepresentation, (3.) concealment, (4.) negligent misrepresentation, (5.) breach of implied warranty under the Song-Beverly Act, (6.) violations of the Unfair Competition Law, and (7.) violation of Vehicle Code section 11711.

Defendant Cerritos Nissan now moves for summary adjudication of the first and fifth causes of action. Plaintiff opposes the motion.

Plaintiff’s objections to Defendant’s evidence are ruled as follows: Nos. 1-23 are overruled.

Defendant’s objections to Plaintiff’s evidence are ruled as follows: Nos. 1-9, 11-14 are sustained and No. 10 is overruled.

“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).)

“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).)

Defendant moves for summary adjudication of the Consumers Legal Remedies Act (CLRA) cause of action on the grounds that Plaintiff waived his claim regarding the condition of the Vehicle and on the grounds that the statements made are not actionable misrepresentations.

The CLRA prohibits certain “unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services.” (Civ. Code, § 1770, subd. (a).) The elements of a CLRA claim are: (i) a consumer; (ii) who suffers any damage; (iii) because of the use or employment by any person of a method, act, or practice declared to be unlawful by Civil Code section 1770. (Civ. Code, § 1780, subd. (a).) Prohibited practices include “[r]epresenting that goods ... have ... characteristics ... which they do not have”; “[r]epresenting that goods ... are of a particular standard, quality, or grade”; and “[r]epresenting that a transaction confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law.” (Civ. Code, § 1770, subd. (a)(5), (7), (14).)

Further, “ ‘[r]elief under the CLRA is specifically limited to those who suffer damage, making causation a necessary element of proof.’ [Citation.] Accordingly, ‘plaintiffs in a CLRA action [must] show not only that a defendant's conduct was deceptive but that the deception caused them harm.’ ” (Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 809, disapproved on other grounds in Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310.) “[P]laintiffs asserting CLRA claims sounding in fraud must establish that they actually relied on the relevant representations or omissions,” that is “ ‘ “ ‘without the misrepresentation, the plaintiff would not have acted as he did.’ ” ’ ” (Buckland, 155 Cal.App.4th at p. 810.)

First, Defendant argues that Plaintiff signed a written waiver of any claims regarding the condition of the Vehicle. Specifically, Defendant notes that Plaintiff signed a CarFax Disclosure, which stated, in relevant part, that “FOR AND IN CONSIDERATION OF THE DEALER AGREEING TO SELL THE VEHICLE BY SIGNING THIS DISCLOSURE, I/WE AGREE TO THE TERMS ABOVE AND ACCEPT THE VEHICLE IN ITS PRESENT CONDITION WITH REGARD TO ITS CURRENT BODY, PAID AND MECHANICAL CONDITION. I/WE AGREE TO RELEASE AND HOLD HARMLESS DEALER FROM ANY CLAIMS FOR MECHANICAL PROBLEMS, PRIOR DAMAGE, PRIOR REPAIRS, WHETHER MECHANICAL OR PAINT AND BODY, OR ANY OTHER CLAIM BASED ON THE HISTORY OR CONDITION OF THE VEHICLE.” (DSS 9.)

The CLRA contains an anti-waiver provision that states “[a]ny waiver by a consumer of the provisions of this title is contrary to public policy and shall be unenforceable and void.” (Civ. Code, § 1751.) Defendant’s reply does not address this argument. Under section 1751, the Court cannot treat the CarFax agreement as a waiver of Plaintiff’s CLRA claims for any alleged misrepresentations made by Defendant.

Plaintiff’s claim is predicated on three general representations made by Defendant’s employees: misrepresenting the Vehicle’s condition, the Vehicle’s prior maintenance history, and the Vehicle’s coverage under the warranty and the service contract. The FAC specifically alleges: “Dealer violated the CLRA by, at a minimum: (1) misrepresenting the condition of the Vehicle; (2) misrepresenting the terms of the transaction; (3) representing the Vehicle was covered by an express warranty, when it was not; (4) concealing the condition of the Vehicle; and (5) concealing the terms of the transaction.” (FAC ¶ 23.)

According to Plaintiff’s opposition to the motion for summary adjudication, Defendant told Plaintiff the Vehicle was in was in “great condition” and that Cerritos Nissan “stand[s] behind their Vehicles;” Cerritos Nissan also represented to Plaintiff (1) “they go through all their vehicles really thoroughly” before offering them for sale; (2) “they stand behind their vehicles” and if anything went wrong Plaintiff “could bring it back in for service”; (3) and finally Cerritos Nissan represented the Vehicle would be fully covered from “front to back” with the combination of the coverage provided through the manufacturer’s warranty and the extended warranty” [service contract], which Cerritos Nissan sold to Plaintiff at an extra cost. (FAC ¶ 8; PSS 14.)

First, Defendant’s alleged representations that the Vehicle was “great condition” and that Cerritos Nissan “stand[s] behind their Vehicles” is not actionable. These statements are mere opinion and too generalized to constitute a misrepresentation under the CLRA. (See e.g., Hauter v. Zogarts (1975) 14 Cal.3d 104, 111–113 [some representations concerning the quality of a product express a seller's subjective opinion and cannot be relied upon as statements of fact]; Glen Holly Entertainment, Inc. v. Tektronix, Inc. (9th Cir. 2003) 352 F.3d 367, 379 [“The statements were generalized, vague and unspecific assertions, constituting mere “puffery” upon which a reasonable consumer could not rely.”].)

Second, Plaintiff’s claim that Defendant told him that Cerritos Nissan “go[es] through them all thoroughly and make sure they’re good before we put them out there” (SSUF No. 21) is another example of nonactionable, nonspecific, and subjective opinion.

Finally, Plaintiff also alleges Defendant Cerritos Nissan told Plaintiff that, with the combination of the manufacturer’s warranty and the Service Contract, the Vehicle “would be covered from front to back.” (PSS 22, 43.) However, Cerritos Nissan made no specific promises regarding the manufacturer's application of its warranty coverage to future vehicle conditions or specific service coverage. (DSS 20.) As such, the statement is too vague to be actionable, as it is a generalized assertion that makes no promise as to specific actions. (See, e.g., Wilson v. Houston Funeral Home (1996) 42 Cal.App.4th 1124, 1139 [representation that funeral home “ ‘would provide for a dignified and respectful funeral and burial service’ ” is too general to support fraud claim].) Moreover, Defendant’s evidence shows that Plaintiff understood that not every single piece of the Vehicle was under warranty at the time of purchase. (DSS 15.) This indicates that even Plaintiff knew the “front to back” statement was not to be taken literally.

Lastly, the undisputed evidence shows that the Vehicle’s powertrain warranty was in effect at the time of the sale and Defendant did not make any warranty representations beyond that. (DSS 25-26.)

Defendant moves for summary adjudication of this cause of action on the grounds that the Vehicle purchased was “used” and not sold with an express warranty.

The Song–Beverly Act’s implied warranty of merchantability applies to new goods. (Civ. Code, § 1791, subd. (a).) That is, “ ‘Consumer goods’ means any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables.” (Civ. Code, § 1791, subd. (a).) Under the Song–Beverly Act, there is an implied warranty of merchantability with respect to “consumer goods” that are sold (Civ. Code, § 1792), unless the goods are sold with an express disclaimer stating they are sold “ ‘as is' ” or “ ‘with all faults.’ ” (Civ. Code, § 1791.3.)

However, this implied warranty of merchantability also applies to used goods, so long as the used goods are purchased “in a sale in which an express warranty is given.” (Civ. Code, § 1795.5.) Civil Code section 1795.5, subdivision (c), provides in relevant part: “The duration of the implied warranty of merchantability ... with respect to used consumer goods sold in this state, where the sale is accompanied by an express warranty, 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 warranties have a duration of less than 30 days nor more than three months following the sale of used consumer goods to a retail buyer. Where no duration for an express warranty is stated with respect to such goods, or parts thereof, the duration of the implied warranties shall be the maximum period prescribed above.”

Here, the undisputed evidence shows that Plaintiff did not purchase a new vehicle; he purchased a used vehicle. (DSS 33.) Further, the Vehicle was sold “AS-IS – NO DEALER WARRANTY.” (DSS 36.)

In support for the motion for summary adjudication, Defendant argues that Song-Beverly imposes obligations on retailers of used vehicles only when the “distributor or retail seller mak[es] express warranties” which Defendant Cerritos Nissan asserts that it did not. (DSS 33-36.)

In opposition, Plaintiff argues that Defendant made an express warranty regarding he Vehicle.

An existing transferable manufacturer express warranty does not trigger application of Song-Beverly for a used vehicle; rather, as noted above, to trigger application of Song-Beverly for a retail seller of used goods, the seller must be the issuer of an express warranty.

In particular, Plaintiff – citing Reveles v. Toyota by the Bay (1997) 57 Cal.App.4th 1139 – argues the service contract with Defendant Cerritos Nissan created an express warranty.

In Reveles, the Court explained that a vehicle service agreement can qualify as a warranty if it unquestionably requires the dealer to “preserve or maintain the utility or performance” of the used vehicle for a specified period of time. (Reveles v. Toyota by the Bay (1997) 57 Cal.App.4th 1139,1156.)

Plaintiff’s argument is unpersuasive; Plaintiff misstates the law and Plaintiff’s evidence does not support the existence of an express warranty by Defendant.

This exact proposition in Reveles was overruled in Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1261. In that case, our Supreme Court expressly “disapprove[d] of [Reveles] conclusion that a service contract is a type of express warranty under the Song–Beverly Act.” (Id. at p. 1261.) In Gavaldon the Court found that unless they make reference to themselves as warranties or guarantees, service contracts, such as the one Plaintiff purchased from Defendant, are not covered by Song-Beverly.

The act defines an express warranty, in pertinent part, as “[a] written statement arising out of a sale to the consumer of a consumer good pursuant to which the manufacturer, distributor, or retailer undertakes to preserve or maintain the utility or performance of the consumer good or provide compensation if there is a failure in utility or performance ....” (Civ. Code, § 1791.2, subd. (a)(1).)

Plaintiff’s deposition testimony states that he purchased an “extended warranty.” (PSS 13 [Baker Depo. 43:23-24].) The underlying evidence however was a representation by Defendant’s salesperson who allegedly told him he was “fully covered under the manufacturer warranty and the extended warranty.” (PSS 13 [Baker Depo., 47:12-14].) The Separate Statement makes clear that the so-called “extended warranty” was a “service contract.” (PSS 13-14.) The only specific language that Plaintiff points to in the service contract was that the Buyer’s Guide has the box next to the SERVICE CONTRACT checked off and says: “If you buy a service contract within 90 days of your purchase of this vehicle, implied warranties under your state’s laws may give you additional rights.” (PAF 39.) This language does not create an express warranty as to the condition of the Vehicle. Rather, it merely advies that some unidentified state law “may” create an implied warranty.

Lastly, Plaintiff testified that Defendant’s salesperson told him “[if] [he] ever had any problems we stand behind our cars and you know you can bring it in for service, but it’s under warranty, you’re covered from – the front to the back, both with the manufacturer and the [Service Contract] Extended Warranty that [he] purchased.” (PSS 13.)

This oral statement does not meet he definition of an “express warranty” under the statute. Further, although “formal words are not required in order to create an express warranty” “statements of value, opinion, or commendation do not create a warranty.” (Keith v. Buchanan (1985) 173 Cal.App.3d 13, 19–20.)

The motion for summary adjudication of the Song-Beverly cause of action is granted.