Judge Christopher K. Lui, Case 21STCV04733 2022-12-20 Tentative Ruling

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue. Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

Plaintiffs allege that there was a defect with the 8L56 MYC Hydra-Matic automatic transmission in the 2017 Chevrolet Colorado purchased by Plaintiff.

Defendant General Motors LLC moves for summary judgment or, in the alternative, summary adjudication.

Pursuant to CCP § 437c(q), the Court only rules upon the following objections asserted against evidence which the Court deems to be material to the disposition of this motion:

Nos. 1 – 5: OVERRULED. The lack of foundation and authentication and, in this case, the foundation for the business records exception to the hearsay rule (Evid. Code, § 1271), may be remedied at trial. The lack of authentication or foundation may be remedied before trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-49.)

No. 6: OVERRULED. Plaintiff’s deposition testimony would constitute admissions by a part opponent. (Evid. Code, § 1220.) The deposition transcript is certified.

For the reasons discussed below, Defendant may not obtain summary adjudication due to procedural defects. As such, Defendant must prevail as to all causes of action in order to obtain summary judgment.

1. First Cause of Action (Breach of Implied Warranty of Merchantability Under the Song-Beverly Act).

Defendant argues that the undisputed facts and record evidence shows that: (i) the vehicle at issue was presented for warranty repairs on only two occasions for unrelated concerns, (ii) those two warranty-related presentations kept the vehicle out of service for no more than 11 days, (iii) the first concern never recurred after being repaired the one and only time Plaintiff presented the vehicle for that issue, and (iv) notwithstanding his self-serving testimony that the second issue recurred one month before he sat for his deposition in this case, Plaintiff testified, under oath, that he never presented the vehicle for the second concern after it was repaired more than 22 months ago.

(a) “Implied warranty of merchantability” or “implied warranty that goods are merchantable” means that the consumer goods meet each of the following:

(4) Conform to the promises or affirmations of fact made on the container or label.

Stating a complete cause of action for a breach of the Song-Beverly Consumer Warranty Act’s implied warranty of merchantability also requires the plaintiff to allege facts establishing the generic elements of causation and [*1247] harm. These elements are addressed by the statutory provisions that define the relief available for a breach of the implied warranty. For instance, Civil Code section 1791.1, subdivision (d) states: “Any buyer of consumer goods injured by a breach of the implied warranty of merchantability … has the remedies provided in Chapter 6 (commencing with Section 2601) and Chapter 7 (commencing with Section 2701) of Division 2 of the Commercial Code, and, in any action brought under such provisions, Section 1794 of this chapter shall apply.”

Similarly, Civil Code section 1794, subdivision (a) states that “[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation … under an implied … warranty … may bring an action for the recovery of damages or other legal and equitable relief.” In accordance with these provisions, the buyer of consumer goods must plead he or she was injured or damaged by the alleged breach of the implied warranty of merchantability.

(Gutierrez v. Carmax Auto Superstores Cal. (2018) 19 Cal.App.5th 1234, 1246-47.)

Notably, a reasonable number of repair attempts is not relevant to a breach of implied warranty merchantability analysis. (Mocek v. Alfa Leisure, Inc. (2003) 114 Cal.App.4th 402, 406-07; Brand v. Hyundai Motor Am. (2014) 226 Cal.App.4th 1538, 1548.) Rather, whether or not the implied warranty of merchantability depends upon the nature of the defect, and whether “the vehicle manifests a defect that is so basic it renders the vehicle unfit for its ordinary purpose of providing transportation.,” (Brand, supra, 226 Cal.App.4th at 1546) and whether it is “in safe condition” (id. at 1547) or contains a serious defect that “reasonably undermines the buyer’s confidence in the vehicle.” (Id. at 1548.)

Defendant’s evidence regarding the repair history of Plaintiff’s vehicle is as follows:

¿ On February 28, 2020, when the Colorado had 31,961 miles, Plaintiff visited Chevrolet of Puente Hills for routine vehicle maintenance. Puente Hills opened its Repair Order (“RO”) #130863, changed the vehicle’s oil and filter, rotated its tires, checked and topped off all fluids, performed a 27-point vehicle inspection to confirm that the vehicle was operating properly, closed the RO, and returned the Colorado to Plaintiff in under three hours. Plaintiff did not complain about any vehicle performance issues, and no repairs had to be or were performed under any GM warranty during this maintenance visit. (UF Nos. 7 and 9; see also id. at Exhibit E (RO #130863).)

¿ On June 23, 2020, when the Colorado had 34,473 miles, Plaintiff visited Chevrolet of Puente Hills with a concern about a “clunk” coming from the vehicle’s front end when it accelerated. Puente Hills opened its RO #135730 on June 23, found the left engine mount bolts missing, installed new engine mount bolts and a new engine bracket, performed a 27-point vehicle inspection to confirm that the vehicle was otherwise operating properly, and closed the RO on June 29 when it returned the Colorado to Plaintiff. These repairs, performed under warranty, kept the Colorado out of service for no more than seven days. (UF Nos. 7 and 10; see also id. at Exhibit F (RO #135730).)

¿ On August 15, 2020, when the Colorado had 35,948 miles, Plaintiff visited Chevrolet or Puente Hills for routine vehicle maintenance. Puente Hills opened its Repair Order (“RO”) #138110, changed the vehicle’s oil and filter, rotated its tires, and performed a 27-point vehicle inspection to confirm that the vehicle was operating properly. The dealership also recommended additional maintenance, but Plaintiff declined it. The RO was then closed and the Colorado returned to Plaintiff within two hours after the RO had been opened. Plaintiff did not complain about any vehicle performance issues, and no repairs had to be or were performed under any GM warranty during this maintenance visit. (UF Nos. 7 and 11; see also id. at Exhibit G (RO #138110).)

¿ On November 2, 2020, when the Colorado had 38,524 miles, Plaintiff visited Chevrolet of Puente Hills with a concerns about (i) the vehicle shaking or vibrating at speeds of 55 MPH and (ii) a rough idle. Puente Hills opened its RO #141089, verified Plaintiff’s shake/vibration issue and tried to address it by replacing the transmission fluid. During a test drive, however, the shudder was still present, so the dealership replaced the Colorado’s torque converter, which resolved the shake/shudder issue, as confirmed during a second test drive. As for the rough idle issue, the dealership could not verify or otherwise duplicate Plaintiff’s concern. The dealership then performed a 27-point inspection to confirm that the vehicle was operating properly, closed the RO on November 5, and returned the Colorado to Plaintiff. These repairs kept the vehicle out of service for no more than four days. (UF Nos. 7 and 12; see also id. at Exhibit H (RO #141089).)

¿ On February 13, 2021, when the Colorado had 40,687 miles, Plaintiff visited Chevrolet of Puente Hills for routine maintenance. Puente Hills opened its RO #145174, replaced the cabin filter, closed the RO, and returned the Colorado to Plaintiff in under two hours. Plaintiff did not complain about any vehicle performance issues, and no repairs had to be or were performed under any GM warranty during this maintenance visit. (UF Nos. 7 and 13; see also id. at Exhibit I (RO #145174).)

¿ The Colorado has not been presented to any GM-authorized facility for any service, maintenance or warranty repairs since February 13, 2021. (UF No. 8; see also id. at Ex. I; see also id. at Exhibit J, Plaintiff’s Deposition Transcript, at 22:15-17, 26:3-28:24 & 29:9-14.)

Defendant has presented evidence that none of the repairs were unable to address a defect which rendered the subject vehicle unfit for its ordinary purpose of transportation, or which rendered the vehicle unsafe or reasonably undermined the buyer’s confidence in the vehicle. (Brand, supra, 226 Cal.App.4^th a5 1546-48.)

Defendant has met its burden of demonstrating that there was no breach of the implied warranty of merchantability. The burden shifts to Plaintiff to demonstrate that a triable issue of material fact exists.

In the Opposing Separate Statement, Plaintiff simply states: “Disputed” as to Facts Nos. 7 – 14 without citation to any evidence.

The party opposing the summary judgment must make an independent showing by a proper declaration or by reference to a deposition or another [*11] discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party's evidence, standing alone, is sufficient to entitle the party to judgment. (Sebastian International, Inc. v. Peck (1987) 195 Cal. App. 3d 803, 807 [240 Cal. Rptr. 911]; Hoffman v. Sports Car Club of America (1986) 180 Cal. App. 3d 119, 126 [225 Cal. Rptr. 359].) To avoid summary judgment, admissible evidence presented to the trial court, not merely claims or theories, must reveal a triable, material factual issue. (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836 [5 Cal. Rptr. 2d 52].) Moreover, the opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation. (Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 161 [1 Cal. Rptr. 2d 636]; Baron v. Mare (1975) 47 Cal. App. 3d 304, 309, 311 [120 Cal. Rptr. 675].)

(Wiz Technology, Inc. v. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 10-11.)

Plaintiff also objects on the ground of hearsay, lack of foundation and lack of personal knowledge. However, these objections have been overruled, as set forth above.

Further, Plaintiff’s discussion of a service visit on August 30, 2022 for illumination of the check engine light is irrelevant for purposes of this motion for summary judgment because this occurred after the operative First Amended Complaint was filed on May 27, 2021. Plaintiff may not rely upon facts that are not pled in the operative complaint to resist summary judgment.

Plaintiff cannot defeat summary judgment by showing a triable issue as to an unpled theory. “The complaint serves to delimit the scope of the issues before the court on a motion for summary judgment [citation], and a party cannot successfully resist summary judgment on a theory not pleaded.” (Citation omitted.)” (Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1225 [bold emphasis added].) See also Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1387: “[A] summary judgment motion is directed to the issues framed by the pleadings. [Citations.] Those are the only issues a motion for summary judgment must address. [Citations.]” (Citation omitted.)”

(Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342 [italics in original, bold emphasis added].)

“A sufficient motion cannot be successfully resisted by counterdeclarations which create immaterial factual conflicts outside the scope of the pleadings; counterdeclarations are no substitute for amended pleadings.” (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1065 [225 Cal. Rptr. 203], italics added.) If plaintiffs wanted to raise new factual issues not embraced by their pleading, they should have sought leave to amend before the hearing on the Regents' motion. (Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1699 [39 Cal. Rptr. 2d 65]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18 [272 Cal. Rptr. 227].)

(Shugart v. Regents of University of California (2011) 199 Cal.App.4th 499, 508 [bold emphasis and underlining added].)

Thus, because Plaintiff fails to cite any admissible evidence which raises a triable issue of material fact, Defendant is entitled to judgment as to the first cause of action. Because Defendant must prevail on all causes of action, however, Defendant may not obtain summary judgment unless Defendant prevails on the second and third causes of action as well.

2. Second Cause of Action (Breach of Express Warranty Under the Song-Beverly Act).

Civil Code § 1793.2(d) sets forth a manufacturer’s obligations as to express warranties:

(1) Except as provided in paragraph (2), if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of 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.

(2) If the manufacturer or its representative in this state is unable to service or repair a new motor vehicle, as that term is defined in paragraph (2) of subdivision (e) of Section 1793.22, to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle in accordance with subparagraph (A) or promptly make restitution to the buyer in accordance with subparagraph (B). However, the buyer shall be free to elect restitution in lieu of replacement, and in no event shall the buyer be required by the manufacturer to accept a replacement vehicle.

(A) In the case of replacement, the manufacturer shall replace the buyer’s vehicle with a new motor vehicle substantially identical to the vehicle replaced. The replacement vehicle shall be accompanied by all express and implied warranties that normally accompany new motor vehicles of that specific kind. The manufacturer also shall pay for, or to, the buyer the amount of any sales or use tax, license fees, registration fees, and other official fees which the buyer is obligated to pay in connection with the replacement, plus any incidental damages to which the buyer is entitled under Section 1794, including, but not limited to, reasonable repair, towing, and rental car costs actually incurred by the buyer.

(B) In the case of restitution, the manufacturer shall make restitution in an amount equal to the actual price paid or payable by the buyer, including any charges for transportation and manufacturer-installed options, but excluding nonmanufacturer items installed by a dealer or the buyer, and including any collateral charges such as sales or use tax, license fees, registration fees, and other official fees, plus any incidental damages to which the buyer is entitled under Section 1794, including, but not limited to, reasonable repair, towing, and rental car costs actually incurred by the buyer.

(C) When the manufacturer replaces the new motor vehicle pursuant to subparagraph (A), the buyer shall only be liable to pay the manufacturer an amount directly attributable to use by the buyer of the replaced vehicle prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity. When restitution is made pursuant to subparagraph (B), the amount to be paid by the manufacturer to the buyer may be reduced by the manufacturer by that amount directly attributable to use by the buyer prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity. The amount directly attributable to use by the buyer shall be determined by multiplying the actual price of the new motor vehicle paid or payable by the buyer, including any charges for transportation and manufacturer-installed options, by a fraction having as its denominator 120,000 and having as its numerator the number of miles traveled by the new motor vehicle prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity. Nothing in this paragraph shall in any way limit the rights or remedies available to the buyer under any other law.

(D) Pursuant to Section 1795.4, a buyer of a new motor vehicle shall also include a lessee of a new motor vehicle.

It appears that the Legislature intended that various nonconformities may be considered and, if the vehicle is out of service by reason of repair of nonconformities for many days since delivery of the vehicle, this may constitute a “reasonable number of attempts,” even if not for the same nonconformity.

While the presumptions set forth in Civ Code § 1793.22 apply to new motor vehicles, its language is instructive in this case, which involves a used vehicle:

(a) This section shall be known and may be cited as the Tanner Consumer Protection Act.

(b) It shall be presumed that a reasonable number of attempts have been made to conform a new motor vehicle to the applicable express warranties if, within 18 months from delivery to the buyer or 18,000 miles on the odometer of the vehicle, whichever occurs first, one or more of the following occurs:

(1) The same nonconformity results in a condition that is likely to cause death or serious bodily injury if the vehicle is driven and the nonconformity has been subject to repair two or more times by the manufacturer or its agents, and the buyer or lessee has at least once directly notified the manufacturer of the need for the repair of the nonconformity.

(2) The same nonconformity has been subject to repair four or more times by the manufacturer or its agents and the buyer has at least once directly notified the manufacturer of the need for the repair of the nonconformity.

(3) The vehicle is out of service by reason of repair of nonconformities[1] by the manufacturer or its agents for a cumulative total of more than 30 calendar days since delivery of the vehicle to the buyer. The 30-day limit shall be extended only if repairs cannot be performed due to conditions beyond the control of the manufacturer or its agents. The buyer shall be required to directly notify the manufacturer pursuant to paragraphs (1) and (2) only if the manufacturer has clearly and conspicuously disclosed to the buyer, with the warranty or the owner’s manual, the provisions of this section and that of subdivision (d) of Section 1793.2, including the requirement that the buyer must notify the manufacturer directly pursuant to paragraphs (1) and (2). The notification, if required, shall be sent to the address, if any, specified clearly and conspicuously by the manufacturer in the warranty or owner’s manual. This presumption shall be a rebuttable presumption affecting the burden of proof, and it may be asserted by the buyer in any civil action, including an action in small claims court, or other formal or informal proceeding.

(e) For the purposes of subdivision (d) of Section 1793.2 and this section, the following terms have the following meanings:

(1) “Nonconformity” means a nonconformity which substantially impairs the use, value, or safety of the new motor vehicle to the buyer or lessee.

While the presumption of a reasonable number of attempts set forth in Civil Code § 1793.22(b)(1) & (2) requires less repair attempts depending on whether or not the same nonconformity results in a condition is likely to cause death or serious bodily injury, it also appears that the same nonconformity need not be involved where the cumulative total of repair attempts is an excessive number of days. (Civil Code, § 1793.22(b)(3); see footnote 4.)

As discussed above re: the first cause of action, Defendant has presented evidence that, during the warranty period, the subject vehicle was out of service during warranty repairs for a total of approximately 11 days, and never more than once for the same nonconformity, whether likely to cause injury or not. (UF No. 14; Pappas Decl. at ¶ 7, Ex. E, Ex. F, Ex. G, Ex. H & Ex. I.) Utilizing as a guideline the presumption of a reasonable number of attempts set forth in Civil Code § 1793.22(b)(same serious nonconformity two or more repairs, four or more repairs for the same non-serious nonconformity, or a total of 30 days out-of-service for any nonconformity), which does not directly control here because a new vehicle is not involved, Defendant did not fail to conform the vehicle to applicable express warranties.

Defendant has met its burden of demonstrating that there was no breach of express warranties. The burden shifts to Plaintiff to demonstrate that a triable issue of material fact exists.

As discussed above re: the first cause of action, in the Opposing Separate Statement, Plaintiff simply states: “Disputed” as to Facts Nos. 7 – 14 without citation to any evidence, which is insufficient to defeat summary judgment. (Wiz Technology, Inc. v. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 10-11.) Plaintiff also objects on the ground of hearsay, lack of foundation and lack of personal knowledge. However, these objections have been overruled, as set forth above.

As also discussed above, Plaintiff’s discussion of a service visit on August 30, 2022 for illumination of the check engine light is irrelevant for purposes of this motion for summary judgment because this occurred after the operative First Amended Complaint was filed on May 27, 2021. Plaintiff may not rely upon facts that are not pled in the operative complaint to resist summary judgment. (Bosetti, supra, 175 Cal.App.4th at 1225; Tsemetzin, supra, 57 Cal.App.4th at 1342; Shugart, supra, 199 Cal.App.4th at 508.)

Thus, because Plaintiff fails to cite any admissible evidence which raises a triable issue of material fact, Defendant is entitled to judgment as to the second cause of action. Because Defendant must prevail on all causes of action, however, Defendant may not obtain summary judgment unless Defendant prevails on the third cause of action as well.

Defendant argues that the undisputed facts and record evidence shows that: Plaintiff testified, under oath, that he did not review or otherwise rely upon any statements from or marketing materials generated by GM before deciding to buy the vehicle.

[T]he elements of a cause of action for fraud based on concealment are: “ ‘(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. [Citation.]’ [Citation.]” (Citation omitted.)

(Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850.)

“Reliance is an essential element of a fraudulent concealment claim. (Citation omitted.)” (Sevidal v. Target Corp. (2010) 189 Cal.App.4th 905, 928.)

The problem with plaintiffs' argument, as the trial court recognized, is that the record is devoid of evidence showing reliance. “It is settled that a plaintiff, to state a cause of action for deceit based on a misrepresentation, must [prove] that he or she actually relied on the misrepresentation.” (Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1088 [23 Cal. Rptr. 2d 101, 858 P.2d 568].) Burch testified that he does not recall ever seeing the materials containing defendant's misrepresentations, and Burch cannot have relied on what he never saw. (Id. at p. 1095 [finding reliance could not be pled where plaintiffs could not allege the mis representations ever came to their attention].)

Here, Plaintiff admitted that he did not communicate with GM about the Colorado before deciding to buy it, and that he did not review or rely upon any GM marketing materials or any statements from GM whatsoever. (UF No. 16; Pappas Decl., ¶ 8; Exh. J at 14:16-19, 17:24-18:25.) Plaintiff also admitted that he did not think that GM concealed anything from him about the Colorado. (UF No. 17; Pappas Decl., ¶ 8; Exh. J at 15:11-17 & 16:2-7.)

The foregoing evidence demonstrates that Plaintiff was not exposed to any communication from defendant GM or its agents which would have given Defendant an opportunity to disclose information which Plaintiff alleges in the 1AC was concealed from him about a defective transmission. As such, Plaintiff cannot demonstrate reliance upon Defendant’s concealment from Plaintiff if there was never an opportunity for Defendant to disclose information to Plaintiff. The burden shifts to Plaintiff to demonstrate that a triable issue of material fact exists.

In the Opposing Separate Statement, Plaintiff simply states: “Disputed” as to Facts Nos. 16 and 17 without citation to any evidence. As noted above, Plaintiff must submit evidence to avoid summary judgment once the moving party shifts the burden. (Wiz Technology, Inc., supra, 106 Cal.App.4th at 10-11.)

Plaintiff also objects on the ground of hearsay. However, Defendant’s evidence in support of UF Nos. 16 and 17 are not hearsay, but in fact Plaintiff’s own admissions at his deposition.

The Supreme Court has not retreated from its holding 25 years ago in D'Amico v. Board of Medical Examiners (1974) 11 Cal. 3d 1 [112 Cal. Rptr. 786, 520 P.2d 10] (D'Amico), which recognized that "admissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits." (11 Cal. 3d at p. 22, italics omitted.) The Supreme Court has consistently refused to allow a triable issue of fact to be conjured by the submission of an affidavit contradicting the declarant's prior deposition testimony. n2 (Citations omitted.)

Because Plaintiff has not cited any admissible evidence to raise a triable issue of material fact, Defendant is entitled to judgment as to the third cause of action for fraudulent concealment. Plaintiff’s arguments in the Opposition miss the mark in terms of raising a triable issue of material fact as to exposure to a representation by Defendant. Plaintiff’s argument that he relied on his previous experience purchasing a Chevrolet Silverado at Puente Hills Chevrolet is irrelevant to the fraudulent concealment cause of action and does not merit a response.

Because Defendant has demonstrated that it is entitled to judgment as to all causes of action asserted in the First Amended Complaint, the motion for summary judgment is GRANTED.

Defendant may not obtain summary adjudication because Defendant did not set forth the issues to be determined in the separate statement, as required by Cal. Rules of Court, Rule 3.1350(b) & (d).

If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.

The Separate Statement of Undisputed Material Facts in support of a motion must separately identify each cause of action, claim, issue of duty, or affirmative defense, and each supporting material fact claimed to be without dispute with respect to the cause of action, claim, issue of duty, or affirmative defense. In a two-column format, the statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.

The Court has discretionary power to deny summary adjudication for failure to comply with CRC Rule 3.1350. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.) Further, the only issue expressly noticed for summary adjudication in the notice of motion is as follows:

Alternatively, in the unlikely event that it were to deny GM’s motion, this Court should GM summary adjudication on the scope of recoverable damages and enter an order capping amount of “actual damages” that Plaintiff may claim at any trial of his Song-Beverly claims.

This is not an issue which can be summarily adjudicated absent the prior consent of the parties. A motion for summary adjudication must dispose of an entire cause of action [Code Civ. Proc., § 437c(f)(1)], unless certain procedures are followed prior to the bringing of the motion for summary adjudication [Code Civ. Proc., § 437c(t)] which procedures were not followed here.

[T]here can be no summary adjudication of less than an entire cause of action. (Code Civ. Proc., § 437c, subd. (f)(1) [“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.”].) Therefore, an order granting summary adjudication “to the extent” a cause of action rests on this or that premise is invalid unless the matter thus adjudicated is properly viewed as a distinct “cause of action” for purposes of the provision thus cited. If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.

(McCaskey v. California State Automobile Assn. (2010) 189 Cal. App. 4th 947, 975.)

[1] It appears that this refers to different nonconformities, as the Legislature chose not to refer to the “same nonconformity” as it did in the earlier subdivisions.

[2] This is part of the Song Beverly Consumer Warranty Act, which is codified at Civil Code §§ 1790 et seq.