Judge: Curtis A. Kin, Case: 21STCV20906, Date: 2022-12-27 Tentative Ruling
Case Number: 21STCV20906 Hearing Date: December 27, 2022 Dept: 72
Defendant General Motors LLC’s Motion for Summary Judgment
is GRANTED.
Plaintiffs Rubicela Prieto and Alaciel Castellanos’ request
for judicial notice is GRANTED. (Evid. Code §§ 452, 453.)
Plaintiffs’ evidentiary objection is OVERRULED.
Defendant General Motors LLC moves for summary judgment on
the ground that plaintiffs purchased the subject 2011 GMC Acadia used.
As a preliminary matter, plaintiffs maintain the motion is
procedurally defective because the separate statement did not restate the
notice of motion verbatim, as purportedly required under Rule of Court
3.1350(b). However, this rule of court pertains to motions for summary
adjudication. Defendant is seeking summary judgment, not summary adjudication.
Accordingly, plaintiffs cite no basis for the Court to find that the motion is
procedurally defective.
With respect to the first cause of action for violation of
Civil Code § 1793.2(d), the second cause of action for violation of Civil Code
§ 1793.2(b), the third cause of action for violation of Civil Code §
1793.2(a)(3), and the fourth cause of action for violation of Civil Code §§
1791.2(a) and 1794, these causes of action fail as a matter of law, because the
subject vehicle plaintiffs purchased was a used vehicle without a new express
warranty, and such a vehicle is not a “new motor vehicle” under the
Song-Beverly Consumer Warranty Act.
At issue here is whether the subject vehicle, which
plaintiffs purchased as a used vehicle with arguably a balance on the original
powertrain warranty (UMF 3, 5), qualifies as a “new motor vehicle” under Civil
Code § 1793.22(e)(2).
Plaintiffs Rubicela Prieto and Alaciel Castellanos do not
dispute that they purchased the vehicle used from Rally Auto Group Inc., not
defendant General Motors LLC. (UMF 2.) Plaintiffs also do not dispute that
defendant did not issue any new or additional express warranties with
plaintiffs’ purchase of the subject vehicle. (UMF 5.)
The Fourth District of the Court of Appeal recently found
that the phrase “other motor vehicles sold with a manufacturer’s new car
warranty” in Civil Code § 1793.22(e)(2) refers to “cars sold with a full
warranty, not to previously sold cars accompanied by some balance of the
original warranty.” (Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209,
225.) The Rodriguez court found that the phrase “other motor vehicles
sold with a manufacturer’s new car warranty” contained in the statutory
definition of Civil Code § 1793.22(e)(2) was not a distinct type of vehicle
subject to the “replace-or-refund” remedy of Civil Code § 1793.2(d). Rather,
the Rodriguez court found that the phrase functions as “a catchall for
sales of essentially new vehicles where the applicable warranty was issued with
the sale.” (Id. at 215.) This catchall “ensure[s] that manufacturers
cannot evade liability under the Act by claiming a vehicle doesn't qualify as
new because the dealership hadn’t actually used it as a demonstrator,” such as
in the case of a “service loaner” sold with a full care warranty. (Id.
at 221.)
The Court finds Rodriguez to be persuasive, including
with respect to the following arguments:
• “[T]he provision’s grammatical structure signals the list
contains two types of vehicles, not three. If the list contained three distinct
types of vehicles, we would expect to see commas separating the types. Instead,
the use of ‘and’ and ‘or’ to separate the three items indicates the Legislature
structured the provision as a list of two vehicles (dealer-owned vehicles ‘and’
demonstrators) followed by an adjectival clause qualifying or describing those
vehicles.” (Rodriguez, 77 Cal.App.5th at 220.) In other words, had the
definition of “new motor vehicle” included “a dealer-owned vehicle, a
‘demonstrator,” or other motor vehicle sold with a manufacturer’s new car
warranty,” the text of the statute so worded and punctuated might support
plaintiff’s interpretation that “other motor vehicles sold with a
manufacturer’s new car warranty” includes used vehicles with some balance of
the manufacturer’s warranty that came with the car when it was initially sold
new. But the text and punctuation of the statute is otherwise, and, as such,
“the most natural interpretation of the phrase ‘other motor vehicle sold with a
manufacturer’s new car warranty’ is that it, too, refers to vehicles that have
never been sold to a consumer and come with full express warranties” (Ibid.)
• Other provisions in the Song-Beverly Act include the word
“used,” including Civil Code § 1795.5, which provides for seller
refund-and-replace provisions for used consumer goods. (Rodriguez, 77
Cal.App.5th at 221-22 [“As we’ve seen, the Act makes it clear when a provision
applies to used or previously owned products by including the term ‘used’ in
the provision. Notably, that term is absent from the definition of ‘new motor
vehicle’ as well as from the manufacturer's refund-or-replace provision.
Instead, the Legislature created a separate, seller refund-or-replace provision
for used goods”].)
• Other provisions in the Song-Beverly Act include the word
“transferred,” including Civil Code § 1795.90(a), which defines “consumer” to
include “any person to whom the motor vehicle is transferred during the
duration of an express warranty.” “The lack of reference to transferred
warranties in the definition of ‘new motor vehicle’ suggests the Legislature
made a deliberate choice not to include sales of used vehicles accompanied by
unexpired express warranties.” (Rodriguez, 77 Cal.App.5th at 222.)
• The legislative history of Assembly Bill Number 2057,
through which “other motor vehicles sold with a manufacturer’s new car
warranty” was added to the definition of “new motor vehicle,” did not mention
used vehicles. (Rodriguez, 77 Cal.App.5th at 223.) Rather, the purpose
of the bill was to add “‘demonstrator’ vehicles sold with a manufacturer’s new
car warranty” to the definition of “new motor vehicle” because “[s]ome buyers
[were] being denied the remedies under the lemon law because their vehicle is a
‘demonstrator’ or ‘dealer-owned’ car, even though it was sold with a new car
warranty.” (Id. at 222-23, quoting Dept. Consumer Affairs, Enrolled Bill
Rep. on Assem. Bill No. 2057 (Sept. 25, 1987) pp. 3, 5, italics added.)
Plaintiffs rely on the holding in Jensen v. BMW of North
America, Inc. (1995) 35 Cal.App.4th 112, in which the Third District of the
Court of Appeal held: “We conclude the words of section 1793.22 are reasonably
free from ambiguity and cars sold with a balance remaining on the
manufacturer’s new motor vehicle warranty are included within its definition of
‘new motor vehicle.’” (Jensen, 35 Cal.App.4th at 123.) To be sure, this
holding in Jensen conflicts with the Rodriguez court’s holding.
For the reasons stated above, however, the Court finds the Rodriguez
court’s reasoning, which fully acknowledges the holding and analysis in Jensen
(see Rodriguez, 77 Cal.App.5th at 224), more persuasive. As noted
by the Rodriguez court, Jensen’s “statement about ‘the Acts
coverage for subsequent purchasers of vehicles with a balance remaining on the
express warranty most be read in light of the facts then before the court and
are limited in that respect. (Rodriguez, 77 Cal.App.5th at 224, citing Dagher
v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 923.) Critically, as observed
by the Rodriguez court, the facts in Jensen included a car leased
with a full manufacturer’s warranty issued by the manufacturer’s representative
and the Jensen court “was not asked to decide whether a used car with an
unexpired warranty sold by a third party reseller qualifies as a new motor
vehicle.” (Id.) Indeed, as further noted by the Rodriguez court, Jensen’s
holding “hurts, not helps” plaintiffs’ argument here, because the Jensen
court rejected the defendant car manufacturer’s “attempt to avoid liability by
claiming the vehicle wasn’t actually a demonstrator,” which ultimately
“exemplifies the need for a catchall provision [i.e., “other motor vehicles”]
covering any not-previously-sold car accompanied by a full new car warranty.” (Rodriguez,
77 Cal.App.5th at 224.)
Finally, although the California Supreme Court has granted
review of Rodriguez, the case is still citable to establish the
existence of a conflict in authority, which allows a trial court such as this
one to choose sides in the conflict. (Rodriguez v. FCA US (Cal. 2022)
295 Cal.Rptr.3d 351.) For the reasons stated above, the Court rules in
accordance with Rodriguez.
Accordingly, the first through fourth causes of action fail
as a matter of law.
With respect to the fifth cause of action for breach of the
implied warranty of merchantability based on violations of Civil Code §§
1791.1, 1794, and 1795.5, defendant contends that it cannot be held liable for
a breach of implied warranty because it manufactured the vehicle and plaintiffs
purchased the vehicle used from Rally Auto Group, not defendant. (UMF 2.)
“[O]nly distributors or sellers of used goods—not manufacturers of new
goods—have implied warranty obligations in the sale of used goods.” (Nunez
v. FCA US LLC (2021) 61 Cal.App.5th 385, 399, citing Civil Code § 1795.5.)
Contrary to plaintiffs’ assertion, defendant never conceded that it was a
distributor. Plaintiffs cite no authority for the proposition that, when the
purchaser receives the balance of coverage remaining under a warranty when
purchasing the vehicle from a third-party reseller, the manufacturer of the
vehicle is a “distributor.” (Opp. at 15:27-16:5; UMF 5.)
Plaintiffs contend that defendant “partnered” with Rally
Auto Group such that defendant was a “retail seller” under Civil Code § 1795.5.
In Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, the
manufacturer was found to have partnered with the dealership and be considered
a retailer because it “offer[ed] an express warranty [i.e., certified pre-owned
vehicle warranty] as part of the sales package.” (Kiluk, 43 Cal.App.5th
at 337, 340.) Here, however, plaintiffs produce no evidence that defendant partnered
with Rally Auto Group such that defendant should be considered a retailer of
the vehicle sold by Rally Auto Group to plaintiffs.
Accordingly, plaintiffs fail to demonstrate a triable issue
concerning how defendant can be held liable for breach of an implied warranty.
Plaintiffs seek a continuance of the motion to allow them to
depose defendant’s Person Most Knowledgeable. Counsel for plaintiffs aver:
“Plaintiffs did not get the opportunity to inquire about warranty visits,
Technical Service Bulletin, or Recall 15240, which was performed on the Subject
Vehicle during the November 18, 2015, and March 21, 2018, visits. Plaintiffs
further did not have the opportunity to inquire whether there are additional
warranty repairs and records for the Subject Vehicle, not currently in Plaintiff’s
possession.” (Timrizi Decl. ¶ 18.) None of the purported missing discovery
pertains to whether plaintiffs have any cause of action under the holdings in Rodriguez
and Nunez because they purchased the subject vehicle used.
Plaintiffs fail to show that “facts essential to justify opposition may exist but
cannot, for reasons stated, be presented,” such that a continuance of the
motion is warranted. (See CCP § 437c(h).)
Accordingly, because plaintiffs’ causes of action fail as a
matter of law, defendant is entitled to summary judgment.