Judge: David B. Gelfound, Case: 23CHCV01300, Date: 2025-03-26 Tentative Ruling

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Case Number: 23CHCV01300    Hearing Date: March 26, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION FOR SUMMARY JUDGMENT

Motion filed: 12/18/24

MOVING PARTY: Defendant Volkswagen Group of America, Inc.

RESPONDING PARTY: Plaintiff Kaitlyn Barba

NOTICE: OK.

RELIEF REQUESTED: An order granting Defendant Volkswagen Group of America, Inc.’s Motion for Summary Judgment on all causes of action against it, including the First, Second, and Third Causes of Action in Plaintiff’s Complaint.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

Plaintiff Kaitlyn Barba (“Plaintiff”) brings this action under the Song-Beverly Consumer Warranty Act (Civil Code §§ 1790 et seq.) over alleged defects in her 2018 Volkswagen Tiguan (the “Subject Vehicle”). Plaintiff alleges that on March 14, 2022, she purchased the Subject Vehicle, for which Defendant Volkswagen Group of America, Inc. (“VWGoA”) issued the manufacturer’s express warranty. (Compl. ¶¶ 5, 9.)

On May 2, 2023, Plaintiff filed a Complaint against Defendants VWGoA, Galpin Motors, Inc. d/b/a Galpin Volkswagen (“Galpin VW”), and Does 1 through 10. The Complaint alleges the following four causes of action: (1) violation of the Song-Beverly Act breach of express warranty; (2) violation of Song-Beverly Act breach of implied warranty; (3) violation of the Song-Beverly Act section 1793.2(b); and (4) negligent repair. Subsequently, VWGoA and Galpin VW filed their respective Answers to the Complaint on June 8 and June 9, 2023.

On December 18, 2024, VWGoA filed the instant Motion for Summary Judgment (the “Motion”). Subsequently, Plaintiff filed an Opposition on March 6, 2025, and VWGoA submitted a Reply on March 14, 2025.

ANALYSIS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary judgment in an action or proceeding 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)(1).)

“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).) 

“[I]f the moving papers establish a prima facie showing that justifies a [ruling] in the [moving party’s] favor, the burden then shifts to the [opposing party] to make a prima facie showing of the existence of a triable material factual issue.’ [Citation.]" (See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900, quoting Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 950.) “The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) 

A.    Evidentiary Objections

The Court SUSTAINS the following evidentiary objections by VWGoA: Objection Nos. 1 (lack of personal knowledge), 2 (lack of foundation), 3 (hearsay), 4 (lack of personal knowledge), 9 (sustained as to the Carfax Report only; overruled as to accounting invoices) (hearsay), 16 (speculative), 18 (argumentative), 21 (hearsay), 22 (argumentative), 23 (argumentative), 24 (argumentative), and 25 (argumentative).

            The Court OVERRULES the following evidentiary objections by VWGoA: Objection Nos. 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 17, 19, and 20.

B.     First Cause of Action: Violation of the Song-Beverly Act Breach of Express Warranty

Civil Code section 1793.2 provides special consumer remedies to purchasers of new vehicles covered by express warranties. The remedy at issue here, commonly referred to as the “refund-or-replace” provision, requires a manufacturer to replace a defective “new motor vehicle” or make restitution if, after a reasonable number of attempts, the manufacturer is unable to repair the vehicle to conform to the applicable express warranty. (Civ. Code, § 1793.2, subd. (d)(2).)

VWGoA contends that it is entitled to summary judgment on the First Cause of Action on the grounds that the Subject Vehicle does not qualify as a “new motor vehicle.” Accordingly, VWGoA argues that the remedies provided under Civil Code section 1793.2 are inapplicable. (Mot. at pp. 3-11.)

The Court will examine this argument as the sole basis for adjudicating the First Cause of Action.

1)      VWGoA’s Initial Burden  

Civil Code section 1793.2, subdivision (d)(1), provides, in pertinent part, that “[i]f the manufacturer or its representative in this state is unable to service or repair a new motor vehicle ...  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).”

For the purpose of this section, “‘New motor vehicle’ means a new motor vehicle that is bought or used primarily for personal, family, or household purposes. ‘New motor vehicle’ also means a new motor vehicle with a gross vehicle weight under 10,000 pounds that is bought or used primarily for business purposes by a person ... or any other legal entity, to which not more than five motor vehicles are registered in this state. ‘New motor vehicle’ includes the chassis, chassis cab, and that portion of a motor home devoted to its propulsion, ... [and] a dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer's new car warranty .... A demonstrator is a vehicle assigned by a dealer for the purpose of demonstrating qualities and characteristics common to vehicles of the same or similar model and type.” (Civ. Code § 1793.22, subd. (e)(2).) (Underlines added.)

In Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, review granted July 13, 2022, S274625 (Rodriguez), the Court of Appeal upheld the trial court’s finding that a two-year-old Dodge truck purchased from a used car dealership, with 55,000 miles on it and a remaining unexpired limited powertrain warranty, did not qualify as a ”new motor vehicle” within the definition of Civil Code section 1793.22, subdivision (e)(2). (Ibid.)

Significantly, the Rodriguez Court concluded that the phrase “other motor vehicles sold with a manufacturer’s new car warranty” applies to cars sold with a full warranty, not to previously sold cars accompanied by some balance of the original warranty.” (Rodriguez, supra, at p. 225.)

Here, VWGoA presents evidence to establish that the Subject Vehicle was purchased by Plaintiff as a used vehicle. (VWGoA’s Undisputed Material Facts (“UMF”) Nos. 2, 7, 12, 17.) Plaintiff purchased the Subject Vehicle from Nissan of Mission Hills – a non-authorized third-party dealership – with 18,428 miles on the odometer. (Id. Nos. 2, 3, 7, 8, 12, 17, and 18.) Moreover, VWGoA is not a distributor or retailer of used vehicles (id. Nos. 4, 9, 14, 19), and it did not issue or extend any warranties on the Subject Vehicle as part of the sale to Plaintiff (id. Nos. 5, 10, 15, 20.)

The Court finds that VWGoA’s UMFs and supporting evidence demonstrate that the Subject Vehicle was sold to Plaintiff in “used” condition, without any additional manufacturer’s new or extended warranties by VWGoA at the time of sale.

Although Rodriguez is pending review by the California Supreme Court, it remains citable for its persuasive value and to establish the existence of a conflict of authority, thereby allowing trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.

The Court finds the Rodriguez is directly applicable to the present facts. Based on Rodriguez, the Court concludes that the Subject Vehicle does not qualify as a “new motor vehicle” under the Song-Beverly Act. Consequently, the “refund-or-replace” remedy provided under Civil Code section 1793.2, subdivision (d) is unavailable.

Accordingly, the Court finds that VWGoA has met its initial burden of making a prima facie showing that Plaintiff cannot establish their First Cause of Action. As a result, the burden now shifts to Plaintiff to demonstrate a prima facie showing of the existence of a triable material factual issue.

2)      Plaintiff’s Burden of Showing Existence of a Triable Material Factual Issue

Plaintiff opposes the Motion on the sole basis that the Subject Vehicle falls within the statutory definition of a “new motor vehicle” because there is a triable issue as to whether the Subject Vehicle was a “dealer-owned vehicle.” (Opp’n. at p. 5.)

Plaintiff contends that one accounting invoice from Defendant Galpin VW, an authorized dealership of VWGoA, indicates that the customer number was “DEALER8” (Yang Decl. Ex. 4.)

However, the Court finds this evidence insufficient to establish the existence of a triable issue of material fact as to whether the Subject Vehicle qualifies as a “new motor vehicle” under the definition provided in Civil Code section 1793.22, subdivision (e)(2), or in alignment with the ruling in Rodriguez.    

The Court finds that Plaintiff misinterprets the statutory language. Under Civil Code section 1793.22, subdivision (e)(2), the definition of a “new motor vehicle” includes “a dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with manufacturer’s new car warranty[.]” (Underlines added.) For instance, in Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112 (Jensen), overruled on other grounds, the court found that a leased vehicle in that case qualifies as a new motor vehicle when the defendant BMW’s representative issued a new car warranty with the lease – the salesperson told the plaintiff that the car had previously been used by BMW as a demonstrator and gave the plaintiff BMW’s full 36,000-mile new car warranty “on top” of the miles already on the odometer. (Id. at p. 119.)

Plaintiff appears to argue that any vehicle previously owned by an authorized dealer, regardless of its condition or warranty status at the time of sale, qualifies as a “new motor vehicle.” The Court finds this interpretation inconsistent with both the statute and prevailing case law.

First, although the statute does not provide a definition for a “dealer-owned vehicle,” it is evident that, to qualify as a “new motor vehicle,” a dealer-owned vehicle must be sold with a “manufacturer’s new car warranty,” as both conditions appear in the same inseparable sentence. While Jensen addressed a demonstrator vehicle, its holding supports the principle that the presence of a manufacturer’s new car warranty at the time of sale is essential.

Second, this position directly conflicts with the holding of Rodriguez, supra. In that case, the plaintiffs purchased their car from an unaffiliated third party with certain unspecified remaining balance on the vehicle’s initial manufacturer’s express warranty. The Rodriguez court held that this did not satisfy the requirement of being “sold with a manufacturer’s new car warranty.” (Id. at p. 225.)

Similarly, here, it is undisputed that Plaintiff purchased the Subject Vehicle in “used” condition from an unauthorized dealer – Nissan of Mission Hills (VWGoA UMF Nos. 2, 3, 7, 8, 12, 13, 17), and without the issuance of a new or extended car warranty beyond the remaining balance of the initial warranty. (Id. Nos. 5, 10, 15, 20.) Additionally, at the time of the sale, the Subject Vehicle had 18,428 miles on the odometer (Pl.’s UMF, No. 1), suggesting that the Subject Vehicle came with a remaining balance of original warranty, but not a full new car warranty. The evidence also shows that the Subject Vehicle was previously leased new by Volkswagen of Garden Grove to someone other than Plaintiff. (Id. No. 1; Lewis Decl. ¶¶ 4-5; Bozzani Decl. ¶¶ 6-8.)

In alignment with Rodriguez court’s determination that the phrase “other motor vehicles sold with a manufacturer’s new car warranty” applies to cars sold with a full warranty, not to previously sold cars accompanied by some balance of the original warranty” (Rodriguez, supra, 77 Cal.App.5th at p. 225), the Subject Vehicle here does not qualify as a new motor vehicle under the statute.

Consequently, even assuming that Plaintiff were able to show that the Subject Vehicle was at some point owned by an affiliated dealer, that fact alone is not material. (Civ. Code, § 1793.22, subd. (e)(2); see also Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 248 [Facts are “material” only if dispute about them may affect the outcome of the case under applicable substantive law.]) In other words, the mere fact that the vehicle passed through the hands of an authorized dealer at some point in its history does not satisfy the statutory criteria. A qualifying “dealer-owned vehicle” must be sold to the consumer by an authorized dealer and with a full manufacturer’s new car warranty.

Accordingly, the Court concludes that Plaintiff’s UMFs and supporting evidence do not distinguish their case from Rodriguez. As such, Plaintiff has not satisfied their burden to demonstrate the existence of a triable material factual issue on the question of whether the Subject Vehicle qualified as a “new motor vehicle,” a prerequisite for availing the “refund-or-replace” remedy sought in the First Cause of Action under Civil Code section 1793.2, subdivision (d).

3)      Plaintiff’s Request for Relief under Code of Civil Procedure section 437c, Subdivision (h)

Code of Civil Procedure section 437c, subdivision (h) provides, in pertinent part, that “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment ... that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” 

Here, Plaintiff argues that a fact essential to justify the Opposition is the identity of the prior owner, which Plaintiff asserts will be revealed through a deposition of VWGoA’s Persons Most Knowledgeable (“PMK”). (Opp’n. at p. 7.)

In its Reply, VWGoA argues that Plaintiff has failed to demonstrate diligence in conducting discovery before the summary judgment motion, noting that vehicle history documents were produced by VWGoA and have been in Plaintiff’s possession since August 1, 2023. (Reply at p. 2.)

The Court agrees with VWGoA that Plaintiff’s request for relief under Code of Civil Procedure section 437c, subdivision (h), lacks the requisite showing of diligence. (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623-624.) There is no evidence that Plaintiff moved to compel the deposition of VWGoA’s PMK following the service of an Amended Notice of Deposition dated July 23, 2024. (Yang Decl. ¶ 12.)

More importantly, as the Court has previously determined, mere ownership or possession of the Subject Vehicle by an authorized dealer at some point in its history does not raise a triable issue of material fact. Plaintiff did not purchase the Subject Vehicle from an authorized dealer, and Plaintiff concedes that no new or extended warranty was issued by VWGoA at the time of sale. Accordingly, the specific identity of the prior owner is not a “fact essential to justify opposition.” (Code Civ. Proc., § 437c, subd. (h).)

Therefore, the Court finds Plaintiff’s request for relief under Code of Civil Procedure section 437c, subdivision (h), lacks merit and is DENIED.

4)      Plaintiff’s Request for Leave to Amend the Complaint  

Plaintiff further requests the Court’s leave to file an amended complaint. (Opp’n. at p. 8.)

The Court DENIES this request, finding it untimely, procedurally improper, and substantively lacking in justification. Moreover, granting such leave at this stage would result in prejudice to the moving party, VWGoA. (See Champlin/GEI Wind Holdings, LLC v. Avery (2023) 92 Cal.App.5th 218, 224 [“It would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion by allowing them to present a ‘moving target’ unbounded by the pleadings.”])

Based on the foregoing, the Court GRANTS the Motion as to the First Cause of Action.

C.    Second Cause of Action – Violation of Song-Beverly Act Breach of Implied warranty

The Song-Beverly Act provides for implied warranties of merchantability and fitness for “consumer goods.” (Civ. Code, § 1791.1, subd. (a).) Importantly, “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).) (Underlines added.)

The Song-Beverly Act also provides for implied warranties for used goods, albeit for a shorter duration compared to new products – specifically, the implied warranties for used goods are limited to a maximum duration of three months. (Civ. Code, § 1795.5, subd. (c).) “As is the case with liability for breach of express warranties, ‘in the sale of used consumer goods, liability for breach of implied warranty lies with distributors and retailers, not the manufacturer,’ unless the manufacturer issues a new warranty along with the sale of the used good.” (Rodriguez, supra, 77 Cal.App.5th at p. 218, internal citations omitted.) (Underlines added.) “The Song-Beverly Act provides similar remedies in the context of the sale of used goods, except that the manufacturer is generally off the hook.” (Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 339–340 (Kiluk).)

“Under the lemon law, only distributors and retail sellers, not manufacturers, are liable for breach of implied warranties in the sale of a used car where, as here, the manufacturer did not offer the used car for sale to the public.” (Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 389.)

1)      VWGoA’s Initial Burden 

As the Court has already determined that the Subject Vehicle does not qualify as a “new motor vehicle” under the Song-Beverly Act, it further concludes that VWGoA has met its initial burden to show that liability for breach of implied warranty does not attach.

The Court finds that VWGoA, as the manufacturer, is not liable under the implied warranty provisions because it did not issue a new warranty at the time of the Subject Vehicle's sale by an unauthorized dealership – Nissan of Mission Hills. (VWGoA UMF, Nos. 2, 3, 7, 8, 12, 13.)

2)      Plaintiff’s Burden of Showing Existence of a Triable Material Factual Issue

Plaintiff bases her Opposition on the same contention that a dispute of material fact exists as to whether the Subject Vehicle was a “dealer-owned” vehicle, thereby qualifying as a “new motor vehicle” within the statutory definition.

However, as the Court has already rejected this argument in its ruling on the First Cause of Action, it concludes that Plaintiff has failed to meet the required burden.

Therefore, the Court GRANTS the Motion as to the Second Cause of Action.

D.    Third Cause of Action – Violation of the Song-Beverly Act Section 1793.2(b)

Civil Code Section 1793.2, subdivision (b) provides that:

“Where those service and repair facilities are maintained in this state and service or repair of the goods is necessary because they do not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days. Delay caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.”

“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. “Consumer goods” shall include new and used assistive devices sold at retail. (Civ. Code, § 1791, subd. (a).)

            Plaintiff’s argument, which the Court has already rejected in relation to the definition of a “new motor vehicle” under Civil Code section 1793.22, subdivision (e)(2), is similarly inapplicable to the broader definition of a “new product” under Civil Code section 1791, subdivision (a.)

Accordingly, the Court GRANTS the Motion as to the Third Cause of Action.

CONCLUSION

Defendant Volkswagen Group of America, Inc.’s Motion for Summary Judgment on Plaintiff’s Complaint is GRANTED.

Moving party to provide notice.