Judge: Erick L. Larsh, Case: 2021-01176977, Date: 2023-08-03 Tentative Ruling

Based on defendant Porsche Cars North America, Inc.’s representations, the following affirmative defenses in its Answer filed on 2-8-21 are DISMISSED:

1. First Affirmative Defense - Failure to State a Claim

2. Second Affirmative Defense - Lack of Nonconformity

3. Fourth Affirmative Defense - Conditions beyond control of defendant - CCP §1793.2(b)

4. Fifth Affirmative Defense - Conditions beyond control of defendant - CCP §1793.2(b)(3)

5. Sixth Affirmative Defense - Lack of Warranty Coverage

6. Seventh Affirmative Defense - Fault of Others

7. Eighth Affirmative Defense - Alteration of Product

8. Ninth Affirmative Defense - Misuse of Vehicle and Failure to Follow Instructions

9. Tenth Affirmative Defense - Unauthorized or Unreasonable Use

10. Eleventh Affirmative Defense - Failure to Comply with Applicable Provision of Law

11. Twelfth Affirmative Defense - Failure to Exhaust Dispute Resolution Process

12. Twentieth Affirmative Defense - Statute of Limitations

13. Twenty First Affirmative Defense - Demand for Arbitration

14. Twenty Second Affirmative Defense - Reservation of Defenses

Plaintiff Gabrielle Garcia’s motion for summary adjudication of the remaining disputed affirmative defense (Third Affirmative Defense - No Reasonable Number of Repair Attempts), is DENIED. (Code Civ. Proc., § 437c [authorizing summary judgment / adjudication].) Plaintiff has not met her initial burden of presenting evidence negating an essential element of this defense or establishing that 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, 899–900; see also Code Civ. Proc., § 437c, subd. (p)(1) [plaintiff’s burden on summary judgment / adjudication].)

“The reasonableness of the number of repair attempts is a question of fact to be determined in light of the circumstances …” (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 799.) Determination of “reasonableness” is ordinarily a question of fact, and “may be decided as a matter of law if reasonable minds can come to only one conclusion based on the facts.” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1499 [reasonable reliance in fraud claim]; see also Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 [“While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper”]; Ghazarian v. Magellan Health, Inc. (2020) 53 Cal.App.5th 171, 186–187 [“The reasonableness of an insurer's conduct is typically a question of fact but can be decided as a matter ‘of law where the evidence is undisputed and only one reasonable inference can be drawn from the evidence’”].) Plaintiff has not provided sufficient evidence to show that “reasonable minds can come to only one conclusion” as to whether the number of attempts to repair any nonconformity / nonconformities was “reasonable.”

Defendant Porsche Cars North America, Inc. shall give notice.