Judge Gail Killefer, Case 21STCV37251 2023-02-15 Tentative Ruling

Judge: Gail Killefer, Case: 21STCV37251, Date: 2023-02-15 Tentative Ruling

Case Number: 21STCV37251 Hearing Date: February 15, 2023 Dept: 37

HEARING DATE: February 15, 2023

CASE NUMBER: 21STCV37251

CASE NAME: Jacqueline Cruz Jimenez v. Cerritos Dodge Inc., et al.

MOVING PARTY: Defendant, FCA US, LLC (“FCA”)

OPPOSING PARTY: Plaintiff, Jacqueline Cruz Jimenez

TRIAL DATE: April 4, 2023

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion for Summary Judgment

OPPOSITION: February 1, 2023

REPLY: February 9, 2023

TENTATIVE: FCA’s motion is stayed pending Supreme Court review of Rodriguez. FCA is to give notice.

Background

This is a lemon law action arising out of the purchase by Jacqueline Cruz Jimenez (“Plaintiff”) of a 2019 Jeep Compass (the “Vehicle”). The Vehicle was purchased from a non-Defendant dealership and manufactured by Defendant FCA US, LLC (“FCA”). According to the Complaint, Plaintiff received express written warranties in connection with her purchase of the vehicle, which provided that Defendants and their representatives would perform any repairs necessary to ensure that the Vehicle would remain free from defects. Despite this, the Vehicle allegedly exhibited many defects and malfunctions. Plaintiff also allegedly presented the Vehicle for repair to Defendant Cerritos Dodge, Inc. dba Cerritos Dodge Chrysler Jeep (“Dealer Defendant”) on many occasions, at which Defendants represented that they would conform the Vehicle to all applicable warranties but failed to do so.

Plaintiff’s Complaint, filed June 2, 2020, alleges the following causes of action: (1) breach of express warranty obligations under the Song-Beverly Consumer Warranty Act against FCA, (2) breach of implied warranty obligations under the Song- Beverly Consumer Warranty Act against FCA, and (3) negligent repair against Dealer Defendant.

On November 17, 2020, Plaintiff dismissed the first cause of action without prejudice as to ABH.

FCA now moves for summary judgment or, in the alternative, summary adjudication on each cause of action of the Complaint. Plaintiff opposes the motion. FCA’s notice of motion does not comply with CCP § 437c(f)(1). That section provides: “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, or one or more issues of duty.” FCA’s noticed issues either address multiple causes of action within one issue, or one cause of action is addressed across multiple issues. Thus, the court will address the motion pertaining to the first and second causes of action of the Complaint.

Evidentiary Objections

Plaintiff’s Objections to FCA’s Exhibits & Evidence

Overruled: Objections 1-3.

FCA’s Objections to Plaintiff’s Exhibits & Evidence

Sustained: Objection 1, 6-7.

Overruled: Objections 2-5.

Discussion

I. Legal Authority

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(a) provides:

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

A motion for summary judgment may 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.” (CCP § 437c(c).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (CCP § 437c(b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions 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 (Hinsley).) CCP § 437c(p)(2) provides:

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant 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.

The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

II. Factual Summary

First, the court notes that Plaintiff disputes the Retail Installment Sale Contract (“RISC”) Plaintiff herself produced during discovery, asserting “there is no admissible evidence to support” the date of Plaintiff’s purchase of the Vehicle. (See Separate Statement in Support of Opposition (“PSS”), ¶ 10.) Plaintiff fails to explain how documents Plaintiff herself produced to FCA can be inadmissible evidence at this stage.

The court will summarize the facts relevant to the instant action below.

Plaintiff alleges claims against FCA and Dealer Defendant, neither of which sold the Vehicle to Plaintiff. (Separate Statement in Support of Motion, (“DSS”) ¶ 1, Declaration of Sharon L. Stewart (“Stewart Decl.”), ¶ 2. Exh. A.) On September 23, 2020, Plaintiff purchased the Vehicle from “Hardin Buick GMC” in Anaheim, California as a used vehicle with 31,970 miles on the odometer. (DSS ¶ 2.) Hardin Buick GMC is not an authorized FCA dealership and is not permitted to sell new vehicles manufactured by FCA; FCA therefore does not have a dealership agreement with Hardin Buick GMC. (DSS ¶¶ 3-4.)

Plaintiff contends the Vehicle was sold originally with a three year or 36,000 miles “Basic Limited Warranty” and a five year or 60,000 miles “Powertrain Limited Warranty,” which had remaining balances at the time of Plaintiff’s purchase due to the “time and mileage.” (PSS ¶¶1-2.)

III. Analysis

Plaintiff’s first and second causes of action are for “Breach of Express Warranty” and “Breach of Implied Warranty Obligations” under the Song-Beverly Act. Thus, it is unclear which specific portions of the Song-Beverly Act Plaintiff argues that FCA has violated. The Complaint alleges that FCA breached their warranty obligations because the “terms of the express warranty” and “implied warranty of fitness” affirmed that the Vehicle was merchantable and the Vehicle was not merchantable, resulting in damages to Plaintiff. (Complaint ¶¶ 20-31.)

Civ. Code § 1795.5 provides: “it shall be the obligation of the distributor or retail seller making express warranties with respect to used consumer goods (and not the original manufacturer, distributor, or retail seller making express warranties with respect to such goods when new) to maintain sufficient service and repair facilities within this state to carry out the terms of such express warranties.” (Emphasis added.)

FCA seeks summary judgment or, in the alternative, summary adjudication, on the basis that Plaintiff did not purchase a “new motor vehicle” subject to the provisions of the Song-Beverly Act (“the Act”). Defendant relies on the recent appellate case, Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, which ruled that the Act only applied to vehicles “that have never been previously sold to a consumer and come with full express warranties.” (Id. at 220.)

In Rodriguez, a 2022 Court of Appeal decision, the plaintiff purchased a two-year old vehicle with over 55,000 miles on it from a used car dealership. (Rodriguez, supra, 77 Cal.App.5th at 215.) The vehicle was originally sold with a five-year/100,000 mile limited powertrain warranty. (Ibid.) However, when plaintiff brought a claim under the Act, the Court of Appeal found that plaintiff’s vehicle did not fit into the narrow category of “new motor vehicle,” despite having a remaining balance on the warranty. (Id. at 220-222.) The court stated that the phrase “other motor vehicle sold with a manufacturer’s new car warranty” refers to “vehicles that have never been previously sold to a consumer and come with full express warranties.” (Id. at 220.) Rodriguez’s holding hinged on the fact that the vehicle was previously sold to a consumer and not a dealer-owned vehicle or demonstrator. (Rodriguez, supra, 77 Cal.App. at 220-222.)

In contrast, the court in Jensen v. BMW of North America, Inc. (1995) 5 Cal.App.4th 112, held that a used vehicle sold with a remaining balance on the manufacturer’s warranty constituted a “new motor vehicle” under the Act when the vehicle was leased by a manufacturer-affiliated dealer who issued a full new car warranty along with the lease. (Jensen, supra 5 Cal.App.4th at 119.) Courts have stated that Jensen applies to a distinct set of facts. Rodriguez distinguished Jensen by focusing on the granting of a full, new express warranty. (Rodriguez, supra 77 Cal.Ap.5th at 223.) Another court distinguished Jensen based on the type of dealer, stating that “[t]he nature of the transfer is crucial. Where the seller is a retail seller engaged in the business of vehicle selling, the Act contemplates coverage.” (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 923.) In Dagher, the court stated that “the Act's coverage for subsequent purchasers of vehicles with a balance remaining on the express warranty must be read in light of the facts then before the court and are limited in that respect.” (Ibid.)

FCA contends “it is undisputed here that Plaintiff purchased a used vehicle,” which is not considered a new vehicle under the Song-Beverly Act (the “Act”). (Motion, 3.) FCA further contends that, as in Rodriguez, evidence has been presented “to show that the business that sold the vehicle to plaintiffs was a non-FCA US affiliated third party reseller and that FCA US issued no warranties at the time of the sale of the used vehicle.” (Id.) Further, “there is no evidence that Plaintiff’s used vehicle was either a dealer owned vehicle or demonstrator nor that it was sold with a new car warranty.” (Motion, 4.) FCA further affirms that the “Act’s protection for express warranties thus ends when the balance of the express warranty is transferred to subsequent owners,” again relying on Rodriguez. (Id.)

“[T]he only way Plaintiff would be entitled to the Act’s protection here is if Hardin Buick GMC extended express and implied warranties to her, and even if it had, Hardin Buick GMC would be the proper defendant, not FCA US.” (Motion, 5.)

Next, FCA also cites the language of Civ. Code § 1795.5 to assert that liability for used goods “lies with distributors and retailers, not the manufacturer, unless the manufacturer issues a new warranty along with the sale of the used good.” (Motion, 5; citing Ruiz Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 398.)

“Plaintiff cannot produce evidence that FCA US (the manufacturer) issued a new warranty with the sale of the used vehicle Plaintiff purchased from Hardin Buick GMC. Nor can Plaintiff produce any evidence that FCA US is a distributor or retail seller of the subject vehicle. Therefore, FCA US cannot be held liable for a breach of implied warranty under the Act.” (Motion, 6.)

In opposition, Plaintiff first contends the Rodriguez opinion is an “erroneous conclusion... based on a fundamentally flawed and demonstrably inaccurate understanding of car warranties and warranty start dates and how those apply to demonstrators.” (Opposition, 1.) Plaintiff again contends the introduced RISC is not admissible evidence, but again fails to explain how documents Plaintiff produced during discovery are inadmissible here. (Opp., 3.) Plaintiff contends FCA’s “motion does not dispute that Plaintiff’s vehicle was sold with a balance remaining on its new vehicle warranties. ... Nor does FCA dispute that it performed repairs on the vehicle subject to those warranties or that it failed to conform the vehicle to its applicable warranties.” (Opp., 5.) Instead, Plaintiff contends Jensen to be instructive here, correctly explaining the California Supreme Court’s granting of a petition for review of the Rodriguez opinion means it no longer has binding or precedential effect in the present. (Id., citing CRC, Rule 8.115(e)(1).)

While Plaintiff then goes on to contend the Rodriguez opinion to be incorrectly held, this court does not delve into a relitigation of an opinion under review by the California Supreme Court. (Opp., 6-12.) This court notes, however, the significant tension highlighted by Plaintiff between Rodriguez and Jensen, and other precedent, as well as its applicability to the circumstances of this instant action. (Id.)

In reply, FCA claims Plaintiff’s claims against it fail since Rodriguez remains persuasive authority, and the circumstances of Jensen do not apply here. (Reply, 2-4.) FCA further correctly explains Jensen involved the purchase of a used BMW “directly from a BMW dealership,” again asserting that a “manufacturer-affiliated dealer” in Jensen is different from the non-affiliated dealer Plaintiff purchased the Vehicle from here. (Id.) FCA then cites Dagher to show other authorities have found limits to liability even when a vehicle is sold with a remaining warranty balance, when the used vehicle is sold by a third party. (Reply, 6; citing Dagher, supra, at 926-927.) Next, FCA cites Kiluk v. Mercedes-Benz, LLC (2019) 43 Cal.App.5th 334, 339 to again contend section 1795.5 clearly limits liability for manufacturers for the sale of used goods. (Reply, 7.)

Pursuant to Civ. Code § 1795.5, the Song-Beverly Act also provides enhanced remedies to consumers who buy used consumer goods accompanied by an express warranty. (Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 336 (Kiluk) [a manufacturer who offers a certified pre-owned warranty in connection with a third party sale of a used vehicle also liable under Civ. Code § 1795.5]). In Kiluk, defendant Mercedes offered a “certified pre-owned warranty” which explicitly ran for one year after expiration of the vehicle’s new vehicle warranty. (Kiluk, supra, 43 Cal.App.5th at 337.) FCA contends even disregarding the Rodriguez opinion, the holdings of Kiluk and Nunez provide instructive authority to show claims against FCA for breaches of express and implied warranties must fail as a matter of law. (Reply, 8-9.)

The court agrees with FCA’s interpretation of Kiluk, Dagher and Nunez. Here, Plaintiff has not shown that any of the several warranties FCA allegedly included in its “Warranty Information Booklet” were in connection with the Vehicle’s sale as a used vehicle. Instead, it appears that each warranty was in connection with the Subject Vehicle’s sale as a new vehicle even though each provided a different length of coverage. However, Plaintiff has shown FCA’s conformity to the warranty in repairing the vehicle pursuant to several “Warranty Claim Reports” following Plaintiff’s purchase of the Vehicle from an unaffiliated dealer. Further, the court notes, more importantly, that FCA concedes “this case falls squarely within the Rodriguez decision and its persuasive analysis.” (Reply, 6.)

As such, and viewing the evidence submitted in the light most favorable to Plaintiff, the court finds this matter is not ripe for summary adjudication pending the Supreme Court’s review of Rodriguez. As the Dagher opinion makes clear, the applicability of the Act’s coverage of used vehicles is a factual inquiry this court is faced with, one made unclear at this time due to the pending Rodriguez review and its effect on the landscape of this instant action.

Given the foregoing, FCA’s motion for summary judgment is stayed pending the Supreme Court’s review of the Rodriguez decision.

Conclusion

FCA’s motion is stayed pending Supreme Court review of Rodriguez. FCA is to give notice.