Judge: H. Jay Ford, III, Case: 21SMCV01503, Date: 2023-02-14 Tentative Ruling

Case Number: 21SMCV01503    Hearing Date: February 14, 2023    Dept: O

Case Name:  Rodgers v. Mazda of Santa Monica Santa Monica Volvo d/b/a Volvo of Santa Monica, et al. v. Rodgers, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendants TKAT, Inc. d/b/a Volvo of Santa Monica and Ally Bank  

RESP. PARTY:         Plaintiff Arlington Rodgers, Jr.

TENTATIVE RULING

            Defendants TKAT, Inc. d/b/a Volvo of Santa Monica and Ally Bank’s Motion for Summary Judgment is GRANTED.

            Defendants TKAT, Inc. and Ally Bank are only named in the first cause of action for violation of the Consumer Legal Remedies Act (“CLRA”).  Plaintiff alleges Defendants violation Civil Code §1770(a)(7) and (14) when they failed to disclose that the engine was “flagged” and therefore could not be repaired.  “The unfair methods of competition and unfair or deceptive acts or practices listed in this subdivision undertaken by any person in a transaction intended to result or that result in the sale or lease of goods or services to any consumer are unlawful:  (7) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another… (14) Representing that a transaction confers or involves rights, remedies, or obligations that it does not have or involve, or that are prohibited by law.”  Civ. C. §1770(a)(7) and (14). 

            An omission of a material fact can qualify as a violation of the CLRA under Civil Code §1770(a)(7).  An omission is “actionable under the CLRA if the omitted fact is (1) contrary to a material representation actually made by the defendant or (2) is a fact the defendant was obliged to disclose.  See Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5^th 1234, 1258.  “In the context of the CLRA, a fact is ‘material’ if a reasonable consumer would deem it important in determining how to act in the transaction at issue.  In other words, a defendant has a duty to disclose when the fact is known to the defendant and the failure to disclose it is misleading in light of other facts that the defendant did disclose.”  Id.

            Defendants establish that it made no representations regarding whether the engine was flagged by BMW, nor could it have known that the engine was flagged.  See Defendants’ SSUMF Nos. 15-18.  Defendants are not related to BMW, nor does it have access to any proprietary information of BMW, including whether certain cars have “flags” on them.  See Defendants’ SSUMF No. 19.  Defendants only discovered there was a flag on the car when it issued a subpoena in this case.  See Defendants’ SSUMF No. 23. 

            Defendants negate any allegation that they made a representation that the car was of a particular standard, quality, or grade, or that the car was of a particular style or model, when the care was of another.  See Defendants’ SSUMF nos. 15-19 and 23.  Defendants also negate any allegation that they represented that Plaintiff’s purchase of the care conferred or involved rights, remedies or obligations that the purchase did not have or involve, or that are prohibited by law.  Id. 

            The burden therefore shifts to Plaintiff to raise a triable issue of fact as to the 1^st cause of action for violation of the CLRA, Civil Code §1770(a)(7) and (14).  Plaintiff did not timely file any opposition.  The late filed opposition was not supported by any evidence or a separate statement of undisputed facts.  The Court finds Plaintiff’s  legal arguments lack merit and fail to show any triable issue of fact that would preclude summary judgment.  Based on the undisputed facts, Defendants did not violate the CLRA.