Judge John J. Kralik, Case 22BBCV00368 2023-04-28 Tentative Ruling

Plaintiff Terry Carver (“Plaintiff”) alleges that on July 29, 2021, Plaintiff leased a new 2021 Volkswagen Atlas. With the acquisition of the vehicle, Plaintiff alleges he received express and implied warranties from the manufacturer Defendant Volkswagen of America, Inc. (“Volkswagen”) and dealer Defendant Galpin Volkswagen, LLC (“Galpin”). Plaintiff alleges that upon taking possession of the vehicle, there were many warrantable non-conformities and defects that substantially affected the use, value, and safety of the vehicle. Plaintiff alleges that Defendants impliedly warranted that the vehicle was merchantable, but this was not true due to the defects, malfunctions, mis-adjustments, and/or non-conformities. Plaintiff also alleges that he delivered the vehicle to Volkswagen or Defendants’ authorized repair facilities, but they failed to perform the necessary repairs in a workmanlike manner.

The complaint, filed May 25, 2022, alleges causes of action for: (1) breach of implied warranty of merchantability (Song-Beverly Act); and (2) breach of express warranty (Song-Beverly Act).

On February 10, 2023, Volkswagen and Galpin filed a motion for summary judgment. In the alternative, they move for summary adjudication on the following issues:

· Song-Beverly Act: Volkswagen complied with the Song-Beverly Consumer Warranty Act (“Act”) by promptly offering to repurchase Plaintiff’s vehicle, as Plaintiff requested, so Plaintiff has no viable claim under the Act. As such, Volkswagen is entitled to summary judgment and/or summary adjudication in its favor, and for the same reasons Galpin is likewise entitled to summary judgment and/or summary adjudication.

· Civil Penalties: Plaintiff does not have a viable claim for civil penalties under the Act because: Volkswagen promptly offered to repurchase Plaintiff’s vehicle; Volkswagen maintains a qualified dispute resolution process; and, neither Volkswagen nor Galpin willfully violated the Act. Thus, Volkswagen and Galpin are entitled to summary adjudication in their favor as to Plaintiff’s civil penalty claim.

· Attorney Fees: Plaintiff does not have a viable claim for attorney fees under the Act because Volkswagen complied with the Act by promptly offering to repurchase Plaintiff’s vehicle, as he requested, before he filed this lawsuit. Therefore, Volkswagen and Galpin are entitled to summary adjudication in their favor as to Plaintiff’s attorney fee claim.

With the motion papers, Defendants seek judicial notice of Exhibit A, which includes 4 certificates issued by California’s Department of Consumer Affairs (“CDA”) to Volkswagen, certifying Volkswagen’s compliance with and ability to operate a state-certified arbitration program in California. The request is granted. (Evid. Code, § 452(h).)

With the opposition brief, Plaintiff seeks judicial notice of Exhibits: (H) the complaint in this action; and (L) the December 16, 2022 minute order in Lim v. Mercedes-Benz USA, LLC in case no. 22STCV17782. The Court will take judicial notice of these court documents, but not for the truths of the matters stated within. (Evid. Code, § 452(d).)

With the reply brief, Defendants submitted a rebuttal request for judicial notice of Exhibit A, the Certificate issued by California’s Department of Consumer Affairs to Volkswagen, certifying Volkswagen’s compliance with and ability to operate a state-certified arbitration program in California for the year 2022. The request is granted.

With the opposition brief, Plaintiff submitted evidentiary objections to the declaration of Adam Rupp filed in support of Defendants’ motion papers.

· Objection no. 1 to paragraph 17 (re settlement offers) is overruled. Evidence Code, § 1152 states that evidence that a person has, in compromise, furnished money or any other thing/act/service to another who sustained or will sustain or claims he/she has sustained or will sustain loss or damage, as well as any statements made in negotiation, is inadmissible to prove his/her liability for the loss or damage or any part of it. Here, Mr. Rupp’s statement that Volkswagen offered “cash and keep” settlement offer is admissible as it is not provided by Defendants to prove its liability; rather, the evidence was offered to show that Defendants attempted to comply with the Act.

· Objection nos. 2 and 3 to paragraph 24 (page 7, line 25 to page 8, line 4) are overruled.

With the reply brief, Defendants submitted evidentiary objections to Plaintiff’s evidence. The Court rules as follows:

· Declaration of Terry Carver: The objection to the entirety of the declaration is overruled. Objection nos. 1-3 regarding paragraphs 5, 6, and 9 are overruled.

· Declaration of Nicholas Bravo: The objection to the entirety of the declaration is overruled. The objection to paragraph 11 at Exhibit I (the minute order in Lim v. Mercedes-Benz USA, LLC in Case No. 22STCV17782, which was issued by Department 30 at Stanley Mosk) is overruled. The Court has taken judicial notice of the document, but not for the truths of the matters asserted therein.

Defendants argue that summary judgment on the entirety of the action is proper based on Volkswagen’s pre-litigation offer that complied with the Act. They argue if there is a finding of summary judgment in Volkswagen’s favor, there too should be a finding in Galpin’s favor.

In support of the motion, Defendants provide the following facts and timeline of events:

· On July 29, 2021, Plaintiff leased the vehicle. (Def.’s Fact 1; Def.’s Evid., Ex. 1B [Lease Agreement].)

· On March 3, 2022, when the vehicle’s mileage was at 7,110 miles, it was brought to a Volkswagen authorized repair facility for the first time. (Def.’s Fact 2; Def.’s Evid., Ex. 2A [Accounting Invoice re 3/3/22])

· On April 5, 2022, Plaintiff asked Volkswagen to repurchase the vehicle. (Def.’s Fact 3; Def.’s Evid., Ex. 1A [Carver Depo. at 85:25-86:8], Ex. 8 to Carver Depo. [Case File].)

· On April 11, 2022, Volkswagen received a letter from Plaintiff’s counsel (dated April 6, 2022), demanding that Volkswagen repurchase the vehicle. (Def.’s Fact 4; Carver Depo. 81:10-83:17, 85:2-5, Ex. 10 to Carver Depo. [4/6/22 Letter by Plaintiff’s Counsel and 4/11/22 Notice of Service of Process].)

· On April 25, 2022, Volkswagen informed Plaintiff’s counsel that it would repurchase the vehicle as requested and asked him to send information (registration, payment history, copy of driver’s license, etc.) needed to calculate restitution and complete the transaction. (Def.’s Fact 5; Carver Depo. at 91:21-93:3, 93:16-94:15, Ex. 11 to Carver Depo. [4/25/22 Letter by Volkswagen to repurchase vehicle], Ex. 4D [Emails].)

· On April 28, 2022, Volkswagen emailed Plaintiff’s counsel a written offer to repurchase the vehicle. (Def.’s Fact 6. Carver Depo. at 95:14-100:2, Ex. 13 to Carver Depo. [4/28/22 Letter by Volkswagen to repurchase vehicle].)

o Volkswagen’s repurchase offer of $8,542.85 (plus the lease payoff of Volkswagen Credit Leasing Ltd.) included a statutory mileage offset (deduction) of $2,415.87 (= 7,093 miles x the agreed upon value of vehicle at the time of lease signing of $40,872, then divided by 120,000). (Def.’s Fact at 7.) Volkswagen calculated the 7,093 miles (= 7,110 miles – 17 miles on odometer at time of leasing) based on the number of miles the vehicle had been driven prior to the date it was first delivered to Volkswagen’s authorized facility for correction of the issue (door wiring harness issue). (Def.’s Fact at 8; Rupp Decl., ¶¶15-16, Ex. F; Baxter Decl., ¶4.)

· On April 28, 2022, Plaintiff received Volkswagen’s 2022 repurchase offer. (Def.’s Fact 9; Carver Depo. at 98:20-99:1, Ex. 13 to Carver Depo. [4/28/22 Letter by Volkswagen to repurchase vehicle]; Rupp Decl., Exs. D, F.)

· After receiving the offer, Plaintiff did not permit Volkswagen to repurchase the vehicle, and instead filed the lawsuit on May 25, 2022 and continued to drive the vehicle. (Def.’s Fact 10; Carver Depo. at 28:10-30:6, 34:16-18, 51:3-9, 98:20-99:1.)

(d)(1) Except as provided in paragraph (2), if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that amount directly attributable to use by the buyer prior to the discovery of the nonconformity.

(2) If the manufacturer or its representative in this state is unable to service or repair a new motor vehicle, as that term is defined in paragraph (2) of subdivision (e) of Section 1793.22, 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). However, the buyer shall be free to elect restitution in lieu of replacement, and in no event shall the buyer be required by the manufacturer to accept a replacement vehicle.

(Civ. Code, § 17933.2(d).) Section 1794(a) states: “Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.”

In support of the motion, Defendants rely on Dominguez v. American Suzuki Motor Corp. (2008) 160 Cal.App.4th 53. In Dominguez, the trial court had denied Suzuki’s motion for summary judgment/adjudication, but the Court of Appeal reversed. The timeline of events was summarized as follows: “[On November 16, 2004], Dominguez purchased the Motorcycle. Over the course of the next six months, he submitted it for repair on at least five occasions. On June 13, 2005, Dominguez's counsel requested Suzuki repurchase or replace the Motorcycle. One week later [on June 21, 2005], Suzuki informed counsel, among other things, it was unable to duplicate the problem, and requested he submit the Motorcycle to an authorized dealer for repair. Five weeks later [on July 28, 2005], Suzuki offered to repurchase the Motorcycle for the total purchase price. Four weeks later [on August 25, 2005], Suzuki sent counsel a letter detailing its previous offers, acknowledging counsel's request for $2,500 in attorney fees, and offering $750 in attorney fees, an amount based on what it estimated was a one-hour consultation and the drafting of one form letter, the June 13, 2005, letters to Suzuki and Pacific. After failing to agree on attorney fees and costs, Dominguez filed suit approximately six weeks after Suzuki offered to repurchase the Motorcycle.” (Dominguez, supra, 160 Cal.App.4th at 58-59.)

Approximately six weeks after Dominguez's counsel demanded Suzuki repurchase or replace the Motorcycle, Suzuki offered to repurchase the Motorcycle. But that was not good enough—counsel construed Suzuki's previous June 21, 2005, letter as a “willful” refusal to comply with Song–Beverly, which by its plain language it was not, and demanded a civil penalty two times the actual damages as permitted by section 1794, subdivision (c).[] Dominguez did not file suit to require Suzuki to comply with Song–Beverly. It filed suit to recover the civil penalty and/or attorney fees.

There was no evidence Suzuki failed to comply, and certainly no evidence it “willfully” failed to comply, with Song–Beverly.

(Id. at 59.) The Court of Appeal observed that there was a total of 6 weeks from plaintiff’s first demand for repurchase or replacement of the motorcycle on June 13, 2005 and Suzuki’s letter indicating that it intended to repurchase the motorcycle. (Id. at 60.) The Court of Appeal stated: “Dominguez points to nothing in section 1793.2, subdivision (d)(1), which requires a manufacturer to offer to repurchase consumer goods within a specified time. And, there is nothing in the record on appeal to support the conclusion that prior to Dominguez's June 13, 2005, letter demanding repurchase or replacement of the Motorcycle that Suzuki refused to comply with Song–Beverly necessitating Dominguez hire counsel. He conceded as much in his complaint when he stated his first attempt to contact Suzuki concerning repurchase or replacement was June 13, 2005.” (Id.)

Defendants have also upheld their burden in showing that the financial confidentiality term in their repurchase offer was proper pursuant to Civil Code, § 1793.26.[1] The April 28, 2022 letter by Defendants stated: “In further consideration of VWGoA’s agreement to repurchase the above-mentioned vehicle, Mr. Terry Carver must keep confidential the financial terms of this agreement, and therefore must not disclose the financial terms to anyone other than their attorney, accountant, or immediate family members. This provision is intended to comply with California Civil Code Section 1793.26, and nothing herein prohibits your client(s) from disclosing to any person the non-financial terms of this agreement or the nature of any alleged problem(s) with the vehicle.” (Rupp Decl., Ex. F.) Defendants have shown that this confidentiality provision conforms to the requirement of Civil Code, § 1793.26 as it makes confidential the financial terms, but not the non-financial terms.

Based on the facts and evidence provided by Defendants, Defendants have upheld their initial burden in showing that after making several attempts to service/repair the vehicle, they offered to repurchase the vehicle pursuant to Civil Code, § 1793.2(d). Defendants offered to repurchase on April 25, 2022 (20 days after Plaintiff asked Volkswagen to repurchase the vehicle on April 5, 2022, and 14 days after Plaintiff’s counsel sent a letter asking Volkswagen to repurchase the vehicle on April 11, 2022) and requested information to calculate the repurchase price, and then sent the repurchase offer letter on April 28, 2022.

In opposition, Plaintiff argues that Defendants did not properly request summary judgment on an affirmative defense in the answer. While the notice of motion does not expressly use the words “affirmative defense,” the notice clearly states the basis for Defendants’ motion for summary judgment on the grounds that they complied with the Act by promptly offering to repurchase the vehicle prior to litigation. This is essentially Defendants’ 30^th affirmative defense for Prompt Offer to Repurchase in their answer. The Court will not deny the motion based on Plaintiff’s argument that Defendants did not properly notice the motion on this basis. Plaintiff’s opposition papers reflect that the basis of the motion was fully apparent and understood.

Next, Plaintiff also argues that his claims are not barred solely because he did not accept Volkswagen’s proposal and that a prelitigation offer cannot dispose of his right to bring a breach of express and/or implied warranty claim under Civil Code, § 1794(a). Plaintiff makes this argument without any legal support. Plaintiff also does not address the Dominguez case in his opposition brief, wherein the Court of Appeal found that summary judgment was proper in favor of Suzuki on the plaintiff’s breach of express and implied warranty claims based on Suzuki’s prompt prelitigation offer to repurchase the motorcycle. This too will not be a basis to deny the motion.

Plaintiff also argues that there are triable issues of material fact regarding whether the prelitigation offer was “prompt.” Plaintiff argues that Volkswagen was aware of the nature of the warrantable defect existing in Plaintiff’s vehicle as early as March 9, 2022 and that Galpin had told Plaintiff (a hearsay statement that has no documentary support) that the particular part had been backordered since December 2021. (Pl.’s Additional Material Fact [AMF] 12-17.) Thus, Plaintiff argues there is a triable issue of material fact whether Defendants’ offer was prompt. The parties do not dispute that Defendants were at least first put on notice of a possible defect in the vehicle on March 3, 2022 (when it was brought in for service/repair) and that after attempts to repair the vehicle, Volkswagen offered to repurchase the vehicle on April 25, 2022 and provided specific terms (after obtaining information from Plaintiff) on April 28, 2022. This timeframe is even more prompt than the timeframe provided in the Dominguez case. Although Plaintiff attempts to argue that Defendants should have been on notice of an issue since December 2021 based on a backordered car part, Plaintiff has not shown that every single 2021 Volkswagen Atlas made had the same defect which necessitated the part, that the part was specific to only 2021 Volkswagen Atlas (as opposed to other models which may have been in line for the part), or any facts showing that the backordered nature of a part should be indication that Plaintiff would seek an repurchase offer. Additionally, Plaintiff has not provided any facts or evidence showing that Defendant should have been aware of the issues starting from the day of the lease on July 29, 2021. Thus, Plaintiff has not raised a triable issue of material fact on this basis.

Plaintiff also argues that Defendants’ offer did not include other forms of relief and that Defendants only cherry-pick the remedies in the complaint’s prayer for damages. However, Civil Code, § 1793.2(d)(1) states that if the manufacturer does not service/repair the goods to the applicable express warranties, then it “shall either replace the goods or reimburse the buyer….” Section 1793.2(d)(2) states that if the manufacturer is unable to service/repair the new motor vehicle to conform to the applicable express warranties, it “shall either promptly replace the new motor vehicle … or promptly make restitution to the buyer ….” Here, Defendants’ letter had the option and indeed offered to repurchase the vehicle from Plaintiff (i.e., make restitution). The term “or” is provided in the statute, which gave Defendants the option to pick one remedy over the other to offer Plaintiff; Defendants need not offer both options. Defendants made a prompt offer that did not willfully fail to comply with the Act.

With respect to the confidentiality term, Plaintiff argues that he had no requirement to accept the confidentiality term as to the financial terms of the agreement. However, Plaintiff does not provide any triable issue of material fact disputing the term in the repurchase letter or showing that the confidentiality term violated Civil Code, § 1793.26. Whether Plaintiff wanted or did not want to accept the confidentiality term does not raise a triable issue of material fact.

Finally, Plaintiff argues that Defendants’ offer was not properly calculated. Civil Code, § 1793.2(d)(2)(C) states in relevant part:

When restitution is made pursuant to subparagraph (B), the amount to be paid by the manufacturer to the buyer may be reduced by the manufacturer by that amount directly attributable to use by the buyer prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity. The amount directly attributable to use by the buyer shall be determined by multiplying the actual price of the new motor vehicle paid or payable by the buyer, including any charges for transportation and manufacturer-installed options, by a fraction having as its denominator 120,000 and having as its numerator the number of miles traveled by the new motor vehicle prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity. Nothing in this paragraph shall in any way limit the rights or remedies available to the buyer under any other law.

As summarized above, Volkswagen’s repurchase offer of $8,542.85 (plus the lease payoff of Volkswagen Credit Leasing Ltd.) included a statutory mileage offset (deduction) of $2,415.87 (= 7,093 miles x the agreed upon value of vehicle at the time of lease signing of $40,872, then divided by 120,000). (Def.’s Fact at 7.) Volkswagen calculated the 7,093 miles (= 7,110 miles – 17 miles on odometer at time of leasing) based on the number of miles the vehicle had been driven prior to the date it was first delivered to Volkswagen’s authorized facility for correction of the issue (door wiring harness issue). (Id. at 8; Rupp Decl., ¶¶15-16, Ex. F; Baxter Decl., ¶4.) In opposition, Plaintiff argues that Defendants incorrectly use the “agreed upon value” in Box 7(A) of the lease (i.e., $40,872) instead of the amounts Plaintiff was obligated to pay under the lease (Box 5 for $28,703.92). (Pl.’s AMF 22-23.) Plaintiff relies on Crayton v. FCA US LLC (2021) 63 Cal.App.5th 194, while Defendants rely on Brady v. Mercedes-Benz USA, Inc. (2002) 243 F.Supp.2d 1004.

In Crayton v. FCA US LLC (2021) 62 Cal.App.5th 641, 204, the Court of Appeal stated:

“[T]he phrase ‘actual price paid or payable,’ includes all amounts [the plaintiff] became legally obligated to pay when [he] agreed to [lease] the [vehicle] ....” (Mitchell v. Blue Bird Body Co. (2002) 80 Cal.App.4th 32, 38, 95 Cal.Rptr.2d 81 (Mitchell).) In a lease transaction, unlike a purchase, the lessee acquires the limited right to use and possess the vehicle for a specified term. In return for that limited right, a lessee makes certain payments at signing—just as plaintiff did here in the amount of $6,750—and agrees to make a specified number of future monthly payments, in this case the 47 monthly payments of $500.12 each for a total of $23,505.64. Both the payments at signing and the future monthly payments are part of the actual price payable under the lease.

But the lease here did not require plaintiff to acquire title to the vehicle at the end of the lease; instead, plaintiff acquired at signing the option to purchase the vehicle for an agreed-upon sum certain, in this case the residual value of $24,458.60. [Citations.] Because plaintiff was not under a legal obligation at the time of the lease signing to purchase the vehicle for the residual value, that amount is not part of the “ ‘actual price ... payable’ ” by plaintiff under section 1793.2, subdivision (d)(2). (Mitchell, supra, 80 Cal.App.4th at p. 38, 95 Cal.Rptr.2d 81.)

(Crayton v. FCA US LLC (2021) 62 Cal.App.5th 641, 204.) In Crayton, the Court was considering whether the Defendant manufacturer would be required to refund not only amounts that were payable under the lease, but also the residual value of the vehicle. Although a mileage offset was awarded in that case, there is no discussion of whether the mileage offset would be calculated based on the lease payments or upon the value of the vehicle. Apparently it was not in dispute, at least at the appellate level.

More on point is the analysis of the U.S. District Court of the Northern District of California regarding the mileage offset:

However, as noted above, the restitution awardable under § 1793.2(d)(2)(B) must be reduced by the amount directly attributable to use (as measured by miles driven) by the consumer prior to the first repair (or attempted repair) of the problem as pro-rated against a base of 120,000 miles. Cal. Civ.Code § 1793.2(d)(2)(B). At the hearing, MBUSA argued that this pro rata reduction or offset should be based on the sales price of the automobile and not the total of payments due through the lease ($28,242.49) as the Song–Beverly Act requires pro-ration of the “actual price of the new motor vehicle paid or payable by the buyer.” Cal. Civ.Code § 1793.2(d)(2)(C) (emphasis added). However, the term actual price is used in both subsections (B) and (C) of § 1793.2(d)(2), and as demonstrated above, as used in subsection (B), the term must be construed in the leasing context to refer to lease payments, not capitalized purchase price. On the other hand, the pro-rated off-set in subsection (C) is based not on the lease mileage allowance (here 45,000 miles) or length of the lease term, but on 120,000 miles which presumptively reflects the full life expectancy of a new car. If the offset under subsection (C) is calculated based on the vehicle's pro-rated depreciation over the full 120,000 life expectancy, it makes sense to apply that pro-ration to the full purchase price of the vehicle. Moreover, using the full purchase price in calculating the pro-rated offset is consistent with the fact that lease payments typically reflect a component for depreciation of the automobile based on its full life expectancy and purchase price.

In this case, the set-off is calculated by taking as the purchase price of the Automobile—the agreed upon value of $46,250.00 specified in the lease—multiplied by a fraction having as its denominator 120,000 and having as its numerator the number of miles traveled by the Automobile prior to the time Brady first delivered the vehicle for repair (7,381 miles).

(Brady v. Mercedes-Benz USA, Inc. (N.D. Cal. 2002) 243 F.Supp.2d 1004, 1008–09.) Under Brady, the $40,872 agreed upon value of the vehicle would be used as the “actual price of the new motor vehicle” for purposes of the mileage offset.

The Court agrees with the analysis in Brady. Here the legislature has drafted a statute regarding vehicle purchases and required that it apply to vehicle leases without understanding that this would cause computational problems given the fundamental differences between the two types of transactions. The overall goal of the statute is to provide the plaintiff with a return to the status quo ante, not to provide a windfall. (Clayton v. FCA, supra, 62 Cal.App.5^that 204-05.) The legislature did manage to make clear that the full useful life of the vehicle should be considered in making this calculation, as it provided the figure of 120,000 miles for use in the calculation rather than the mileage limit stated in the lease. For the calculation to be a meaningful estimate of depreciation, the full estimate of the value must be used in the equation. What is sought is a reasonable estimate of depreciation. The asset being depreciated is a car, not a stream of payments. Using the lease payments in the equation estimating a mileage allowance would provide the plaintiff with a windfall.

Moreover, to allow this minor difference in calculation to create a factual issue at this late date would be inequitable. Plaintiff alleges that by their calculation, the mileage adjustment should have been $1,696.58. This creates a difference from Defendants’ repurchase offer of $719.29. The repurchase offer added an offer of $3,000 in attorneys’ fees “as a gesture of goodwill.” In view of this goodwill, it is clear that Defendants were willing in good faith to repurchase this automobile. Defendants were willing to pay $3,000 for the drafting of a form letter that was a page and a half long. The difference between what would have been charged for such a letter and $3,000 is substantially more than $719.29. Moreover, Plaintiff’s counsel did raise his incorrect positions regarding confidentiality in response to the repurchase demand but did not dispute Defendants’ calculation of the mileage credit or give the Defendants a chance to pay the additional $719.29 before filing suit, apparently holding this contention for later assertion in litigation. The Court agrees that it would be inequitable for this minor dispute in calculation to be raised at this late date as the only issue preventing summary judgment when counsel never brought it to Defendants’ attention prior to filing suit.

The statute is meant to be one to provide restitution for actual losses. Here it is not even clear that Plaintiff was ever damaged. Although the car was brought in for an alleged issue in March of 2021, it was returned to Plaintiff, and he has driven it ever since. The offer of restitution was sufficient to address any alleged damage. As discussed above, the Court finds that the calculation provided by defense counsel in the repurchase letter based on the Brady calculation was the correct offer. As such, Plaintiff has not raised a triable issue of material fact regarding whether the offer letter provided the correct repurchase calculation.

For these reasons, the Court grants the motion for summary judgment as to both Defendants Volkswagen and Galpin. As summary judgment has been granted, the Court need not discuss whether summary adjudication is appropriate.

Defendants Volkswagen Group of America, Inc. and Galpin Volkswagen, LLC dba Galpin Volkswagen’s motion for summary judgment is granted. Defendants are ordered to lodge with the Court and serve on Plaintiff a proposed judgment within ten (10) days and to provide notice of this order.

[1] Section 1793.26(a) states that any automobile manufacturer who reacquires a motor vehicle is prohibited from: (1) reacquiring, as a condition of the reacquisition of the motor vehicle, that the buyer/lessee agree not to disclose the problems with the vehicle experienced by the buyer/lessee or the nonfinancial terms of the reacquisition; and (2) including, in any release or other agreement, for signature by the buyer/lessee a confidentiality clause prohibiting the buyer/lessee from disclosing information to anyone about the problems with the vehicle, or the nonfinancial terms of the reacquisition of the vehicle by the manufacturer, importer, distributor, dealer, or lienholder. Subsection (b) states that any confidentiality clause in such a release or other agreement in violation of this section shall be null and void as against the public policy of this state. However, subsection (c) states: “Nothing in this section is intended to prevent any confidentiality clause, gag clause, or similar clause regarding the financial terms of the reacquisition of the vehicle.” (Civ. Code, § 1793.26(c) [emphasis added].)

Superior Court of California

County of Los Angeles

Department B