Judge: John J. Kralik, Case: 22BBCV00513, Date: 2023-11-03 Tentative Ruling
Case Number: 22BBCV00513 Hearing Date: November 3, 2023 Dept: NCB
North
Central District
|
brianna
l. rangel, Plaintiff, v. general
motors llc, Defendant. |
Case No.:
22BBCV00513 Hearing Date: November 3, 2023 [TENTATIVE] order RE: motion for summary judgment or in the
alternative summary adjudication |
BACKGROUND
A.
Allegations
Plaintiff Brianna L. Rangel (“Plaintiff”)
alleges that on November 30, 2021, she purchased a 2017 Chevrolet Tahoe. The action arises out of the warranty and
repair obligations of Defendant General Motors LLC (“Defendant” or “GM”) in
connection with the vehicle Plaintiff purchased and for which Defendant issued
a written warranty. The warranty was not
issued by the selling dealership. Plaintiff alleges that the vehicle was
delivered to Plaintiff with serious defects and nonconformities to warranty,
including structural, engine, electrical, and suspension system defects.
The complaint, filed on July 14, 2022,
alleges causes of action for: (1) violation of Song-Beverly Act – breach of
express warranty; (2) violation of Song-Beverly Act – breach of implied
warranty; and (3) violation of Song-Beverly Act § 1793.2.
B.
Motion
on Calendar
On August 21, 2023,
Defendant filed a motion for summary judgment in its favor and against
Plaintiff. In the alternative, Defendant
moves for summary adjudication on the following issues:
·
Issue 1: Plaintiff’s 1st and 3rd causes
of action fail as a matter of law because Plaintiff did not buy the vehicle as
a “new motor vehicle” and since she bought the vehicle, she has only presented
it once for a repair, which is insufficient for a breach of express warranty
claim under the Act.
·
Issue 2: Plaintiff’s 2nd cause of action fails as
a matter of law because Plaintiff bought the vehicle used and Defendant was not
a “distributor or retail seller of used consumer goods in [the] sale” of the
used vehicle to Plaintiff.
On October 20, 2023, Plaintiff filed
opposition paper.
On October 27, 2023, Defendant filed reply
papers.
EVIDENTIARY
OBJECTIONS
With the reply papers,
Defendant submitted evidentiary objections to Plaintiff’s evidence submitted
with the opposition brief. The Court
rules as follows:
·
Declaration of Plaintiff’s counsel Siyun
Yang: Objection nos. 1 (a part of paragraph 4), 4 (a part of paragraph 6), and 12
(a part of paragraph 26) are sustained as counsel’s statements are argument, as
opposed to evidence. Objection nos. 2-3
(paragraph 5), 6 (a part of paragraph 11), and 14 (a part of paragraph 42) are
sustained as hearsay. Objection nos. 4 (to paragraph 10), 7 (a part of
paragraph 12), 8 (a part of paragraph 13), 9 (a part of paragraph 14), 10
(paragraph 15), 11 (paragraph 20), and 13 (a part of paragraph 28) are
overruled.
·
Declaration of Plaintiff Brianna
Rangel: Objection nos. 15-17 regarding portions of paragraphs 4, 5, and 6 are
sustained as hearsay statements.
DISCUSSION
Defendant GM moves for summary judgment
or, alternatively, summary adjudication, on the grounds that: (1) the breach of
express warranty claims (1st and 3rd causes of action)
fail because Plaintiff bought the vehicle used and she only presented it once
for repairs, which is insufficient for the Song-Beverly Act; and (2) the breach
of implied warranty claim (2nd cause of action) fails because
Plaintiff did not buy the vehicle from Defendant.
A.
Plaintiff’s
Request for Continuance pursuant to CCP § 437c(h), Request for Leave to Amend,
and Request for a Stay
Preliminarily, the Court addresses
Plaintiff’s requests for a continuance of the motion, for leave to amend the
complaint, and to stay the action.
First, Plaintiff requests relief pursuant
to CCP § 437c(h), arguing that it is necessary for Plaintiff to conduct further
essential discovery of Defendant’s special warranty coverages; Defendant and
AutoNation’s inability to eliminate the defects/nonconformity up to warranty
within the reasonable number of attempts, thereby constituting a breach and
warranting restitution; depositions regarding representations made by
Defendant’s authorized repair facilities’ repair technicians and personnel; and
declaratory statements made by James Oak, its Customer Resource Technical
manager, regarding new special warranty coverages that was issued for the
subject vehicle. (Yang Decl.,
¶¶8-25.)
CCP § 437c(h), “mandates a continuance of
a summary judgment hearing upon a good faith showing by affidavit that
additional time is needed to obtain facts essential to justify opposition to
the motion.” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253–254;
CCP § 437c(h) [“[i]f it appears from the affidavits submitted in opposition to
a motion for summary judgment or summary adjudication, or both, that facts
essential to justify opposition may exist but cannot, for reasons stated, be
presented, the court shall deny the motion, [or] order a continuance to permit
affidavits to be obtained or discovery to be had, or make any other order as
may be just”].) “Continuance of a
summary judgment hearing is not mandatory, however, ... when the submitted
affidavit fails to make the necessary showing under [Code of Civil Procedure]
section 437c, subdivision (h).” (Cooksey, supra, 123 Cal.App.4th at p.
254.) The necessary showing is: “(1) the facts to be obtained are essential to
opposing the motion; (2) there is reason to believe such facts may exist; and
(3) the reasons why additional time is needed to obtain these facts.” (Wachs
v. Curry (1993) 13 Cal.App.4th 616, 623 abrogated on other grounds by Marathon
Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 974,
987, fn. 6.) In connection with the third requirement, “[t]here must be a
justifiable reason why the essential facts cannot be presented. An
inappropriate delay in seeking to obtain the facts may not be a valid reason
why the facts cannot then be presented.” (Cooksey, supra, 123
Cal.App.4th at p. 257.) Thus, a majority of courts have held “that lack of
diligence may be a ground for denying a request for a continuance of a summary
judgment motion hearing.” (Id.)
Plaintiff provides the declaration of
counsel Siyun Yang in support of the request for a continuance. However, Plaintiff’s counsel’s declaration
does not address what facts to be obtained are essential to opposing the
motion. Instead, Plaintiff’s declaration
appears to cite to and rely on the documents that Plaintiff already has to
support Plaintiff’s position in opposition to the motion. Plaintiff’s counsel states that “the Court
should continue the MSJ hearing and Trial if [it] finds that further information
and discovery is necessary for a determination of the instant motion” (Yang
Decl., ¶23), but this request improperly puts the burden on this Court to
determine if a continuance is proper based on speculative evidence the Court
does not know about. The Court declines
to continue the hearing on the motion for summary judgment. Plaintiff has not shown what discovery
efforts are still underway, such as scheduled depositions that could not be
heard prior to filing the opposition to this motion or whether Defendant has
stonewalled discovery. Further, this
action was commenced on July 14, 2022 and the Jury Trial is set for December 4,
2023; as far as the Court can tell, there are no discovery motions on calendar
and there has not been no trial continuance to accommodate discovery
matters. Nothing suggests that the
additional discovery Plaintiff seeks could not have been obtained sooner with
reasonable diligence.
In addition, as explained below, the known
facts present an issue of law to the Court that cannot be cured by additional
discovery regarding the repair history. The vehicle was sold to Plaintiff as a
used vehicle, and no amount of discovery will change that fact.
CCP § 437c(h) is intended “ ‘[t]o mitigate
summary judgment's harshness’ ” (Frazee v. Seely (2002) 95 Cal.App.4th
627, 634) “for an opposing party who has not had an opportunity to marshal the
evidence.” (Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765,
770.) Plaintiff appears to have had ample opportunity to conduct discovery and
there does not appear to be any issues with discovery delays.
Second, Plaintiff seeks a stay in the
matter pending the California Supreme Court’s review of the case Rodriguez
v. FCA US, LLC (2022) 77 Cal.App.5th 209.
The Court denies the request for a stay.
While the California Supreme Court has granted review of Rodriguez, the
Supreme Court declined to de-publish the Rodriguez opinion and stated that
the Court of Appeal’s Rodriguez case “may be cited … for its persuasive
value….” (Rodriguez v. FCA US (Cal. 2022) 295 Cal.Rptr.3d 351.) As such, this case
can only be cited for its persuasive value. (Cal. Rules of Court, rule
8.1115(e)(3).) The Court will consider Rodriguez, but does not believe
that further decisions in that case will be decisive in this case.
Third, Plaintiff seeks leave to file a
first amended complaint (“FAC”) to add allegations to reflect a prior lease,
showing that Plaintiff was the sole and first owner of the subject vehicle
prior to her option to purchase the vehicle.
The request for leave to file an FAC is denied. Plaintiff has not stated the basis for why
she did not include allegations about the lease or her prior repair attempts (before
purchasing the vehicle) earlier in the action.
Plaintiff was the party with the best knowledge of these facts as
Plaintiff was the party who signed any lease prior to the sales contract. Even if Plaintiff were to bring a motion
under CCP § 576 or CRC Rule 3.1324, Plaintiff has not shown when the facts
giving rise to the amended allegations were discovered and the reasons why the
request for amendment was not made earlier.
In the complaint before the Court, Plaintiff alleged the transaction
starting from the sales contract. This was a deliberate choice by Plaintiff and
her counsel to litigate under this particular theory, as opposed to alleging a
theory based on the lease. The lease and
the sales contract are separate transactions and Plaintiff chose to pursue this
action on the latter transaction. Although
Plaintiff’s counsel states that this additional information was procured
through discovery (Yang Decl., ¶34), these are not new facts that were at one
time unknown to Plaintiff and later discovered during discovery as Plaintiff
was the one that leased the vehicle initially and brought the car for repairs
prior to purchasing the vehicle. The
Court will not now allow Plaintiff to amend the complaint to allege an
alternate theory solely as a mechanism to avoid summary judgment in this
action.
Plaintiff’s request for a continuance is
denied. Plaintiff’s request to stay the
action until the Supreme Court reviews the Rodriguez case is
denied. The Court finds that it may rely
on Rodriguez as the Supreme Court declined to de-publish the case and
stated that it may be cited for persuasive authority. Finally, the request for leave to amend the
complaint is denied.
The Court will address the substantive merits
of the motion for summary judgment.
B.
1st
and 3rd causes of action for breach of express warranty
Defendant moves
for summary adjudication on Plaintiff’s 1st and 3rd
causes of action, alleging breach of express warranty and violation of Civil
Code § 1793.2. Defendant argues that
Plaintiff’s claims fail as a matter of law because Plaintiff did not buy the
vehicle as a “new motor vehicle.”
“ ‘A plaintiff
pursuing an action under the [Song-Beverly] Act has the burden to prove that
(1) the vehicle had a nonconformity covered by the express warranty that
substantially impaired the use, value or safety of the vehicle (the
nonconformity element); (2) the vehicle was presented to an authorized
representative of the manufacturer of the vehicle for repair (the presentation
element); and (3) the manufacturer or his representative did not repair the
nonconformity after a reasonable number of repair attempts (the failure to
repair element).’ ” (Donlen v. Ford
Motor Co. (2013) 217 Cal.App.4th 138, 152.)
The statutory language states:
“New motor vehicle” includes the chassis,
chassis cab, and that portion of a motor home devoted to its propulsion, but
does not include any portion designed, used, or maintained primarily for human
habitation, a dealer-owned vehicle and a “demonstrator” or other motor
vehicle sold with a manufacturer’s new car warranty....
(Civ. Code, § 1793.22(e)(2) [emphasis added].)
In making its arguments, Defendant relies
on the Court of Appeal case in Rodriguez v. FCA US, LLC (2022) 77
Cal.App.5th 209 and distinguishes Jensen v, BMW of North America, Inc. (1995)
35 Cal.App.4th 112. In opposition,
Plaintiff argues that Rodriguez is distinguishable and should not be
considered in light of the California Supreme Court’s review. Plaintiff argues that Jensen governs,
which held that cars sold with a balance remaining on the manufacturer’s warranty
constitute a “new motor vehicle” under the Song-Beverly Act.
In Rodriguez,
the “sole issue in the case [was] whether the phrase ‘other motor vehicle sold with
a manufacturer’s new car warranty’ covers sales of previously owned vehicles
with some balance remaining on the manufacturer’s express warranty.” (Rodriguez,
supra, 77 Cal.App.5th at 215.) The
plaintiff in Rodriguez purchased a used truck from a third-party used
car dealership that had 55,000 miles on it. The plaintiff did not purchase any
additional warranties, though the original powertrain warranty was still in
effect at the time of purchase. (Id.) The trial court granted the
vehicle manufacturer’s motion for summary judgment because the vehicle was
“used.”
The Court of
Appeal affirmed the order, finding that the statutory text and legislative
history supported its reasoning that a used vehicle with some balance of the
original warranty was not a “new motor vehicle” under the Act. (Id. at 219-223.) Specifically, the Rodriguez Court reasoned that section
1793.22(e)(2) referred to a list of “two vehicles (dealer-owned vehicles ‘and’
demonstrators) followed by an adjectival clause qualifying or describing those
vehicles.” (Id. at 220.) It explained that the lack of a comma in the
phrase “dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold
with a manufacturer’s new car warranty” suggested that the latter phrase “or
other motor vehicle” was “intended to function as a catchall provision to cover
a narrow class vehicle – the previously driven, but basically new (i.e., not
previously sold) car.” (Id.)
The Court of
Appeal further noted that it was unclear whether the third-party dealership
issued any warranties to plaintiffs, “but that would be the only way they could
seek a refund or replacement under the Act.” (Id. at 223.) The Court
concluded “that the phrase ‘other motor vehicles sold with a manufacturer’s new
car warranty’ refers to cars sold with a full warranty, not to previously sold
cars accompanied by some balance of the original warranty.” (Id. at
225.)
The Rodriguez
court discussed Jensen, supra, 35 Cal.App.4th 112, and emphasized that “Jensen
involved a lease by a manufacturer-affiliated dealer who issued a full
new car warranty along with the lease.”
(Rodriguez, supra, 77 Cal.App.5th at 223 [original italics].) In distinguishing the earlier case, it
concluded that Jensen was “correctly decided,” but its interpretation of
section 1793.22 should be limited to the specific facts unique to that case:
that the manufacturer had issued a full warranty at the time of sale. (Id. at
224.)
In Jensen,
the plaintiff leased a vehicle from a manufacturer-affiliated dealer. The
vehicle had been driven 7,565 miles. The salesman incorrectly represented that
it “had been used as a demonstrator for the dealership,” when in fact it had
obtained the car at an auction. (Jensen, supra, 35 Cal.App.4th at
119.) The lease was issued with a “36,000-mile warranty on top of the miles
already on the car.” (Id.) The Jensen court concluded that “the
words of section 1793.22 are reasonably free from ambiguity” because “[t]he use
of the word ‘or’ in the statute indicates ‘demonstrator’ and ‘other motor
vehicle’ are intended as alternative or separate categories of ‘new motor
vehicle’ if they are ‘sold with a manufacturer’s new car warranty.’” (Id.
at p. 123.) The Court noted the “peculiar grammatical structure” of
the section and further reviewed the amendments, documents relating to
legislative proceedings, and the overall statutory scheme, concluding that
“section 1793.22 includes cars sold with a balance remaining on the new motor
vehicle warranty.” (Id. at 123,
126.) The Court cited to the “Act’s
purpose as a remedial measure” and to protect “‘any individual to whom the
vehicle is transferred during the duration of a written warranty.’” (Id. at 126.) Jensen concluded that under section
1793.22, “cars sold with a balance remaining on the manufacturer’s new motor
vehicle warranty are included within its definition of ‘new motor vehicle.’” (Id.
at 123.)
In contrast to Rodriguez, the Jensen Court
did not emphasize the lack of a comma in the phrase “dealer-owned vehicle and a
‘demonstrator’ or other motor vehicle sold with a manufacturer’s new car
warranty,” but instead focused on the word “or” to hold that this phrase
created an additional category of “new motor vehicle.” (Rodriguez, supra, 77 Cal.App.5th at
220.) Thus, while Rodriguez concluded
that the clause defined two additional types of vehicles as “new,” the Jensen
Court concluded that the clause defined three: dealer-owned vehicles,
demonstrators, and other vehicles sold with a manufacturer’s new car warranty.
Several
other cases in the Fourth District have distinguished Jensen on similar
grounds, which shows that the “other motor vehicle” provision in Civil Code, §
1793.22(e)(2) is not “reasonably free from ambiguity” (Jensen, supra, 35
Cal.App.4th at 123) as the Jensen Court suggests. (See e.g., Kiluk v.
Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 340, n.4 [questioning Jensen’s
broad holding that “every car sold with any portion of a new-vehicle warranty
remaining is a new motor vehicle”]; Dagher v. Ford Motor Co. (2015) 238
Cal.App.4th 905, 923 [limiting Jensen to the facts in the case which
involved a lease from the dealer, not a private party].) However, this issue will be clarified soon
with the California Supreme Court’s review of the Rodriguez case. At least for the purposes of this motion, the
Court will consider the persuasive value of Rodriguez, which discussed
and distinguished Jensen based on the specific facts of the cases. Further, as explained in Kiluk, the Court of Appeal found that, under section 1795.5,
“[t]he same protections generally apply to sale of used goods accompanied by an
express warranty, except that the distributor or retail seller is bound, as
opposed to the manufacturer, and the duration of the implied warranty of
merchantability is much shorter.” (Kiluk, supra, 43 Cal.App.5th at 336.)
In seeking to meet its initial burden, Defendant argues
that Plaintiff bought the subject vehicle used, the warranty had already
expired by mileage, and Plaintiff did not buy any new or additional warranty
from Defendant for the used vehicle but instead purchased an optional service
contract from a third-party Portfolio.
Defendant presents the following facts. Plaintiff purchased a 2017 Chevrolet Tahoe,
which was designated as “USED” with 64,617 on November 30, 2021 from Community
Chevrolet Company. (Def.’s Fact 1-2;
Mot. Evid. at Ex. A [Retail Installment Sale Contract].) Defendant was not a party to the November
2021 sale of the subject vehicle to Plaintiff by Community Chevrolet
Company. (Def.’s Fact 3.) When the vehicle was first delivered as a new
vehicle, Defendant issued a New Vehicle Limited Warranty applicable to the
vehicle with a bumper-to-bumper coverage for the earlier of 3 years or 36,000
miles and powertrain coverage for the earlier of 5 years or 60,000 miles. (Id. at 4.) The warranty’s bumper-to-bumper coverage and
powertrain coverage expired by mileage before Plaintiff purchased the
vehicle. (Id. at 5.) Defendant did not issue or provide any new or
additional warranty coverage to Plaintiff or the vehicle when Plaintiff bought
it used in November 2021. (Id. at
6.)
Defendant also argues that Plaintiff only presented the
vehicle once for repair, such that the Act does not apply as there must be more
than one repair attempt. (Def.’s Fact 7;
Mot. Evid. at Ex. D.)
Based on the facts presented by Defendant, Defendant has
upheld its initial burden in showing that Plaintiff purchased a vehicle that
was used, or not a “new” vehicle under the Act.
In addition, Defendant has shown that Plaintiff did not purchase the
vehicle with a full manufacturer’s car warranty and that Plaintiff’s vehicle at
the time of purchase had mileage over and above the original warranty
terms. In addition, Plaintiff purchased
additional coverage from a third party (Portfolio) as opposed to obtaining a
full new car warranty from a manufacturer-affiliated dealer.
As such, the burden shifts to Plaintiff to raise a
triable issue of material fact.
Plaintiff argues that the subject vehicle was leased to
Plaintiff with the manufacturer’s original warranty intact and that following
up on the maturity of the lease, Plaintiff exercised her purchase option and executed
a sales contract with Defendant’s authorized dealership, Community Chevrolet
Company. However, as discussed above
with respect to Plaintiff’s request for leave to amend the complaint, Plaintiff
is now essentially alleging and presenting an alternate set of facts that were
not originally alleged by Plaintiff.
While Plaintiff argues that Defendant was aware of these facts,
Plaintiff deliberately chose to limit the pleading of this action to facts
starting from the date of purchase, as opposed to the earlier date of the lease
of the vehicle. It was not Defendant’s
responsibility to frame the pleadings for Plaintiff’s benefit nor expand its
summary judgment motion to cover issues not alleged in Plaintiff’s
complaint. As pointed out by Defendant
in the reply brief: “plaintiff’s
complaint does not address or concern anything that occurred during her lease;
it concerns only what occurred after she bought the Tahoe used. (See complaint,
¶ 8 [alleging plaintiff bought the vehicle used].) Plaintiff filed this lawsuit
alleging post-purchase claims under the Song–Beverly Consumer Warranty Act
(Song–Beverly).” (Reply at p.2.) A summary judgment motion is framed by the
pleadings based on the allegations of the complaint. (AARTS
Productions, Inc. v. Crocker Nat’l Bank (1986)
179 Cal.App.3d 1061, 1064–65.)
Defendant’s motion properly addresses the pleadings as framed by
Plaintiff, and the Court too will construe Plaintiff’s allegations as framed
(and limited) by the allegations of the complaint. Thus, Plaintiff’s attempts to raise triable
issues of material fact by relying on a prior lease agreement—which was a
separate transaction and written contract and the repair attempts during the
lease period—will not be considered for the purposes of this motion or
Plaintiff’s opposition arguments. As
such, Plaintiff has not raised triable issues of material fact on the 1st
and 3rd causes of action.
Even if the Court were to consider the lease period, it may be
that Plaintiff was the owner of a “new” vehicle at the time of the lease. However, at the time of purchase, she opted
to purchase a used vehicle, and that is the vehicle she owns today. By the time of the sales contract, the
vehicle was no longer new and the vehicle had reached a mileage of 64,617
miles, such that the bumper-to-bumper
coverage (earlier of 3 years or 36,000 miles) and the powertrain coverage had
already expired (5 years or 60,000 miles).
Plaintiff argues that she was provided special warranty coverages for
the Air Conditioning Condenser (Combi-Cooler) Refrigerant Leak in July 2020 and
Brake Assist Decreased Due to Vacuum Loss in October 2019, but these were prior
to her purchase of the vehicle in 2021.
Further, Plaintiff argues that she was provided special coverage
adjustments, but she has not shown how these amount to a full new car warranty.
Unlike Jensen, Plaintiff’s vehicle at the time of purchase was over the
mileage limit for the original warranties, plus Plaintiff was not provided a
full new car warranty at the time of signing the sales contract.
For these reasons, the Court finds that Plaintiff has not
raised a triable issue of material fact in opposition to Defendant’s
motion. Accordingly, Defendant’s motion
is granted as to the 1st and 3rd causes of action for breach of
express warranty.
C.
2nd
cause of action for breach of implied warranty
Next, Defendant moves for summary
adjudication as to Plaintiff’s 2nd cause of action for breach of
implied warranty under the Song–Beverly Act, arguing that it fails as matter of
law because Plaintiff bought the vehicle used and Defendant was not a
“distributor or retail seller of used consumer goods in [the] sale” of the used
vehicle to Plaintiff.
In vehicle sales, the implied warranty of
merchantability “means that the goods ‘[p]ass without objection in the trade
under the contract description,’ and are ‘fit for the ordinary purposes for
which such goods are used.’ ” (Brand v. Hyundai Motor Am. (2014) 226
Cal.App.4th 1538, 1545.) “[A] new car need not ‘be perfect in every detail’;
rather, its implied merchantability ‘requires only that a vehicle be reasonably
suited for ordinary use.’ ” (Id. at p. 1546.) A plaintiff must show that
at the time of purchase “the product did not possess even the most basic degree
of fitness for ordinary use.” (Mocek v. Alfa Leisure, Inc. (2003) 114
Cal.App.4th 402, 406.) For a vehicle, this means whether it was fit for
driving and the “ordinary purpose of providing transportation.” (American
Suzuki Motor Corp. v. Superior Court (1995) 37 Cal.App.4th 1291, 1296.)
Defendant argues that Plaintiff cannot
maintain this cause of action against a manufacturer where Plaintiff brought
the vehicle used because only distributors and retail sellers can be liable for
the breach of implied warranties in the sale of a used car. (Nunez v. FCA US LLC (2021) 61
Cal.App.5th 385, 398 [“[I]n the sale of used consumer goods, liability for
breach of implied warranty lies with distributors and retailers, not the
manufacturer, where there is no evidence the manufacturer played any role in
the sale of the used car to plaintiff.”]; id. at 399 [“[O]nly
distributors or sellers of used goods—not manufacturers of new
goods—have implied warranty obligations in the sale of used goods.”].)
As discussed above, Defendant has
established in its initial burden that the subject vehicle was a used vehicle
at the time Plaintiff purchased the vehicle from Community Chevrolet Company. Thus, the burden shifts to Plaintiff to raise
a triable issue of material fact.
For the reasons stated above, the Court finds that Plaintiff
has not raised a triable issue. In
addition, to the extent that Plaintiff argues that Community Chevrolet Company
is an authorized retail dealership, Plaintiff has not established this fact
with evidence, other than conclusory declaration statements by Plaintiff and
counsel. (The Court notes that the opposition
does not specifically address the 2nd cause of action.)
For these reasons, the Court finds that Plaintiff has not
raised a triable issue of material fact in opposition to Defendant’s motion
with respect to the 2nd cause of action. Accordingly, Defendant’s motion is granted as
to the 2nd cause of action for breach of implied warranty.
Accordingly, summary adjudication
is granted on the 2nd cause of action.
D.
Plaintiff’s
Request for Sanctions against Defendant under CCP § 128.5(a)(D)(2)
In the opposition brief, Plaintiff
requests sanctions against Defendant under section 128.5(a)(D)(2), arguing that
Defendant should be sanctions for filing a frivolous motion for summary
judgment. Plaintiff argues that
Defendant should have known about the multiple prior repair attempts and the
underlying lease agreement, and that Defendant improperly argued that the
vehicle was not “new” by omitting the prior lease from its arguments.
In light of the ruling on this motion,
Plaintiff’s request for sanctions is denied.
CONCLUSION
AND ORDER
Defendant General Motors, LLC’s motion for
summary judgment is granted.
Defendant is ordered to lodge with the
Court and serve on Plaintiff a proposed judgment within ten (10) days and to
provide notice of this order.
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