Judge: Jon R. Takasugi, Case: 21STCV04043, Date: 2023-06-29 Tentative Ruling

Case Number: 21STCV04043    Hearing Date: November 28, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion for summary judgment is GRANTED.

Plaintiff Rachel Tolliver and Carmen Sims (collectively, Plaintiffs) filed suit against General Motors (Defendant) alleging violations of the Song-Beverly Law.

            Now, Defendant moves for summary judgment of Plaintiffs’ Complaint.

Discussion

            Defendant argues that it is entitled to judgment in its favor as a matter of law because Plaintiffs, who bought the vehicle at issue “used,” cannot pursue Song-Beverly claims for breach of implied warranty or breach of express warranty against GM concerning a vehicle that they did not buy as a “new motor vehicle.”

            In support, Defendant cites Nunez v. FCA US LLC (2021) 61 Cal. App. 5th 385, 399 as to Plaintiff’s implied warranty claim , and Rodriguez v. FCA US, LLC, No. E073766, 77 Cal.App.5th 209, review granted, 512 P.3d 654 as to Plaintiff’s express warranty claim.

            In Nunez, the Court analyzed Civil Code section 1295.5. and concluded “only distributors and retail sellers, not manufacturers, are liable for breach of implied warranties in the sale of a used car.” (Nunez, supra, 61 Cal. App. 5th at p. 399, emphasis added.)

            In Rodriguez, the Court of Appeal issued a unanimous opinion holding that a used vehicle purchaser who did not receive a warranty from the vehicle’s manufacturer cannot pursue breach of express warranty claims under Song-Beverly against the manufacturer because Song-Beverly’s express warranty provisions apply only to “new motor vehicles,” and a used vehicle acquired with some balance of its original warranty is not a “new motor vehicle” under Song-Beverly.

            In opposition, Plaintiffs argue that Defendant’s motion is procedurally defective, that manufacturers are bound by the Song-Beverly Act in the sale of a used vehicle, and that the Court should not follow Rodriguez, but rather should follow Jensen v. BMW of North America, Inc., (1995) 35 Cal.App.4th 112 as to the express-warranty claim.

            As to the first contention, Plaintiff argues that Defendant’s Separate Statement fails to comply with CRC Rule 3.1350, subsections (b) and (d)(1)(A), and that this “flagrant violation prejudices Plaintiffs in their ability to accurately and effectively oppose Defendant’s MSJ/MSA.” (Opp, 1: 4-5.) However, Plaintiffs do not set forth any explanation or offer any example as to how they have been prejudiced in opposing this motion. Defendant’s Separate Statement states that the facts were “Facts Common to All Issues,” Plaintiffs opposed the motion on the merits, and the issue before the Court here turns largely on a question of law. As such, the Court disagrees that Defendant’s motion fails for procedural reasons.

            As to the second contention, Plaintiff has not submitted any evidence to dispute that they bought the car used, and have not submitted evidence that Defendant was a distributor or retail seller of the used car. Plaintiff did not submit any evidence or caselaw which could distinguish the holding in Nunez that only distributors and retail sellers, not manufacturers, are liable for breach of implied warranties in the sale of a used car.” (Nunez, supra, 61 Cal. App. 5th at p. 399.)

As to the third contention, the Court declines to follow Jensen rather than Rodriguez. This is for several reasons. First, contrary to Plaintiff’s contention, the Court disagrees that only Jensen is the only controlling law here. While the Supreme Court is currently reviewing Rodriguez, it denied requests for an order to depublish the opinion and explicitly authorized parties to continue citing “for its persuasive value,” permitting this Court to follow Rodriguez, not Jensen. (Rodriguez, supra, 512 P.3d at p. 654.) Second, the Court of Appeal’s decision in Rodriguez is sound and directly on point, whereas there are important distinctions between the facts here and those in Jensen.

            In Jensen, the plaintiff leased a vehicle that the dealership had been using as a demonstrator. At the time that plaintiff executed the lease, the plaintiff was told that he would receive (and did receive) a full manufacturer’s warranty, despite the vehicle having enough demonstrator miles as to render it used even though it had never been delivered to a consumer. (35 Cal.App.4th at p.119 (explaining that the consumer “would get the 36,000-mile warranty on top of the miles already on the car”).) When BMW challenged the plaintiff’s ability to pursue Song-Beverly claims, the court there held that because the vehicle was delivered with a new vehicle warranty, the plaintiff had standing under Song-Beverly.

Unlike Jensen, Plaintiffs in this case did not buy or lease a demonstrator vehicle that had never been delivered to another consumer, and Plaintiffs did not receive any new or additional warranty coverage from GM with their purchase.

In Rodriguez, the vehicle at issue was a Chrysler-brand vehicle. The plaintiffs there bought the vehicle used from Pacific Auto Center, which was not a Chrysler-authorized retailer. Chrysler was not a party to the transaction between the plaintiffs and Pacific Auto Center, nor did Chrysler issue a warranty in connection with that transaction. The vehicle did, however, have unexpired coverage under the warranty that Chrysler had issued in connection with the vehicle’s sale to its original owner. (Id. at p. 209-212.)

Approximately one year after their purchase, the plaintiffs experienced engine issues that, according to them, Chrysler was unable to repair within a reasonable number of attempts. Based upon allegations that Chrysler had breached the warranty it issued in connection with the vehicle’s delivery to its original owner, the plaintiffs sued Chrysler asserting Song-Beverly claims. (Ibid.) Chrysler sought summary judgment on the Song-Beverly claims, arguing that Song-Beverly did not apply because (1) the vehicle, which plaintiffs bought used, was not a “new motor vehicle” and (2) Chrysler did not issue a warranty in connection with the Plaintiffs’ purchase. The trial court agreed, and the Court of Appeals affirmed summary judgment for Chrysler:

The sole issue in this case is 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. We conclude it does not and that the phrase functions instead as a catchall for sales of essentially new vehicles where the applicable warranty was issued with the sale. We therefore affirm.

(Id. at p. 209 (emphasis in original).)

Here, Plaintiffs, like the plaintiffs in Rodriguez: (1) did not buy a “new motor vehicle”; Plaintiffs bought the Cruze used. (SS, ¶ 2; id. at Ex. A; id. at Ex. B.); (2) did not buy the vehicle from a GM-authorized dealership (Oaks Decl., ¶ 5.); and (3) did not receive any new or additional warranty coverage for the Cruze from GM in connection with their purchase; they received only the balance of coverage under the Warranty that GM issued in January 2016. (SS, ¶ 11; id. at Ex. D, Ex. E & Oaks Decl., ¶ 8.)

The Court therefore agrees under Rodriguez that Plaintiffs cannot pursue a Song-Beverly claim for breach of express warranty.

Based on the foregoing, Defendant’s motion for summary judgment is granted.

It is so ordered.

Dated:  November    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.