Judge: Lee W. Tsao, Case: 22NWCV00018, Date: 2023-08-08 Tentative Ruling

Case Number: 22NWCV00018    Hearing Date: August 8, 2023    Dept: C

CERVANTES, et al. v. GENERAL MOTORS LLC

CASE NO.:  22NWCV00018

HEARING:  8/8/23

 

#7

TENTATIVE RULING

 

Defendant General Motors LLC’s motion for summary judgment is GRANTED.

 

Moving party to give NOTICE.

 

 

Defendant General Motors LLC (“GM”) moves for summary judgment pursuant to CCP § 437c.

 

Complaint

 

“On or about September 10, 2021, in exchange for valuable consideration, Plaintiffs [Miguel Angel Cervantes and Hector Jaimes Morales] purchased a 2019 Chevrolet Express.”  (Complaint, ¶ 7.)  Plaintiff alleges that the vehicle developed defects that defendant could not repair.  (Id., ¶¶ 13, 16.)  Based thereon, the Complaint asserts causes of action for:

 

1.    Violation of CC § 1793.2(d)

2.    Violation of CC § 1793.2(b)

3.    Violation of CC § 1793.2(a)(3)

4.    Violation of CC § 1791.2(a), 1794

5.    Violation of CC § 1791.1, 1794

 

STANDARD

 

A 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. (CCP § 437c(p)(2).) 

 

OBJECTIONS

 

Plaintiff’s Objection Nos. 1-9 are overruled.  Plaintiff is estopped from objecting to the purchase agreement when plaintiff’s own counsel relies on the exact same purchase agreement in his declaration.  (See Fennel Decl., Ex. 1).  Further, Pappas has declared that she has personal knowledge of the facts set forth and if called to testify, could and would testify competently to them.  (Pappas Decl., ¶ 1.),

 

MERITS

 

1st – 4th CAUSES OF ACTION

 

Relying on Rodriguez v. FCA, US, LLC (2022) 77 Cal.App.5th 209 (review granted), GM contends that Song-Beverly’s express warranty provisions apply only to “new motor vehicles,” and a used vehicle acquired with a balance on the original warranty is not deemed a “new motor vehicle” under Song-Beverly. 

 

Defendant submits the following relevant evidence:

 

·        Plaintiff Cervantes was not the original owner of the vehicle, which was sold on August 5, 2019, with 4 miles on its odometer to the original owner.  (Defense Separate Statement (“DSS”) 5; Ex. A describing the vehicle as “used”.)

·        Plaintiff Miguel Cervantes bought the 2019 Chevrolet Express Cargo Van as “used,” with 20,897 miles on September 2021.  (DSS 1-2.)

·        In connection with the delivery to the vehicle’s original owner, GM issued a New Vehicle Limited Warranty (the “Warranty”) with (i) bumper-to-bumper coverage for the earlier of 36 months or 36,000 miles and (ii) powertrain coverage for the earlier of 60 months or 100,000 miles. (DSS 6.)

·        GM did not issue or provide any new or additional warranty coverage to Cervantes or the vehicle when Cervantes bought the vehicle used; Cervantes received only the balance of coverage remaining under the Warranty that GM had issued when the vehicle was delivered to its original owner(s). (DSS 7.)

 

In opposition, plaintiff contends that Rodriguez is not binding authority, and the court should instead rely on Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112.

 

However, while review is pending, this court may rely on Rodriguez for its persuasive authority.  (CRC 8.1115(e)(1).)  The court finds that the facts in Rodriguez are similar to this action and therefore persuasive.  Conversely, the facts in Jensen are distinguishable.

 

In Rodriguez, Plaintiffs bought the vehicle used.  The vehicle had an unexpired warranty that Chrysler had issued in connection with the vehicle’s sale to its original owner.  (Rodriguez, supra, 77 Cal.App.5th 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.  Plaintiffs sued Chrysler asserting Song-Beverly claims. (Id.)  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, holding:

 

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….

 

… we conclude 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. We therefore conclude the trial judge was correct to conclude Plaintiffs’ truck does not meet the definition of a “new motor vehicle” and to dismiss their claim against FCA as a result.  

 

(Rodriguez, supra, 77 Cal.App.5th 209- 225.)

 

Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112 is distinguishable because the Jensen Plaintiffs received new or additional warranty coverage with their vehicle purchase.  Here, Plaintiffs concede that they bought a used vehicle (Fennel Decl., Ex. 1 – retail sale contract showing that the vehicle is “used” with 20,897 miles on the odometer), and only received the balance of that vehicle’s original warranty.  Plaintiffs do not submit any evidence showing that they received any new or additional warranty coverage from GM with their purchase.  Therefore, the Jensen case is distinguishable.

 

Finally, relying on Rodriguez, Plaintiffs contend that GM should still be held liable because it is a “distributor”.  However, Rodriguez was referring to a distributor who makes “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).”  (Rodriguez, supra, 77 Cal.App.5th 209- 225.)  Here, plaintiffs failed to present any evidence that plaintiffs purchased the used vehicle from GM, and that GM specifically made warranties about the used vehicle.  Instead, the only evidence before this court is that GM made warranties with respect to its vehicle when sold as new in 2019.  (DSS 5.)

 

5th CAUSE OF ACTION

 

Under Song-Beverly, “every sale of consumer goods that are sold at retail in the state shall be accompanied by the manufacture’s and the retail seller’s implied warranty that the goods are merchantable.”  (CC § 1792.)  The implied warranties under Song-Beverly do not apply to manufacturers with respect to the sale of used goods.  (See CC § 1795.5; see also Nunez v. FCA US LLC (2021) 61 Cal. App. 5th 385, 399 - analyzing CC § 1795.5 and concluding, “It is evident from these provisions that only distributors or sellers of used goods— not manufacturers of new goods—have implied warranty obligations in the sale of used goods”).  “[O]nly 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 399.)

 

Because Plaintiffs bought the vehicle “used,” the 5th cause of action for Breach of Implied Warranty claim fails.

 

Accordingly, summary judgment is GRANTED.