Judge: Lee W. Tsao, Case: 22NWCV00657, Date: 2023-08-31 Tentative Ruling

Case Number: 22NWCV00657    Hearing Date: August 31, 2023    Dept: SEC

URENA v. VOLKSWAGEN GROUP OF AMERICA, INC.

CASE NO.:  22NWCV00657

HEARING:  08/31/23

#7

Defendant VOLKSWAGEN GROUP OF AMERICA, INC.’s Motion for Summary Adjudication is GRANTED. The Alternative Motion for Summary Adjudication is rendered MOOT.   

Moving Party to give Notice.

The parties’ Requests for Judicial Notice are GRANTED. (Cal. Ev. Code §452.)

This “lemon law” action was filed by Plaintiff DIANNE FLORES URENA (“Plaintiff”) on August 1, 2022. On August 2, 2022, the operative First Amended Complaint (“FAC”) was filed.

The FAC alleges, in pertinent part: “Plaintiff purchased a 2018 Audi Q5… (‘the vehicle’).” (FAC ¶6.) “The vehicle was delivered to Plaintiff with serious defects and nonconformities to warranty and developed other serious defects and nonconformities to warranty including, but not limited to, various engine, coolant system, and electrical defects.” (FAC ¶8.)  

The FAC asserts the following causes of action: (1) Song-Beverly Act; (2) Magnuson-Moss Act; and (3) Breach of Express Warranty.

Defendant VOLKSWAGEN GROUP OF AMERICA, INC. (“Defendant”) moves for summary judgment, or alternatively, summary adjudication of all of Plaintiff’s causes of action. Defendant argues that the Subject Vehicle is not a “new motor vehicle” under the Song-Beverly Consumer Warranty Act because Plaintiff purchased the vehicle used, and Defendant did not issue or extend any express warranties on the vehicle as part of the sale.  

First Cause of Action – Song-Beverly Act

Defendant argues that it is entitled to summary adjudication of the first cause of action because the Subject Vehicle was not a “new motor vehicle” under the Song-Beverly Act where Plaintiff purchased the vehicle used from the McKenna Audi Dealership, and Defendant did not issue or extend any express warranties on the vehicle as part of the sale.   

It is undisputed that Plaintiff bought a used 2018 Audi Q5 from McKenna Audi on September 14, 2019. (SS Nos. 1 and 3.) It is undisputed that the vehicle had 6,284 miles on the odometer. (SS No. 2.) It is also undisputed that Defendant did not issue a full new car warranty or extend any warranties on the vehicle as part of McKenna Audi’s sale of the used vehicle to Plaintiff.  The vehicle only retained the balance/remainder of existing warranties that accompanied the original sale of the vehicle in October 2018. (See SS and Response to SS No. 6.)

The recent decision from the Fourth District, Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (Rodriguez) holds that the Song-Beverly Consumer Warranty Act does not apply to used vehicles sold with a balance remaining on the manufacturer’s express warranty. (Id. at 225.)  “Though we think Jensen was correctly decided, we agree with Dagher that its statement about ‘the Act’s coverage for subsequent purchasers of vehicles with a balance remaining on the express warranty, must be read in light of the facts then before the court, and are limited in that respect.’ [Citation.] Given that those facts included a car leased with a full manufacturer’s warranty issued by the manufacturer’s representative, the court was not asked to decide whether a used car with an unexpired warranty sold by a third party reseller qualifies as a ‘new motor vehicle.’” (Id. at 224.) Rodriguez is, however, pending before our Supreme Court and thus constitutes only persuasive authority and “has no binding or precedential effect.” (CRC Rule 8.1115(e)(1).)

This Court finds Rodriguez to be persuasive, given the facts of the instant case. Here, Plaintiff does not allege or argue that Defendant issued a new or full express warranty with the vehicle at the time of sale to the plaintiff.

In Opposition, Plaintiff urges this Court to follow the binding authority of Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112. However, as indicated above, Jensen is distinguishable. In Jensen, the manufacturer-affiliated dealer issued a new car warranty with the plaintiff’s lease. (Id. at 119.) Those facts are not alleged here. (See SS and Response to SS No. 6.)

Accordingly, pursuant to Rodriguez, summary adjudication of the first cause of action is proper.

Second Cause of Action – Magnuson-Moss Act

The Magnuson-Moss Act “authorizes a civil suit by a consumer to enforce the terms of an implied or express warranty.” (Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 835.) It “calls for the application of state written and implied warranty law, not the creation of additional federal law, except in specific instances in which it expressly prescribes a regulating rule.” (Id. at 833.)

Given the Court’s rulings with respect to the first and third causes of action, summary adjudication of the second cause of action is proper.

Third Cause of Action – Breach of Express Warranty

“Though not entitled to the Act’s refund-or-replace remedy, the beneficiary of a transferrable express warranty can sue a manufacturer for breach of an express warranty to repair defects under the California Uniform Commercial Code (Cal. U. Com. Code, §§2313, 2714, 27150)” (Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, 225.)  

Defendant issued a New Vehicle Limited Warranty on the Subject Vehicle with its original new car sale on October 4, 2018. (Lewis Decl., ¶5, Ex. C.) “The warranty covers any repair or replacement to correct a defect in manufacturer’s material and workmanship (i.e., a mechanical defect).” (Id.) 

UCC §2313(1)(a) states, “(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the good shall conform to the affirmation of promise.” The essential elements of a cause of action under the UCC for breach of an express warranty to repair are: (1) an express warranty to repair defects given in connection with the sale of goods; (2) the existence of a defect covered by the warranty; (3) the buyer’s notice to the seller of such a defect within a reasonable time after its discovery; (4) the seller’s failure to repair the defect in compliance with the warranty; and (5) resulting damages. (Id. §§2313, 2607(3)(A), 2714, 2715.)

Defendant presents evidence that it received a customer claim form from the BBB Auto Line on behalf of Plaintiff. (SS and Response to SS No. 12.) “On August 1, 2022, the BBB Auto Line, rendered its decision denying Plaintiff’s claim. The arbitrator found that [Plaintiff] did not show a nonconformity with the Vehicle or any of the components of the Vehicle.” (SS No. 14.)  More specifically, the arbitrator’s decision stated,

“Ms. Urena’s evidence consisted of the above repair orders [same as those Plaintiff submits here].  The complaints contained in the ROs were confirmed and easily repaired.  The only repeated condition was for coolant leaks, once with a radiator line and twice with coolant pump.  Following the March 10, 2022, coolant pump replacement, no further or additional coolant system condition existed.  The remaining condition reported was for a loose boost air hose, which the dealer repaired by its being reconnected and secured.  The remaining repair orders relate to routine maintenance or unrelated product recalls.”  (Defendant’s Evidence in Support of Motion, Exhibit 2G.) 

The court finds that Defendant has made a prima facie showing that there is no genuine issue of material fact.  The burden now shifts to Plaintiff. 

Plaintiff declares that the vehicle “has undergone at least five repair attempts since [she] purchased it, including at least three times for the vehicle losing coolant or having low coolant flow. (Urena Decl., ¶3.) At times, [the vehicle] displayed a reduced RPM warning and the vehicle could be driven only at reduced speeds. (Urena Decl., ¶4.) Because of the number of repair attempts and the repeat problems with the vehicle, Volkswagen failed to repair the vehicle successfully in a reasonable number of attempts.” (Urena Decl., ¶¶3-5.)  Plaintiff also submits the corresponding work orders, from May 2020 until March 2022. (Plaintiff’s Evidence in Support of Opposition, Exhibits 3-7.)  This evidence, without more, is insufficient to meet Plaintiff’s burden.  Plaintiff has failed to demonstrate Defendant’s failure to repair the defect in compliance with the warranty or any resulting damages. 

Accordingly, summary adjudication of the third cause of action is GRANTED. 

Summary judgment is DENIED.

Plaintiff’s Evidentiary Objections

Nos. 1-18. Overruled

Defendant’s Evidentiary Objections

Objections to the Separate Statement are misplaced. The Statement itself it not the evidence, nor is Counsel’s characterization of the underlying evidence cited therein.