Judge: Lee W. Tsao, Case: 22NWCV00697, Date: 2023-12-06 Tentative Ruling

Case Number: 22NWCV00697    Hearing Date: December 14, 2023    Dept: C

VELASCO v. DYNO AUTOSALES, INC.

CASE NO.:  22NWCV00697

HEARING:  12/14/23

#5

TENTATIVE ORDER

Plaintiff ELIZABETH A. VELASCO’s motion for summary adjudication is GRANTED in its entirety.

Moving party to give notice.

Background

On August 11, 2022, Plaintiff Elizabeth A. Velasco (Plaintiff) filed a Complaint against Defendant Dyno Autosales, Inc. (Defendant), asserting the following causes of action: (1) Violation of Song-Beverly Consumer Warranty Act – Breach of Express Warranty; (2) Violation of Song Beverly Consumer Warranty Act – Breach of Implied Warranty; (3) Negligent Repair; and (4)  Declaratory Relief.

The facts, as alleged, are as follows. On November 2, 2021, Plaintiff purchased a used 2014 Hyundai Veloster with the VIN: KMHTC6AE1EU204030. (Compl. ¶ 8.) Defendant provided a thirty day or 1,000 mile express warranty associated with the sale of the subject vehicle, which covered its engine and transmission. (Id. at ¶ 9.) Plaintiff also purchased a thirty-six month or 50,000 mile extended warranty from Defendant at the time of sale. (Id. at ¶ 13.) An implied warranty of merchantability was attached at the time of sale. (Id. at ¶ 11.)

Within a week after the purchase of the subject vehicle, Plaintiff presented the subject vehicle to Defendant for repair and soon discovered that the engine needed to be replaced, which was covered under the express warranty. (Id. at ¶¶ 14-22.) Defendant outsourced the repair to a third-party mechanic shop without Plaintiff’s consent or knowledge. (Id. at ¶ 23.) On November 29, 2021, Plaintiff picked up the subject vehicle, and she was made to sign a DMV Statement of Fact that stated Defendant was no longer responsible for any issues arising from the subject vehicle’s engine. (Id. at ¶¶ 25-26.) On December 15, 2021, the subject vehicle’s check engine light came on, and Defendant disclaimed any responsibility despite Plaintiff’s purchase of the extended warranty. (Id. at ¶ 27.) Thereafter, Plaintiff has had to replace the engine a second time as well as the turbo kit, purge kit, and axle within less than two years since purchasing the subject vehicle. (Id. at ¶ 28.) Within the applicable warranty period, Plaintiff presented the subject vehicle to Defendant at least four times for engine related problems. (Id. at ¶ 29.) By June 9, 2022, Plaintiff requested Defendant to repurchase the subject vehicle, which was denied on July 30, 2022. (Id. at ¶¶ 34-35.)

On September 20, 2023, Plaintiff filed her motion for summary adjudication directed at Defendant’s various affirmative defenses.

On September 21, 2023, Defendant filed its motion for summary judgment, or in the alternative, summary adjudication directed at Plaintiff’s complaint. Plaintiff opposes.

On November 11, 2023, the parties stipulated for both of their motions to be heard on December 6, 2023.

On December 6, 2023, the Court denied Defendant’s motion for summary judgment in its entirety and continued Plaintiff’s motion for summary adjudication to December 14, 2023 due to procedural defects within Defendant’s opposition papers. Defendant was instructed to refile its opposition papers, which were to comply with California Rules of Court, rule 3.1350 and Code of Civil Procedure § 437c(b)(3).

On December 8, 2023, Defendant refiled its opposition to Plaintiff’s motion for summary judgment and declaration in support of its opposition. Notably, this most recent filing is missing a copy of Defendant’s separate statement that complies with California Rules of Court, rule 3.1350 and Code of Civil Procedure § 437c(b)(3).

Discussion

Plaintiff Elizabeth A. Velsaco’s motion for summary adjudication:

Plaintiff moves for summary adjudication as to Defendant’s first through thirty-seven affirmative defenses on the ground that they each lack merit. (Notice of Motion re: Plaintiff’s MSA at pp. 1-2.) As a preliminary matter, it is noted that Defendant has withdrawn Affirmative Defenses Nos. 1, 6, 8, 9, 10, 20, 21, 25, 33, 35 and 37. (Opposition at pp. 2, 3, 4, 6, 7-8; Reply at pg. 2.) Thus, Plaintiff’s motion for summary adjudication is granted as to Affirmative Defenses Nos. 1, 6, 8, 9, 10, 20, 21, 25, 33, 35 and 37.

Moreover, as previously noted, Defendant’s responsive separate statement filed on November 22, 2023 violated California Rules of Court, rule 3.1350 in that Defendant did not state whether Plaintiff’s material facts are “disputed” or “undisputed.”  Additionally, this document lacked any information at all that would inform the Court what Defendant’s response and supporting evidence consists of.  For this reason, the Court continued the hearing on Plaintiff’s motion for summary adjudication to afford Defendant an opportunity to correct this procedural defect. However, Defendant’s corrected responsive separate statement is omitted from its December 8, 2023 filings. Thus, Defendant continues to violate California Rules of Court, rule 3.1350 and Code of Civil Procedure § 437c(b)(3). Consequently, with respect to a motion for summary adjudication, “if it is not set forth in the separate statement, it does not exist.”  (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313.)  Therefore, pursuant to Code of Civil Procedure § 437c(b)(3), the Court chooses to exercise its discretion to grant the instant motion due Defendant’s failure to comply with these requirements.

Accordingly, Plaintiff’s motion for summary adjudication is granted in its entirety pursuant to Code of Civil Procedure § 437c(b)(3).