Judge: Lee W. Tsao, Case: 22NWCV00698, Date: 2024-01-30 Tentative Ruling
Case Number: 22NWCV00698 Hearing Date: January 30, 2024 Dept: C
Kenneth B. Horton, et al. vs Mercedes-Benz USA, LLC, et al.
Case No.: 22NWCV00698
Hearing Date: January 30, 2024 @ 10:30 AM
#7
Tentative Ruling
Defendants WINNEBAGO INDUSTRIES, INC. and MIKE THOMPSON RV 1’s Motion for Summary Judgment is DENIED as to first, second, and third causes of action.
Opposing party to give notice.
Background
This is a lemon law case involving a 2018 Winnebago 524D motorhome ("RV") purchased from Defendant Mike Thompson RV. Plaintiffs, KENNETH B. HORTON and CHRISTINA DUDKA (hereinafter "Plaintiffs") filed their Complaint with the Los Angeles County Superior Court on August 2, 2022. The Complaint asserts three causes of action under the Song-Beverly Consumer Warranty Act ("Song-Beverly") against Defendants Winnebago Industries, Inc. ("WNB"), Mercedes-Benz USA, LLC ("MBUSA"), and Mike Thompson RV 1 ("MTRV"): (1) Breach of Express Warranty; (2) Breach of Implied Warranty of Merchantability; and (3) Breach of Implied Warranty of Fitness for a Particular Purpose. WNB and MTRV filed their Answer to Plaintiffs’ Complaint on September 19, 2022.
Plaintiffs purchased a 2018 Winnebago 524D motorhome ("RV") from MTRV on February 24, 2018. In conjunction with the sale of the RV, WNB issued a Limited Warranty which covered the coach-portion of the RV, MBUSA issued a New Vehicle Limited Warranty which covered the chassis portion of the RV.
Legal Standard
Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) Where a Defendants seeks summary judgment or adjudication, he must show that either “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 that cause of action.” (Id. at §437c(o)(2).) A Defendants may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the Defendants meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Id.)
The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A Defendants moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Code Civ. Proc. §437c(p).) A Defendants may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a Defendants chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4th at 865-66.)
[A] Defendants may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a Defendants moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The Defendants may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The Defendants may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a Defendants’ initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a Defendants may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)
Thus, a moving Defendants has two means by which to shift the burden of proof under the summary judgment statute: “The Defendants may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the Defendants may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.”
(Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.)
Until the moving Defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving Defendants has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Code Civ. Proc. §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)
Objections
Defendants’ objection to the Declaration of William Zimmer is OVERRULED.
Discussion
Defendants contend the Limited Warranty included a one-year basic limited warranty and a three-year structural limited warranty. WNB's basic limited warranty provides: "Winnebago promises that any part of this motorhome - except those identified in paragraph entitled, 'Excluded from Basic Coverage' found to be defective in material or workmanship shall be repaired or replaced at no cost to the owner for parts, material, or labor so long as the motorhome has been used exclusively for recreational purposes and maintained as recommended in the Operator's Manual.” The "Excluded from Basic Coverage" section of Defendants’ basic limited warranty explicitly excludes the following from the warranty coverage: "Parts, accessories, or equipment installed, or modifications or alterations made after the motorhome leaves the factory... a part or component covered under a warranty issued by its manufacturer (for example, the chassis, drivetrain, wheels, tires; electronics and appliances)..." Defendants contends its Limited Warranty does not cover the chassis battery, rims or tires. (UMF No. 8). WNB's Basic limited warranty "begins on the date of retail delivery... [and] ends after 12 months or when the vehicle's odometer registers 15,000 miles...whichever is sooner." Since taking possession of the RV, Plaintiffs presented the RV for repairs on three occasions to an authorized WNB dealer, Giant RV. (UMF No. 10). Plaintiffs never reported the same issue to Giant RV more than two times.
Defendants additionally maintain Plaintiffs first presented the RV to Giant RV on August 8, 2018, when the odometer read 4,565 miles, for issues related to the key fob, kitchen ceiling light, closet light, passenger side reverse light, and the door blind. (UMF No. 12). The issue with the closet light was repaired on this visit and Plaintiff did not report the issue again.
On October 4, 2018, when the odometer read 10,853 miles, Plaintiff returned to Giant RV for issues related to the key fob, kitchen ceiling light, drawer in kitchen, bed not coming down, passenger side rear tire flat, rear wheel cover came off, driver's side forward window curtain off track, and passenger side magnet fell off. (UMF No. 14). Giant RV repaired all the coach-related issues and Plaintiff never reported any of these issues to Giant RV or any authorized Winnebago repair facilities again, except for the wheel cover that was ordered on this visit and later installed. (UMF No. 15). As to the passenger side rear tire issue Plaintiff reported on the October 4, 2018 repair visit, Giant RV advised Plaintiff to take the RV to a Mercedes dealer for repairs as this relates to the chassis-portion of the RV. (UMF No. 16). On November 19, 2018, Plaintiffs returned to Giant RV to have the wheel cover that was previously ordered installed, which was done as goodwill; Plaintiffs did not report any complaints on this visit. (UMF No. 17). The remaining repair visits were to repair facilities not authorized by Defendants for non-coach-related issues such as the rims, which is a component part not covered by Defendants’ Limited Warranty. (UMF No. 18)
Plaintiff identified the following four issues with the RV at the time of his deposition: (1) two cracked rims—the passenger, rear, inner rim is cracked, along with the spare; (2) the window blinds in the cab are offtrack on the driver's side; (3) the chassis battery is dead; and (4) the driver's side reverse light does not work. (UMF No. 24). The issues with the chassis battery and rims are both expressly excluded WNB's Limited Warranty. (UMF No. 25). The issue with the passenger reverse light was subject to a single repair attempt and never reported to a Defendants dealer again. (UMF No. 26). The issue with the driver's side window blinds was subjected to two repair attempts and never reported to an authorized repair facility after the second attempt.
I. Breach of Express Warranty
Plaintiff pursuing an action under the Act has the burden to prove that the good had a nonconformity covered by the express warranty that substantially impaired its use, value or safety (the nonconformity element); (2) the good was presented to an authorized representative of the manufacturer of the good 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). (Oregel v. Am. Isuzu Motors, Inc., 90 Cal. App. 4th 1094, 1101 (2001).)
"By virtue of section 1793.22, subdivision (e)(2), the chassis portion of a motorhome is included in the definition of a new motor vehicle, but the coach portion is not included for purposes of the 'Lemon Law.'" (National R. V., Inc. v. Foreman, (1995) 34 Cal.App.4th 1072, 1078-79). Section 1793.2, subdivision (d)(2), excludes motorhome coaches by specific reference to the definition of motor vehicle contained in section 1793.22, subdivision (e)(2). (Id. at 1081.) Thus, "the law exempts motorhome coaches from the specific provisions of the "Lemon Law," but not from the general provisions of the Act that apply to consumer goods." (Id.) "The products that fall under the regulations of the Song-Beverly Act are those products defined as 'consumer goods.'" (Id. at 1082.)
“A manufacturer's liability for breach of an express warranty derives from, and is measured by, the terms of that warranty. Accordingly, the requirements imposed by an express warranty claim are not imposed under State law, but rather imposed by the warrantor." (Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 525.) "Express warranties are voluntary, and nothing in the code shall affect the right of a manufacturer to make them." (Cal. 18 Civ. Code § 1793.)
Here, Defendants argue the Limited Warranty covers only the coach portion of the RV and expressly excludes parts, accessories, or equipment installed, or modifications or alterations made after the motorhome leaves the factory, as well as the chassis portion of the RV as that is covered by Defendants’ express warranty.
The burden shifts to Plaintiff to raise a triable issue of fact.
To establish a breach of express warranty, Plaintiffs must have presented the vehicle two or more times because the statute indicates that a manufacturer must be given a reasonable number of attempts to repair the vehicle – where the word “attempts” is notably plural. (See Civ. Code, § 1792.2, subd. (d); Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208.) Every presentation of the vehicle for repairs counts as a “repair attempt” under the law and is counted towards the opportunities Defendants was given to repair the vehicle.
Plaintiff alleges numerous defects related to both the chassis and the coach. As described above, Plaintiffs presented the vehicle to Defendants’ authorized dealerships for repair of various defects on at least two occasions. Plaintiff alleges that problems with the window blinds still persist. (SSDF No. 11.) Therefore, even if all chassis-related defects are excluded, there is still a triable issue of fact as to whether Defendants breached the express warranty because, as described in detail above, Plaintiffs presented the vehicle the statutory minimum of two times, and any further determination regarding reasonableness is a question of fact for the jury to decide.
Plaintiff presents a triable issue of fact. Accordingly, the summary judgment motion as to the first cause of action is DENIED.
II. Breach of Implied Warranty of Merchantability
Under Song-Beverly, "every sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer's and the retail seller's implied warranty that the goods are merchantable." (Cal. Civ. Code, § 1792.) The "implied warranty of merchantability provides for a minimum level of quality, but it does not impose a general requirement that goods precisely fulfill the expectation of the buyer." (Gutierrez v. Carmax Auto Superstores Cal., (2018) 19 Cal.App.5th 25 1234, 1271.)
Here, Plaintiffs took the RV on seven trips since the date of purchase in February of 2018, with at least three of these trips being within the first year of ownership. Defendants argues Plaintiffs did not notice any coach-related issues with the RV on their first two trips in April July of 2018. Plaintiffs took the RV on a trip to Joshua Tree in February of 2020 and did not notice any issues with the RV. Accordingly, Defendants maintains the RV was sold in a merchantable condition and Plaintiffs' continued use of the RV establishes that the RV was fit for its intended purpose of recreational camping. As such, Defendants argue Plaintiffs’ cause of action for breach of implied warranty of merchantability against Defendants fails as a matter of law and WNB and MTRV are entitled to a judgment in their favor.
The burden now shifts to Plaintiff to raise a triable issue of fact.
Plaintiffs contend they did experience defects with the coach portion of the vehicle during a trip within the first year of ownership. On a trip to Thayne, Wyoming in fall of 2018, Plaintiff Kenneth Horton experienced the ceiling light continuing to be inoperable after it had already been presented for repair on a previous occasion. (AMF No. 10.) The vehicle also had a kitchen drawer that would not secure and the murphy bed would not come down. (Id.)
The Court finds there is a triable issue of fact that the jury must decide whether the vehicle was of the same quality as those generally accepted in the trade based on the evidence in this case, including repair orders and testimony of Plaintiffs and experts.
Accordingly, the motion for summary judgment as to the second cause of action is DENIED.
III. Cause of Action for Breach of Implied Warranty of Fitness for a Particular Purpose
"Every sale of consumer goods that are sold at retail in this state by a manufacturer who has reason to know at the time of the retail sale that the goods are required for a particular purpose and that the buyer is relying on the manufacturer's skill or judgment to select or furnish suitable goods shall be accompanied by such manufacturer's implied warranty of fitness." As an initial matter, pleading a cause of action for breach of implied warranty for a particular purpose requires pleading facts showing what that particular purpose was. (Cal Civ. Code § 1792.1) Accordingly, "[a]n implied warranty of fitness for a particular purpose arises only where (1) the purchaser at the time of contracting intends to use the goods for a particular purpose, (2) the seller at the time of contracting has reason to know of this particular purpose, (3) the buyer relies on the seller's skill or judgment to select or furnish goods suitable for the particular purpose, and (4) the seller at the time of contracting has reason to know that the buyer is relying on such skill and judgment. (Keith v. Buchanan, (1985) 173 Cal. App. 3d 13, 20.)
Here, Defendants argue that there are no facts suggesting that Plaintiffs purchased the RV for any reason other than to use it for the ordinary purpose for which such goods are sold. Defendants argue that Plaintiffs lack any facts to suggest that Plaintiffs had a particular purpose, that Defendants were aware of such particular purpose, and how Plaintiffs relied on Defendants’ skill and judgment in purchasing the RV.
The burden shifts to Plaintiff to raise a triable issue of fact.
The Courts finds that Plaintiffs, individuals who do not work in the automotive or motorhome industry, went to a dealership specializing in the sale and repair of motorhomes to purchase a motorhome. Motorhomes are a specialized good with an obvious specialized purpose: to live in while travelling. Plaintiffs intended to travel across the country in the vehicle, sleep in it, and hook it up to campgrounds. (AMF No. 15.)
Defendants’ separate statement admits that the vehicle was purchased for personal travel. (DMF No. 2.)
Accordingly, Plaintiff raises a triable issue of fact, and Defendants’ motion for summary judgment as to the third of cause of action is DENIED.
Horton v. Mercedes-Benz USA, LLC 22NWCV00698
Plaintiffs' Ex Parte Application to Advance the Hearing on
Plaintiffs' Motion to Compel Further Responses to Requests for Production (set
one) is DENIED. The parties are not foreclosed from seeking a
continuance of the trial date in Dept. SE-F, if necessary. Moving Party to give
notice.