Judge Loren G. Freestone, Case Number: 37-2021-00017552-CU-BC-CTL, Date: 2024-06-28 Tentative Ruling

Judge: Loren G. Freestone, Case: 37-2021-00017552-CU-BC-CTL, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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EVENT DATE:

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HALL OF JUSTICE

TENTATIVE RULINGS - June 27, 2024

06/28/2024 10:30:00 AM C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2021-00017552-CU-BC-CTL ROSALES MAYORAL VS PERRY MOTORS OF NATIONAL CITY LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant FCA US LLC's motion for summary judgment as to the complaint filed by Plaintiff Sergio Alberto Rosales Mayoral is GRANTED.

Preliminary Matters FCA's evidentiary objections (ROA #122): Sustained.

Breach of Express Warranty Mayoral's first cause of action is for breach of express warranty under the Song-Beverly Consumer Warranty Act.

FCA moves to summarily adjudicate this claim on the basis that Mayoral did not purchase a 'new motor vehicle.' In order to state a cause of action for breach of express warranty under Song-Beverly, the vehicle must be a 'new motor vehicle.' (See Civ. Code, §§ 1793.2, subd. (d)(2), 1792.22, subd. (e)(2).) It is undisputed that Mayoral purchased a used 2018 Jeep Compass with 16,400 miles. It is also undisputed that the Jeep was not a certified pre-owned vehicle and that it was sold with only the remainder of the original manufacturer's warranty.

Although there is no dispute as to the material facts, the parties dispute how the law applies to those facts. The motion raises a current split of authority among the courts of appeal as to the definition of 'new motor vehicle.' FCA relies on Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, review granted July 13, 2022, No.

S274625. In that case, the Fourth District Court of Appeal, Division Two, held that Song-Beverly's definition of 'new motor vehicle' does not include 'previously sold cars accompanied by some balance of the original warranty.' (Id. at pp. 219–225.) Plaintiffs rely on Jensen v. BMW of North America Inc. (1995) 35 Cal.App.4th 112. In that case, the Third District Court of Appeal stated that 'cars sold with a balance remaining on the manufacturer's new Calendar No.: Event ID: TENTATIVE RULINGS

3090453 29 CASE NUMBER: CASE TITLE: ROSALES MAYORAL VS PERRY MOTORS OF NATIONAL CITY LLC 37-2021-00017552-CU-BC-CTL motor vehicle warranty are included within its [Song-Beverly']s definition of 'new motor vehicle.'' (Id. at pp. 122–127.) Plaintiffs also rely on Stiles v. Kia Motors America, Inc. (2024) 101 Cal.App.5th 913. In that case, the Second District Court of Appeal, Division Six, sided with Jensen over Rodriguez. (See generally ibid.) The issue is currently being briefed in at least one case pending before the Fourth District Court of Appeal, Division One. (See Sanabria v. Kia America, Inc., Case No. D082616; Appellant's Opening Brief, 2024 WL 1051955.) However, the court has not yet weighed in on the split and may not have an opportunity before the California Supreme Court issues its opinion in Rodriguez.

The California Supreme Court granted review in Rodriguez. However, 'by standing administrative order of the California Supreme Court, superior courts may choose to be bound by parts of a published Court of Appeal decision under review when those parts conflict with another published appellate court decision.' (Advisory Com. com., Cal. Rules of Court, rule 8.1115.) The California Supreme Court's order granting review in Rodriguez similarly stated that the Court of Appeal's published opinion 'may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under [Auto Equity Sales] to choose between sides of any such conflict.' (Rodriguez v. FCA US (2022) 512 P.3d 654.) 'As a practical matter, a superior court ordinarily will follow an appellate opinion emanating from its own district even though it is not bound to do so.' (McCallum, v. McCallum (1987) 190 Cal.App.3d 308, 315, fn. 4.) The court has reviewed all three opinions. The court elects to follow Rodriguez. Although it is from a different division, it emanates from the Fourth District and its reasoning is sound.

The motion is therefore granted as to the first cause of action.

Breach of Implied Warranty Mayoral's second cause of action is for breach of implied warranty under Song-Beverly.

FAC moves to summarily adjudicate this claim on the basis the vehicle was purchased used.

'[I]n the sale of used consumer goods, liability for breach of implied warranty lies with distributors and retailers, not the manufacturer, where there is no evidence the manufacturer played any role in the sale of the used car to plaintiff.' (Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 398–400.) Liability only attaches when the 'manufacturer acts in the capacity of a retailer,' such as when it 'partner[s] with a dealership to sell used vehicle directly to the public by offering an express warranty as part of the sales package.' (Kiluk v. Mercedes-Benz USA LLC (2019) 43 Cal.App.5th 334, 340.) Again, it is undisputed that Mayoral purchased the Jeep used. It is also undisputed that Mayoral did not purchase the Jeep from FCA directly, but rather from a dealership (Kearny Mesa Chrysler Dodge Jeep RAM). And it is undisputed that FCA did not issue a CPO warranty when the vehicle was sold to Mayoral.

Mayoral did not address this cause of action in his opposition. As such, he failed to raise a triable issue of fact.

The motion is therefore granted as to the second cause of action.

30-Day Violation Mayoral's third cause of action is for violation of Civil Code section 1793.2, subdivision (b.) Calendar No.: Event ID: TENTATIVE RULINGS

3090453 29 CASE NUMBER: CASE TITLE: ROSALES MAYORAL VS PERRY MOTORS OF NATIONAL CITY LLC 37-2021-00017552-CU-BC-CTL FCA moves to summarily adjudicate this claim on the basis the vehicle was purchased used.

Under Song-Beverly, express warranty repairs generally must begin within a reasonable time and be completed within 30 days. (Civ. Code, § 1793.2, subd. (b); see Ramos v. Mercedes-Benz USA, LLC (2020) 55 Cal.App.5th 220, 224–228; Gomez v. Volkswagen of America, Inc. (1985) 169 Cal.App.3d 921, 925.) However, an essential element of such a claim is that the plaintiff bought a 'consumer good' or 'new motor vehicle.' (CACI 3205.) 'Consumer good' is defined as 'any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables.' (Civ. Code, § 1791, subd. (a).) Again, it is undisputed that Mayoral did not buy a 'new product' but rather a used vehicle with 16,400 miles. As such, he did not buy a 'consumer good.' And for the reasons set forth above, he did not buy a 'new motor vehicle.' Mayoral did not address this cause of action in his opposition. As such, he failed to raise a triable issue of fact.

The motion is therefore granted as to the third cause of action.

Conclusion The motion for summary judgment is granted.

FCA is directed to submit a proposed judgment within 10 days.

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