Judge: Loren G. Freestone, Case: 37-2022-00007629-CU-BC-CTL, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 05, 2023

10/06/2023  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) 37-2022-00007629-CU-BC-CTL CONTRERAS MORENO VS GENERAL MOTORS LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant General Motors LLC's motion for summary judgment, on in the alternative summary adjudication, as to Plaintiffs Carlos Moreno and Robert Contreras's complaint is DENIED.

GM argues that Plaintiffs cannot state a claim under Song-Beverly for either breach of express warranty or breach of implied warranty because the subject vehicle was purchased used. (See Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, review granted July 13, 2022, No. S274625 [express warranty]; Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 398–400 [implied warranty].) To support this argument, GM submits a copy of what it claims is the sales contract for the vehicle.

GM's attorney (Cameron Major) declares that it 'is a true and correct copy of the Retail Installment Sales Contract between Carlos Contreras Moreno and Robert Carlos Contreras ('Buyers') and Imperial Valley Chevrolet Buick GMC Cadillac ('Seller-Creditor') for the model year 2018 GMC Sierra, VIN: 3GTU2MECXJG344552 (the 'Sierra'), which GM produced to Plaintiffs on July 22, 2022.' The contract states that the vehicle is 'used' and had 28,499 miles on it.

Plaintiffs object to this critical piece of evidence. Plaintiffs argue that Attorney Major lacks personal knowledge as to whether the exhibit is a true and correct copy of the sales contract, and therefore the contract lacks foundation and is not adequately authenticated.

Affidavits and declarations in support of a motion for summary judgment 'shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.' (Code Civ. Proc., § 437c, subd. (d).) An attorney generally lacks the requisite personal knowledge to authenticate his or her client's documents. (See, e.g., San Jose Neurospine v. Aetna Health of California, Inc. (2020) 45 Cal.App.5th 953, 961–962; Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 49–50; Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 244.) Attorney Majors does not declare that he is a party to the sales contract, was involved in its preparation, is its custodian, or any other facts demonstrating personal knowledge sufficient to authenticate the contract as a true and correct copy.

Sometimes, counsel can authenticate a document by declaring that it was produced by opposing Calendar No.: Event ID:  TENTATIVE RULINGS

2980014  37 CASE NUMBER: CASE TITLE:  CONTRERAS MORENO VS GENERAL MOTORS LLC [IMAGED]  37-2022-00007629-CU-BC-CTL counsel in discovery, provided there is 'clear indicia' that the document is what it purports to be. (See Hooked Media Group, Inc. v. Apple Inc. (2020) 55 Cal.App.5th 323, 338.) Here, however, the document was not produced by Plaintiffs.

The sales contract was not sufficiently authenticated. Plaintiffs' evidentiary objection no. 1 is therefore sustained.

Attorney Major also attempts to authenticate two other exhibits, printouts from a 'GM Global Warranty Management' system. Plaintiffs object to these documents as well. Again, there is no indication that Attorney Major has the personal knowledge needed to authenticate these documents as GM's business records. Plaintiffs' evidentiary objection nos. 2–3 are therefore sustained.

GM failed to meet its initial burden of presenting competent evidence that the vehicle was purchased used. The motion for summary judgment and/or adjudication of the first and second causes of action is therefore denied.

At the end of its supporting memorandum, GM argues that the 'Court should, at the very least, find that Plaintiffs may not seek or recover as 'damages' at any time the amount(s) they paid for the optional, non-GM products they bought with the Sierra.' There are two procedural issues with this argument.

First, it was not raised in the notice of motion. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 744.) Second, the only types of 'damages' that can be summarily adjudicated are punitive damages. (DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 419–423.) Accordingly, the motion for summary adjudication of this issue is also denied.

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