Judge Malcolm Mackey, Case 20STCV04034 2023-03-06 Tentative Ruling

Judge: Malcolm Mackey, Case: 20STCV04034, Date: 2023-03-06 Tentative Ruling

Case Number: 20STCV04034 Hearing Date: March 6, 2023 Dept: 55

SANCHEZ v. GENERAL MOTORS LLC 20STCV04034

Hearing Date: 3/6/23, Dept. 55

#4: MOTION FOR SUMMARY JUDGMENT.

Notice: Okay

Opposition

MP: Defendant

RP: Plaintiff

Summary

On 1/31/20, Plaintiff filed a Lemon Law Complaint alleging that Plaintiff purchased new Defendant’s manufactured 2013 Chevrolet Silverado, having defects, including drive motor battery failure, and throttle system failure.

MP Positions

Moving party requests an order granting summary judgment against Plaintiff, on grounds including the following:

· Plaintiff cannot pursue a breach of implied warranty claim under Song-Beverly against GM based upon a vehicle he bought used and (ii) Count II, because Plaintiff cannot pursue a breach of express warranty claim under Song-Beverly against GM, since he did not purchase a “new motor vehicle” from GM. Nunez v. FCA US LLC, 61 Cal. App. 5th 385, 399 (2021), and Rodriguez v. FCA US, LLC, No. E073766, 77 Cal.App.5th 209, review granted July 13, 2022.

· GM did not issue or provide any new or additional warranty coverage to Plaintiff or for the Escalade in connection with Plaintiff’s purchase of the used vehicle.

· At the time of Plaintiff’s purchase, most of the coverages under the warranty that GM issued when the vehicle was delivered to its original owner(s) had already expired.

RP Positions

Opposing party advocates denying, allowing leave to amend, or staying the action, on bases including the following:

· GM ignores the “new motor vehicle” definition under the Song-Beverly Consumer Warranty Act, which encompasses used vehicles such as the subject vehicle. Jensen v. BMW of North America, Inc., (1995) 35 Cal.App.4th 112, 123.

· Rodriguez is not binding authority as it is currently under review by the California Supreme Court, while Jensen is still settled caselaw. See, Jensen v. BMW of North America, Inc., (1995) 35 Cal.App.4th 112.

· Although GM argues that “most of” the Subject Vehicle’s warranties in connection with the purchase from GM had expired before Plaintiff’s purchase, the repair orders and GM’s Global Warranty Management show that the vehicle had unexpired warranty coverage under the hybrid component limited warranty and Special Coverage that GM issued in connection with the vehicle’s sale to its original owner. See Pappas Declaration Exhibit D, and Exhibit E, at Bates 0011; Matera Declaration Exhibit 2.

· The repair order and Global Warranty History show that, on December 4, 2019, GM replaced the Subject Vehicle’s Drive Motor Battery under the vehicle’s warranty. Id.

· GM performed covered warranty repairs to the subject vehicle after Plaintiff’s purchase of the Subject Vehicle.

· If a defect exists within the warranty period, the warranty will not expire until the defect has been fixed. Civ. Code § 1793.1(a)(2).

Tentative Ruling

The motion is denied.

All opposing evidentiary objections are sustained.

The Court concludes that evidence, including attorney Pappas’ declaration, referenced in moving party’s separate statement, is not competent to shift the burden to Plaintiff to show applicable warranty coverage from Defendant. Lack of personal knowledge affirmatively shown requires denial of summary judgment motions. Rincon v. Burbank Unified School Dist. (1986) 178 Cal.App. 3d 949, 954-56.

Further, the motion’s showing that most warranties expired fails to show that all warranties expired at the time of the used vehicle purchase. A motion for summary judgment must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

Additionally, the opposing allegations supported by evidence are material disputes regarding there having been some manufacturer warranty coverage existing at the time of purchasing the vehicle used (e.g., opposing ex. 2 (GM’s warranty information)).

As for related issues of pure law, the law applying to the pled legal theories determines materiality in summary judgment motions. Panattoni v. Sup. Ct. (1988) 203 Cal. App. 3d 1092, 1094.

As to the Rodriguez opinion, the California Supreme Court expressly left discretion to choose from a split of authority: “Pending review, the opinion of the Court of Appeal, which is currently published at 77 Cal.App.5th 209…, 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, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456 [20 Cal. Rptr. 321, 369 P.2d 937], to choose between sides of any such conflict.” Rodriguez v. FCA US, LLC (2022) 295 Cal.Rptr.3d 351.

There are already opinions providing guidance in this area, which the Court has discretion to choose from. See e.g., Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, 218 (Song-Beverly Act/Lemon Law provides consumer protections against sellers of used products to buyers that issued express warranties, which differs from the refund-or-replace protection that requires manufacturers to replace defective new motor vehicles); Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal. App. 5th 334, 340 (under Song-Beverly Act, used vehicles sold within the time of a new vehicle warranty, are new motor vehicles).

Finally, the Court notes that Plaintiff filed a motion, set for hearing on 5/19/23, to stay the motion for summary judgment, pending the California Supreme Court’s decision in Rodriguez v. FCA US LLC, regarding whether a purchase of a used vehicle is considered a “new motor vehicle” under Civil Code section 1793.22(e)(2). That stay request relates to Court discretion. Judges may exercise discretion to stay proceedings until an appeal is finally decided. Reed v. Superior Court (2001) 92 Cal. App. 4th 448, 455.