Judge Malcolm Mackey, Case 21STCV11496 2023-04-24 Tentative Ruling

Judge: Malcolm Mackey, Case: 21STCV11496, Date: 2023-04-24 Tentative Ruling

Case Number: 21STCV11496 Hearing Date: April 24, 2023 Dept: 55

POOYA BAKHTIARI v MERCEDES-BENZ USA, LLC, 21STCV11496

Hearing Date: 4/24/23, Dept. 55.

#4: MOTION FOR SUMMARY ADJUDICATION.

Notice: Okay

Opposition

MP: Defendant

RP: Plaintiff

Summary

On 3/25/21, Plaintiff filed a Lemon Law Complaint, alleging that, on or about 3/8/20, Plaintiff purchased a 2020 Mercedes-Benz G-Class, having defects not conforming to warranties, and not fully repaired after a reasonable number of attempts, including the Engine, Media Screen, Brakes, Active Distance Assist, Engine Coolant System, Tire Pressure Monitor, Driver’s Window, Left Head Lamp Control Unit, Adaptive High Beam System, Camera System, Parktronic Sensors, Brake Lamp Switch, Active Brake Assist System, Active Distance Assist System, Cigarette Lighter, and Rear Parking Sensor.

MP Positions

Moving party requests an order granting summary adjudication of the First, Second, Fourth, Fifth and Sixth causes of action of Plaintiff’s Complaint, on grounds including the following:

1. There are no triable issue of material fact as to plaintiff’s causes of actions alleged under CCP §1790 et. seq because plaintiff lacks standing to bring a claim under the Song Beverly Warranty Act. Mistakenly, plaintiff believes he is entitled to a replacement and/or repurchase as well as an award of civil penalties. However, this is not accurate. CCP § 1793.22(e)(2), precludes a buyer owning more than five vehicles, registered in the State, from suing under the Act. As shown in the Motion and its accompanying exhibits, Plaintiff owns more than five (5) motor vehicles registered in the State of California. Thus, plaintiff may not seek refuge under CCP §1790 et. seq. as his claims fail as a matter of law.

2. There are no triable issues of material fact as to plaintiff’s cause of action for negligence as plaintiff has no evidence to show that Defendant Mercedes-Benz of Arcadia breached a duty of care owed to plaintiff.

(Motion, p. 2.) [Emphases added.]

RP Positions

Opposing party advocates denying, for reasons including the following:

· A new motor vehicle is described in Civil Code section 1793.2(d)(2).

· Here, Plaintiff leased a new vehicle. Plaintiff leased the 2020 Mercedes-Benz G-Class, with its primary intended use to be “personal.”

· Although “PGB Group LLC” is listed as an additional lessee on the lease agreement, that entity is not a plaintiff in this action, and it is therefore irrelevant.

· The vehicle was bought or used for Plaintiff’s personal purposes, and not by a business having more than five motor vehicles registered.

· Plaintiff actually has fewer than five motor vehicles registered in his name in California, and Defendant filed no actual proof to the contrary.

· Defendants misinterpret Section 1793.22(e)(2), attempting to argue that if five or more vehicles are merely associated with one person, then that person is barred from bringing any claims under Song-Beverly.

· Even though Mercedes-Benz of Arcadia said they repaired the car on both occasions, they did not remedy all the issues Plaintiff complained about. Plaintiff brought the Subject Vehicle to Mercedes-Benz repair facilities, with complaints on more than 10 occasions, many times for the same repeated problems, indicating that repair attempts were negligent.

Tentative Ruling

The motion for summary adjudication is denied as to all issues.

The Court sustains all 9 of opposing party’s evidentiary objections.

“[E]ven though ‘buyer’ is still defined as an individual purchaser of goods for personal use, it must be deemed to include some corporate purchasers of new motor vehicles for business use—namely, those to whom ‘not more than five motor vehicles are registered in this state.’ ” Park City Servs., Inc. v. Ford Motor Co. (2006) 144 Cal. App. 4th 295, 306.

Here, the Court determines that there are triable issues of material fact, as to each issue raised, including whether (1) Plaintiff is an individual lessor of the vehicle for personal use, as distinguished from a business having over 5 vehicles registered in California, (2) Defendant was unable to make any of the requested repairs of actual warranty nonconformities after a reasonable number of attempts, and (3) Defendant negligently failed to make any of the many requested repairs (e.g., Plaintiff’s declaration).

Further, the motion does not fully accurately summarize the exhibits relied upon.

Specifically, the deposition transcript, filed with the motion, when read in full context, does not contain Plaintiff’s unequivocal admission of owning over five vehicles for business use, but includes denials of it, references to Plaintiff not accessing over 5 vehicles, references to Plaintiff’s personal use of the vehicle, and other vehicle ownerships of multiple businesses. “‘A summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence….’ To protect the interests of the party opposing summary judgment, its ‘admissions … should be … careful[ly] examin[ed] in light of the entire record.’" Consumer Cause v. Smilecare (2001) 91 Cal. App. 4th 454, 473.

Additionally, the many repair invoices, filed with the motion, do not show one hundred percent repair success, but instead sometimes mention mechanics’ inabilities to make some identified repairs (such as to ascertain a vehicle leak’s location), or inabilities to duplicate and diagnose very many of the problems claimed by the customer.