Judge: Mark A. Young, Case: 22SMCV01365, Date: 2024-06-06 Tentative Ruling
Case Number: 22SMCV01365 Hearing Date: June 6, 2024 Dept: M
CASE NAME: Eshaghyan v. Marshall Goldman Motor Sales/Leasing LLC, et
al.
CASE NO.: 22SMCV01365
MOTION: Motion
for Summary Judgment/Adjudication
HEARING DATE: 6/6/2024
Legal
Standard
A party may move for summary judgment in any action or proceeding
if it is contended the action has no merit or that there is no defense to the
action or proceeding. (CCP, § 437c(a).) “The purpose of the law of summary
judgment is to provide courts with a mechanism to cut through the parties'
pleadings in order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843.)
“A party may move for summary adjudication as to one or
more causes of action within an action, one or more affirmative defenses, one
or more claims for damages, or one or more issues of duty, if the party
contends that the cause of action has no merit, that there is no affirmative
defense to the cause of action, that there is no merit to an affirmative
defense as to any cause of action, that there is no merit to a claim for
damages, as specified in¿Section 3294 of the Civil Code, or that one or more defendants
either owed or did not owe a duty to the plaintiff or plaintiffs.”¿(CCP,¿§
437c(f)(1).)¿If a party seeks summary adjudication as an alternative to a
request for summary judgment, the request must be clearly made in the notice of
the motion. (Gonzales v. Superior Court¿(1987) 189 Cal.App.3d 1542,
1544.)¿ “[A] party may move for summary adjudication of a legal issue or a
claim for damages other than punitive damages that does not completely
dispose of a cause of action, affirmative defense, or issue of duty
pursuant to” subdivision (t). (CCP,¿§ 437c(t).)¿
To prevail, the evidence submitted must show there is no
triable issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.¿(CCP, §¿437c(c).)¿The motion cannot succeed unless
the evidence leaves no room for conflicting inferences as to material facts;
the court has no power to weigh one inference against another or against other
evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th
833, 841.) In determining whether the facts give rise to a triable issue of
material fact, “[a]ll doubts as to whether any material, triable, issues of
fact exist are to be resolved in favor of the party opposing summary judgment…”
(Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other
words, the facts alleged in the evidence of the party opposing summary judgment
and the reasonable inferences there from must be accepted as true.” (Jackson
v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if
adjudication is otherwise proper the motion “may not be denied on grounds of
credibility,” except when¿a material fact is the witness’s¿state of mind and
“that fact is sought to be established solely by the [witness’s] affirmation
thereof.” (CCP, § 437c(e).)¿
Once the moving party has met their burden, the burden
shifts to the opposing party “to show that a triable issue of one or more
material facts exists as to that cause of action or a defense thereto.” (CCP §
437c(p)(1).) “[T]here¿is no
obligation on the opposing party... to establish anything by affidavit unless
and until the moving party has by affidavit stated facts establishing every
element... necessary to sustain a judgment in his favor.”¿(Consumer Cause,
Inc. v.¿SmileCare¿(2001) 91 Cal.App.4th 454, 468.)¿
¿
“The pleadings play a key role in a summary judgment
motion. The function of the pleadings in a motion for summary judgment is to
delimit the scope of the issues and to¿frame¿the outer measure of materiality
in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co.¿(2013)
213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the
burden of a defendant moving for summary judgment only requires that he or she
negate plaintiff's theories of liability¿as alleged in the complaint;
that is, a moving party need not refute liability on some theoretical
possibility not included in the pleadings.” (Ibid.)¿
Analysis
Defendant, Marshall Goldman Motor
Sales & Leasing LLC (MGM) moves for summary judgment and/or, in the
alternative, summary adjudication, in favor of MGM and against Plaintiff Imam Eshaghyan
on the following causes of action of the complaint: (1) Intentional
Misrepresentation; (2) Negligent Misrepresentation; (3) Violation of Business
& Professions Code § 17200, et seq.; and (5) Violation of the Consumers
Legal Remedies Act (“CLRA”). The Court
notes that the bond claim is not brought against Defendant. As such, Defendant
cannot move for summary judgment on the fourth cause of action.
Defendant’s Burden
The gravamen of this action is for fraudulent
misrepresentation. The elements of fraud are: “(a) misrepresentation (false
representation, concealment, or nondisclosure); (b) knowledge of falsity (or
‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable
reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145
Cal.App.4th 170, 184.) Negligent misrepresentation requires the defendant to make
false statements believing them to be true, but without reasonable ground for
such belief. (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407; Lopez
v. Nissan North America, Inc. (2011) 201 Cal.App.4th 572, 596 [requires a
positive assertion, not merely an omission or implied representation].)
The claim for negligent misrepresentation relies on the same set of facts.
(Compl., ¶¶ 41-49.) The Business and Professions Code section 17200 claim and the
bond claim are based on the same fraud. (Compl., ¶¶ 54-61, 69.) Likewise, the
CLRA claim relies on the same alleged misrepresentation/concealment. (Compl.,
¶¶ 75-76; see Civ. Code § 1770(a)(5), (7).)
As to the alleged fraud, the complaint
alleges that on July 23, 2021, Plaintiff entered into a written contract (the
“Agreement”) with Defendant (“Dealer”) for the purchase of a used 2014 Bentley
Continental VIN # SCBGC3ZA2EC091011 (the “Vehicle”). (Compl., ¶9.) Prior to the
sale, Plaintiff communicated with the sales staff of Dealer regarding the
condition of the Subject Vehicle. (¶ 10.) The dealership staff represented that
the Subject Vehicle was in good condition and was free from defects. (Compl., ¶
11.) Relying on these representations, Plaintiff purchased the Subject Vehicle.
(Compl., ¶ 12.) The complaint alleges that the Dealer possessed exclusive and
superior knowledge regarding the true condition of the Subject Vehicle, that
the Subject Vehicle was not in good condition; was not free from defects; and
was worth significantly less than the amount for which it was being sold.
(Compl. ¶¶ 13-14.) After taking possession, Plaintiff learned that, at the time
of sale, the Subject Vehicle was in a state of disrepair and was worth
significantly less than the amount the Plaintiff paid for the Subject Vehicle.
(Compl., ¶¶ 15-18, 27.) The issues included that (1) the catalytic converter
needed to be replaced; (2) the engine had an oil leak at the valve cover; (3)
the steering wheel would not adjust up or down; (4) the vehicle would pull to
the right when driving; (5) there was a rattle noise coming from the rear of
the Subject Vehicle; (6) the ski door would not close; (7) the leather on the
upper instrument cluster was defective; and (8) the vacuum lines which provide
vacuum for the braking system were defective. (Id.) Dealer knew about these
defects, but concealed these material facts from Plaintiff. (Id., ¶ 19.)
The complaint also alleges that Defendant
did not disclose the true condition of the Subject Vehicle, and did not repair it.
(Compl., ¶ 28.) At the time that Dealer made the representation to Plaintiff
that the Subject Vehicle was in good condition, Dealer and/or its agents either
knew that said representations were false, or had a conscious disregard for
whether or not the representations were false. (Compl., ¶ 30.) Plaintiff
further alleges that the employees and/or agents of Dealer intentionally
misrepresented and actively concealed the true condition of the Subject Vehicle
to Plaintiff in order to induce Plaintiff to purchase the Subject Vehicle.
(Compl., ¶ 31.) Plaintiff reasonably relied on said representations and
omissions and was induced to purchase the Subject Vehicle. (Compl., ¶¶ 32-33.) Had
Plaintiff known the true condition of the Subject Vehicle, Plaintiff would not
have purchased the Subject Vehicle. (Compl, ¶ 34.) Plaintiff further seeks
rescission, incidental and consequential damages, and attorney’s fees and
costs. (Compl., ¶¶ 35-36.)
Defendant presents evidence that
they did not make the alleged misrepresentations. Instead, the Subject Vehicle
was sold “as-is” without any express or implied warranties as to the
merchantability or fitness of the vehicle. (Civil Code §§ 1791.1-1791.3, 1792.3.)
Generally, any waiver by the buyer of consumer goods of the provisions of this
code at issue, except as expressly provided by statute, shall be deemed
contrary to public policy and shall be unenforceable and void. (Civ. Code §
1790.1.) Civil Code section 1792.3 provides that a buyer cannot waive the
implied warranty of merchantability or fitness “except in the case of a sale of
consumer goods on an ‘as is’ or ‘with all faults’ basis where the provisions of
this chapter affecting ‘as is’ or ‘with all faults’ sales are strictly complied
with.” In order to waive the implied warranties, there must be a “conspicuous
writing is attached to the goods which clearly informs the buyer, prior to the
sale, in simple and concise language of each of the following: (1) The goods
are being sold on an “as is” or “with all faults” basis. (2) The entire risk as
to the quality and performance of the goods is with the buyer. (3) Should the
goods prove defective following their purchase, the buyer and not the
manufacturer, distributor, or retailer assumes the entire cost of all necessary
servicing or repair.” (Civ. Code § 1792.4.) If done, the warranties are waived.
(Civ. Code § 1792.5.) Further, in the context of fraud, disclaimers will
generally preclude reasonable reliance on contrary oral representations. (See Hinesley
v. Oakshade Town Ctr., (2005) 135 Cal. App. 4th 289 [while landlord’s agent
made misrepresentations of fact to prospective tenant, a clause in written
lease specifically precluding tenant's reliance on landlord's representations
regarding other prospective tenants in shopping center fully rebutted
justifiable reliance element of fraud]; cf. Edwards v. Centex Real Estate
Corp. (1997) 53 Cal.App.4th 15, 42 [parole evidence of misrepresentations
would only be permitted to demonstrate fraud when the plaintiff pleads fraud in
the inducement of a contract with an integration provision].)
MGM made no representations as to
the quality, condition, and/or characteristics of the Vehicle. (UMF 17, 47.) MGM’s
evidence demonstrates that it disclosed all information regarding the Subject Vehicle
that it had at the time Plaintiff purchased it. (Kosova Dec. ¶¶ 4-6, Ex. 3-5.) All
of the purchase documents show that Plaintiff purchased the Vehicle “AS IS”
with and contained conspicuous sections and bolding. (UMF 12.) For example, the
RBO “We Owe Form,” and Buyers Guide clearly reflect the Vehicle was sold to
Plaintiff “As Is.” (UMF 16.) The RBO unambiguously states in bold blue ink that
the Vehicle is sold “as is. No dealership warranty.” (UMF 25.) Plaintiff admits
to receiving all these documents and to being aware that the vehicle was
purchased “as is.” (UMF 13-15, 42.) MGM made no representations about the Subject
Vehicle other than its year, make, model, and mileage as shown on the RBO. (UMF
48.) This evidence contradicts the allegations that Defendant warranted that
the Subject Vehicle was in good condition and was free from defects. (Compl., ¶¶
11, 19.)
Further, any statements that the Subject
Vehicle was in “good condition,” or that it is a “great car,” could only
reasonably be considered as mere puffery. (See Demetriades v. Yelp, Inc.
(2014) 228 Cal.App.4th 294, 311.) “[A] statement that is quantifiable, that
makes a claim as to the ‘specific or absolute characteristics of a product,’
may be an actionable statement of fact while a general, subjective claim about
a product is non actionable puffery.” (Id., at 311.) Here, the
allegations are generalized, subjective, nonquantifiable statements about the
condition of the Subject Vehicle.
The Court concludes that Defendant
demonstrates that they did not make any actionable misrepresentations, and that
Plaintiff could not reasonably rely on any assurances of the quality of the
Vehicle as alleged. The disclaimers
would likewise defeat any claim for negligent misrepresentation, and the
dependent claims under the UCL and CLRA. This meets Defendant’s initial burden
to show entitlement to judgment as a matter of law. Plaintiff therefore has the
burden to create a dispute of material fact as to the existence of actionable
misrepresentations.
Plaintiff’s Burden
Plaintiff
essentially submits a single dispute: that at the time of sale, Defendant
agreed to make repairs to the Subject Vehicle, thus the Subject Vehicle was not
sold “as is” and the implied warranty was not properly waived. (UMF 12, 16, 25,
28, 35, 42, 45-48, 54, 58; Starr Decl. at ¶ 5; Ex. 2 [Plaintiff Depo. at
74:15-20], Ex. 4 [Kosova Depo. at 11:18– 25; 12:6–8; 16:1–6; 20:5–23; 21:12– 3;
23:6–12; 32:11–34:10; 38:18- 39:23; 48:15–53:25; Eshaghyan Decl., ¶ 2.)
Plaintiff reasons that the forms are inaccurate and the vehicle was not sold
“as is” because Defendant made a promise to repair during the negotiations. However,
the cited evidence does not create a dispute of material fact as to the existence
of alleged misrepresentations.
Plaintiff focuses on an unalleged
defect, a warning light for the convertible top which MGM drew Plaintiff’s
attention to during the negotiations. (UMF 50.) The convertible top was
functional, but MGM promised to take care of the repairs to have the warning
light turned off. (UMF 51.) Plaintiff testified he was uncomfortable with MGM
conducting the repairs to the warning light for the convertible top, despite
their agreement to do so. Plaintiff contends that MGM was never going to
conduct the repairs to warning light, but instead MGM was going to have the
repairs performed at O’Gara as a courtesy. (UMF 51.) Plaintiff apparently
consented to this change. (Kosova Depo. at 49-53.)
This evidentiary point does not
meet Plaintiff’s burden. The soft-top defect is unalleged, and there is no
evidence or allegation that this representation was material to the
transaction. Further, Plaintiff does not show any falsity to this
representation, that is, whether it was false that MGM did not take care of the
soft-top warning light.
Ignoring these immediate issues, the
parol statement could not overcome the express “as is” disclaimer as to the
condition of the vehicle. Generally, parties cannot introduce any extrinsic parol
evidence to alter, vary, or add to the terms of an integrated written
agreement. (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 343.)
“[T]he terms of a writing intended by the parties as a final expression of
their agreement cannot be contradicted by evidence of either a prior agreement
or a contemporaneous oral agreement.” (Singh v. Southland Stone, U.S.A.,
Inc. (2010) 186 Cal.App.4th 338, 352.) The parol evidence rule is a
long-standing, well-known principle that promotes fairness and predictability
by encouraging parties to specify the entirety of their agreements in writing.
The policy is “based on the assumption that written evidence is more accurate
than human memory” and “the fear that fraud or unintentional invention by
witnesses interested in the outcome of the litigation will mislead the finder
of facts.” (Masterson v. Sine (1968) 68 Cal.2d 222, 227; see also Metters
v. Ralphs Grocery Co., (2008) 161 Cal. App. 4th 696, 701 [“one who signs an
instrument which on its face is a contract is deemed to assent to all its
terms”].) Thus, even if the Court were to accept this unalleged theory, the
evidence would still not create a dispute of fact as to the effect of the as-is
disclaimer.
Plaintiff has not presented any
admissible evidence which would defeat the unambiguous “as-is” disclaimer. In
addition, Plaintiff cites no case law where a party was permitted to recover
for repairs following a code-compliant disclaimer. Plaintiff does not
substantiate his proffered theory that a statutorily compliant “as-is”
disclaimer would be immediately undone by merely offering to make any repairs
at all prior to signing the agreement.