Judge Mark A. Young, Case Number: 23SMCV05728, Date: 2024-11-21 Tentative Ruling

Judge: Mark A. Young, Case: 23SMCV05728, Date: 2024-11-21 Tentative Ruling

Case Number: 23SMCV05728 Hearing Date: November 21, 2024 Dept: M

CASE NAME: Dorasco v. Toyota Motor Sales USA Inc., et al.

CASE NO.: 23SMCV05728

MOTION: Motion for Summary Judgment/Adjudication

HEARING DATE: 11/21/2024

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.)¿

EVIDENTIARY ISSUES

Defendants’ objections to portions of Plaintiff Dorasco’s deposition are OVERRULED.

Analysis

Defendants Toyota Motor Sales USA Inc. and P.T. Automotive move for summary judgment/adjudication of the following causes of action:

1. Plaintiff Israel Dorasco's breach of express warranty claim under the Song-Beverly Consumer Warranty Act fails because no defect manifested in Plaintiff s vehicle and there was no failure to conform the vehicle to warranty in a reasonable number of opportunities;

2. Plaintiff's implied warranty of merchantability claim under the Song-Beverly Consumer Warranty Act fails because Plaintiff sustained no damages and no defect ever manifested in Plaintiff s vehicle; and

3. Plaintiff's violation of Business and Professions Code section 17200 claim fails because Defendants did not engage in unlawful conduct.

Breach of Express Warranty

The Song-Beverly Act requires that a plaintiff prove the following elements: “(1) [T]he vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element).” (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.)

An “express warranty” for purposes of the Song-Beverly Act is, as relevant here, “a written statement arising out of a sale to the consumer of a consumer good pursuant to which the manufacturer, distributor, or retailer undertakes to preserve or maintain the utility or performance of the consumer good or provide compensation if there is a failure in utility or performance.” (Civ. Code, §¿1791.2(a)(1).) A "nonconformity" is a defect that substantially impairs the use, value, or safety of a vehicle to the buyer. (Civ. Code §1793.22(e).)

Under the Act, “[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty… may bring an action for the recovery of damages and other legal and equitable relief.” (Civ. Code, §¿1794(a).) Section 1793.2 defines warranting manufacturers’ duties under the Act. The section provides, in relevant part:

(b) Where those service and repair facilities are maintained in this state and service or repair of the goods is necessary because they do not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days. Delay caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.

(d)(1) [I]f the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that amount directly attributable to use by the buyer prior to the discovery of the nonconformity.

(2) If the manufacturer or its representative in this state is unable to service or repair a new motor vehicle… to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle in accordance with subparagraph (A) or promptly make restitution to the buyer in accordance with subparagraph (B). However, the buyer shall be free to elect restitution in lieu of replacement, and in no event shall the buyer be required by the manufacturer to accept a replacement vehicle.

Plaintiff alleges that on June 25, 2022, Plaintiff acquired a 2022 Toyota Tundra (the “Truck” or “Vehicle”) from Defendants. (Compl., ¶ 7.) Defendant Toyota is a “warrantor” and Defendant PTA is a "manufacturer" and/or "distributor" under the Song-Beverly Act. (¶¶ 11-12.) Plaintiff alleges that Defendants violated the Act by failing to conform the Vehicle to the express written warranties within a reasonable number of repair attempts and by failing to promptly replace the Vehicle or make restitution. (¶ 14.) “The defects, malfunctions, and nonconformities that were presented to Defendant’s authorized repair facilities multiple times and substantially impair the use, value, and/or safety of the Vehicle.” (¶ 15.) In accordance with their obligations under the act, Defendants must refund the price of the vehicle. (Id., ¶¶16-18.) Defendants’ failure to comply with the Act was willful. (¶19.)

Defendants present evidence of the following undisputed material facts. On June 25, 2022, Plaintiff purchased a 2022 Toyota Tundra 4X2 from Culver City Toyota. (UMF 1.) Plaintiff received a recall notice regarding Toyota Recall No. 23TA09 (Interim Notice 23TB09) in the mail. (UMF 2.) When the recall was launched, it was in "interim" status, meaning that the final remedy was not yet available for the subject vehicle. (UMF 3.) The notice explained that "The subject vehicles are equipped with a plastic fuel tube which could move and rub against a brake line and develop a fuel leak. A fuel leak in the presence of an ignition source could increase the risk of fire. (UMF 4, 6.) Consumers were advised to contact their local Toyota dealer to answer any questions while a remedy was being prepared. (UMF 5.) Consumers would be contacted once the remedy is available. (Id.)

In September 2022, the subject vehicle underwent a warranty repair related to Recall 22TA11 Electronic Parking Brake May Not Engage or Disengage Properly. (UMF 7.) The remedy was performed relative to Recall 22TA11. (UMF 8.)

On August 29, 2023, the subject vehicle was presented to Penske Toyota for service and

Plaintiff s wife was advised about Safety Recall 23TA09 (Interim 23TB09) — Certain model Year 2022-2023 Tundra and Tundra HV — Increased Risk of Fire. (UMF 9.) A loaner vehicle at no charge was provided while the subject vehicle was at Penske Toyota for the recall repair. (UMF 10.) Around December 2023 or January 2024, the subject vehicle was picked up from Penske Toyota because the interim remedy had been completed relative to Recall 23TA09. (UMF 12.)

Defendant asserts that Plaintiff never experienced any “symptoms” with the Vehicle related to the increased risk of fire. (UMF 11.) Plaintiff s only current complaint with the Vehicle is safety because the Vehicle only had a provisional repair done relative to Recall 23TA09. (UMF 13.)

Non-Conformity/Defect

Defendant argues that no defect actually manifested in Plaintiff’s vehicle. Strictly construing the evidence presented, Defendants has not shown that the Vehicle did not have a defect as defined by the Act. Defendants argue that the defect never truly materialized because Plaintiff never smelled fuel emanating from the Vehicle, or otherwise detected a gas leak. (UMF 11, 13.) With this argument, Defendants conflate the existence of a defect (here, the plastic fuel tube which could move and rub against a brake line) with symptoms of the defect (fire and/or odors emanating from the Vehicle). While Plaintiffs did not experience these symptoms of a defect, Plaintiffs did allegedly experience the fuel tube defect.

Defendant presents no evidence the fuel tube defect does not substantially impair the use, value, or safety of the Vehicle. Defendants do not explain how an increased risk of a fuel leak and fire would not “substantially” impair the safety of the Vehicle. Plaintiff presents evidence showing that he considered the safety defect as substantially impairing the use and value of the Vehicle. (Dorasco Depo, at pp. 31-32, 37.) Thus, summary adjudication would be improper on this issue.

Reasonable Number of Attempts (Repair Element)

Defendants argue that Plaintiff cannot establish the “failure to repair” element because there have not been a reasonable number of repair attempts as required by statute and caselaw. The plural phrasing of the statute requires an unreasonable number of repair “attempts” as a prerequisite to relief. (Civ. Code §§¿1793.2, 1794(a); Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205; see Oregel v. American Isuzu Motors, Inc., (2001) 90 Cal.App.4th 1094, 1103-1104 [re: reasonable opportunities for repair]; see also CACI 3202 ["Repair Opportunities" defined].) The text expressly states that “if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that amount directly attributable to use by the buyer prior to the discovery of the nonconformity.” (Civ. Code § 1793.2(d)(1), emphasis added.)

Defendants cite the fact that the defect was remedied on a single visit, and therefore was only presented one time. The UMFs show that Plaintiff presented the Vehicle to authorized dealers at least two times. First, on September 3, 2022, Plaintiff presented the Vehicle after receiving Recall 22TA11 (re: parking brake). (UMF 7-8, see Def. Ex. 5 [Repair Order 492986].) Second, on August 29, 2023, the vehicle was presented to Penske Toyota for service and Plaintiff’s wife was advised of Recall 23TA09. (UMF 9, 11; see Def. Ex. 6 [Repair Order 1361206]; Ex. 7 [repair order 1361894].) Even making all reasonable inference in favor of the non-moving party, the September 2022 presentation was an attempt or “reasonable opportunity” to repair the subject defect. Simply put, the 2022 presentation did not regard the Subject fuel defect. Plaintiff first presented the Vehicle for repair of the subject defect, the fuel tube, in August 2023. The record does not disclose any other presentations. Plaintiff does not submit a dispute as to any material fact to show any more presentations. (UMF 1-13.) The AMFs only pertain to the defective nature of the Vehicle and the fact that Plaintiff called Toyota to express his dissatisfaction. (AMF 1-4.) Such facts are immaterial to the number of presentations.

Accordingly, the motion is GRANTED as to issue no. 1.

Implied Warranty

Under the implied merchantability warranty, “every sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer's and the retail seller's implied warranty that the goods are merchantable.” (Civ. Code § 1792.) “[F]itness is shown if the product ‘is “in safe condition and substantially free of defects”....’ (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1303.) “[A] merchantable vehicle under the statute requires more than the mere capability of “just getting from point ‘A’ to point ‘B.’ ” (Brand v. Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1546.) The implied warranty thus ensures not simply a product substantially free of defects, but in particular that a vehicle is in safe condition. (Ibid., citing Isip v. Mercedes–Benz USA, LLC (2007) 155 Cal.App.4th 19, 25; Carlson v. General Motors Corp. (4th Cir. 1989) 883 F.2d 287, 297 [a merchantable vehicle is “substantially free of defects” and “can provide safe, reliable transportation”].))

Defendants argue that there is no evidence of any manifestation of an increased risk of fire defect with Plaintiff s vehicle. Defendants cite no undisputed material facts (UMF) for this proposition. At best, UMF 13 provides that “Plaintiff’s only current complaint with the subject vehicle is with the safety because the vehicle only a provisional repair done relative to Recall 23TA09, despite the recall symptoms never manifesting after the temporary remedy was completed.” Defendants cite to the Dorasco deposition, which states that he was concerned about safety, that the mechanics claimed that it was fixed but he wasn’t sure, and that he hadn’t smelled any odors or gas leaks coming from the Vehicle since having the vehicle back. (Dorasco Depo, p. 24:22-25:5; p. 25:18-21, p. 37:2-13.) This largely retreads the arguments concerning the existence of a defect of non-conformity. The cited “symptoms” not “manifesting” are not the defect or non-conformity. The fact that the Vehicle did not experience certain symptoms does not necessarily mean that the Vehicle was free of the subject fuel tube defect. The subject fuel tube defect allegedly poses a serious safety risk. Therefore, the record does not support finding that vehicle was unmerchantable or unfit for ordinary purposes.

Accordingly, the motion is DENIED as to issue no. 2, and summary judgment is DENIED.

Bus. & Prof. Code § 17200

Defendants argue that Plaintiff cannot state a violation of Song Beverly or the Commercial Code, because there was no breach of warranty or defect in the subject vehicle, and the defect symptoms never manifested. This restates the same arguments rejected by the Court. As discussed above, the claims under Song Beverly and the Commercial Code do not fail for those reasons. As such, the section 17200 claim does not fail.

Accordingly, the motion is DENIED as to issue no. 3.