Judge Michael J. Strickroth, Case 2021-01200931 2022-11-28 Tentative Ruling

Judge: Michael J. Strickroth, Case: 2021-01200931, Date: 2022-11-28 Tentative Ruling

Motion for Summary Judgment

Defendants’ (American Honda Motor Co., Inc. and Irvine Auto Retail I, Inc. dba Norm Reeves Honda Superstore Irvine) Motion for Summary Judgment, or Alternatively, Summary Adjudication is CONTINUED to July 17, 2023, at 1:45 PM in C15. The Court vacates the jury trial date now set for January 23, 2023, and sets a Case Management Conference for July 17, 2023, at 1:45 PM in Department C15.

Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “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 not 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. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim of damages, or an issue of duty.” Code of Civil Procedure section 437c, subdivision (q), states, in part, “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition to the motion.”

Aguilar v. Atlantic Richfield Co. (Aguilar) (2001) 25 Cal.4^th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Although not expressly, the 1992 and 1993 amendments impliedly provide in this regard for a burden of production as opposed to a burden of persuasion. A burden of production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting of a burden of persuasion. For if the moving party carries a burden of persuasion, the opposing party can do nothing other than concede. Further, although not expressly, the 1992 and 1993 amendments impliedly provide for a burden of production to make a prima facie showing. A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Italics in original.) “Summary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at least, it still diverges from federal law. For the defendant must ‘support[]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ (Code Civ. Proc., § 437c, subd. (b).) The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” Id., at 854-855; Footnotes 23 and 24 omitted; Italics in Aguilar.

Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4^th 832, 838 (Binder) states, “Although summary judgment might no longer be considered a ‘disfavored’ procedure, [citation], the rule continues that the moving party's evidence must be strictly construed, while the opposing party's evidence must be liberally construed.” “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” Id., at 839.

The Notice of Motion and Separate Statement in support of the moving papers has failed to comply with CRC Rule 3.1350(b), which requires that “If summary adjudication is sought...the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and repeated verbatim in the separate statement of undisputed material facts.”

The Notice of Motion does not match the issues in the Separate Statement. Further, there is no issue stated or portion of the Separate Statement that addresses punitive damages.

These rules are not form over substance. They are enacted to clarify the motions, make them more intelligible to the court and the responding party, and provide for due process. The court has discretion to deny summary judgment on the basis of mere format errors. Truong v. Glasser (2010) 181 Cal.App.4th 102, 118. Thus, the Court will not adjudicate the motion for punitive damages. Nevertheless, the Court will treat the motion as a Motion for Summary Adjudication as to the causes of action.

A. First Cause of Action for “Violation of Song Beverly Consumer Act – Breach of Express Warranty”

Defendant American Honda Motor Co., Inc. contends Plaintiff lacks standing to assert the First Cause of Action for “Violation of Song Beverly Consumer Act – Breach of Express Warranty” alleged in the Complaint because Plaintiff purchased a “used” (and not new) vehicle from a third-party dealer.

Song Beverly Consumer Act only applies to “consumer goods” which are “new”. Dagher v. Ford Motor Co., (2015) 238 Cal. App. 4th 905, 912, fn. 2 (Dagher), provides:

The Act's basic definition of “consumer goods” is “any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables.” (§ 1791, subd. (a).) Amendments to sections 1793.2 and 1793.22 have addressed the definition of a new motor vehicle more specifically. (See pt. III.B, post.)

Civil Code §1795.5 does concerns “used goods” but states: “Notwithstanding the provisions of subdivision (a) of Section 1791 defining consumer goods to mean “new” goods, the obligation of a distributor or retail seller of used consumer goods in a sale in which an express warranty is given shall be the same as that imposed on manufacturers under this chapter except:

(a) It shall be the obligation of the distributor or retail seller making express warranties with respect to used consumer goods (and not the original manufacturer, distributor, or retail seller making express warranties with respect to such goods when new) to maintain sufficient service and repair facilities within this state to carry out the terms of such express warranties.

(b) The provisions of Section 1793.5 shall not apply to the sale of used consumer goods sold in this state.

(c) The duration of the implied warranty of merchantability and where present the implied warranty of fitness with respect to used consumer goods sold in this state, where the sale is accompanied by an express warranty, shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable, but in no event shall such implied warranties have a duration of less than 30 days nor more than three months following the sale of used consumer goods to a retail buyer. Where no duration for an express warranty is stated with respect to such goods, or parts thereof, the duration of the implied warranties shall be the maximum period prescribed above.

(d) The obligation of the distributor or retail seller who makes express warranties with respect to used goods that are sold in this state, shall extend to the sale of all such used goods, regardless of when such goods may have been manufactured.”

Dagher states, at 920:

In 1982, the Act was amended “to clarify its application to motor vehicles. Among other things, the following definition of ‘new motor vehicle’ was added” so that the Act applies to: “ ‘[A] new motor vehicle which is used or bought for use primarily for personal, family, or household purposes....’ ” (Park City Services, supra, 144 Cal.App.4th 295, 304, 50 Cal.Rptr.3d 373.)

Since 2000, the operative definition of “new motor vehicle” is found in section 1793.22, subdivision (e)(2), and its definition of “new motor vehicle” applies to both subdivision (d) of section 1793.2 (the refund or replacement remedy) and the Tanner Act, section 1793.22. (Park City Services, supra, 144 Cal.App.4th 295, 305, 50 Cal.Rptr.3d 373.) For each of these statutes, the Act applies as follows: “[A] ‘new motor vehicle’ means a new motor vehicle that is bought or used primarily for personal, family, or household purposes. ‘New motor vehicle’ also means a new motor vehicle with a gross vehicle weight under 10,000 pounds that is bought or used primarily for business purposes by a person ... to which not more than five motor vehicles are registered in this state.” (§ 1793.22, subd. (e)(2); see § 1793.2, subd. (d); Park City Services, supra, at p. 306, 50 Cal.Rptr.3d 373.) “New motor vehicle” is further defined as including “a dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer's new car warranty ....” (§ 1793.22, subd. (e)(2); Jensen, supra, 35 Cal.App.4th at p. 123, 41 Cal.Rptr.2d 295.

Defendants establish:

3. “Plaintiffs filed their Complaint for the instant lawsuit on May 12, 2021. Within their Complaint, Plaintiffs allege AHMC violated the Song-Beverly Consumer Warranty Act under causes of action for Breach of Express Warranty and Breach of Implied Warranty. Plaintiffs also sued NORM REEVES for Negligent Repair.” (Material Undisputed Fact (MUF) No. 1; Complaint attached as Ex. A (Complaint) to Declaration of Garrett B. Stanton (Stanton Decl.)) and

4. “On-or-about November 16, 2015, Plaintiffs purchased a used 2015 Honda Accord Hybrid, VIN 1HGCR6F32FA001744 ("Subject Vehicle"), with 22,861-miles on the odometer, from CarMax Irvine.” (MUF No. 2; Complaint at ¶ 9, Sales Contract, attached as Exhibit "B" to Stanton Decl.; Deposition Transcript of Plaintiff Rachael L. Farrokh ("Farrokh Depo Trans."), at 131:19-132:25, attached as Exhibit "C" to Stanton Decl.; CarFax Report for the Subject Vehicle, attached as Exhibit "D" to Stanton Decl.)

Based on the foregoing, Defendant contends there is no triable issue of material fact as to whether the vehicle is a “consumer good” or “new motor vehicle.”

Plaintiffs’ respond by citing Jensen v. BMW (1995) 35 Cal.App.4th 112 (Jensen). In Jensen, the plaintiff leased a BMW 528e with 7,565 miles, was told it had been a dealer demo, she would get the 36,000 mile warranty on top of the miles already on the car, gave her the warranty booklet, and wrote “factory demo” on the credit app. (Id. at 119.) The car was actually pre-owned and not a “demo.” She discovered a brake problem and took it in repeatedly, but the problem always recurred. She eventually filed suit, and won at trial. On appeal, BMW claimed her car was not “new” and so not subject to the Act. The Court rejected that argument, noting [underlining added]:

Section 1793.22, subdivision (e)(2), defines a “new motor vehicle” as “a new motor vehicle which is used or bought for use primarily for personal, family, or household purposes. ‘New motor vehicle’ includes the chassis, chassis cab, and that portion of a motor home devoted to its propulsion, but does not include any portion designed, used, or maintained primarily for human habitation, a dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer's new car warranty but does not include a motorcycle or a motor vehicle which is not registered under the Vehicle Code because it is to be operated or used exclusively off the highways. A ‘demonstrator’ is a vehicle assigned by a dealer for the purpose of demonstrating qualities and characteristics common to vehicles of the same or similar model and type.” (Emphasis added.) …

We conclude the words of section 1793.22 are reasonably free from ambiguity and cars sold with a balance remaining on the manufacturer's new motor vehicle warranty are included within its definition of “new motor vehicle.” The use of the word “or” in the statute indicates “demonstrator” and “other motor vehicle” are intended as alternative or separate categories of “new motor vehicle” if they are “sold with a manufacturer's new car warranty.” …

BMW also argues the trial court's construction of the section 1793.22 definition of “new motor vehicles” to include used cars conflicts with the definition of “consumer goods” found in section 1791, subdivision (a). The definition of “consumer goods” as “new products” dates back to 1971. (Stats.1971, ch. 1523, § 2, p. 3001.) The Legislature added the more specific definition of “new motor vehicle” to former section 1793.2 in 1987. (Stats.1987, ch. 1280, § 2, p. 4561.) Under well-recognized rules of statutory construction, the more specific definition found in the current section 1793.22 governs the more general definition found in section 1791. (Natural Resources Defense Council, Inc. v. Arcata Nat. Corp. (1976) 59 Cal.App.3d 959, 965, 131 Cal.Rptr. 172.)

Our conclusion section 1793.22 includes cars sold with a balance remaining on the new motor vehicle warranty is consistent with the Act's purpose as a remedial measure. (Kwan v. Mercedes–Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 184, 28 Cal.Rptr.2d 371.) It is also consistent with the Department of Consumer Affairs' regulations which interpret the Act to protect “any individual to whom the vehicle is transferred during the duration of a written warranty.” (Cal.Code Regs., tit. 16, § 3396.1, subd. (g).) Id. 121-123, and 126.

As Plaintiffs point out, Defendants concede in their Motion the Subject Vehicle "still had some of the manufacturer's transferable warranty left." (Defendants' Motion, 5:16-17.)

Plaintiffs further cite Dagher contending it states that “retail seller” under the SBA is an entity “that engages in the business of selling or leasing consumer goods to retail buyers,” which CarMax is here Dagher, supra, 922, citing Code Civ. Proc. § 1791; Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 749.

The Court is aware of the conflict of authority between Jensen and Rodriguez, et al. v. FCA US, LLC (2022) 77 Cal. App. 5th 209 (Rodriguez), which has been granted review by the California Supreme Court. Defendants cited Rodriguez in their Reply but Plaintiffs have not had an opportunity to respond to this authority. Moreover, the Court is aware it is persuasive authority.

Furthermore, Plaintiffs argue Defendants are refusing to produce its expert witness. The Motion to Compel this deposition is scheduled for 4-17-23. Code Civ. Proc. § 437c(h) states: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”

Based on the foregoing, the Court CONTINUES Defendants’ (American Honda Motor Co., Inc. and Irvine Auto Retail I, Inc. dba Norm Reeves Honda Superstore Irvine) Motion for Summary Judgment, or Alternatively, Summary Adjudication to July 17, 2023, at 1:45 PM in C15. The Court vacates the Jury trial now set for January 23, 2023, and sets a case management conference for July 17, 2023 also at 1:45 PM..

The parties should attend the Motion to Compel hearing on 4-17-23 prepared to discuss the status of Rodriguez and a potential briefing schedule.

Defendants to give notice.