Judge Ralph C. Hofer, Case Number: 23GDCV00115, Date: 2025-04-04 Tentative Ruling

Plaintiff Monique Korina Salazar alleges that in July of 2018 plaintiff purchased a 2016 Subaru Impreza, which was manufactured and or distributed by defendant Subaru of America, Inc. (Subaru). In connection with the purchase, plaintiff received an express written warranty in which defendant undertook to preserve or maintain the utility or performance of the vehicle or provide compensation if there was a failure in such utility or performance for a specified period of time.

On September 29, 2023, the court heard a motion for summary adjudication brought by defendant Subaru arguing that each of the causes of action of plaintiff’s complaint were without merit because plaintiff bought a used vehicle with a balance remaining on the New Vehicle Limited Warranty and the Song-Beverly Act or Tanner Act do not apply to sales of used vehicles with a balance remaining on the New Vehicle Limited Warranty. The motion argued that the California court of appeal case Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, applied to this matter such that plaintiff’s vehicle did not fall within the definition of a “new motor vehicle” for purposes of pursuing remedies under the Song-Beverly Act or Tanner Act.

The motion for summary adjudication was denied. This court at that time noted that Rodriguez had been accepted for review by the California Supreme Court, and that Rodriguez was in conflict with other court of appeal authorities, including Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, and this court opted to follow the case law under which the definition of “new motor vehicle” in the Song-Beverly Act was interpreted to include used vehicles with a balance remaining on a new vehicle warranty.

Whether a motion meets this standard is subject to an abuse of discretion standard of review. Schachter v. Citgroup, Inc. (2005, 2nd Dist.) 126 Cal.App.4th 726, 733, citing Pender v. Radin (1994) 23 Cal.App.4th 1807, 1812. This provision of CCP § 437c(f)(2) was added by the legislature to “make the summary judgment process more efficient and to reduce the opportunities for abuses of the procedure.” See Bagley v. TRW, Inc. (1999, 2nd Dist.) 73 Cal.App.4th 1092, 1096, n.3, reviewing legislative history.

Here, the moving papers sufficiently establish that there has been a change of law sufficient to warrant the bringing of a second motion for summary adjudication. It is undisputed here that since the hearing on the previous motion for summary adjudication, the California Supreme Court has weighed in on the very issue on which summary adjudication previously was sought.

However, this is a clear case where the previous motion was decided in circumstances where the parties and the trial court were anticipating a decision from the California Supreme Court addressing a split in the districts concerning the appropriate interpretation of one of the key statutory terms applicable to cases like that before the trial court. This clarification of the analysis to be applied is a change in law which the trial court finds sufficient to establish good cause and for the court to exercise its discretion to permit the filing of a renewed motion for summary adjudication addressing the holding by the Supreme Court in the appeal of the court of appeal case previously relied upon by defendant in seeking summary adjudication.

To the extent the opposition argues that the new Rodriguez decision does not address all aspects of the reasons for the previous denial of the motion for summary adjudication, this analysis is also set forth in the opposition to the renewed motion for summary judgment itself. The argument appears to require an analysis of the scope and holding of the Supreme Court’s Rodriguez decision. This court finds such an in-depth analysis is best conducted in connection with the merits of the renewed motion, not on this motion requiring determination that there has been a change in law affecting the prior decision sufficient to warrant the trial court in exercising its discretion to hear a renewed motion. The renewed motion itself has been fully briefed.

Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if the 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 the 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 the cause of action or a defense thereto.”

ISSUE (1) Plaintiff’s first cause of action, for violation of Civil Code section 1793.2, subdivision (d), under the Song-Beverly Consumer Warranty Act, Civil Code section 1790 et seq. (hereinafter Song-Beverly), is without merit because Plaintiff bought a used vehicle with a balance remaining on the New Vehicle Limited Warranty and Song-Beverly does not apply to sales of used vehicles with a balance remaining on the New Vehicle Limited Warranty. (Rodriguez v. FCA US, No. S274625 (Cal. October 31, 2024 awaiting publication) (“Rodriguez”) at 2.)

ISSUE (2) Plaintiff’s second cause of action, for violation of Civil Code section 1793.2, subdivision (b), under Song-Beverly is without merit because Plaintiff bought a used vehicle with a balance remaining on the New Vehicle Limited Warranty and Song-Beverly does not apply to sales of used vehicles with a balance remaining on the New Vehicle Limited Warranty. (Rodriguez at 2.)

ISSUE (3) Plaintiff’s third cause of action, for violation of Civil Code section 1793.2, subdivision (a)(3), under Song-Beverly is without merit because Plaintiff bought a used vehicle with a balance remaining on the New Vehicle Limited Warranty and Song-Beverly does not apply to sales of used vehicles with a balance remaining on the New Vehicle Limited Warranty. (Rodriguez at 2.)

ISSUE (4) Plaintiff’s fourth cause of action, for breach of express written warranty under SongBeverly, is without merit because Plaintiff bought a used vehicle with a balance remaining on the New Vehicle Limited Warranty and Song-Beverly does not apply to sales of used vehicles with a balance remaining on the New Vehicle Limited Warranty. (Rodriguez at 2.)

ISSUE (5) Plaintiff’s fifth cause of action, for breach of the implied warranty of merchantability under Song-Beverly, is without merit because Civil Code section 1795.5 only imposes liability for breach of the implied warranty in connection with the sale or lease of a used vehicle on a distributor who makes an express warranty in connection with the sale or lease of the used vehicle, rather than on a distributor, like SOA, who only made express warranties with respect to the Vehicle when it was new.

ISSUE (6) Plaintiff’s sixth cause of action, for violation of Civil Code section 1793.22 et seq. (hereinafter Tanner Act), is without merit because Plaintiff bought a used vehicle with 20,086 miles on the odometer of the Vehicle at the time of Plaintiff’s purchase. The Tanner Act narrowly applies to the sale of new motor vehicles within 18 months from delivery to the buyer or 18,000 miles on the odometer of the Vehicle, whichever occurs first.

Defendant argues that plaintiff in this matter bought the vehicle used from Subaru of Glendale on July 3, 2018, and that at the time of the purchase, the vehicle had 20,086 miles on the odometer, was sold by an independent third-party dealer not owned by defendant Subaru, and plaintiff was issued a certified preowned service agreement. [UMF Nos. 1, 2, 3, 6, 7, 8, 11, 12, 13, 16, 17, 18, 21, 22, 23, 27, 28, 29, and evidence cited].

Defendant argues that this certified preowned service agreement was not a new or additional warranty issued with the sale of the vehicle, and that Subaru did not make any express warranties with respect to the vehicle as a used vehicle. Defendant argues that the Song-Beverly Act does not apply to sales of used vehicles with a balance remaining on the new vehicle limited warranty. Defendant submits evidence that the retail installment sale contract by which plaintiff purchased the vehicle states that the vehicle was sold as a used vehicle. [Ershadi Decl., Ex. A]. Plaintiff accordingly alleged in her complaint that she purchased a used vehicle. [Villegas Decl., Ex. B]. Defendant argues that the fact that the vehicle was used as represented in the retail installment sales contract is conclusively presumed to be true under Evidence Code section 622, which provides, in pertinent part, “The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest…”

Defendant also argues that it is also presumed as true that the Certified Pre-Owned Service Agreement plaintiff was issued was a service contract, and not a warranty, as plaintiff signed an acknowledgement that states, “I understand that this Certified Pre-Owned Service Agreement is a service contract, and not an insurance policy, warranty, or guarantee…” [Ershadi Decl., Ex. B; Salazar Decl., Ex. B, emphasis added].

“(2) If the manufacturer or its representative in this state is unable to service or repair a new motor vehicle, as that term is defined in paragraph (2) of subdivision (e) of Section 1793.22, 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.”

“(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.

The third cause of action is brought under Civil Code section 1793.2 (a)(3), which provides that a “manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall:…(3) Make available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty periods.”

(c) If the buyer establishes that the failure to comply was willful, the judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty which shall not exceed two times the amount of actual damages. This subdivision shall not apply in any class action under Section 382 of the Code of Civil Procedure or under Section 1781, or with respect to a claim based solely on a breach of an implied warranty.

(d) If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.”

(b) “Implied warranty of fitness” means (1) that when the retailer, distributor, or manufacturer has reason to know any particular purpose for which the consumer goods are required, and further, that the buyer is relying on the skill and judgment of the seller to select and furnish suitable goods, then there is an implied warranty that the goods shall be fit for such purpose and (2) that when there is a sale of an assistive device sold at retail in this state, then there is an implied warranty by the retailer that the device is specifically fit for the particular needs of the buyer.

(c) The duration of the implied warranty of merchantability and where present the implied warranty of fitness 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 warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer. Where no duration for an express warranty is stated with respect to consumer goods, or parts thereof, the duration of the implied warranty shall be the maximum period prescribed above.

(d) Any buyer of consumer goods injured by a breach of the implied warranty of merchantability and where applicable by a breach of the implied warranty of fitness has the remedies provided in Chapter 6 (commencing with Section 2601) and Chapter 7 (commencing with Section 2701) of Division 2 of the Commercial Code, and, in any action brought under such provisions, Section 1794 of this chapter shall apply.

(1) The same nonconformity results in a condition that is likely to cause death or serious bodily injury if the vehicle is driven and the nonconformity has been subject to repair two or more times by the manufacturer or its agents, and the buyer or lessee has at least once directly notified the manufacturer of the need for the repair of the nonconformity.

(3) The vehicle is out of service by reason of repair of nonconformities by the manufacturer or its agents for a cumulative total of more than 30 calendar days since delivery of the vehicle to the buyer. The 30-day limit shall be extended only if repairs cannot be performed due to conditions beyond the control of the manufacturer or its agents. The buyer shall be required to directly notify the manufacturer pursuant to paragraphs (1) and (2) only if the manufacturer has clearly and conspicuously disclosed to the buyer, with the warranty or the owner's manual, the provisions of this section and that of subdivision (d) of Section 1793.2, including the requirement that the buyer must notify the manufacturer directly pursuant to paragraphs (1) and (2). The notification, if required, shall be sent to the address, if any, specified clearly and conspicuously by the manufacturer in the warranty or owner's manual. This presumption shall be a rebuttable presumption affecting the burden of proof, and it may be asserted by the buyer in any civil action, including an action in small claims court, or other formal or informal proceeding.”

(2) “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, including a partnership, limited liability company, corporation, association, or any other legal entity, to which not more than five motor vehicles are registered in this state. “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.”

“The Song-Beverly Consumer Warranty Act provides buyers of new motor vehicles with specific remedies when a vehicle turns out to be defective. (Civ. Code, § 1791 et seq.; hereafter the Act or the Song-Beverly Act; all undesignated statutory references are to the Civil Code.) Section 1793.2, subdivision (d)(2) gives new car buyers what is known as a refund-or-replace remedy: It requires manufacturers to “promptly replace” a defective new motor vehicle or “promptly make restitution” to the buyer when the manufacturer is “unable to service or repair a new motor vehicle, as that term is defined in paragraph (2) of subdivision (e) of Section 1793.22, to conform to the applicable express warranties after a reasonable number of attempts.” These enhanced remedies under the Act for breach of express warranty are “distinct from” and “in addition to” remedies otherwise available in contract under the California Uniform Commercial Code. (Niedermeier v. FCA US LLC (2024) 15 Cal.5th 792, 810, 811, 318 Cal.Rptr.3d 483, 543 P.3d 935.)

Section 1793.22, subdivision (e)(2) defines “new motor vehicle” to include a new vehicle “bought or used primarily for personal” purposes as well as “a dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer's new car warranty.” Plaintiffs Everardo Rodriguez and Judith Arellano bought a two-year-old car with over 55,000 miles on it. The car had an unexpired manufacturer's new car warranty. The car repeatedly experienced engine problems despite numerous repair attempts by defendant FCA US, LLC (FCA). Plaintiffs sued FCA to enforce the refund-or-replace provision (§ 1793.2, subd. (d)(2)), claiming that their car was a “new motor vehicle” because it was a “motor vehicle sold with a manufacturer's new car warranty” (§ 1793.22, subd. (e)(2)). FCA argued that the refund-or-replace remedy does not apply because plaintiffs’ car was not a “new motor vehicle.” The trial court and Court of Appeal agreed with FCA.

We conclude that a motor vehicle purchased with an unexpired manufacturer's new car warranty does not qualify as a “motor vehicle sold with a manufacturer's new car warranty” under section 1793.22, subdivision (e)(2)’s definition of “new motor vehicle” unless the new car warranty was issued with the sale. We affirm the judgment of the Court of Appeal.”

The opposition emphasizes the observation in Rodriguez that the Song-Beverly remedies do not apply to a vehicle purchases with an unexpired manufacturer’s new car warranty, “unless the new car warranty was issued with the sale.” Rodriguez, at 196. Plaintiff argues that in this case the sale of the Certified Pre-Owned Vehicle was in fact accompanied by a new car warranty which was issued with the subsequent sale. [Response to UMF No. 3, and evidence cited].

As noted above, defendant here argues that the fact that plaintiff received a Certified Pre-Owned Service Agreement does not give rise to the issuance by the manufacturer of a new car warranty which was issued with the subsequent sale. Defendant points out that the Certified Pre-Owned Service Agreement includes a written acknowledgement by plaintiff Salazar that “I understand that this Certified Pre-Owned Service Agreement is a service contract and not an insurance policy, warranty, or guarantee…” [Ershadi Decl., Ex. B; Salazar Decl., Ex. B]. This service agreement was also an agreement entered into with plaintiff and executed by Subaru of Glendale, not the manufacturer. [Ershadi Decl., Ex. B; Salazar Decl., Ex. B, Plaintiff’s Additional Facts Nos. 15, 16, and evidence cited]. It also does not appear from plaintiff’s situation, viewed through the rationale of Rodriguez, that even if the service agreement is viewed as an additional warranty issued with the subsequent sale of the vehicle as used, it would not be viewed as a “new car warranty,” as opposed to a used car warranty, under which plaintiff has distinct remedies applicable to used goods, which are not being pursued here against the moving defendant.

“Enacted in 1970, “[t]he Song-Beverly Act is a remedial statute designed to protect consumers who have purchased products covered by an express warranty.” (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 798, 50 Cal.Rptr.3d 731.) Under the Act, a manufacturer that sells “consumer goods” with an express warranty must maintain nearby repair facilities “to carry out the terms of those warranties.” (§ 1793.2, subd. (a)(1)(A).) “ ‘Consumer goods’ means 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).) For consumer goods (i.e., new products) that are defective, “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.” (§ 1793.2, subd. (d)(1).)

The Act also requires consumer goods to be accompanied by the manufacturer's and retail seller's implied warranty of merchantability (§ 1792) and by the manufacturer's implied warranty of fitness where the manufacturer has reason to know the buyer is relying on its skill or judgment in furnishing a suitable good for a particular purpose (§ 1792.1). (See § 1791.1.) A consumer may sue the manufacturer for breach of these warranties. (§ 1791.1, subd. (d); cf. § 1792 [retail seller has “a right of indemnity” against the manufacturer for breach of implied warranty of merchantability].)

Separate from these provisions concerning new products, the Act includes a distinct section addressing used products. Section 1795.5 says: “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,” with certain exceptions. (Italics added.) In other words, “[s]ection 1795.5 provides express warranty protections for used goods only where the entity selling the used product issues an express warranty at the time of sale.” (Rodriguez, supra, 77 Cal.App.5th at p. 218, 292 Cal.Rptr.3d 382.) In addition, the obligation to maintain adequate repair facilities lies with “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).” (§ 1795.5, subd. (a).) Further, subdivision (c) of section 1795.5 provides for implied warranties of merchantability and fitness by the distributor or retail seller, with those warranties having a shorter duration than the manufacturer's implied warranties for new products. (See Ruiz Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 399, 275 Cal.Rptr.3d 618 (Ruiz Nunez) [under section 1795.5, “only distributors or sellers of used goods — not manufacturers of new goods — have implied warranty obligations in the sale of used goods”].)

Thus, the basic framework of the Song-Beverly Act distinguishes between new and used products and “provides similar remedies in the context of the sale of used goods, except that the manufacturer is generally off the hook.” (Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 339, 256 Cal.Rptr.3d 484 (Kiluk).) The Legislature added the motor vehicle provisions to the Act in 1982 and defined “new motor vehicle” to include any “new motor vehicle which is used or bought for use primarily for personal, family, or household purposes,” but not “motorcycles, motorhomes, or off-road vehicles.” (Stats. 1982, ch. 388, § 1, p. 1723.) In 1987, the Legislature established a refund-or-replace remedy specific to new motor vehicles with detailed requirements (Stats. 1987, ch. 1280, § 2, pp. 4557–4559; see § 1793.2, subd. (d)(2)) and amended the definition of “new motor vehicle” to include certain cars that are not entirely new, i.e., “a dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer's new car warranty” (Stats. 1987, ch. 1280, § 2, p. 4561; see § 1793.22, subd. (e)(2)).”

“By specifically mentioning dealer-owned vehicles and demonstrators, the Legislature highlighted vehicles for which a manufacturer's new car warranty arises upon sale to a retail buyer. Thus, the phrase “other motor vehicle sold with a manufacturer's new car warranty” is most naturally understood to mean other vehicles for which such a warranty is issued with the sale. (§ 1793.22, subd. (e)(2).) The phrase serves as “a catchall to ensure that manufacturers cannot evade liability under the Act by claiming a vehicle doesn't qualify as new because the dealership hadn't actually used it as a demonstrator.” (Rodriguez, supra, 77 Cal.App.5th at p. 221, 292 Cal.Rptr.3d 382.) For example, it would cover a car owned by a manufacturer or distributor for marketing purposes.”

Like the Court of Appeal, we think that if the Legislature had intended to define “‘new motor vehicle’ to include a potentially vast category of used cars” with unexpired new car warranties, “it would have been done so more clearly and explicitly than tucking it into a reference to demonstrators and dealer-owned vehicles.” (Rodriguez, supra, 77 Cal.App.5th at p. 221, 292 Cal.Rptr.3d 382; see People v. Strong (2022) 13 Cal.5th 698, 715, 296 Cal.Rptr.3d 686, 514 P.3d 265 [no-elephants-in-mouseholes canon], citing Whitman v. American Trucking Assns., Inc. (2001) 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1; Ontario Community Foundations, Inc. v. State Bd. of Equalization (1984) 35 Cal.3d 811, 822, 201 Cal.Rptr. 165, 678 P.2d 378 [“Such a statutory construction has the tail wagging the dog”].) Indeed, although demonstrators and dealer-owned vehicles are not truly “new,” the statutory definition of “new motor vehicle” makes an exception for them along with “other motor vehicle[s] sold with a manufacturer's new car warranty” (§ 1793.22, subd. (e)(2)), and the general rule is that exceptions in a statute are to be narrowly construed. (See Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 319, 86 Cal.Rptr.3d 288, 196 P.3d 1094; National City v. Fritz (1949) 33 Cal.2d 635, 636–637, 204 P.2d 7.)

“From this statutory context and history, we discern two points. First, in enacting and amending the Song-Beverly Act, the Legislature has maintained a distinction between “new” and “used” products and has specified the warranty protections applicable to each category. The Legislature has shown it knows how to legislate on “used” products (§ 1795.5), and it has employed clear language when it wants to make a “used” product subject to the warranty protections that apply to the product when new (see § 1791, subd. (a) [“‘Consumer goods’ shall include new and used assistive devices sold at retail”]). In defining “new motor vehicle,” section 1793.22, subdivision (e)(2) does not mention “used” vehicles; the word “used” nowhere appears. This bolsters the inference that the phrase “other motor vehicle sold with a manufacturer's new car warranty” was not intended to cover any used car with an unexpired new car warranty.

Second, section 1795.5, which governs used goods, makes clear that the same warranty protections that consumers of new products have against manufacturers apply to consumers of used products against distributors or retail sellers “in a sale in which an express warranty is given.” In other words, just as with new products, the Act's remedies for failure to repair a used product in conformity with an express warranty have applicability where the express warranty accompanies the sale of the product. For new products, liability extends to the manufacturer; for used products, liability extends to the distributor or retail seller and not to the manufacturer, at least where the manufacturer has not issued a new warranty or played a substantial role in the sale of a used good. (See Rodriguez, supra, 77 Cal.App.5th at p. 218, 292 Cal.Rptr.3d 382; Ruiz Nunez, supra, 61 Cal.App.5th at p. 399, 275 Cal.Rptr.3d 618; Kiluk, supra, 43 Cal.App.5th at pp. 339–340, 256 Cal.Rptr.3d 484.) In both cases, the Act's protections are premised on an express warranty arising from the product's sale. (See Rodriguez, at p. 218, 292 Cal.Rptr.3d 382 [“[A] hallmark of the Act is that its consumer protections apply against the party who sold the product to the buyer and issued the express warranty.”].) Against this backdrop, it would be anomalous to construe “other motor vehicle sold with a manufacturer's new car warranty” (§ 1793.22, subd. (e)(2)) to include any used car sold by a distributor or retailer with a preexisting, unexpired manufacturer's warranty. If the Legislature had meant to depart from the basic scheme and extend manufacturer liability in this way, again we think it would have spoken more clearly.”

“the Legislature had good reason to distinguish demonstrators and dealer-own cars, which “are maintained professionally with a goal of keeping the vehicle in as-new condition in anticipation of a sale to the first consumer owner,” from preowned cars, whose “various transfers of ownership” may result in “difficulties of proving what maintenance or misuse a prior owner may or may not be responsible for.” Further, FCA argues that the unavailability of the refund-or-replace remedy for used cars with unexpired warranties still leaves those car owners with potential remedies under the California Uniform Commercial Code and the federal Magnuson-Moss Warranty Act. (See Rodriguez, supra, 77 Cal.App.5th at p. 225, 292 Cal.Rptr.3d 382 [“the beneficiary of a transferrable express warranty can sue a manufacturer for breach of an express warranty to repair defects under the California Uniform Commercial Code”].)”

While the Court declined to express a view on the “parties’ policy arguments as to whether the Song-Beverly Act strikes an appropriate balance between protecting buyers of cars with unexpired new car warranties and cabining manufacturers’ liability for the refund-or-replace remedy,” finding those arguments “best directed to the Legislature,” the Court in conclusion very broadly stated its holding:

“For the reasons above, we hold that the phrase “other motor vehicle sold with a manufacturer's new car warranty” — considered in the context of the surrounding text of section 1793.22, subdivision (e)(2) and in the broader context of the Song-Beverly Act's provisions distinguishing between new and used goods — means a vehicle for which a manufacturer's new car warranty is issued with the sale.”

The moving papers as to these claims sufficiently establish that plaintiff leased a used or pre-owned vehicle, so that the Song-Beverly remedies sought do not apply to the moving defendant, the manufacturer who issued the new vehicle warranty, not the used vehicle service contract, under the various theories relied upon in the causes of action asserted against it in the complaint. Defendant Subaru submits evidence that the vehicle was used at the time of sale, and that Subaru was the original distributor of the vehicle when it was new, but did not make any express warranties with respect to the sale of the vehicle as a used vehicle. [UMF Nos. 5, 10, 15, 20, 25, 31, and evidence cited, Sciolla Decl., para. 6].

Plaintiff in opposition argues that defendant Subaru here was involved in certifying and warranting the vehicle through its Certified Pre-Owned programs undertaken in connection with its authorized retailers, so the provision of the Certified Pre-Owned Service Agreement warranty to plaintiff falls within the exception for a manufacturer’s involvement in issuing a new warranty in connection with a subsequent transfer of the vehicle. [Response to UMF Nos. 3, and evidence cited].

The holding in Rodriguez is clear when applied to used or pre-owned vehicles, and there is no argument that plaintiff’s vehicle qualifies as one of the enumerated exceptions under the statute, such as being a demonstrator. With respect to the argument that defendant in the transaction involving plaintiff itself issued a new warranty or had substantial involvement in the issuance of a new warranty, it is repeatedly conceded in the opposition papers that the transaction was with the dealership. [Response to UMF Nos. 1, 6, 11, 16, 21, 26, and evidence cited]. There appears to be no exception in the statute or governing case law for application of the new vehicle provisions to certified pre-owned vehicles sold by a dealership with additional protections acknowledged as providing a “service agreement” which is expressly designated “not” a “warranty.” It is not established that such an agreement, even if considered an additional “warranty” would in any case qualify as a “new car warranty,” as defined in the statutory provisions as interpreted by the Court in Rodriguez.

Moreover, summary adjudication is appropriately entered with respect to the sixth cause of action on the further ground that the Tanner Act, as set forth above, applies a presumption to the sale of a new motor vehicle within 18 months from delivery to the buyer or 18,000 miles on the odometer of the vehicle, whichever occurs first, and defendant has established that the vehicle was not a new vehicle, but a used vehicle, and that, at the time the vehicle was purchased by plaintiff, the vehicle had 20,086 miles on the odometer. [UMF No. 27, and evidence cited, Ershadi Decl., Ex. A]. The opposition has failed to refute or rebut the presumption.

Plaintiff seems to concede that summary adjudication of the causes of action against defendant Subaru of America, Inc. is the ruling now appropriately entered by this court in light of the holding in Rodriguez, as plaintiff requests in the opposition that if the motion is granted, plaintiff be allowed leave to amend her complaint to sue Subaru of Glendale, the dealership, as a defendant, as there is reason to believe plaintiff can bring causes of action against that entity for fraud, Magnuson-Moss Warranty Act violations and Commercial Code violations.

The need to amend the pleading to assert such claims evidently came to plaintiff’s attention upon reviewing the Rodriguez decision, which was published in October of 2024, and defendant’s position based on the Rodriguez opinion has been evident since the filing and service of this motion on December 18, 2024. Opposition to the motion requesting such relief was filed many months later, on March 17, 2025, and it is not explained why during the time prior to the filing of the opposition or the hearing on this motion, a period of several months, plaintiff has not previously sought such relief from the court through the proper statutory procedures for obtaining leave to amend a pleading.

Generally, the issues raised by a motion for summary judgment are directed to the allegations of the operative pleading, and, accordingly, “the opposing papers may not create issues outside of the pleadings.” Mars v. Wedbush Morgan Securities, Inc. (1991, 2nd Dist.) 231 Cal.App.3d 1608, 1613-1614, citation omitted. Ordinarily, where opposition seeks to rely on argument or evidence directed to issues not yet pled, the party opposing summary judgment should seek leave to amend the pleadings before the hearing on the motion for summary judgment. Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1699. This rule seems particularly appropriate here, since it is not argued how any amendment against the currently named moving defendant could defeat any summary adjudication against this defendant, as opposed to preserving claims against a separately not yet named defendant. The request for leave to amend is denied.

Defendant Subaru of America Inc.’s Motion for Leave to File a Renewed Motion for Summary Judgment is GRANTED. The Court finds, pursuant to CCP section 437c(a)(4) and (5) and (f) (2) that the motion sufficiently has established that there has been a change in law affecting the prior decision sufficient to warrant the trial court in finding good cause and exercising its discretion to hear a renewed motion.

Request for Judicial Notice in Support of Plaintiff Monique Korina Salazar’s Opposition to Defendant Subaru of America, Inc.’s Motion for Leave to File a Renewed Motion for Summary Judgment is GRANTED in part to the extent permitted by Day v. Sharp (1975) 50 Cal.App.3d 904, 914 (e.g, the court takes judicial notice of the existence of court records, but not the truth of hearsay allegations contained therein, except in connection with certain exceptions enumerated in that case.).

Defendant Subaru of America, Inc. has sufficiently established the plaintiff will be unable to establish essential elements of each of her causes of action in this matter, as plaintiff is unable to establish that plaintiff purchased a new motor vehicle from defendant accompanied by a new motor vehicle warranty issued by defendant manufacturer.

Specifically, the facts show that plaintiff in this matter bought the vehicle used from Subaru of Glendale on July 3, 2018, and that at the time of the purchase, the vehicle had 20,086 miles on the odometer, was sold by an independent third-party dealer not owned by defendant Subaru, and plaintiff was issued a certified pre-owned service agreement by the dealer. [UMF Nos. 1, 2, 3, 6, 7, 8, 11, 12, 13, 16, 17, 18, 21, 22, 23, 27, 28, 29, and evidence cited].

Defendant submits evidence that the retail installment sale contract by which plaintiff purchased the vehicle states that the vehicle was sold as a used vehicle [Ershadi Decl., Ex. A, Villegas Decl., Ex. B], and that the retail installment sale contract was entered with Subaru of Glendale, not defendant, and the certified pre-owned service agreement plaintiff was issued by the dealership, not the manufacturer, was a service contract, and not a manufacturer’s warranty, and that plaintiff signed an acknowledgement that states, “I understand that this Certified Pre-Owned Service Agreement is a service contract, and not an insurance policy, warranty, or guarantee…” [Response to UMF Nos. 1, 6, 11, 16, 21, 26, Plaintiff’s Additional Facts Nos. 15, 16, and evidence cited, Ershadi Decl., Ex. B; Salazar Decl., Ex. B]. Subaru also submits evidence that while it was the original distributor of the vehicle when the vehicle was new, it did not make any express warranties with respect to the sale of the vehicle as a used vehicle. [UMF Nos. 5, 10, 15, 20, 25, 31, and evidence cited, Sciolla Decl., para. 6].

Under Rodriguez v. FCA US, LLC (2024) 17 Cal.5th 189, 206, the phrase “other motor vehicle sold with a manufacturer's new car warranty” — considered in the context of the surrounding text of section 1793.22, subdivision (e)(2) and in the broader context of the Song-Beverly Act's provisions distinguishing between new and used goods — means a vehicle for which a manufacturer's new car warranty is issued with the sale.”

Plaintiff has failed to raise triable issues of material fact supporting a reasonable inference that the vehicle was not a used or pre-owned vehicle for the purposes pursued under plaintiff’s causes of action against defendant manufacturer, or that a new car warranty was issued with the lease of the used vehicle to plaintiff as defined by the California Supreme Court in Rodriguez.

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