Wesley W. Hankins v. General Motors LLC

MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION

 

MOVING PARTY: Defendant General Motors LLC

RESPONDING PARTY(S): Plaintiff Wesley W. Hankins

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS

Plaintiff Wesley W. Hankins brings this action against Defendant General Motors LLC for violations of the Song-Beverly Act. Plaintiff alleges he purchased a 2015 GMC Sierra manufactured or distributed by Defendant. Plaintiff alleges the vehicle exhibited transmission defects and braking issues, among other things, during the warranty period. Plaintiff asserts causes of action for (1) violation of subdivision (d) of Civil Code section 1793.2, (2) violation of subdivision (b) of Civil Code section 1793.2, (3) violation of subdivision (a)(3) of Civil Code section 1793.2, (4) breach of express warranty, (5) breach of implied warranty, and (6) violation of Magnusson-Moss Warranty Act.

Defendant now moves for summary judgment or, in the alternative, summary adjudication. Plaintiff opposed.  

TENTATIVE RULING:

Defendant’s Motion for Summary Judgment is DENIED.

Defendant’s Alternative Motion for Summary Adjudication of the First, Second, Third, Fourth, and Fifth Causes of Action is GRANTED.

Defendant’s Alternative Motion for Summary Adjudication of the Sixth Cause of Action is DENIED.

The remaining cause of action shall be set for trial at the hearing.

Moving party to give notice, unless waived.

DISCUSSION:

Motion for Summary Judgment

I. Judicial Notice

Pursuant to Plaintiff’s request, the court takes judicial notice of Exhibit 1, the legislative history for the 2007 addition of section 1795.8 of the California Civil Code. (See People ex rel. Found. for Taxpayer & Consumer Rts. v. Duque (2003) 105 Cal. App. 4th 259 [courts may take judicial notice of legislative history of statutes at issue].)

II. Evidentiary Objections

Plaintiff asserts a single objection to the declaration of Ryan Kay. This court declines to rule on the objection because it is not material to the disposition of this motion. (See CCP § 437c(q).) 

III. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.  Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.  Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741. 

As to each claim as framed by the Complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389. A defendant has met its burden of showing that a cause of action has no merit if it demonstrates the absence of any single essential element of plaintiff’s case or a complete defense to plaintiff’s action.  Code Civ. Proc. § 437c(o)(2); Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858.  Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto.  § 437c(o)(2). 

IV. Analysis

A. Adequacy of Defendant’s Separate Statement 

As an initial matter, Plaintiff objects to the sufficiency of Defendant’s separate statement. On a motion for summary adjudication, the separate statement must tie each “undisputed material fact” to the particular claim, defense or issue sought to be adjudicated: “[T]he specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (CRC 3.1350(b).) 

Here, as raised by Plaintiff, Defendant has included various issues to be adjudicated in its notice of motion. However, those issues are not repeated verbatim (or at all) in Defendant’s Separate Statement. Rather, the Separate Statement asserts the facts are “common to all issues.” 

In reply thereto, Defendant contends it is moving for summary judgment, not summary adjudication, and therefore rule 3.1350 does not apply. (See Truong v. Glasser (2010) 181 Cal. App. 4th 102, 118 [separately identified issues are not required on a motion for summary judgment].) But Defendant’s argument is particularly disingenuous, given that Defendant’s Motion is titled “MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION.”  [FN 1]

Be that as it may, “the court's power to deny summary judgment on the basis of failure to comply with California Rules of Court, rule 3.1350 is discretionary, not mandatory.” (See Truong, supra, 181 Cal. App. 4th at 118; see also Brown v. El Dorado Union High Sch. Dist. (2022) 76 Cal. App. 5th 1003, 1019 [court could consider separate statement that “combined numerous facts together into single undisputed material facts, and did not separately identify which evidence pertained to which fact”].) Indeed, where dispositive evidence is obvious to the court and parties, it may be an abuse of discretion for the court to disregard it. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal. App. 4th 308, 316.)

Here, the issues dispositive to this motion are readily ascertainable from the separate statement and accompanying brief. Plaintiff has “not explained how any alleged deficiency in [the] separate statement of material facts impaired [his] ability to marshal evidence to show that material facts were in dispute.” (Truong, supra, 181 Cal. App. 4th at 118.) Therefore, this court exercises its discretion to consider Defendant’s separate statement.

B. Song-Beverly Claims (First Through Fifth Causes of Action)

Defendant General Motors LLC moves for summary judgment of the Complaint. First, Defendant contends Plaintiff lacks standing to bring the Song-Beverly claims because Plaintiff did not buy the vehicle at issue from a retailer. Instead, he bought it from a private seller through a private sale. “Standing is the threshold element required to state a cause of action.” (Martin v. Bridgeport Cmty. Assn., Inc. (2009) 173 Cal. App. 4th 1024, 1031.) A defendant may move for summary judgment “by showing the action has no merit because the plaintiff lacks standing.” (Lickter v. Lickter (2010) 189 Cal. App. 4th 712, 736.)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

Plaintiff alleges “in or around April 2016,” he purchased a 2015 GMC Sierra 1500, “which was manufactured and or distributed by Defendant.” (Compl. ¶ 8.) Plaintiff alleges he “purchased the Vehicle from a person or entity engaged in the business of manufacturing, distributing, or selling consumer goods at retail.” (Id.) During the warranty period, the Vehicle allegedly contained or developed transmission and braking defects, among other things. (Id. ¶ 10.) Plaintiff alleges Defendant and its representatives “have been unable to service or repair the Vehicle to conform to the applicable express warranties after a reasonable number of opportunities,” and despite this, “Defendant failed to promptly replace the Vehicle or make restitution to Plaintiff.” (Id. ¶ 11.) 

“A defendant moving for summary judgment has the initial burden of showing, with respect to each cause of action set forth in the complaint, the cause of action is without merit. A defendant meets that burden by showing one or more elements of the cause of action cannot be established, or there is a complete defense thereto.” (Leyva v. Garcia (2018) 20 Cal. App. 5th 1095, 1101.)

Here, Defendant presents evidence that Plaintiff purchased the vehicle used on April 15, 2016—with 9,297 miles—from a Derek Catalano. (SSUMF 2.) Defendant provided the “Bill of Sale” and “Certificate of Title” reflecting the sale of the vehicle from Catalano to Plaintiff. (Kay Decl. Exhs. A, B.) General Motors was a not a party to this transaction. Defendant presents further evidence that it was Derek Catalano and Dana Catalano who purchased the vehicle new from GM-authorized dealership Mark Christopher Auto Center on July 2, 2015. (SSUMF 4.) Defendant provided the Retail Installment Sale Contract reflecting the Catalano’s purchase of the vehicle from Mark Christopher Auto Center. (Kay Decl. Exh. C.) Plaintiff produced these documents to Defendant in discovery. (Kay Decl. ¶¶ 7, 8, 9.)

Under the Song-Beverly Act, a “buyer” is “any individual who buys consumer goods from a person engaged in the business of manufacturing, distributing, or selling consumer goods at retail.” (Civ. Code 1791(b).) Relatedly, a “seller” or “retail seller” is “any individual, partnership, corporation, association, or other legal relationship that engages in the business of selling or leasing consumer goods to retail buyers.” (§ 1791(l).)

As raised by Defendant, these facts resemble the ones in Dagher v. Ford Motor Co. (2015) 238 Cal. App. 4th 905. There, the plaintiff purchased a used Ford truck from private sellers with over 12,500 miles on the vehicle and two years remaining on its five-year express manufacturer’s warranty. (Id. at 912.) The private sellers had previously purchased the vehicle new from a dealer. (Id.) Addressing the private sale and definitions of “seller” and “buyer” under the Song-Beverly Act, the Court held that the plaintiff was not “a retail buyer from a retail seller.” (Id. at 924.) The court continued to explain that it was immaterial that the manufacturer’s express warranty had not expired: “Whatever statutory rights the private party sellers of the vehicle originally had under the Act, because they purchased it from a dealer, the Act does not provide that their statutory rights, or standing to pursue those rights, were somehow transferred to Plaintiff when the vehicle was privately sold to him, even when the express warranty protections were transferred.” (Id. at 927.) 

In opposition, Plaintiff argues that Defendant has failed to carry its initial burden of demonstrating that Plaintiff purchased the vehicle from a private seller. Plaintiff asserts that Defendant’s evidence “does not in any way establish whether the seller is a retailer or private.” (Opp. 6: 16-17.) The court disagrees. 

“A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.] No more is called for.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 851 [emphasis added].) “The prima facie showing by the moving party must be such that it would, if uncontradicted, entitle the moving party to judgment as a matter of law.” (Id. at 851.) That is, “a moving defendant must present evidence which, if uncontradicted, would constitute a preponderance of evidence [i.e., show it is more likely than not] that an essential element of the plaintiff's case cannot be established.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879.)

Defendant’s evidence demonstrates that the Catalano’s purchased the vehicle new from a dealer. Almost a year later, they sold the vehicle to Plaintiff with over 9,000 miles on it. In doing so, the parties executed a Bill of Sale stating the seller was “Derek Catalano.” (Kay Decl. Exh. A.) There is no indication from the evidence that Catalano is a retail seller of vehicles. Rather, it supports Defendant’s contention that the vehicle was sold between a private buyer and seller. (See Collin v. CalPortland Co. (2014) 228 Cal. App. 4th 582, 592 [party “may rely on reasonable inferences drawn from direct and circumstantial evidence to satisfy its burden on summary judgment”].) Therefore, Defendant has met its initial burden.

This shifts the burden “to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact.” (Leyva, supra, 20 Cal. App. 5th at 1101.) Although Plaintiff’s separate statements purports to “dispute” the relevant facts (See SSDMF 2-5), Plaintiff focuses on collateral issues. It appears the facts relevant here are actually undisputed. Plaintiff has not offered any “additional material facts in dispute” that address these issues. In other words, Plaintiff offers no evidence to dispute that Catalano is not a “retail seller” of vehicles. Therefore, Plaintiff has failed to carry his burden to create a triable issue of material fact as to these causes of action.

Accordingly, Defendant’s Motion for Summary Adjudication of the First, Second, Third, Fourth, and Fifth Causes of Action is GRANTED.

C. Sixth Cause of Action for Violation of the Magnuson-Moss Warranty Act

Defendant argues that Plaintiff’s Sixth Cause of Action for violation of the Magnuson-Moss Warranty Act must fail with his Song-Beverly claims. Plaintiff disagrees, and contends the Sixth Cause of Action can stand on its own.   This Court agrees.

As raised by Plaintiff, in Dagher, supra, 238 Cal. App. 4th, the Court of Appeal held that a plaintiff could proceed with a Magnuson-Moss claim even though the underlying Song-Beverly claim failed, in part because the plaintiff sought additional express warranty claims under the California Commercial Code. (See Dagher, 238 Cal. App. 4th at 928 [“In our case, both Plaintiff and Ford acknowledge that some express warranty claims are viable in this action [even after dismissal of the SBA claim], whether under the Commercial Code or Magnuson-Moss.]”)

The only authority Defendant discusses in support of its position is the federal district court case of Arana v. Tesla Motors, Inc., 2023 WL 1796956, *2 (C.D. Cal. Feb. 7, 2023). There, the Court ruled that a plaintiff’s Magnusson-Moss claim necessarily failed with its state Song-Beverly claims. (Id. at *2.) In doing so, the court distinguished the case from Dagher, supra, 238 Cal. App. 4th. The Arana court reasoned that the plaintiff brought causes of action only under Magnuson-Moss and Song-Beverly. But unlike the plaintiffs in Dagher, they did not rely on the California Commercial Code, which could provide “additional express warranty claims.” (Id. at *3.)

Here, Plaintiff alleges that Defendant “violated the Mag-Moss Act when it breached the express warranty and implied warranties by failing to repair the defects and nonconformities, or to replace the Vehicle.” (Compl. ¶ 39.) Plaintiff “seeks remedies available pursuant to Magnuson-Moss Act under California law, including California Civil Code Section 1794 and/or California Commercial Code Sections 2711-2715, and/or other remedies that the Court may deem proper.” (Id. ¶ 45 [emphasis added].) 

Thus, like in Dagher—and unlike Arana—Plaintiff seeks remedies under the California Commercial Code, and not just the Song-Beverly Act. Therefore, his Sixth Cause of Action survives independent of the Song-Beverly claims. Defendant has otherwise failed to meet its initial burden on this cause of action. 

Accordingly, Defendant’s Motion for Summary Adjudication of the Sixth Cause of Action is DENIED.

D. Plaintiff’s Request for a Continuance is DENIED

In his opposition to the motion, Plaintiff seeks a continuance of the motion—or outright denial—in order to obtain additional discovery.  [FN 2]  Under CCP section 437c, subdivision (h), “[i]f 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, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” 

Plaintiff argues that he has been unable to depose Defendant’s PMQ, which has  “deprived Plaintiff of testimony regarding warranty visits and various recalls and TSBs that were performed on the Vehicle.” (Opp. 4: 19-21.) Plaintiff suggests that at a minimum, “the Court should continue the MSJ hearing until after Defendant has produced its PMQ for deposition.” (Opp. 5: 13-14.)

As discussed in this ruling, the dispositive issue is that Plaintiff purchased the vehicle from a private seller. Defendant’s PMQ has literally nothing relevant to offer on this issue. Therefore, any continuance pending a PMQ deposition is unnecessary.

Moving party to give notice.

IT IS SO ORDERED.

Dated:   October 12, 2023 ___________________________________