Judge: Robert B. Broadbelt, Case: 23STCV07911, Date: 2023-12-12 Tentative Ruling

Case Number: 23STCV07911    Hearing Date: December 12, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:              Defendants Volkswagen Group of America, Inc., and Audi Beverly Hills     

RESPONDING PARTY:       Plaintiff Michael Jeremy Savetsky

Motion for Summary Judgment or, in the Alternative, Summary Adjudication

The court considered the moving, opposition, and reply papers filed in connection with this motion.

EVIDENTIARY OBJECTIONS 

The court rules on plaintiff Michael Jeremy Savetsky’s evidentiary objections to the declaration of Chris Lewis, filed on November 28, 2023, as follows:

The court overrules Objections Nos. 1-6.

The court rules on plaintiff Michael Jeremy Savetsky’s evidentiary objections to the declaration of Enayat Sharaf, filed on November 28, 2023, as follows:

The court overrules Objections Nos. 1-4.

The court rules on plaintiff Michael Jeremy Savetsky’s evidentiary objections to the declaration of Brandon Bell, filed on November 28, 2023, as follows:

The court sustain Objection No. 1.

The court rules on defendants Volkswagen Group of America, Inc., and Audi Beverly Hills’s evidentiary objections to the declaration of Donald Mahnke, filed on December 7, 2023, as follows:

The court sustains Objections Nos. 3-11.

The court overrules Objections Nos. 1-2.

The court rules on defendants Volkswagen Group of America, Inc., and Audi Beverly Hills’s evidentiary objections to the declaration of Michael Jeremy Savetsky, filed on December 7, 2023, as follows:

The court sustains Objection No. 1.

The court overrules Objections Nos. 2-9.

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “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.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant or cross-defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)  “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Defendants Volkswagen Group of America, Inc. (“Volkswagen”) and Audi Beverly Hills (“Audi”) (collectively, “Defendants”) move the court for an order granting summary judgment or, in the alternative, summary adjudication, in their favor and against plaintiff Michael Jeremy Savetsky (“Plaintiff”) on Plaintiff’s First Amended Complaint.

1.     First Cause of Action for Violation of Song-Beverly Act – Breach of Express Warranty against Volkswagen

“‘The [Song-Beverly Act] provides enhanced remedies to consumers who buy new consumer goods accompanied by a manufacturer’s express warranty.’”  (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 346.)  “‘Where . . . 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 . . . .”  (Ibid.)  “‘A plaintiff pursuing an action under the [Song-Beverly] Act has the burden to prove that (1) the 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).”  (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 152.) 

The court finds that defendant Volkswagen has not met its burden of showing that the first cause of action for violation of the Song-Beverly Act – breach of express warranty has no merit because Volkswagen has not shown that the new motor vehicle element of the cause of action cannot be established. 

As set forth above, the Song-Beverly Act provides remedies to consumers who buy new goods accompanied by a manufacturer’s express warranty.  (Santana, supra, 56 Cal.App.5th at p. 346.)  A new motor vehicle is statutorily defined to include “a dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer’s new car warranty . . . .”  (Civ. Code, § 1793.22, subd. (e)(2).)  “[C]ars sold with a balance remaining on the manufacturer’s new motor vehicle warranty are included within [the Song-Beverly Act’s] definition of a new motor vehicle.”  (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 123, 126 [“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”].)

Volkswagen has submitted the Retail Installment Contract entered into by and between Plaintiff, on the one hand, and CarMax Auto Superstores California, LLC (“CarMax”), on the other hand, on December 1, 2021 for the purchase of the subject vehicle.  (Lewis Decl., Ex. B, p. 1.)  Volkswagen has also submitted the declaration of its Manager of the Product Analysis Group, who states that Volkswagen “did not issue or extend any warranties on the Subject Vehicle as part of Plaintiff’s purchase of the Subject vehicle from Car[M]ax.”  (Lewis Decl., ¶ 6.)  However, Volkswagen has not presented any evidence showing that the subject vehicle was not sold to Plaintiff with a remaining balance on Volkswagen’s new car warranty.  (Ibid.) 

The court notes that Volkswagen argues that the court should find persuasive and apply the reasoning set forth in Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, 225, review granted July 13, 2022 (S274625), in which the Court of Appeal concluded that “the phrase ‘other motor vehicles sold with a manufacturer’s new car warranty’ refers to cars sold with a full warranty, not to previously sold cars accompanied by some balance of the original warranty.’”  However, because the California Supreme Court has granted a petition for review of the Rodriguez opinion, the court is not bound by its holding.  (Cal. Rules of Ct., rule 8.1115, subd. (e)(1) [while pending review by the Supreme Court, “a published opinion of a Court of Appeal in the matter has no binding or precedential effect and may be cited for potentially persuasive value only”].)  The court elects to apply the holding in Jensen to the facts here and therefore finds that Volkswagen (1) has not met its burden to show that, when Plaintiff purchased the subject vehicle, it was unaccompanied by a remaining balance of the new motor vehicle warranty, and (2) therefore has not shown that the subject vehicle is not a new motor vehicle within the meaning of the Song-Beverly Act.  (Civ. Code, § 1793.22, subd. (e)(2); Jensen, supra, 35 Cal.App.4th at pp. 123, 126.)

The court therefore denies Volkswagen’s motion for summary adjudication as to the first cause of action for violation of the Song-Beverly Act – breach of express warranty.

2.     Second Cause of Action for Violation of Song-Beverly Act – Breach of Implied Warranty against Volkswagen

“[E]very sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer’s and the retailer’s implied warranty that the goods are merchantable.”  (Civ. Code, § 1792.)  “The warranty ‘ “arises by operation of law” ’ and therefore applies despite its omission from a purchase contract.”  (Brand v. Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1545.)

The court finds that defendant Volkswagen has not met its burden of showing that the second cause of action for violation of the Song-Beverly Act – breach of implied warranty has no merit because Volkswagen has not shown that the new motor vehicle element of the cause of action cannot be established for the same reasons set forth in connection with the ruling on the first cause of action.

The court notes that the parties have also cited and disputed the applicability of Civil Code section 1795.5.  That statute states, in relevant part, the following:  “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 . . . .”  Thus, “in the sale of used consumer goods, liability for breach of implied warranty lies with distributors and retailers, not the manufacturer, where there is no evidence the manufacturer played any role in the sale of the used car to plaintiff.”  (Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 398; Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 339 [“The Song-Beverly Act provides similar remedies in the context of the sale of used goods, except that the manufacturer is generally off the hook”] [emphasis added].) 

The parties dispute whether Volkswagen “played [a] role in the sale of the used car” or otherwise took “on the role of a retailer.”  (Mot., p. 12:16-19; Opp., p. 11:1-4; Nunez, supra, 61 Cal.App.5th at p. 398; Kiluk, supra, 43 Cal.App.5th at p. 340.)  However, it appears to the court that such a determination becomes relevant only upon the finding that the subject vehicle is a “used” vehicle within the meaning of the Song-Beverly Act.  Because Volkswagen has not met its burden to show that the subject vehicle is not a new motor vehicle, the court does not consider whether Volkswagen has met its burden to establish that it, as the manufacturer, is not liable for breach of the implied warranty under Civil Code section 1795.5.

The court therefore denies Volkswagen’s motion for summary adjudication as to the second cause of action for violation of the Song-Beverly Act – breach of implied warranty.

3.     Third Cause of Action for Violation of Song-Beverly Act, Section 1793.2, subdivision (b), against Volkswagen

Where repair of goods is necessary because they do not conform to the express warranties, “service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state.  . . .  [T]he goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days.”  (Civ. Code, § 1793.2, subd. (b); FAC ¶ 51.)

The court finds that Volkswagen has met its burden of showing that the third cause of action for violation of section 1793.2, subdivision (b) has no merit because Volkswagen has shown that an element of the cause of action (that Volkswagen did not service or repair the subject vehicle so as to conform to the applicable warranties within 30 days) cannot be established. 

Volkswagen has produced the repair orders of the subject vehicle, which show that the vehicle was at Audi’s facility for a total of 18 days.  (Sharaf Decl., ¶ 4 [repair orders indicate the date the vehicle was presented to Audi on the open date and the date the vehicle was ready to be picked up on the ready date]; Sharaf Decl., Ex. A, pp. 17 [repair order opened on June 10, 2022, and ready on June 15, 2022, i.e., the vehicle was out of service for six days], 49 [repair ordered opened on December 5, 2022, and ready on December 7, 2022, i.e., three days], 58 [repair order opened on December 23, 2022, and ready on December 26, 2022, i.e., four days], 74 [repair order opened on March 24, 2023, and ready on March 28, 2023, i.e., five days].)  Thus, Volkswagen has met its burden to show that it did not breach section 1793.2, subdivision (b) because the repair visits did not exceed 30 days, either cumulatively or consecutively.  (Civ. Code, § 1793.2, subd. (b); Ramos v. Mercedes-Benz USA, LLC (2020) 55 Cal.App.5th 220, 225, n. 2 [the plaintiff’s vehicle “was in the shop for a total of 44 days” and “no single repair visit extended for 30 days[;]” because the Court of Appeal was not asked to decide whether the 30 days of failure to complete repairs must be 30 consecutive days, the Ramos Court assumed that the plaintiff proved the 30-day failure to repair without deciding the question].)

The court finds that Plaintiff has not met his burden to show that a triable issue of material fact exists as to the element of Volkswagen’s violation of section 1793.2, subdivision (b).  Plaintiff did not (1) expressly address this cause of action in his opposition papers, or (2) submit evidence showing that Volkswagen failed to conform the subject vehicle to the applicable warranties within 30 days.  Further, although Plaintiff disputed Volkswagen’s material fact that “[t]he Vehicle was never subject to a warranty repair that lasted longer than 30 days[,]” Plaintiff did not cite to sufficient evidence establishing that the fact was disputed, and instead only referenced a safety recall that was issued.  (Pl. Response to Material Fact No. 4.)  Moreover, Plaintiff’s own declaration confirms that the subject vehicle was out of service for a total of 18 days.  (Savetsky Decl., ¶¶ 7-10.)

Thus, the court finds that Plaintiff did not meet his burden to show that a triable issue of material fact exists as whether Volkswagen failed to conform the subject vehicle within 30 days.  (Civ. Code, § 1793.2, subd. (b).)

            The court therefore grants Volkswagen’s motion for summary adjudication as to the third cause of action for violation of the Song-Beverly Act, section 1793.2, subdivision (b).

4.     Fourth Cause of Action for Negligent Repair

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.”  (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.)

The court finds that Audi has not met its burden of showing that the fourth cause of action for negligent repair has no merit because Audi has not shown that this cause of action is barred by the economic loss rule.

The economic loss rule “is deceptively easy to state: In general, there is no recovery in tort for negligently inflicted ‘purely economic losses,’ meaning financial harm unaccompanied by physical or property damage.”  (Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 903, 922.)  “Not all tort claims for monetary losses between contractual parties are barred by the economic loss rule.  But such claims are barred when they arise from—or are not independent of—the parties’ underlying contracts.”  (Id. at p. 923; Erlich v. Menezes (1999) 21 Cal.4th 543, 552 [“Tort damages have been permitted in contract cases” where “the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm”].)  

Although Audi has presented Plaintiff’s discovery responses, in which he stated that his damages as a result of Audi’s alleged negligence include economic damages for, inter alia, out-of-pocket expenses such as tows and rentals, replacement vehicle costs, and insurance premiums, Audi has not presented sufficient evidence or argument to show that Plaintiff’s claim for negligent repair “arise[s] from—or [is] not independent of—” any underlying contract or other agreement.  (Sheen, supra, 12 Cal.5th at p. 922.)  Instead, Plaintiff has alleged this cause of action against Audi based on Audi’s duty to Plaintiff to use ordinary care and skill in the storage, preparation, and repair of the subject vehicle in accordance with industry standards, which is independent of any underlying contractual obligations between Plaintiff and other parties.  (FAC ¶ 61; Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [“‘ “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’”].) 

The court therefore denies Audi’s motion for summary adjudication as to the fourth cause of action for negligent repair.

5.     Plaintiff’s Request for Leave to Amend Complaint

Plaintiff has requested, in his opposition, that the court grant “leave to file an amended Complaint that includes viable causes of action under the UCC,” but appears to have limited this request to apply only “[i]n the event that the Court finds in favor of [Volkswagen] and concludes that the Subject Vehicle constitutes a ‘used’ vehicle under the” Song-Beverly Act.  (Opp., p. 12:19-21.)  The court has concluded, as set forth above, that Volkswagen has not met its burden to show that the subject vehicle is not a new motor vehicle within the meaning of the Song-Beverly Act.  The court therefore finds that Plaintiff’s request for leave to amend, as framed in the opposition, is moot. 

6.     Plaintiff’s Request for a Continuance

Plaintiff has requested, in his opposition, that the court continue the hearing on Defendants’ motion for summary judgment or, alternatively, summary adjudication so that Plaintiff may obtain essential discovery.  Specifically, Plaintiff asserts that he needs to obtain further discovery regarding the following issues and facts: (1) the warranties; (2) safety recalls and recall policy and procedures; (3) whether the subject vehicle was purchased as a “dealer-owned” or “other vehicle” within the meaning of the Song-Beverly Act; and (4) the subject vehicle’s prior ownership history and its vehicle history report.  (Mahnke Decl., ¶¶ 14, 18.) 

“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, 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.”  (Code Civ. Proc., § 437c, subd. (h).)  Continuances pursuant to this provision are “virtually mandated upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.”  (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 100-101 [internal quotations omitted].)  “To make the requisite good faith showing, an opposing party’s declaration must show (1) the facts to be obtained are essential to opposing the motion, (2) there is reason to believe such facts may exist, and (3) the reasons why additional time is needed to obtain these facts.”  (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 643.)

The court has denied Defendants’ motion as to the first, second, and fourth causes of action for the reasons set forth above.  Thus, the court evaluates whether Plaintiff has shown that a continuance is justified so that Plaintiff may obtain discovery as to the third cause of action.  The court finds that Plaintiff has not met this burden.

The discovery described by Plaintiff, as set forth above, does not show that “facts essential to justify opposition” to the third cause of action for violation of section 1793.2, subdivision (b) exist but cannot be presented.  (Code Civ. Proc., § 437c, subd. (h); Chavez, supra, 238 Cal.App.4th at p. 643.)  Instead, the discovery goes to the issue of whether the subject vehicle constitutes a used vehicle or a new motor vehicle under the Song-Beverly Act.  (Mahnke Decl., ¶ 16 [discovery will be used to “entirety negate [Volkswagen’s] motion’s central contention[s]” that the subject vehicle is a used vehicle, and that Volkswagen did not provide any additional warranty coverages].)  This issue relates to the new motor vehicle elements of the first and second causes of action, to which the court has denied Volkswagen’s motion for summary adjudication.  Plaintiff has not described any discovery that he must obtain in order to oppose the motion as to the third cause of action.

Thus, the court (1) finds that Plaintiff has not met his burden to show that facts essential to justify the opposition to Volkswagen’s motion as to the third cause of action exist but cannot be presented, and (2) therefore denies Plaintiff’s request for a continuance.  (Code Civ. Proc., § 437c, subd. (h).)

ORDER

The court denies defendant Volkswagen Group of America, Inc., and Audi Beverly Hills’s motion for summary judgment.

The court denies defendant Volkswagen Group of America, Inc.’s motion for summary adjudication as to plaintiff Michael Jeremy Savetsky’s first and second causes of action.

The court grants defendant Volkswagen Group of America, Inc.’s motion for summary adjudication as to plaintiff Michael Jeremy Savetsky’s third cause of action for violation of Song-Beverly Act, Section 1793.2, subdivision (b).

The court denies defendant Audi Beverly Hills’s motion for summary adjudication as to the fourth cause of action for negligent repair.

The court orders defendant Volkswagen Group of America, Inc. to give notice of this ruling.

IT IS SO ORDERED.

DATED:  December 12, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court