Judge Robert S. Draper, Case 19STCV14766 2022-08-23 Tentative Ruling

This is an action brought under the Song-Beverly Consumer Warranty Act (the “SBA”). The Complaint alleges as follows.

Plaintiffs Juan Perez (“Perez”) and Juan Pablo Perez (“Pablo Perez” and together with Perez, “Plaintiffs”) purchased a used 2015 Ford Mustang (“Subject Vehicle”) manufactured by Defendant Ford Motor Company (“Ford”). (Compl. ¶ 9.) The vehicle began demonstrating numerous defects covered by the express warranty that accompanied the vehicle. (Compl. ¶ 10.) Plaintiffs repeatedly brought the Subject Vehicle into an authorized Ford repair facility, but the facility was unable to remedy the defects. (Compl. ¶ 24.)

On April 29, 2019, Plaintiffs filed the Complaint asserting four causes of action:

On April 20, 2021, Plaintiffs filed an Ex Parte Application for an Order Continuing the Hearing on the Motion for Summary Judgment. That Order was granted.

On September 1, 2021, Plaintiffs filed another Ex Parte Application for an Order Continuing the Hearing on the Motion for Summary Judgment. That Order was granted.

On December 30, 2021, Plaintiffs filed an Opposition to the Motion for Summary Judgment.

On January 24, 2022, the Court continued the Hearing on the Motion for Summary Judgment pursuant to Plaintiffs’ request.

On July 12, 2022, Ford filed an Ex Parte Application to Specially Set the Hearing on Defendants’ Motion for Summary Judgment. That Order was granted.

Ford Motor Company[1] Moves for Summary Adjudication of the First Cause of Action for Breach of Express Warranty, Second Cause of Action for Breach of Implied Warranty, and Third Cause of Action for Violation of the SBA Section 1793.2.

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Neither a moving nor responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

The “Golden Rule” on a motion for summary judgment or summary adjudication is that “if [a fact] is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.).

Ford brings this Motion against all causes brought under the SBA on three grounds: First, that Plaintiff Pablo Perez does not have standing to bring the instant claims as he is not a “buyer” under the SBA; Second, that the SBA does not allow for warranty claims against the original manufacturer of used goods; Third, that Ford made a prompt offer to repurchase the vehicle in full compliance with the SBA.

First, Ford argues that Plaintiff Pablo Perez lacks standing to bring the claim, as he is not a buyer under the Song-Beverly Act. The SBA provides that “[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.” (Cal. Civil Code §1794(a).)

Ford contends that, as only Perez is listed on the sales contract, and Pablo Perez is not listed at any point, Pablo Perez does not qualify as a buyer under the SBA. (UMF 2.)

Ford primarily relies on Boyd v. Jaguar Land Rover North America, LLC Case No. 11CV1580JLS (WMc), 2012 WL 1268253 (S.D. Cal. Sept. 20, 2012) to support this contention. In Boyd, plaintiff was a recent divorcee who had acquired title to the Subject Vehicle pursuant to her divorce agreement. The listed buyers on the Subject Vehicle’s purchase contract were her former husband, and her former husband’s company. The Boyd Court found that plaintiff could not state a claim under SBA as “although the Song-Beverly Act eliminated the requirement of privity between the buyer and the manufacturer or distributer [sic] …the Act does not extend to nonbuyer users of consumer goods.” (Id. at *3.)

Ford’s argument is unavailing for two reasons. First, because Boyd is a federal, trial court decision, and therefore not binding on this Court. Second, and more importantly, because the facts in the instant case are distinguishable from those in Boyd.

In Boyd, plaintiff obtained ownership of the subject vehicle through a divorce proceeding, and therefore defendant manufacturer would have no indication that she had any claim to the vehicle’s title. Here, on the other hand, Pablo Perez made every monthly payment on the Subject Vehicle following its purchase. (PUMF 3.) Accordingly, there is a level of privity between Pablo Perez and Ford, as Pablo Perez paid off the bulk of the vehicle himself. There is no such showing in Boyd.

This distinction also helps to mitigate the policy concerns Ford argues support their narrow definition of buyer. Ford argues that “a manufacturer could not possibly comply with the Act if the ‘buyer’ was someone other than the original ‘buyer’ of the vehicle.” (Motion at p. 11.) While this is a legitimate concern, it is mitigated by the fact that the buyer, in this instance, paid a substantial portion of the vehicle’s cost. Accordingly, Ford’s responsibility to repurchase a defective vehicle would not extend to any user of said vehicle, but only to users who have demonstrably paid for the vehicle in question.

Accordingly, Plaintiffs have presented a triable issue of material fact as to whether Pablo Perez has standing under the SBA.

Next, Ford argues that the SBA does not extend warranties for used vehicles to the original manufacturer.

The SBA provides that “[e]very sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer’s and the retail seller’s implied warranty that the goods are merchantable.” (Cal. Civ. Code § 1792.) “Consumer goods” are defined as encompassing “new” products. (Cal Civ. Code § 1791(a).) New motor vehicles are defined as including vehicles sold with a manufacturer’s new car warranty. (Cal. Civ. Code § 1793.22(e)(2).) As the Subject Vehicle is listed as “used” on the sale contract (UMF 1), Ford argues that Ford is not liable as the manufacturer under the SBA.

The most relevant case on this matter is the case cited in Ford’s Notice of Recent Authority, Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5^th 209. In Rodriguez, plaintiff purchased a two-year-old vehicle from a third-party retailer. The subject vehicle had over 55,000 miles on its odometer, and though the manufacturer’s basic warranty had expired, the limited powertrain warranty had not. (Id. at 214.)

The Rodriguez Court determined that a previously owned vehicle with some balance remaining on the manufacturer’s express warranty does not qualify as new under the SBA. (Ibid.) However, the Court explicitly noted that the phrase “’other motor vehicle sold with a manufacturer’s new car warranty’ . . . functions [] as a catchall for sales of essentially new vehicles where the applicable warranty was issued with the sale.” (Ibid; emphasis original.)

The Rodriguez Court directly distinguished the plaintiff there from the plaintiff in Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4^th 1212.) In Jensen, the Court found that a used car with 7,565 miles sold by a manufacturer affiliated dealership qualified as a new vehicle under the SBA as the salesperson “issued a new car warranty with the lease.” (Rodriguez at 224.) The Rodriguez Court, in supporting that decision, stated that “those facts included a car leased with a full manufacturer’s warranty issued by the manufacturer’s representative. . .” (Ibid.; emphasis original.)

Here, the facts demonstrate that the full manufacturer’s warranty was issued with Perez’s purchase of the Subject Vehicle.[2] (PUMF 1.) Additionally, the car was sold with 1,063 miles on the odometer, well below that of the subject vehicle in Jensen. (Alcaron Decl., Ex. 2.)

Accordingly, there is a triable issue of material fact regarding whether the Subject Vehicle was a new vehicle under the SBA.

Finally, Ford argues that Plaintiffs’ Complaint must fail, as Ford made an SBA compliant offer that Plaintiff rejected through inaction prior to the commencement of litigation.

The SBA requires that if a manufacturer is unable to conform the subject vehicle to the applicable express warranties after a reasonable number of repair attempts, “the manufacturer shall either promptly replace the new motor vehicle. . . or promptly make restitution to the buyer . . .” (Cal. Civ. Code § 1793.2 (d)(2).)

Ford argues that it fulfilled its obligation under section 1793.2 by issuing Plaintiffs a Conditional Offer Letter (the “Conditional Offer”) on August 13, 2018. (UMF 6.) The Conditional Offer states that it “provides written confirmation of Ford’s offer” to either replace or refund the Subject Vehicle. (Ibid.) The Conditional Offer directs Plaintiffs to indicate whether they accept the offer, and whether they would prefer replacement or reimbursement, by returning the letter with their selections marked. (Ibid.) Finally, the Conditional Offer notes that Plaintiffs “will have the opportunity to review the financial terms of Ford’s repurchase or replacement settlement offer prior to [their] final acceptance of such offer.” (Ibid.)

Ford contends that this Conditional Offer satisfies its obligation under the SBA, and that by failing to respond to the letter, Plaintiffs rejected said offer.

In Opposition, Plaintiffs make several arguments regarding the promptness of the offer, and several arguments regarding supposed deficiencies in the offer. While the Court does not adopt these arguments, it is concerned with Ford’s behavior between the issuance of the Conditional Offer and the initiation of this litigation.

Plaintiffs present evidence that Pablo Perez attempted to contact Ford four times regarding the content of the Conditional Offer without any helpful response. First, Pablo Perez claims that he called Ford shortly after receiving the letter to inquire about the contents of the offer. (PUMF 18.) Pablo Perez alleges that Ford did not offer him any guidance other than directing him to sign the letter. (Ibid.) Next, Pablo Perez alleges that he tried calling Ford again, was put on hold for 60 to 90 minutes, and then was hung up on. (Ibid.) Next, Pablo Perez alleges that he returned to the dealership where he purchased the Subject Vehicle to inquire about the Conditional Offer but was instead pushed to purchase a new vehicle. (PUMF 19.) Finally, Pablo Perez alleges that on November 23, 2018, he again called Ford to indicate that he still wanted his vehicle to be repurchased. (PUMF 20.) Finally, after not obtaining a response, Plaintiff filed the instant Complaint on April 29, 2019. (PUMF 10.)

While the Court finds that Ford successfully initiated the repurchase process with its Conditional Offer, and that Defendant’s arguments regarding deficiencies in the offer are meritless, Plaintiffs have provided evidence of a series of obstacles that Ford placed in Plaintiffs way when Plaintiffs attempted to proceed with that offer.

Where there is evidence of internal policies erecting hidden obstacles to the ability of an unwary customer to obtain redress under the Act, a jury may find that the manufacturer resists consumers’ efforts to obtain repurchase or replacement of the vehicle. (See Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4^th 1094, 1105.)

Therefore, the Court finds there is a triable issue of material fact as to whether Ford, by repeatedly ignoring Plaintiffs’ requests for further information regarding the repurchase, failed to satisfy its obligations under the SBA.

[1] The Reply states that the Motion for Summary Judgment is brought by both Defendant Ford Motor Company and Defendant McCoy Mills Ford. However, as the Notice of Motion only lists Ford, the Court will consider the Motion as being brought exclusively by Ford.

[2] This issue was not thoroughly briefed, likely because the motions were filed prior to Rodriguez. Should Ford have evidence demonstrating that a new manufacturer’s warranty was not issued to Plaintiffs at the time of purchase, the Court will consider the matter at hearing.

Superior Court of California

County of Los Angeles

Department 78