Tentative Ruling

HEARING DATE: February 14, 2024 

 

CASE NUMBER: 23TRCV00918

CASE NAME: Vivianne Jean Coe v. Subaru of America, Inc., et al.

MOVING PARTY: Defendant, Subaru Pacific  

RESPONDING PARTY: Plaintiff, Vivianne Jean Coe 

TRIAL DATE: Not Set. 

 

MOTION: (1) Motion for Summary Judgment, or in the alternative, Summary Adjudication  

 

Tentative Rulings: (1)  Motion for Summary Judgment is DENIED. 

 

  

I. BACKGROUND 

On January 11, 2024, this Court received SOA and Subaru Pacific’s reply brief. On January 12, 2024, this Court received SOA and Subaru Pacific’s notice of errata regarding exhibits B, C ,and D to the supplemental declaration of James Hartzberg in support of Defendants’ reply brief. 

II. EVIDENTIARY OBJECTIONS  

 

In opposition, Plaintiff filed evidentiary objections as to Defendants evidence. The Court overrules both objections.  

 

 

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.) CCP Section 437(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.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

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. (CCP § 437c(p)(2); 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.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.

 

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.)¿ 

 

 

It is undisputed that Plaintiff purchased the subject vehicle used from an SOA authorized retailer of SOA, Subaru Pacific. However, Defendants SOA and Subaru Pacific move for summary judgment as to Plaintiff’s express warranty claims on the basis that the purchase of a used vehicle with balance remaining on the manufacturer’s express warranty is purportedly not covered by the Song-Beverly Act.  

 

Under the Song-Beverly Act, “[i]f 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 ... or promptly make restitution to the buyer....” (Civ. Code § 1793.2, subd. (d).)¿¿ 

 

Section 1793.22, subdivision (e)(2) provides, in relevant part, “ ‘New motor vehicle’ means a new motor vehicle that is bought or used primarily for personal, family, or household purposes. . . . ‘New motor vehicle’ includes … a dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer's new car warranty.”¿¿¿ 

 

In their moving papers, Defendants rely on Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209. The issue in Rodriguez was “whether a used car purchased from a retail seller unaffiliated with the manufacturer qualifies as a ‘new motor vehicle’ simply because there is some balance remaining on the manufacturer's warranty.” (Rodriguez, supra, 77 Cal.App.5th at 223.) The plaintiffs had argued that the phrase “other motor vehicle sold with a manufacturer's new car warranty” in section 1793.22(e)(2) applied to their vehicle, which was purchased used with balance remaining on an express warranty from the manufacturer. (Id. at 219.) The Court of Appeal disagreed, and 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.”¿In Defendants’ analysis of Rodriguez, they omit reference to the portion of the Rodriguez court’s analysis that the vehicle was purchased from a retail seller who was unaffiliated with the manufacturer. Here, this is not the case, and thus Rodriguez is factually distinguishable from the case at bar.   

 

In opposition, Plaintiff relies on Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, where the Court held that “cars sold with a balance remaining on the manufacturer's new motor vehicle warranty are included within its definition of ‘new motor vehicle.’ ” (Id. at 123.) The Rodriguez court purported to distinguish Jensen on the basis that “Jensen involved a lease by a manufacturer-affiliated dealer who issued a full new car warranty along with the lease.” (Rodriguez, 77 Cal.App.5th at 223.)¿ Jensen has been a published decision for nearly 3 decades, during a time when the Legislature has amended the statute several times in response to published opinions with which the Legislature disagrees.   

 

The Supreme Court granted a petition for review of Rodriguez on July 13, 2022, and denied requests for depublication of the opinion. “Pending review, the opinion of the Court of Appeal [in Rodriguez] . . . may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456 . . ., to choose between sides of any such conflict.” (Rodriguez v. FCA US (Cal. 2022) 512 P.3d 654; see Rules of Court, rule 8.1115, subd. (e).)

 

In Defendants’ moving papers, they argue that Jensen affirmed that a used vehicle does not qualify for the protections of Song-Beverly. Defendants assert the like Rodriguez, Jensen affirms the express terms of Song-Beverly Act, a “demonstrator” vehicle that was sold with an additional warranty (rather than the balance of a warranty) qualifies as a “new vehicle” under Song-Beverly. However, the Court does not agree with Defendants’ narrow reading of Jensen. The Court in Jensen held that cars sold with a balance remaining on the new motor vehicle warranty falls within the scope of the Song-Beverly Act. (35 Cal.App.4th at p. 123 [“We conclude the words of section 1793.22 are reasonably free from ambiguity and cars sold with a balance remaining on the manufacturer's new motor vehicle warranty are included within its definition of ‘new motor vehicle.’ The use of the word ‘or’ in the statute indicates ‘demonstrator’ and ‘other motor vehicle’ are intended as alternative or separate categories of ‘new motor vehicle’ if they are ‘sold with a manufacturer's new car warranty.‘”) Here, Defendants have presented no evidence that Plaintiff did not buy the subject vehicle with a remaining balance on its original new motor vehicle warranty. In fact, Defendants concede this point. (MSJ, p. 1-3.) 

 

Based on this, the Court finds that Defendant has not met its moving burden as to Plaintiff’s first cause of action for breach of express warranty under the Song-Beverly Act. While the Supreme Court of California has stated that Rodriguez may be relied upon for its persuasive value or in establishing the existence of a conflict in authority that would allow trial courts to choose between sides of a dispute, it is not binding precedent, and it is factually distinguishable. (Rodriguez v. FCA US (2022) 512 P.3d 654). Additionally, this Court is obligated to construe the facts in the light most favorable to the non-moving party on a motion for summary judgment or summary adjudication, (D’Amico v. Bd. of Medical Examiners (1974) 11 Cal.3d 1, 21). This Court finds the reasoning in Jensen more persuasive, particularly in light of the over quarter century of experience where manufacturers conformed their behavior and decision making in response to the holding in that case. Accordingly, the Court declines to rely on Rodriguez.¿Motion for Summary Judgment as to the First Cause of Action for Breach of Express Warranty is DENIED.  

 

Breach of Implied Warranty 

 

Next, Defendants move for summary judgment on Plaintiff’s second cause of action for Breach of Implied Warranty because they argue that Plaintiff bought a used vehicle, and defendants did not issue any express warranties at the time of sale. Civil Code section 1795.5(a) provides that, “Notwithstanding the provisions of subdivision (a) of Section 1791 defining consumer goods to mean “new” goods, the obligation of a distributor or retail seller of used consumer goods in a sale in which an express warranty is given shall be the same as that imposed on manufacturers under this chapter except: (a) It shall be the obligation of the distributor or retail seller making express warranties with respect to used consumer goods (and not the original manufacturer, distributor, or retail seller making express warranties with respect to such goods when new) to maintain sufficient service and repair facilities within this state to carry out the terms of such express warranties.” (Civ. Code § 1795.5(a) [emphasis added].) 

 

“It is evident from these provisions that only distributors or sellers of used goods—not manufacturers of new goods—have implied warranty obligations in the sale of used goods. (See § 1795.5.) As one court has put it, the Song-Beverly Act provides similar remedies (to those available when a manufacturer sells new consumer goods) ‘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  (Kiluk), citing § 1795.5; see Kiluk, at p. 337 [Song-Beverly Act ‘generally binds only distributors and retail sellers in the sale of used goods’].)” (Nunez v. FCA US LLC (2d Dist. 2021) 61 Cal. App. 5th 385, 399.)¿ 

 

Here, the parties do not dispute that the subject vehicle was a used vehicle sold by Subaru Pacific, and not SOA directly. Here, Defendants also argue that SOA did not step into the shoes of the retailer, like in Kiluk because it did not offer any new warranties with Plaintiff’s purchase of the vehicle. However, although not argued in Plaintiff’s opposition, Plaintiff’s separate statement as to the facts hinging on this cause of action, Plaintiff cites to the Exhibit B to the declaration of James Hartzberg noting that the certified pre-owned service agreement states that the vehicle was sold with a limited warranty from Subaru of America which started on September 18, 2021, the date of the sale to Plaintiff. In examination of Exhibit B, the document states “Subaru Limited Warranty Start Date 09/18/2021 subject to verification by Subaru of America, Inc.” The Court also notes that the errata motion with exhibits further supports Plaintiff’s opposition argument that triable issues of fact exist as to whether SOA stepped into the role of a retailer. Namely, Exhibit D is SOA’s Warranty and Maintenance Booklet notes that the booklet is an important document and should be carried in a consumer’s vehicle at all times and made available to an authorized Subaru retailer if warranty services are needed.  

The Court finds that Plaintiff has established the existence of a triable issue of material fact here. As noted above, the Court construes the evidence on a motion for summary judgment or summary adjudication in the light most favorable to the non-moving party. (D'Amico, supra, 11 Cal.3d at p. 21.) Plaintiff has presented evidence indicating the possible existence of a principal/agent relationship between SOA and Subaru Pacific at the time of the used vehicle sale of the subject vehicle to Plaintiff. While the Court finds this evidence to be tenuous, the Court does not weigh the evidence, but only looks to whether it creates a triable issue of material fact. (Blue Mountain Enterprises, LLC v. Owen (2022) 74 Cal.App.5th 537, 549). Moreover, the existence of a principal/agent relationship is generally a question of fact for the jury, and the resolution of issues regarding principal/agent relationships is disfavored on summary judgment. If Subaru Pacific was in fact acting as an agent of SOA at the time of the sale of the subject vehicle, then the argument could be made that Defendant made an express warranty to Plaintiff. 

IV. CONCLUSION

For the foregoing reasons, this Court’s tentative ruling is to DENY Defendants’ Motion for Summary Judgment and to deny the alternative motion for summary adjuciation.  

 

Plaintiff is ordered to give notice.