Judge: Sandy N. Leal, Case: 2022-01252896, Date: 2023-08-03 Tentative Ruling

Motion for Summary Judgement and/or Adjudication

Defendant, Aston Martin Lagonda of North America, Inc.’s (Defendant) Motion for Summary Judgment, Or, In The Alternative, Summary Adjudication is DENIED.

A motion for summary judgment shall be granted where there is no triable issue of any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “A defendant moving for summary judgment meets his burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. [Citation.] If the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of fact exists as to that cause of action or defense… A triable issue of material fact exists ‘if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ [Citation.].” (Blue Shield of California Life & Health Ins. Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.)

Defendant moves for summary judgment, or, in the alternative, summary adjudication as follows:

(1)      Plaintiff’s cause of action for violation of Song-Beverly Act – Breach of Express Warranty is without merit because Plaintiff leased a used vehicle and AMLNA did not issue any express warranties at the time of sale;

(2)      Plaintiff’s cause of action for violation of Song-Beverly Act – Breach of Implied Warranty is without merit because Plaintiff leased a used vehicle, AMLNA did not lease the Vehicle and AMLNA did not issue any express warranties at the time of sale:

Compliance with Code of Civil Procedure § 437c(f)(1)

Code of Civil Procedure, section 437c(f)(1) provides that “[a] party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty.”

Here, the instant motion seeks summary adjudication on two causes of action for: (1) breach of express warranty and (2) breach of implied warranty. However, Plaintiff’s operative Complaint alleges one cause of action for “violation of the Song-Beverly Act.” Therefore, Plaintiff’s Notice of Motion is not in compliance with Code of Civil Procedure section 437c(f)(1) as the Court may not grant summary adjudication on causes of action not pled in the Complaint.

Based on the above, the Court will consider this motion as one for summary judgment only.

Merits

Defendant contends that summary judgment on Plaintiff’s Complaint is warranted because the Song-Beverly Act does not apply to the lease of a used vehicle with some balance of the manufacturer’s warranty. (Motion, 1:22-2:2.)

Pursuant to Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (Rodriguez), a vehicle sold with “a manufacturer’s new car warranty,” without more, is not a “new” vehicle within the meaning of the Song-Beverly Act. Rodriguez involved an appeal from a grant of summary judgment involving the Song-Beverly Act. (Id. at 214.) The vehicle at issue in Rodriguez was purchased from a used car dealership with the manufacturer’s basic warranty expired, but the limited powertrain warranty in effect, and with 55,000 miles on the odometer. (Id. at 215.) The court concluded that the phrase “other motor vehicle sold with a manufacturer’s new car warranty” in Civil Code section 1793.22 does not apply to sales of used vehicles sold with the remaining balance of the manufacturer’s express warranty. (Id.) In reaching this conclusion, the Rodriguez court stated: “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.” (Id. at 218.)

Defendant additionally argues that Civil Code section 1795.5 does not apply because Defendant did not issue a new express warranty under the manufacturer in Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334 (Kiluk). Kiluk involved the sale of a certified pre-owned vehicle that still had a portion of the new vehicle warranty remaining. (Id. at 336.) The vehicle was also accompanied by an additional used vehicle warranty issued by the manufacturer. (Id.) A defect manifested after the expiration of the new vehicle warranty but during the duration of the used vehicle warranty. (Id.) The Kiluk court concluded that the jury’s verdict holding the manufacturer liable for breach of express warranty was sound because here, the manufacturer stepped into the role of a “distributor” of used goods by issuing an express warranty on the sale of a used vehicle. (Id. at 337.) In reaching this conclusion, the court stated that even if the vehicle at issue was not a “new” vehicle, the manufacturer was still liable under Civil Code section 1795.5 because the manufacturer here sold directly to the public by partnering with a dealership to offer an express warranty. (Id. at 340.) The manufacturer thus took on the role of a retailer under Civil Code section 17991. (Id.)

In Opposition, Plaintiff argues that the Song-Beverly Act applies to the Vehicle despite the fact that it was leased used because it was a “demonstrator” and therefore falls within the definition of new vehicles in Civil Code section 1793.22. (Opposition, 4:8-20.) Plaintiff cites to Jensen v. BMW of North America, Inc. (1995) 35 Cal. App. 4th 112 (Jensen) for this argument.

In Jensen, plaintiff sued a manufacturer for violation of the Song-Beverly Act and Magnuson-Moss warranty Act, alleging that the low-mileage vehicle she leased was subject to the manufacturer’s new car a warranty and that it had failed to conform her vehicle to warranty. (Id. at 119.) the jury returned a verdict in favor of plaintiff and the manufacturer appealed primarily as to whether plaintiff’s vehicle constituted a new vehicle within the meaning of Civil Code section 1793.22. (Id.) The Jensen court concluded that plaintiff’s vehicle was correctly determined to be a new vehicle because “[t]he 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.” (Id. at 123.) Jensen also noted that this conclusion is supported by the Song-Beverly Act’s purpose as a “remedial measure.” (Id. at 126.) Finally, Jensen held that plaintiff had a claim against the manufacturer because the submitted evidence demonstrates that the manufacturer made representations to plaintiff that she was covered by an express warranty at the time she purchased the vehicle. (Id. at 127.)

Alternatively, Plaintiff’s Opposition contends that regardless of whether Jensen or Rodriguez is the most applicable interpretation of Civil Code section 1793.22, the Vehicle qualifies under either definition because Plaintiff has evidence that he was promised a full three-year warranty along with his lease. (Opposition, 9:22-10:5.)

Here, Plaintiff leased a Vehicle on 10-8-19 from Aston Martin Newport Beach, a non-party dealership. (Separate Statement in Support of Motion (DSS), No. 1; Declaration of Simon Andrew (Andrew Decl.), Exhibit 2.) According to Defendant, Defendant does not provide new warranties for vehicles like the Vehicle when it was leased used to Plaintiff. (DSS, No. 6, Andrew Declaration, ¶ 9.) The Vehicle was leased with 3,029 miles on the odometer. (see DSS No. 5.)

Defendant submits a declaration from Simon Andrew (Andrew), “Head of Aftersales” with Defendant in support of the motion. Andrews attests as follows regarding the lease: “Aston Martin Newport Beach is an independent third-party sales and service dealership. AMLNA does not and did not have any ownership of Aston Martin Newport Beach, and AMLNA has and had no right to control the operations of Aston Martin Newport Beach. [¶] In my position as a Head of Aftersales, I have access to AMLNA’s warranty database, which shows the initiation date and period of coverage for all express warranties applicable to the Vehicle. [¶]AMLNA was the original distributor of the Vehicle when it was sold new and put into service on May 31, 2019. The Vehicle came equipped with a 3 year/unlimited mile basic warranty and a 3 year/unlimited mile express powertrain warranty when it was sold new on May 31, 2019. The Vehicle also came with California and Federal Emissions Warranties. The Emissions Warranties are limited to components specified in the Warranty Manual. However, Plaintiff leased the Vehicle used with 3,029 miles on October 8, 2019. As a leasor of a used vehicle, Plaintiff received the remainder of the 3 year/unlimited mile basic warranty and remainder of the 3 year/unlimited mile powertrain warranty. Both warranties expired on May 30, 2022, 3 years after the Vehicle was sold new on May 32, 2019…[¶] AMNLA did not provide any new warranties for the Vehicle when it was leased used to Plaintiff on October 8, 2019. (Andrew Decl. (ROA 51), ¶¶ 6-9.)

Plaintiff submits evidence from a Carfax Report, various registration documents concerning the Vehicle and Andrew’s deposition to dispute the assertion that the Vehicle should be considered used. (Separate Statement in Support of Opposition (PSS), No. 1.)

First, Plaintiff submitted a copy of a Carfax Vehicle History Report concerning the Vehicle. (Declaration of David Alan Cooper (Cooper Decl.), Exhibit A.) This Report states on the first page:

“This is a new car. To help keep it well maintained, follow the manufacturer’s recommended maintenance schedule.”

Second, according to the Vehicle History Disclosure on the Vehicle, this document informed Plaintiff that “the vehicle you are purchasing/leasing was previously used as a “ “Dealer Rental Vehicle/Dealer Loaner Vehicle/Dealer Service Vehicle/Dealer Lease Vehicle.” The Vehicle History Disclosure form had a circle around “Dealer Lease Vehicle.”

Third, Defendant’s Person Most Knowledgeable (PMK) also testified that he believed the Vehicle was a “demonstrator” vehicle. (see Cooper Declaration, Exhibit B, p. 14.)

Fourth, Plaintiff also submits his own declaration for the argument that the Vehicle was not “used” because Plaintiff was promised a new warranty in connection with his lease of the Vehicle. Plaintiff attests: “Regarding the warranty status of the Vehicle, I discussed this with the person at the Dealership that I understood to be the sales manager, Tim Shelton. As I was first looking at the Vehicle, Mr. Shelton mentioned that the Vehicle was available at a discount because it was a dealer-owned vehicle with about 3,000 miles already on the odometer. Mr. Shelton referred to it as a “loaner.” Mr. Shelton knew that I was looking for a three-year lease, because we had already discussed monthly lease payments for a three-year lease on a different model of vehicle at his dealership. At one point during my negotiations with Mr. Shelton, because I signed the lease for the Vehicle, he mentioned that the Vehicle came with the three-year Aston Martin warranty and, therefore, it would be covered under warranty during the entire three-year lease…[¶] I also believed that the Vehicle would be registered to me as a “new” vehicle, since it had previously been a dealer-owned vehicle and had not been registered to anyone else before me. Further, the temporary license plate and the DMW registration-application which I signed at the Dealership both identified the Vehicle as “new.” (Plaintiff Decl., ¶¶ 2-3.)

As discussed above, Jensen presents a split in authority from Rodriguez because Jensen stands for the argument that any “demonstrator” or “other motor vehicle” “sold with a manufacturer’s new warranty” constitutes a “new” vehicle within the meaning of Civil Code section 1793.22. The Court exercises its discretion and chooses to follow Rodriguez in ruling on this motion. (see California Rules of Court, rule 8.1115(e)(1); Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.)

Based on the parties’ submitted evidence, the Court first finds that Defendant has met its burden as the moving party of demonstrating that there is a complete defense to Plaintiff’s claims because Defendant has shown that the Vehicle was not leased brand new, but with 3,209 miles on the odometer. (see Separate Statement in Support of Motion (DSS), No. 5.)

However, based on Plaintiff’s submitted evidence, the Court finds that Plaintiff has demonstrated the existence of a triable issue with regard to whether the Vehicle is a “new” vehicle within the meaning of the Song-Beverly Act. Specifically, the Court makes this finding based on the following discussion from Rodriguez, which reasoned:

“Indeed, nothing about the wording or structure of the provision indicates the Legislature intended to expand the definition of “new motor vehicle” to include used vehicles sold with some part of the manufacturer's warranty still in force. And the expansion would be a significant one, as there is no standard length for the express warranties that manufacturers issue. Some bumper-to-bumper warranties last for one year or 12,000 miles while others for five years and 60,000 miles, and some limited warranties last 10 years or more. Even a warranty like the one here—three years or 36,000 miles—could see several different owners before it expires. We think if the Legislature intended to expand the definition of “new motor vehicle” to include a potentially vast category of used cars it would have done so more clearly and explicitly than tucking it into a reference to demonstrators and dealer-owned vehicles.

As we read the phrase, its clear purpose is to function 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. For example, the phrase would cover a car used by the manufacturer or dealer for any purpose (say, a service loaner), so long as the car was sold as if it were new—that is, with a full new car warranty.”

(Rodriguez, supra, 77 Cal.App.5th at 221.) Based on the above, the Rodriguez court considered “a car used by the manufacturer or dealer for any purpose” which was sold “as if it were new” to be a “new” vehicle within the meaning of Civil Code section 1793.22. Here, because Plaintiff has submitted testimony from Defendant’s PMK that the Vehicle was a “demonstrator” (Cooper Decl., Exhibit B, pg. 14) and only at 3,209 miles at the time it was leased (Andrew Decl., ¶ 5), the Vehicle is therefore within the types of vehicles contemplated by Rodriguez to be sold or leased “as if it were new” and to which the Song-Beverly Act applies.

Therefore, Defendant’s Motion is denied.

Plaintiff is to give notice.