Judge: Teresa A. Beaudet, Case: 21STCV16602, Date: 2023-03-28 Tentative Ruling

Case Number: 21STCV16602    Hearing Date: March 28, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

            Background

Plaintiffs Adrian Chitica Cantero (“Cantero”) and Patricia Diaz (jointly, “Plaintiffs”) filed this action on May 3, 2021 against Defendant Toyota Motor Sales U.S.A., Inc. (“Defendant”). The Complaint alleges causes of action for (1) violation of Song-Beverly Act – breach of implied warranty, and (2) violation of Song Beverly Act section 1793.2.

Defendant now moves for summary judgment, or in the alternative, summary adjudication. Plaintiffs oppose.

Evidentiary Objections

The Court rules on Plaintiffs’ evidentiary objections as follows:

Objection No. 1: overruled

Objection No. 2: sustained

Legal Standard

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “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, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc.,       § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.)  

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) 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.) 

When a defendant seeks summary judgment or summary adjudication, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) “If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence, and the motion must be denied.” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 121.)   

            Discussion

A.    First Cause of Action for Violation of the Song-Beverly Act – Breach of Implied Warranty

Defendant asserts that it is entitled to summary adjudication of Plaintiffs’ first cause of action because Plaintiffs cannot establish that the Subject Vehicle was unfit for ordinary use.

In the Complaint, Plaintiffs allege that on March 10, 2019, they entered into a warranty contract with Defendant regarding a 2019 Toyota Corolla (“the Subject Vehicle”). (Compl., ¶ 7.) Plaintiffs allege that “[t]he Subject Vehicle was not fit for the ordinary purpose for which such goods are used because it was equipped with faulty and defective fuel pumps and airbags.” (Compl., ¶ 16.)

“As defined in the [Song-Beverly Consumer Warranty Act], an implied warranty of merchantability guarantees that consumer goods meet each of the following:…(1) Pass without objection in the trade under the contract description…(2) Are fit for the ordinary purposes for which such goods are used…(3) Are adequately contained, packaged, and labeled….(4) Conform to the promises or affirmations of fact made on the container or label. Unlike express warranties, which are basically contractual in nature, the implied warranty of merchantability arises by operation of law…[I]t provides for a minimum level of quality. Thus, a breach of the implied warranty of merchantability means the product did not possess even the most basic degree of fitness for ordinary use.” (Mocek v. Alfa Leisure, Inc. (2003) 114 Cal.App.4th 402, 406 [internal quotations and citations omitted].)

Defendant asserts that here, there is no evidence that a defect manifested in Plaintiffs’ Subject Vehicle, and that Plaintiffs thus cannot prove that the Subject Vehicle “did not possess even the most basic degree of fitness for ordinary use.”

It is undisputed that the Subject Vehicle was leased by Cantero on March 10, 2019 from West Coast Toyota. (Defendant’s Undisputed Material Fact (“UMF”) No. 1; Murphy Decl., ¶ 2, Ex. A.)

It is also undisputed that on January 13, 2020, the Subject Vehicle was included as part of Defendant’s recall campaign 20TA02, regarding the low-pressure fuel pump. (UMF No. 4; Bergner Decl., ¶ 5.) “The 20TA02 interim notice explained that the involved vehicles, including certain 2019 model year Corollas, ‘are equipped with a low-pressure fuel pump which may stop operating. If this were to occur, warning lights and messages may be displayed on the instrument panel, and the engine may run rough. This may result in a vehicle stall, and the vehicle may be unable to be restarted.’ The 20TA02 interim notice stated that consumers would be notified when a remedy was available, and consumers could continue to drive their cars but were advised that if they experienced any of the issues listed in the notice, they should go to a dealership.” (Bergner Decl., ¶ 5.) “On January 15, 2020, with 9,354 miles on the odometer, the subject vehicle was presented to West Coast Toyota to have the 20TA02 recall performed. The vehicle was left at the dealership as no remedy was available, even though the interim notice did not instruct the consumers not to drive the vehicle.” (Bergner Decl., ¶ 8.)

In addition, it is undisputed that on January 21, 2020, after the Subject Vehicle had already been left at West Coast Toyota, the Subject Vehicle was included as part of Defendant’s recall campaign 20TA03, regarding the electronic control unit (“ECU”).  (UMF No. 10; Bergner Decl., ¶ 9.) It is undisputed that the 20TA03 interim notice explained that the involved vehicles, including certain 2019 model year Corollas, “may be equipped with an electronic control unit (ECU) from a specific supplier that is designed to receive signals from crash sensors and deploy the airbags and seat belt pretensioners. The ECU may not have adequate protection against certain electrical noise that can occur in certain crashes, such as severe underride crashes. This can lead to incomplete or nondeployment of the airbags and/or seat belt pretensioners.” (UMF No. 12; Bergner Decl., ¶ 6.)  

It is undisputed that Plaintiffs never reported any issues with the Subject Vehicle beyond the fact that it was subject to the fuel pump recall and have no recollection of experiencing any issues with hesitation on acceleration, stalling, or seatbelts. (UMF No. 13.) In addition, Defendant provides the Declaration of Erik Bergner in support of the motion, who is employed as a Field Technical Specialist by Toyota Motor North America. (Bergner Decl., ¶ 2.) Mr. Bergner states that he “personally inspected the subject vehicle on February 22, 2022.” (Bergner Decl., ¶ 4.) Mr. Bergner states that “[t]he vehicle repair history and diagnostic trouble code history (from the vehicle’s on-board computers) do not show any evidence of a manifestation of a defect related to the 20TA02 and 20TA03 recall conditions.” (Bergner Decl., ¶ 13.)

Defendant asserts that “[t]he mere fact the vehicle was subject to a recall, and the recall notice preceded the release of a remedy, docs not render Plaintiffs’ vehicle unmerchantable or unfit for ordinary purposes.” (Mot. at p. 10:5-7.)

Defendant cites to American Suzuki Motor Corp. v. Superior Court (1995) 37 Cal.App.4th 1291, 1293, where the Court of Appeal considered the following: “Where class-action plaintiffs allege they have suffered no personal injury or property damage from a vehicle they claim is defectively designed, and it is impliedly conceded that their vehicles have--since the date of purchase--remained fit for their ordinary purpose, can plaintiffs state a cause of action in breach of implied warranty?” The Court of Appeal “conclude[d] they cannot, and that the superior court erred in certifying for class treatment plaintiffs’ implied warranty claims, and in thereafter refusing to decertify the class.”

In American Suzuki, “[r]eal parties, Deirdre Carney and John Robinson, filed a class action lawsuit on behalf of themselves and others similarly situated, i.e., all persons who purchased a [1986-1994 model year] Suzuki Samurai motor vehicle in California on or after September 5, 1985.” (American Suzuki Motor Corp. v. Superior Court, supra, 37 Cal.App.4th at p. 1293 [internal quotations omitted].) “In their complaint, real parties attempted…to plead causes of action against Suzuki for,” inter alia, “breach of the…implied warranty provisions of the Song-Beverly Consumer Warranty Act (Song-Beverly Act) set forth in Civil Code section 1790 et seq.” (Ibid.)

The American Suzuki Court found that:

“Here, the evidence presented demonstrated that only a small percentage of the Samurais sold during the class period have been involved in rollover accidents, and real parties have impliedly conceded that nearly all of them have not. Because the vast majority of the Samurais sold to the putative class did what they were supposed to do for as long as they were supposed to do it, we conclude that these vehicles remained fit for their ordinary purpose. This being so, their owners are not entitled to assert a breach of implied warranty action against Suzuki, and it was, therefore, error to conclude, as did the trial court, that an ascertainable class existed, and that plaintiffs’ implied warranty claims should be certified for class treatment. To hold otherwise would, in effect, contemplate indemnity for a potential injury that never, in fact, materialized. And, compensation would have to be paid for a product defect that was never made manifest, in a product that for the life of any warranty actually performed as Suzuki guaranteed it would.
(American Suzuki Motor Corp. v. Superior Court, supra, 37 Cal.App.4th at pp. 1298-1299 [internal quotations and citations omitted].)  

Defendant also cites to Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1238, where the Court of Appeal concluded, inter alia, that “[a]s to the alleged breach of the implied warranty of merchantability…Gutierrez failed to adequately allege facts showing the existence of the safety recall relating to the vehicle’s stop lamp switch rendered the vehicle unfit for ordinary purposes. Gutierrez did not allege the switch in her vehicle was actually defective and did not allege her use of the vehicle was restricted or impaired due to the recall.” The Gutierrez Court found that “the allegation of the existence of a safety recall relating to a stop lamp switch, by itself, is insufficient to state facts showing that the vehicle was unfit for ordinary purposes. In other words, the existence of the safety recall does not adequately allege a substantial safety hazard existed.” (Id. at p. 1248 [internal citations omitted].)[1]

In the opposition, Plaintiffs counter that Defendant “ignores that the implied warranty can be breached both when the vehicle is not fit for the ordinary purposes for which it was used and when it is not of the same quality as those generally acceptable in the automotive industry.” (Opp’n at p. 1:5-8.) Plaintiffs cite to Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 24, where the Court of Appeal noted that “[i]n California, an implied warranty of merchantability arises under the Song-Beverly Consumer Warranty Act: ‘Unless disclaimed in the manner prescribed by this chapter, every 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.’ (Civ. Code, § 1792.) The…‘[i]mplied warranty of merchantability’ or ‘implied warranty that goods are merchantable’ means that the consumer goods meet each of the following: [¶] (1) Pass without objection in the trade under the contract description. [¶] (2) Are fit for the ordinary purposes for which such goods are used. …’ (Civ. Code, § 1791.1, subd. (a).)”  Plaintiffs assert that Defendant does not address both of the foregoing elements, such that Defendant fails to meet its initial burden on summary judgment. Defendant does not address this point in the reply.

Plaintiffs assert that a reasonable trier of fact could conclude that the Subject Vehicle was not the same quality as those generally acceptable in the trade. As set forth above, it is undisputed that the Subject Vehicle was included as part of two recall campaigns, one regarding the low-pressure fuel pump (recall campaign 20TA02) and the other regarding the electronic control unit (recall campaign 20TA03). (Bergner Decl., ¶¶ 5-6.) In addition, Plaintiffs provide evidence that recalls 20TA02 and 20TA03 involved a “stop sale,” which means that “any vehicle that is in the dealership inventory as a new vehicle, the dealers are not to sell that until the remedy is performed.” (Plaintiffs’ Additional Material Fact (“AMF”) Nos. 1-2; Lopez Decl., ¶ 3, Ex. A (Bergner Depo.) at pp. 51:7-12.) Plaintiffs also indicate that as part of the packet for Safety Recall 20TA02, Defendant provided a “Toyota Customer Vehicle Offsite Storage Form,” which provides, inter alia, “I am aware that Toyota has decided that a defect which relates to motor vehicle safety exists in the Subject Vehicle.” (AMF Nos. 3-4.)

Defendant’s motion does not address whether the Subject Vehicle passes “without objection in the trade under the contract description.” (Civ. Code, § 1791.1, subd. (a)(1); see also Isip v. Mercedes-Benz USA, LLC, supra, 155 Cal.App.4th at p. 24, “[t]he [i]mplied warranty of merchantability or implied warranty that goods are merchantable means that the consumer goods meet each of the following:…(1) Pass without objection in the trade under the contract description…(2) Are fit for the ordinary purposes for which such goods are used…” [internal quotations omitted].)

Based on the foregoing, the Court finds that Defendant has failed to meet its initial burden of demonstrating that Plaintiffs’ first cause of action for “Violation of Song Beverly Act – Breach of Implied Warranty” is without merit. 

B.    Second Cause of Action for Violation of the Song-Beverly Act section 1793.2

Civil Code section 1793.2, subdivision (b) provides that “[w]here those service and repair facilities are maintained in this state and 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 or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days. Delay caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.”

In the Complaint, Plaintiffs allege that “[o]n at least one occasion, Plaintiffs delivered the Subject Vehicle to TOYOTA’s authorized repair facility, WEST COAST TOYOTA OF LONG BEACH, at which point WEST COAST TOYOTA OF LONG BEACH was not able to conform the Subject Vehicle to the terms of the express warranty within thirty (30) days.” (Compl., ¶ 31.) Plaintiffs further allege that “[a]ny delay in returning the vehicle within thirty days of delivery was caused by TOYOTA.” (Compl., ¶ 32.)

Defendant first asserts that “Plaintiffs’ Section 1793.2(b) claim fails because there is no evidence to establish the existence of a defect in the subject vehicle...” (Mot. at p. 10:23-24.) Defendant asserts that “Plaintiffs cannot rely on the recall notice to establish the existence of a defect or nonconformity,” and that “[a] recall notice is not an admission that a particular vehicle has a defect or nonconformity covered by the express warranty.” (Mot. at p. 11:5-7.) However, Defendant fails to cite to binding legal authority in support of this assertion. (See Mot. at p. 11:7-10, fn. 1; p. 12:2-4.)

Defendant also asserts that the second cause of action fails because “the 30-day

requirement was extended due to conditions beyond [Defendant’s] control,” specifically, conditions pertaining to the “availability of recall remedy parts…” (Mot. at pp. 10:24-25, 13:8.) As set forth above, Defendant provides evidence that “[o]n January 15, 2020, with 9,354 miles on the odometer, the subject vehicle was presented to West Coast Toyota to have the 20TA02 recall performed. The vehicle was left at the dealership as no remedy was available, even though the interim notice did not instruct the consumers not to drive the vehicle.” (Bergner Decl., ¶ 8.) In addition, “[o]n January 21, 2020, after the vehicle had already been left at West Coast Toyota, the subject vehicle was included as part of [Defendant’s] recall campaign 20TA03, regarding the electronic control unit (ECU).” (Bergner Decl., ¶ 9.) On June 26, 2020, West Coast Toyota performed the 20TA03 recall remedy, and on June 30, 2020, West Coast Toyota performed the 20TA02 recall remedy. (Bergner Decls., ¶¶ 10-11.)

Defendant also provides evidence that “[w]hen the 20TA02 and 20TA03 recalls were launched, remedy parts were not immediately available. The timing of available remedy parts was dependent on the production ability of third-party suppliers to manufacture a sufficient supply of remedy parts due to the large volume of components needed.” (Kistner Decl., ¶ 4.) “Approximately three million new low-pressure fuel pumps were needed for the 20TA02 recall. Given the large volume of fuel pumps needed, the supplier in Japan had to build new manufacturing lines and buy new equipment and tooling, which was made more challenging due to Covid-19-related supply chain disruptions.” (Kistner Decl., ¶ 5(c).) “The recall remedy reached the stock threshold and became available for certain 2019 Corolla vehicles on June 25, 2020.” (Kistner Decl., ¶ 5(e).)

With respect to the 20TA03 recall, “Toyota relied upon a supplier in Japan to produce the remedy parts for the recall,” and “[t]he recall remedy reached the stock threshold and became available for certain 2019 Corolla vehicles on March 12, 2020.” (Kistner Decl., ¶¶ 6(a), (d).)

Plaintiffs counter that “[a]lthough Toyota argues that conditions beyond its control caused the delay, Section 1793.2 still requires that ‘conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.’” (Opp’n at p. 9:10-13.) As set forth above, Civil Code section 1793.2, subdivision (b) provides, inter alia, that “[d]elay caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.”

As set forth above, “[o]n January 21, 2020, after the vehicle had already been left at West Coast Toyota, the subject vehicle was included as part of [Defendant’s] recall campaign 20TA03.” (Bergner Decl., ¶ 9.) Defendant provides evidence that with respect to the 20TA03 recall, “[t]he recall remedy reached the stock threshold and became available for certain 2019 Corolla vehicles on March 12, 2020.” (Kistner Decl., ¶ 6(d).) Defendant also indicates that “[o]n June 26, 2020, West Coast Toyota performed the 20TA03 recall remedy.” (Bergner Decl., ¶ 10.) Plaintiffs assert that Defendant “does not provide any excuse for this delay and therefore, has not…demonstrated that it is entitled to summary judgment.” (Opp’n at p. 9:16-18.) Based on the foregoing, the Court finds that there is a triable issue of fact as to whether “conforming goods [were] tendered as soon as possible following termination of the condition giving rise to the delay.” (Civ. Code, § 1793.2, subd. (b).)

Based on the foregoing, the Court denies summary adjudication of the second cause of action.

Conclusion

Based on the foregoing, Defendant’s motion for summary judgment, or in the alternative, summary adjudication is denied.

Plaintiffs are ordered to provide notice of this ruling.

DATED:  March 28, 2023                             

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court