Judge: Theresa M. Traber, Case: 23STCV03797, Date: 2025-05-22 Tentative Ruling
Case Number: 23STCV03797 Hearing Date: May 22, 2025 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: May 22, 2025 TRIAL DATE: November 18, 2025
CASE: Randy Aakhus et al. v. Carwell LLC,
d/b/a Mercedes-Benz South Bay, et al.
CASE NO.: 23STCV03797 
MOTION
FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
MOVING PARTY: Defendants Carwell LLC d/b/a Mercedes-Benz South Bay,
Schools First Federal Credit Union, and Safeco Insurance Company of America,
erroneously sued as Liberty Mutual Insurance Co.
RESPONDING PARTY(S): Plaintiffs Randy
and Jamie Aakhus.
CASE
HISTORY:
·
02/21/23: Complaint filed.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for violation of the Consumer Legal Remedies Act and
for common-law fraud. Plaintiffs allege that they purchased a used 2015 Tesla
Model S from the dealership Defendant based, in part, on representations that
the vehicle had never been involved in an accident. Plaintiffs allege that
those representations were false and that the vehicle had in fact been involved
in a collision.
Defendants move for summary
judgment, or, in the alternative, summary adjudication of each cause of action.
TENTATIVE RULING:
Defendants’ Motion for Summary
Judgment is DENIED.
Defendants’
Motion for Summary Adjudication is GRANTED IN PART as to the second cause of
action for intentional misrepresentation and third cause of action for
negligent misrepresentation and otherwise DENIED.
DISCUSSION:
Motion for Summary Judgment
Defendants
move for summary judgment. As Defendants have not demonstrated that they are
entitled to summary adjudication of all causes of action, Defendants are
not entitled to summary judgment.
Defendants’
Motion for Summary Judgment is DENIED.
Motion for Summary Adjudication
Defendants
move in the alternative for summary adjudication of all causes of action.
Legal Standard
The function of a motion for
summary judgment or adjudication is to allow a determination as to whether an
opposing party can show evidentiary support for a pleading or claim and, if
not, to enable an order of summary dismissal without the need for trial. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil
Procedure Section 437c(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, 381-82.)
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. (Code Civ Proc. § 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.) The lack of opposition by a plaintiff is
not grounds to grant a motion for summary judgment if a defendant cannot meet
their initial burden of proof. (See Thatcher v. Lucy Stores, Inc. (2000)
79 Cal.App.4th 1081, 1087.)
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.)
Plaintiffs’ Evidentiary Objections
Plaintiffs
object to portions of Defendants’ evidentiary production. The Court rules on
Plaintiffs’ objections as follows.
Objection
No. 1: OVERRULED. The declarant does not lack foundation or personal
knowledge, as a custodian of records need not have been present at the time of
the creation of the records to speak to their handling. (Iyere v. Wise Auto
Group (2023) 87 Cal.App.5th 747, 758-59.) The hearsay rule has no
application to this testimony.
Objections
Nos. 2-3: OVERRULED. The declarant does not lack foundation or personal
knowledge, as a custodian of records need not have been present at the time of
the creation of the records to speak to their handling. (Iyere v. Wise Auto
Group (2023) 87 Cal.App.5th 747, 758-59.) The documents are subject to the
business record exception on their face. (Evid. Code § 1271.)
Objection
No 4: OVERRULED. The declarant does not lack foundation or personal
knowledge, as a custodian of records need not have been present at the time of
the creation of the records to speak to their handling. (Iyere v. Wise Auto
Group (2023) 87 Cal.App.5th 747, 758-59.) The documents are not hearsay
because they are not offered for their truth.
Objection
No. 5: OVERRULED. The declarant does not lack foundation or personal
knowledge, as a custodian of records need not have been present at the time of
the creation of the records to speak to their handling. (Iyere v. Wise Auto
Group (2023) 87 Cal.App.5th 747, 758-59.) The hearsay rule has no
application to this testimony.
Objection No 6: OVERRULED.
The declarant does not lack foundation or personal knowledge, as a custodian of
records need not have been present at the time of the creation of the records
to speak to their handling. (Iyere v. Wise Auto Group (2023) 87
Cal.App.5th 747, 758-59.) The documents are not hearsay because they are not
offered for their truth.
Defendants’ Evidentiary Objections
Defendants object to portions of
Plaintiffs’ evidence. The Court rules on these objections as follows:
Objection No.1: SUSTAINED.
Exhibit 1 is not what Plaintiffs present it to be.
Objections Nos. 2-6:
SUSTAINED. These exhibits are facially noncompliant with California Rule of
Court 3.1116. More critically, nothing on the face of the exhibits nor in the
declaration of Plaintiffs’ counsel establishes the provenance of these
materials to properly authenticate them. The documents do not, for example,
identify the witnesses or reference the presence of counsel to establish that
the nature of the transcript is within counsel’s personal knowledge. Nor does
the accompanying declaration contain such information. The deposition excerpts
therefore lack proper authentication.
Separate Statements
Both
Plaintiffs and Defendants object to the opposite party’s Separate Statements on
the basis that they are overbroad, set forth facts which are immaterial or
purport to dispute facts which are not actually disputed. None of these
arguments have the requisite substantiation to justify a refusal to consider
the respective party’s arguments on the merits. Defendants’ Separate Statement
of Undisputed Material Fact is limited only to those matters which are material
to Defendants’ arguments, irrespective of whether Plaintiffs or the Court consider
those arguments to be material to the claims at issue. The presentation of
underlying factual matters by way of reference to witness testimony, rather
than the facts the testimony is intended to support, neither strengthens nor
diminishes that evidence’s value on summary adjudication. The Court therefore
is unmoved by Plaintiffs’ reference to Reeves v. Safeway Stores (2004)
121 Cal.App.4th 95, 106.) Similarly, the Court does not consider
Plaintiffs’ Separate Statement of Disputed Fact to be fatally deficient merely
because it purports to identify disputes which do not bear up under scrutiny. It
is the facts and the evidence set forth in the Separate Statements which
determine the outcome of this motion on the merits, not the form by which they
are set forth.
Underlying Factual History
Defendant
Mercedes-Benz South Bay is an auto dealer which sells and repairs new and used
vehicles. (Separate Statement of Undisputed Material Fact Issue 1 No. 1.) On
March 8, 2022, Defendant purchased a used 2015 Tesla Model S after conducting a
visual inspection of the frame of the vehicle which did not reveal any issues.
(SSUMF Issue 1 Nos. 2-5.) After purchasing the vehicle, Defendant conducted a
50-point visual inspection of the vehicle the next day, March 9, 2022, again
documenting no issues with the vehicle. (SSUMF Issue 1 Nos. 7-12.) Plaintiffs
purchased the vehicle on March 11, 2022. (SSUMF Issue 1 Nos. 14-15.) As part of
the purchasing paperwork, Plaintiffs signed (1) a Retail Installment Sales
Contract, which contained affirmative denials by Defendants that the vehicle
was being sold with any implied warranty of fitness absent acquisition of a
written warranty (SSUMF Issue 1 Nos. 16-22), (2) a “Buyer’s Guide” which stated
that the vehicle was being sold “as-is” (SSUMF Issue 1 Nos. 23-24), and (3) a Used
Vehicle Acknowledgment which purported to acknowledge on Plaintiffs’ behalf
that, inter alia, Plaintiffs had not relied upon any statement by
Defendant or its employees regarding the condition, prior use, or accident
history of the vehicle. (SSUMF Issue 1 Nos. 26-28.) Defendant MBSB also
presented Plaintiffs with the CarFax vehicle history report as of the time of
sale which indicated that no accidents had been reported involving the vehicle.
(SSUMF Issue 1 Nos. 29-30.) Before making the purchase, Plaintiffs had
test-driven the vehicle and asked Defendant’s representative about the
vehicle’s accident history. (SSUMF Issue 1 Nos. 31-32.) Plaintiffs were told
that the vehicle was “good” or “great.” (See SSUMF Issue 1 No. 33.)
Some time
after the purchase was completed, Plaintiffs brought the vehicle to the
non-party repair center, Fix Auto Signal Hill, to conduct body repairs stemming
from a minor collision with a curb. (SSUMF Issue 1 Nos. 36-37.) During that
servicing, Fix Auto discovered that the vehicle had significant damage which
appeared to originate from a previous front-end collision and which had been
improperly repaired. (SSUMF Issue 1 Nos. 38-39, 41-44.) The evidence of damage
and of previous repairs to the vehicle were not identifiable from a visual
inspection and required disassembly of the vehicle to expose. (SSUMF Issue 1
Nos. 41-44.) Plaintiffs thereafter brought this action, alleging that
Defendants had violated the Consumer Legal Remedies Act, the Unfair Competition
Law, and Section 11711 of the Vehicle Code, and had committed fraud or
negligent misrepresentation by making false statements about the vehicle’s
accident history.
First Cause of Action: Violation of Consumer Legal
Remedies Act
Defendants
move for summary adjudication of the first cause of action for violation of the
Consumer Legal Remedies Act.
As relevant here, the CLRA prohibits a seller of goods or
services from:
(5) Representing
that goods or services have sponsorship, approval, characteristics,
ingredients, uses, benefits, or quantities that they do not have or that a
person has a sponsorship, approval, status, affiliation, or connection that the
person does not have.
[. . .]
(7) Representing
that goods or services are of a particular standard, quality, or grade, or that
goods are of a particular style or model, if they are of another.
[…]
(9) Advertising
goods or services with intent not to sell them as advertised.
[…]
(14) Representing
that a transaction confers or involves rights, remedies, or obligations that it
does not have or involve, or that are prohibited by law.
[…]
(16) Representing
that the subject of a transaction has been supplied in accordance with a
previous representation when it has not.
(Civ. Code § 1770(a)(5), (7), (9), (14), (16); see Complaint
¶ 20 [identifying provisions of CLRA which have been violated].)
1.
Effect of As-Is Purchase
Defendants
first argue that they cannot be held liable under the Consumer Legal Remedies
Act because Plaintiffs signed documents acknowledging that they were purchasing
the vehicle “as is” and without reliance upon any statements made by Defendants.
(See SSUMF Issue 1 Nos. 27-28.) Whatever relevance these documents might have
to the materiality of any representations, Defendants cite no authority
standing for the position that an “as-is” sales contract is per se a
shield from the plain language of section 1770. Indeed, section 1751 expressly precludes
any waiver of the Act. (Civ. Code § 1751.) While Defendants claim in their
reply that they are not arguing for waiver, that specious contention is belied
by the plain import of the arguments asserted in the moving papers. Defendants
have not demonstrated that the first cause of action is deficient on this
basis.
2.
Intent
Defendants
argue, in the alternative, that they cannot be held liable under any of the
cited provisions of the Consumer Legal Remedies Act because, whether or not
their representations were true, Defendants provided all the information available
to them and had no basis to doubt that information. With the exception of
subdivision (a)(9) of section 1770, none of the other provisions identified in
the first cause of action expressly require intentional conduct by the
Defendant. (See Civ. Code § 1770(a)(5), (7), (14), (16).) Further, Defendants
cite no authority standing for the position that such a presentation is a
defense to a Consumer Legal Remedies claim. Defendant’s citation to Benton
v. Sloss for the assertion that they were not obligated to disassemble the
vehicle is not germane to this cause of action, as that opinion was concerned
with a used-car dealer’s liability under a negligence theory and predates the
CLRA by nearly two decades. (Benton v. Sloss (1952) 38 Cal.2d 399, 404.)
Tellingly, Civil Code section 1784 states that a defense to a claim for damages
under the act is only available if the Defendant “(a) proves that such
violation was not intentional and resulted from a bona fide error notwithstanding
the use of reasonable procedures adopted to avoid any such error and
(b) makes an appropriate correction, repair or replacement or other remedy of
the goods and services according to the provisions of subdivisions (b) and (c)
of Section 1782.” (Civ. Code § 1784 [emphasis added].) The existence of this
provision, which requires the Defendant to prove absence of intent, indicates
that a Plaintiff is therefore not required to affirmatively prove intent
to establish a violation of the act. What is more, to avail themselves of this
defense, Defendants are obligated to show not only an absence of intent but
also that they have offered a remedy as described in section 1782. As
Defendants do not address this provision, the Court finds that Defendants have
not carried their burden to establish this defense to the extent it is
applicable.
3.
Sales Puffery
Defendants
also contend that any representation by its sales representative that the
vehicle was “great” or “good” was mere puffery, and not an actionable statement
of fact. Certainly, a challenged representation by a party to a sale must be
factual, and not mere opinion or puffery. (See, e.g., Consumer Advocates v.
Echostar Satellite Corp. (2003) 113 Cal.App.4th 1351, 1361 fn. 3.) However,
a cursory examination of the testimony on which Defendants rely reveals that
the statements do not, under a construction favorable to Plaintiffs, constitute
mere opinion. Defendants’ own evidence shows that the salesperson’s statements
that the vehicle was “great,” and “good” were in direct response to Plaintiffs’
inquiring into the accident and maintenance history of the vehicle. (SSUMF
Issue 1 No. 32; Defendant’s Exh. 9 pp. 39:21-40:13; Exh. 10 pp. 38:13-40:5.) These
responses can fairly be construed as affirmative statements that the vehicle
has no accident history to speak of and is free of defects. Defendants’ own
evidence therefore demonstrates a triable issue of fact in this respect and is
therefore insufficient to establish that Plaintiffs cannot prevail on their
Consumer Legal Remedies Act claim.
4.
Detrimental Reliance
Finally,
Defendants argue that Plaintiffs cannot prevail on this cause of action because
they did not rely on Defendants’ statements in deciding to purchase the
vehicle, true or not. A plaintiff must establish actual reliance upon a misrepresentation
to prevail on a CLRA claim. (Nelson v. Pearson Ford Co. (2010) 186
Cal.App.4th 983, 1022.) In support of this position, Defendants offer the Used
Vehicle Acknowledgment Form signed by Plaintiffs, which, although legally
invalid as a waiver of per se liability, contains an express statement
that Plaintiffs “have not relied upon any statement or promise by any sales
associate, sales manager, or other employee of the Dealership, regarding the
prior use, condition or accident history of the used vehicle.” (See SSUMF Issue
1 No. 27.) This document is therefore evidence that Plaintiffs did not rely on
the sales representative’s statements in deciding to purchase the vehicle. Further,
Defendants offer testimony from both Plaintiffs wherein they purportedly acknowledged
that they had decided on purchasing the vehicle even before the representations
regarding the accident history were made. (SSUMF Issue 1 Nos. 33-35.) Close
reading, however, shows that Defendants overstate their case in that respect. While
Plaintiff Jamie Aakhus denied being “sold” on the vehicle by the dealer and
testified that Plaintiffs “knew what [they] wanted to purchase,” she did not
expressly deny reliance on the dealer’s responses in finalizing her decision.
(See Exh. 9 p.41:19-42:8.) Similarly, although Plaintiff Randy Aakhus stated
that he decided to purchase the vehicle after examining the battery performance,
that decision came after the representations by the salesperson
regarding the condition of the vehicle. (See Exh. 10 pp. 38:13-18, 45:6-46:14.)
That said, Plaintiffs’ acknowledgments in the purchasing paperwork are evidence
which tends to disprove that they relied on any representations by Defendants
and therefore is sufficient to carry Defendants’ burden on summary
adjudication. The burden thus shifts to Plaintiffs to demonstrate a triable
issue of fact in this respect.
In response
to this evidence, Plaintiffs offer sworn affidavits in which they affirmatively
state that they did, in fact, rely on Defendants’ representations that the
vehicle had not been in an accident in deciding to follow through on purchasing
the vehicle. (Separate Statement of Disputed Fact Nos. 33-35.) Plaintiffs’
declarations clarify that although they were already intending to purchase a
Tesla Model S, they wanted to test the vehicle and ask questions about it,
including regarding its accident history, before purchasing it. (Id.,
see Declarations of Randy and Jamie Aakhus ISO Opp. ¶¶ 3-4.) As these statements
do not directly conflict with their prior deposition testimony but rather
expand upon it, Plaintiffs’ declarations are competent evidence to create a
triable issue of fact as to whether they detrimentally relied upon any
misstatements by Defendants. (Cf D’Amico v. Board of Medical Examiners (1974)
11 Cal.3d 1, 21 [no triable issue of fact exists where plaintiff attempts to
contradict clear and unequivocal admission in deposition with a subsequent
declaration].) As Plaintiffs have created a triable issue of fact in this
respect, Defendants are not entitled to summary adjudication on this basis.
Accordingly,
for the foregoing reasons, Defendants’ Motion for Summary Adjudication of the
first cause of action is DENIED.
Second Cause of Action: Intentional Misrepresentation
Defendants
move for summary adjudication of the second cause of action for intentional
misrepresentation.
“The elements of fraud that will lead
to a tort action are: (a) misrepresentation; (b) knowledge of falsity; (c)
intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting
damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th
951, 974.) Every element of the cause of action for fraud must be
alleged in the proper manner and the facts constituting the fraud must be
alleged with sufficient specificity to allow defendant[s] to understand fully
the nature of the charge made. (Stansfield v. Starkey (1990) 220
Cal.App.3d 59, 73.) “This particularity requirement
necessitates pleading facts which show how, when, where, to whom, and by
what means the representations were tendered.” (Ibid.)
“[G]eneral
and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996)
12 Cal.4th 631, 645.)
Defendants
contend that Plaintiffs cannot prevail on this cause of action because
Defendants did not knowingly misrepresent the condition of the vehicle.
Defendants offer substantial evidence tending to support this position, citing
the March 8 and March 9, 2022 visual inspections which revealed no issues (SSUMF
Issue 2 Nos. 1-12) and the external CarFax report which showed that no
accidents involving the vehicle had been reported. (SSUMF Issue 2 Nos. 29-30.)
Defendants also cite the deposition testimony of Richy Fornung, a former
Service Advisor for Fix Auto of Signal Hill (where Plaintiffs had the vehicle
serviced and discovered evidence of a collision) wherein the witness stated
that these deficiencies would not have been visible without disassembling the
vehicle. (SSUMF Issue 2 Nos. 41-44.) Defendants point to this evidence to argue
that they did not know and had no reason to know that the vehicle had been
involved in a collision, since neither their own investigation nor external
reports presented evidence of that fact. Defendants have thus offered evidence
tending to prove the absence of knowledge and intent. The burden therefore
shifts to Plaintiffs to demonstrate a triable issue of fact.
Plaintiffs fail to mount a
substantial opposition with respect to this cause of action, instead merely
asserting, without explanation, that Defendants made misrepresentations of
fact. This is not sufficient to carry Plaintiffs’ burden on summary
adjudication. The Court therefore finds that Defendants have demonstrated that
they are entitled to summary adjudication of the second cause of action.
Accordingly, Defendants’ Motion for
Summary Adjudication of the second cause of action is GRANTED.
Third Cause of Action: Negligent Misrepresentation
Defendants move for summary
adjudication of the third cause of action for negligent misrepresentation.
“Negligent misrepresentation requires an assertion of fact,
falsity of that assertion, and the tortfeasor’s lack of reasonable grounds for
believing the assertion to be true. It also requires the tortfeasor’s intent to
induce reliance, justifiable reliance by the person to whom the false assertion
of fact was made, and damages to that person. An implied assertion of fact is
‘not enough’ to support liability.” (SI 59 LLC v. Variel Warner Ventures,
LLC (2018) 29 Cal.App.5th 146, 154.)
Defendants contend that Plaintiffs
cannot prevail on this cause of action because they did not make any
representations as to which they lacked reasonable grounds to believe.
Defendants offer substantially the same evidence as presented to attack the
second cause of action, arguing that the inspections and CarFax reports gave
Defendants reasonable grounds to believe that the vehicle had never been
involved in an accident. (SSUMF Issue 3 Nos. 1-12, 29-30, 41-44.) The Court
concurs that this evidence is sufficient to demonstrate that Defendants had
reasonable grounds for their representations. The burden therefore shifts to
Plaintiffs to demonstrate a triable issue of fact as to whether reasonable
grounds existed.
Plaintiffs again fail to muster a
substantial opposition to this cause of action beyond the bare assertion that
Defendants made misrepresentations. This is not sufficient to carry Plaintiffs’
burden on summary adjudication. The Court therefore finds that Defendants have
demonstrated that they are entitled to summary adjudication of the third cause
of action.
Accordingly, Defendants’ Motion for
Summary Adjudication of the third cause of action is GRANTED.
//
Fourth Cause of Action: Unfair Competition
Defendants
move for summary adjudication of the fourth cause of action as derivative of
the first three causes of action. As Defendants are not entitled to summary
adjudication of the first cause of action, Defendants are not entitled to
summary adjudication of the fourth cause of action.
Accordingly, Defendants’ Motion for
Summary Adjudication of the fourth cause of action is DENIED.
Fifth Cause of Action: Violation of Vehicle Code Section
11711
Defendants
move for summary adjudication of the fifth cause of action as derivative of the
first two causes of action. As Defendants are not entitled to summary
adjudication of the first cause of action, summary adjudication must be denied
as to the fifth cause of action.
Accordingly, Defendants’ Motion for
Summary Adjudication of the fourth cause of action is DENIED.
CONCLUSION:
Accordingly,
Defendants’ Motion for Summary Judgment is DENIED.
Defendants’
Motion for Summary Adjudication is GRANTED IN PART as to the second cause of
action for intentional misrepresentation and third cause of action for
negligent misrepresentation and otherwise DENIED.
Moving
Parties to give notice.
IT IS SO ORDERED.
Dated: May 22, 2025 ___________________________________
Theresa
M. Traber
Judge
of the Superior Court
Any party may submit on the
tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day
before the hearing. All interested parties must be copied on the email. It
should be noted that if you submit on a tentative ruling the court will still
conduct a hearing if any party appears. By submitting on the tentative you
have, in essence, waived your right to be present at the hearing, and you
should be aware that the court may not adopt the tentative, and may issue an
order which modifies the tentative ruling in whole or in part.