Judge Thomas D. Long, Case 1STCV11521 2023-02-16 Tentative Ruling

On March 25, 2021, Plaintiff Martha Mendoza filed this action against Defendant General Motors LLC, arising from Plaintiff’s purchase of an allegedly defective vehicle.

Plaintiff’s Objection No. 1 is sustained for lack of foundation and personal knowledge.

Plaintiff inserted improper argument in their responses to Defendant’s separate statement of material facts. For example, in response to Undisputed Material Fact No. 2, which states that “Plaintiff Martha Mendoza bought the Cruze used, with 55,256 miles, on April 1, 2016,” Plaintiff argues that a used car with a balance of its manufacturer’s warranty is protected by the Song-Beverly Act. In response to Undisputed Material Fact No. 5, which states, “In connection with the Cruze’s delivery to its original owner(s), GM issued a New Vehicle Limited Warranty (the “Warranty”) with bumper-to-bumper coverage for the earlier of 36 months or 36,000 miles and powertrain coverage for the earlier of 60 months or 100,000 miles.,” Plaintiff argues that she received warranties with the purchase. These responses and cited evidence do not make the facts disputed.

The separate statement of material facts is not the proper place for objections or argument. The separate statement in opposition to a motion for summary judgment is supposed to “unequivocally state whether the fact is ‘disputed’ or ‘undisputed.’ An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.” (California Rules of Court, rule 3.1350(f)(2).)

On April 1, 2016, Plaintiff purchased a used model year 2013 Chevrolet Cruze, VIN 1G1PC5SB0D7326713, with 31,799 miles. (Undisputed Material Facts “UMF” 1-2; Additional Material Facts “AMF” 18-19.) Defendant was not a party to this transaction. (UMF 3.) The vehicle was originally sold to Hertz Corporation as a daily rental vehicle on May 13, 2013, with 9 miles on its odometer. (UMF 4.)

By its terms, the Warranty’s bumper-to-bumper coverage expired on or before May 30, 2016, and Warranty’s powertrain coverage expired by time no later than May 30, 2018. (UMF 6-7; see AMF 20-21.) Defendant did not issue or provide any new or additional warranty coverage to Plaintiff or the vehicle when she bought the vehicle; Plaintiff received only the balance of coverage remaining under the Warranty originally issued in May 2013. (UMF 8.)

During her ownership of the vehicle, Plaintiff visited Delano Chevrolet (“Delano”) on eight occasions: (1) in August 2016; (2) in August 2016; (3) November 2016; (4) January, 2017; (5) October 2017; (6) in December 2017; (7) in March 2018; and (8) in April 2018. (UMF 9; see AMF 24.)

Delano opened its RO #196353 on August 15, 2016, when the vehicle had 65,939 miles, closed it on August 15, 2016, and listed in it the parts Delano used to service the vehicle. (UMF 10; see AMF 25.) Delano opened its RO #196498 on August 18, 2016, when the vehicle had 66,199 miles, closed it on August 19, 2016, and listed in it the parts Delano used to service the vehicle. (UMF 11; see AMF 26.) Delano opened its RO #200086 on November 3, 2016, when the vehicle had 71,966 miles, closed it on November 3, 2016, and listed in it the parts Delano used to service the vehicle. (UMF 12; see AMF 27.) Delano opened its RO #202704 on January 3, 2017, when the vehicle had 75,081 miles, closed it on January 3, 2017, and listed in it the parts Delano used to service the vehicle. (UMF 13; see AMF 28.) Delano opened its RO #214566 on October 23, 2017, when the vehicle had 97,873 miles, closed it on October 28, 2017, and listed in it the parts Delano used to service the vehicle. (UMF 14; see AMF 29.) Delano opened its RO #216198 on December 1, 2017, when the vehicle had 108,615 miles, closed it on December 5, 2017, and listed in it the parts Delano used to service the vehicle. (UMF 15; see AMF 30.) Delano opened its RO #219374 on March 1, 2018, when the vehicle had 107,226 miles. As the Warranty’s powertrain coverage had expired by mileage, there were no warrantable defects found or repairs needed or performed under the Warranty during this visit. (UMF 16; see AMF 32.) Delano opened its RO #220675 on April 3, 2018, when the Vehicle had 108,615 miles. As the Warranty’s powertrain coverage had expired by mileage, there were no warrantable defects found or repairs needed or performed under the Warranty during this visit. (UMF 17; see AMF 33.)

Plaintiff has continued to experience ongoing problems with the vehicle, including engine issues. (AMF 36.)

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) 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, 162-163.)

A. Breach of Express Warranty – First, Second, Third, Fourth Causes of Action

The first four causes of action are for violations of Civil Code sections 1793.2 and 1794, arising from Defendant’s failure to repair the vehicle to conform to express warranties.

Defendant argues that the Song-Beverly Act’s express warranty provisions apply only to “new motor vehicles,” not Plaintiffs’ used vehicle. (Motion at pp. 7-8.) Defendant relies exclusively on Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (Rodriguez). The California Supreme Court has granted review of Rodriguez and, when doing so, stated that the Court of Appeal opinion “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 [citation], to choose between sides of any such conflict.” (Rodriguez v. FCA US (Cal. 2022) 295 Cal.Rptr.3d 351.)

A “new motor vehicle” includes “a dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer’s new car warranty.” (Civ. Code, § 1793.22, subd. (e)(2).) The Rodriguez court “acknowledge[d] that in isolation the phrase ‘other motor vehicle sold with a manufacturer’s new car warranty’ could arguably refer to any car sold with a manufacturer’s warranty still in force,” but it agreed “that context clearly requires a more narrow interpretation.” (Rodriguez, supra, 77 Cal.App.5th at p. 220.) The court noted that “the phrase appears in a definition of new motor vehicles,” strongly suggesting that “the Legislature did not intend the phrase to refer to used (i.e., previously sold) vehicles.” (Ibid.) The court also noted that “more importantly, the phrase is preceded by ‘a dealer-owned vehicle and demonstrator,’ which comprise a specific and narrow class of vehicles.” (Ibid.) The Rodriguez court therefore 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.” (Id. at p. 225.)

On the other hand, the Court of Appeal in Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112 (Jensen) previously concluded 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 p. 123.) The court determined that “the words of section 1793.22 are reasonably free from ambiguity” 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.’” (Ibid.) The court also considered the legislative history of the statute due to the “peculiar grammatical structure” of the section. (Ibid.) After reviewing the amendments to former section 1793.2, documents relating to those legislative proceedings, and the statutory scheme as a whole, the court “conclude[d] the plain meaning and the legislative intent are one and the same.” (Ibid.)

The Rodriguez court distinguished Jensen as involving a lease by a manufacturer-affiliated dealer who issued a full new car warranty along with the lease. (Rodriguez, supra, 77 Cal.App.5th at p. 223.) Defendant similarly attempts to distinguish the cases. (Reply at pp. 4-9.) However, those facts were not relevant to the Jensen court’s interpretation of the statute based on the statute’s plain meaning and legislative intent. (See Jensen, supra, 35 Cal.App.4th at pp. 122-127.)

The Court finds the reasoning and holding of Jensen more persuasive and more consistent with the plain language and legislative history of the statute. Accordingly, Plaintiff’s used vehicle with a balance of coverage remaining under the Warranty is not excluded from the Song-Beverly Act’s express warranty provisions, and Defendant has not met its burden on the first, second, third, and fourth causes of action.

Defendant also argues that Plaintiff cannot prove that Defendant did not comply with its repair obligations. (Motion at pp. 8-9.)

Under Civil Code section 1793.2, subdivision (b) (second cause of action), “[w]here . . . 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,” and “the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days.”

Under Civil Code section 1793.2, subdivision (a)(3) (third cause of action), the manufacturer must “[m]ake available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.”

Defendant contends that all repairs collectively took no more than 17 days. (Motion at p. 9.) The six repair visits each took no more than five days each, and repair orders for each service listed the parts used to perform the repairs. (UMF 10-15.) Defendant has met its initial burden of showing that the vehicle was repaired within 30 days and that it provided the repair facilities with sufficient literature and replacement parts to effect repairs.

Plaintiff acknowledges that the thirty-day period does not need to occur within a single repair visit. (Opposition at p. 16.) And she does not dispute that their repairs took no more than 17 days. (See id. at p. 18) Instead, Plaintiff argues that the second cause of action “consists of two separate and distinct primary rights of action” for “failure to commence repairs in a reasonable time and/or to complete them within thirty (30) day[s].” (Id. at p. 17.) Plaintiff contends that she has revoked acceptance of the vehicle under Civil Code section 1794 due to Defendant’s failure to commence repairs within a reasonable time. (Id. at p. 19; see Complaint ¶¶ 41-43.)

Plaintiff provides evidence that she has “continued to experience ongoing problems with the Subject Vehicle including the engine, among others.” (Mendoza Decl. ¶ 20.) This creates a triable issue regarding whether Defendant has repaired the vehicle to conform with the applicable express warranties and whether it provided sufficient parts or literature to effectuate successful repairs.

Defendant argues that the fifth cause of action for breach of implied warranty under Civil Code sections 1791.1 and 1794 fails as a matter of law because Defendant is only the manufacturer, not the seller. (Motion at pp. 6-7.)

The Song-Beverly Act defines the implied warranties that accompany the sale of consumer goods, and it permits a buyer to bring an action for damages and other relief when the implied warranties are breached. (See Civ. Code, §§ 1791.1, 1794.) “[I]n the sale of used consumer goods, liability for breach of implied warranty lies with distributors and retailers, not the manufacturer, where there is no evidence the manufacturer played any role in the sale of the used car to plaintiff.” (Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 398 (Nunez).) “[O]nly distributors or sellers of used goods—not manufacturers of new goods—have implied warranty obligations in the sale of used goods.” (Id. at p. 399.)

Plaintiff purchased the used vehicle from another party, not from Defendant. (UMF 3.) Defendant has met its initial burden of showing that it is not liable for breach of implied warranty for the used vehicle.

In opposition, Plaintiff argues that implied warranty claims do not require privity between the plaintiff and the manufacturer/distributor. (Opposition at pp. 14-15.) But Plaintiff cites only non-binding federal authority and Court of Appeal dicta that predates the binding authority in Nunez. Accordingly, Plaintiff has failed to raise a triable issue of fact for this cause of action.

Defendant moved only for summary judgment. Defendant did not alternatively move for summary adjudication, so the Court cannot rule on individual causes of action. (See, e.g., Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545-1546 (Gonzales); Jimenez v. Protective Life Ins. Co. (1992) 8 Cal.App.4th 528, 534.) “To prevail on a summary judgment motion that does not request summary adjudication in the alternative, the defendant must show conclusively that all of the plaintiff’s causes of action or legal theories fail as a matter of law.” (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1527.) Defendant has not done so here. Defendant did not meet its moving burden for the first and fourth causes of action, and Plaintiff has shown triable issues of fact for the second and third causes of action.

Defendant has met its burden on the fifth cause of action, and Plaintiff failed to dispute it. But “[o]nly the grounds specified in the notice of motion may be considered by the trial court. [Citation.] This rule has been held to be especially true in the case of motions for summary adjudication of issues.” (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545.) Defendant’s motion is captioned, “GENERAL MOTORS LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES.” The Notice of Motion asserts, “GM is entitled to a judgment in its favor on Plaintiff’s five claims, all of which invoke the Song-Beverly Consumer Warranty Act, because Plaintiff cannot pursue Song-Beverly claims against GM concerning a vehicle she bought used and for which GM did not provide warranty coverage apart from the warranty it issued when the vehicle was delivered to its original owner(s).” It also requests “summary judgment on Counts II and III for the independent reason that Plaintiff does not have admissible evidence to sustain her burden of proving the alleged statutory violations.” Nowhere does the Notice of Motion request summary adjudication of each separate cause of action. Although this notice may be construed as seeking summary judgment of all five causes of action, or in the alternative, summary adjudication of the second and third causes of action, it does not put Plaintiff on notice of a separate request for summary adjudication of the fifth cause of action.

Thus, although Defendant may have prevailed in seeking adjudication of the fifth cause of action, the Court must deny the motion for summary judgment in its entirety.

If affidavits submitted in opposition to a motion for summary judgment show that facts essential to justify opposition may exist but cannot be presented, the Court shall deny the motion or order a continuance to permit additional discovery. (Code Civ. Proc., § 437c, subd. (h).)

Plaintiff requests a continuance or denial of the motion to allow Plaintiffs to depose Defendant’s person most knowledgeable. (Opposition at pp. 19-20.) However, a discovery continuance is not necessary because the Court denies the motion for summary judgment.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court