Judge Thomas D. Long, Case Number: 24STCV18503, Date: 2025-05-29 Tentative Ruling

On July 24, 2024, Plaintiff Robert Luna Jr. filed this action against Defendants Volkswagen Group of America, Inc. (“VW”) and Audi Fletcher Jones (“Audi”). The Complaint alleges violations of the Song-Beverly Act, breach of the implied warranty of merchantability, and negligent repair.

On February 3, 2025, Defendants filed a motion for summary judgment, or in the alternative, summary adjudication.

Defendants’ Evidentiary Objections Nos. 1-2 to Declaration of Rabiya Tirmizi are sustained as hearsay and for lack of personal knowledge. Plaintiff uses Exhibit 3, a Carfax report, for the truth of its contents and the truth of the vehicle’s condition as stated in the report.

Defendants’ Undisputed Material Facts are not consecutively or consistently numbered. Some separate issues continuing the umbering from the prior section, and other issues restart at “one.” Because there are so few facts, which are repeated for most issues, the Court does not use direct citations to facts here. When referring to the undisputed facts in the analysis, the Court will cite directly to the evidence.

On June 10, 2023, Plaintiff purchased a used 2020 Audi S5 from Audi. The vehicle was not sold Certified Pre-Owned.

VW is not a distributor or retailer of used motor vehicles. VW did not issue or extend any new warranties on the vehicle as part of the sale to Plaintiff; instead the vehicle came with the remainder of the manufacturer’s original warranty.

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.)

Defendants primarily move for summary judgment on the grounds that Plaintiff purchased his vehicle used, not new, and Plaintiff cannot pursue Song-Beverly claims for a used vehicle.

A. Plaintiff Cannot Maintain the First, Second, and Third Causes of Action Under the Song-Beverly Act (Alleged Only Against VW).

The first cause of action is for breach of express warranties, the second cause of action is for failure to repair, and the third cause of action is for failure to make available sufficient service literature and replacement parts to effect repairs.

“[A] motor vehicle purchased with an unexpired manufacturer’s new car warranty does not qualify as a ‘motor vehicle sold with a manufacturer’s new car warranty’ under [Civil Code] section 1793.22, subdivision (e)(2)’s definition of ‘new motor vehicle’ unless the new car warranty was issued with the sale.” (Rodriguez v. FCA US, LLC (2024) 17 Cal.5th 189, 196 (Rodriguez).) This also applies in the broader context of the Song-Beverly Act’s provisions distinguishing between new and used goods. (Id. at p. 206.)

It is undisputed that Plaintiff purchased the vehicle used. The vehicle was first sold on May 23, 3020 to Mark Swart, then sold to Plaintiff on June 10, 2023. (Motion, Lewis Decl. ¶¶ 3-6 & Exs. 1A-1B; Motion, Hale Decl. ¶¶ 3-4 & Exs. 2A-2B.) When Plaintiff purchased the vehicle, VW did not issue or provide any new or additional warranty coverage to Plaintiff or the vehicle. (Motion, Lewis Decl. ¶ 7; see Motion, Hale Decl. ¶ 7.) Defendants have met their initial burden. (Motion at pp. 6-8.)

Plaintiff argues that fleet/lease company-owned vehicles are included under Song-Beverly’s definition of “new motor vehicle” because new motor vehicles are any “new motor vehicle which is used or bought for use primarily for personal, family, or household purposes.” (Opposition at p. 6.) Plaintiff argues that “demonstrators, unlike preowned cars, are always sold to the first retail buyer with a manufacturer's new car warranty,” so “rental cars should be considered ‘new motor vehicles’ under the Act when sold with a manufacturer’s new car warranty issued at the time of sale, distinguishing them from used vehicles with remaining warranty balances.” (Id. at p. 7.)

It is true that a dealer-owned vehicle and a “demonstrator” or other motor vehicle sold with a manufacturer’s new car warranty qualifies as a “new motor vehicle” under the Song-Beverly Act. (Rodriguez, supra, 17 Cal.5th at p. 198 [citing Civ. Code, § 1793.22, subd. (e)(2).) “‘What makes these vehicles unique is that even though they aren’t technically new, manufacturers (or their dealer-representatives) treat them as such upon sale by providing the same type of manufacturer’s warranty that accompany new cars.’ [Citation.] In other words, they are vehicles for which a new car warranty ‘was issued with the sale.’” (Ibid.) “Before a sale transaction, there is no such warranty to speak of; the manufacturer or its dealer representative owns the car. The sale of a dealer-owned vehicle or demonstrator to a retail buyer is what gives rise to a new car warranty.” (Id. at p. 199.)

But here, Plaintiff’s vehicle was not a dealer service vehicle, dealer loaner vehicle, dealer lease vehicle, dealer registered vehicle, or rental vehicle. (Motion, Hale Decl. ¶¶ 4-5 & Ex. 2B.) It was sold to an individual before it was sold to Plaintiff. (Motion, Lewis Decl. ¶¶ 3-6 & Exs. 1A-1B; Motion, Hale Decl. ¶¶ 3-4 & Exs. 2A-2B.) Plaintiff has not raised a triable issue of fact about his used vehicle.

Summary adjudication of the first, second, and third causes of action is granted.

B. Plaintiff Cannot Maintain the Fourth Cause of Action For Breach of Implied Warranty (Alleged Only Against VW).

Defendants argue that the second cause of action for breach of implied warranty also fails as a matter of law because VW is the manufacturer, not the seller, of the used vehicle, and it did not issue any warranties to Plaintiff. (Motion at pp. 8-9.)

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.) A manufacturer may partner with a dealership to sell used vehicles directly to the public by, for example, offering an express warranty as part of the sales package, thereby stepping into the role of a retailer and becoming subject to the obligations of a retailer. (Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 340 (Kiluk).)

Plaintiff purchased the used vehicle from Audi, not directly from VW. (Motion, Lewis Decl. ¶¶ 3, 8 & Exs. 1A-1B; Motion, Hale Decl. ¶¶ 3-4 & Ex. 2A.) VW did not issue or extend any warranties on the vehicle as part of this sale. (Motion, Lewis Decl. ¶¶ 4, 7.) The vehicle was not sold Certified Pre-Owned. (See Motion, Lewis Decl., Exs. 1A-1B; Motion, Hale Decl., Exs. 2A-2B.) Plaintiff admitted that he purchased the vehicle used, not Certified Pre-Owned. (Motion, Kousherian Decl., Ex. 3C [RFA No. 28].) The dealership where Plaintiff purchased the vehicle does not provide warranties from VW. (Motion, Hale Decl. ¶ 7.) Defendants have met their initial burden. (Motion at pp. 8-9.)

Plaintiff argues that implied warranty claims do not require privity between the buyer and the manufacturer/distributor, and the manufacturer’s duties under the Song-Beverly Act continue post-transfer. (Opposition at pp. 8-9.) Plaintiff’s overall argument is contrary to the law that manufacturers of new goods do not have implied warranty obligations in the sale of used goods without, for example, stepping into the role of a retailer by partnering with a dealership and offering an express warranty as part of the sales package. (Nunez, supra, 61 Cal.App.5th at p. 398; Kiluk, supra, 43 Cal.App.5th at p. 340.) Plaintiff has not shown a triable issue of material fact regarding VW’s status as only a manufacturer and not a distributor or seller of the used vehicle.

C. Plaintiff Cannot Maintain the Fifth Cause of Action For Negligent Repair (Alleged Only Against Audi).

The fifth cause of action alleges that he presented the vehicle to Audi for repair, but Audi breached its duty to Plaintiff to use ordinary care and skill by failing to properly store, prepare and repair the vehicle in accordance with industry standards. (Complaint ¶¶ 57-59.)

Defendants argue that this cause of action is barred by the economic loss rule. (Motion at p. 10-12.) Under the economic loss rule, “[w]here a purchaser’s expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only ‘economic’ losses.” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988 (Robinson Helicopter), quotation marks omitted.) However, tort damages may be permitted when the breach of contract is accompanied by a tort such as fraud. (Id. at pp. 989-990.) To plead around the economic loss rule, a party must plead the existence of a duty that arises independent of any contractual duty and independent injury, other than economic loss, that arises from the breach of that duty. (Id. at pp. 988-991.)

Plaintiff is not alleging that “the product he bought is not working properly.” (See Robinson Helicopter, supra, 34 Cal.4th at p. 988.) Instead, he alleges that Audi was engaged in the business of servicing and repairing automobiles, and it failed to “properly store, prepare and repair the Subject Vehicle in accordance with industry standards.” (Complaint ¶¶ 5, 59.) This does not arise from Audi’s sale of the vehicle to Plaintiff, but instead from his delivery of the vehicle to Audi “for substantial repair on at least one occasion.” (Complaint ¶ 57.)

However, Defendants have met their burden of showing that Plaintiff did not suffer any recoverable damages from the failure to repair the vehicle. (Motion at pp. 11-12.) Plaintiff’s document production contained repair invoices with no charges and no payment ever due. (See id.; Motion, Kousherian Decl., Ex. 3B.) Plaintiff’s only expenses were for “a full paint correction and 3 year ceramic coating” from non-party Martinez Mobile Wash LLC, vehicle registration, insurance payments to State Farm, and his car loan. (Motion, Kousherian Decl., Ex. 3B.) There are no damages attributed to Audi’s repair attempts.

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 argues that denial of the motion is appropriate because Defendants withheld discovery. (Opposition at pp. 9-10.) Specifically, Plaintiff contends that he sought the deposition of VW’s person most knowledgeable, but Defendants refused. (Id. at p. 10.) However, Plaintiff does not identify what facts cannot be presented. (See Tirmizi Decl. ¶¶ 5, 7.) The Court also cannot identify any facts or evidence that would create a disputed fact regarding VW and that would overcome the proven fact that Plaintiff’s car was purchased used without additional warranties from VW.

The motion for summary judgment is GRANTED. Defendants are ordered to submit a proposed judgment within five days.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court