Judge Thomas Falls, Case 21PSCV00571 2022-09-28 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Dept. R at 909-802-1117 before 8:30 the morning of the hearing.

Defendant, Ford Motor Co.’s Motion for Summary Judgment, or in the Alternative, For Summary Adjudication of Issues is DENIED because triable issues of material fact remain as to the alleged defect with the module.

On July 13, 2021, Plaintiff filed suit against Defendant for statutory violations of the Song-Beverly Consumer Warranty Act after purchasing a 2021 Ford F150 (“Vehicle”). According to Plaintiff, since purchasing the Vehicle, “Plaintiff has delivered the Vehicle for repair to Defendant or its authorized repair facility(s) no less than eight (8) times for repair of nonconformity(s) to warranty, including, but not limited to defect(s) which have manifested in: unable to adjust trailer gain when trailer connected to vehicle, brake controller unable to adjust trailer brake gain, loss of communication with body control module and trailer brake controller, when using vehicle for towing a trailer the trailer brakes not engaging, vehicle having difficulty stopping when using vehicle for towing, and having to manually engage trailer brakes with slider on gain controller when using vehicle for towing.” (Complaint ¶ 11.)

On June 21, 2022, Defendant filed the instant Motion for Summary Judgment/Summary Adjudication (“Motion”).

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In reviewing a motion for summary judgment, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294) (italics added). “The 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 moving defendant bears the initial burden of production to show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action, at which point the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue. (Code Civ. Proc., § 437c, subd. (p)(2).) “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

The opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto. (Aguilar, supra, at p. 849.) Specifically, “[t]he opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (2).)

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; see also Hinesley, supra, 135 Cal.App.4th at p. 294 [The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”].) In determining whether the papers show that there is a triable issue as to any material fact, the court shall consider all of the evidence set forth in the moving papers, except that as to which objections have been made and sustained, and all inferences reasonable deducible from such evidence. (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

To recover under the Song-Beverly Act (“SBA”), a plaintiff has the “burden to prove that (1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element).” (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 152) (italics added).

The element and defect at issue, as framed by Defendant’s Motion and Separate Statement, is whether the trailer brake controller is covered by the New Vehicle Limited Warranty.

Defendant moves for summary judgment on the grounds that Plaintiff alleges that there was a defect with his trailer brake controller, but Plaintiff’s truck was not sold with a trailer brake controller. The controller at issue was installed after Plaintiff purchased the Vehicle; therefore, the trailer brake controller is not covered by the express (or implied) warranties. (Motion p. 3:7-12.)

In support of its argument, Defendant proffers the declaration of Jake Reavill (“Reavill”) who is a Ford Field Service Engineer and a certified Master Automobile Technician. (Reavill Decl., ¶1.) According to Reavill’s declaration:

i. On May 6, 2021, Plaintiff purchased his Vehicle, which was accompanied by Ford’s New Vehicle Limited Warranty. The warranty covers a “manufacturing defect in factory-supplied materials or factory workmanship.” The warranty does not cover “alterations and modifications of the vehicle… after the Vehicle leaves the control of Ford Motor Company.”

ii. Plaintiff’s truck was not equipped with a trailer brake controller as a factory installed option.

iii. On May 22, 2021, Plaintiff purchased a trailer brake controller from Puente Hills Ford, which was then installed on May 27, 2021 by Performance Ford.

iv. The April 6, 2022 inspection of the Vehicle determined that “[t]he trailer brake controller installed on plaintiff’s vehicle was not covered by Ford’s New Vehicle Limited Warranty because the accessory was installed at plaintiff’s direction after the vehicle left the factory.”[2]

v. Plaintiff’s trailer brake controller is a Ford brand accessory which is covered under a separate parts warranty. This parts warranty is independent from the New Vehicle Limited Warranty the accompanied the sale of the Vehicle.

In sum, Reavill’s declaration substantiates Defendant’s argument that the train brake controller is covered by a separate warranty and not the New Vehicle Limited Warranty.

Therefore, as the controller is not covered by the express warranty and the SBA requires the nonconformity to be covered by the express warranty, Defendant has met its evidentiary burden.

The burden now shifts to Plaintiff to provide evidence to dispute Defendant’s evidence that either the controller was not installed after the Vehicle’s purchase and/or that the controller is covered by Ford’s New Vehicle Warranty.

In Opposition, Plaintiff avers that Defendant conflates the internal Trailer Brake Control module, which was factory installed, with the controller switch, which was installed by the dealer after purchase. (Opp. p. 2.) In fact, according to Plaintiff, “Defendant pointedly ignores and fails to present the repair order that explicitly stated that the module was not installed because it had already been ‘equipped with [a] factory brake controller.’” (Opp. p. 2.)

In support of its position, Plaintiff primarily relies on the declaration of Dan Calef (“Calef”), who is a lemon law consultant. Calef’s declaration, in pertinent part, provides the following:

- “The Trailer Brake Control Module (“TRM”) is a separate part from the Trailer Brake Control Switch (“Switch”). The TRM is the part that actually communicates with the trailer’s brakes and the Switch, is installed in the vehicle’s dashboard so that the trailer brakes can be engaged and controlled from inside the vehicle. Both of these parts are typically included in a TRM kit.”

- “At the April 6, 2022 inspection, there was no indication the additional TRM was installed in the vehicle. Only the Switch was installed.”

- “Repair Order No. 206367, dated May 26, 2021 indicates that the TRM itself was not installed because it had already been installed at the factory.”

- “Repair Order No. 206382, dated May 27, 2021 indicates that the Switch was installed on that date, not a new TRM.”

- As of the second inspection that occurred on August 11, 2022, the installed TRM is the factory-installed original and the new one bought by Plaintiff remains in its box under rear seat bench.

In sum, Calef’s declaration provides that, while Plaintiff did purchase a TRM kit after the purchase of his Vehicle, one of the two components of the TRM Kit—the module—was factory installed. Accordingly, as Ford’s New Vehicle Warranty covers defects pertaining to “manufacturing defect in factory-supplied materials or factory workmanship,” then the module is covered under such warranty.[3]

While Calef’s declaration attests that the module was factory installed—an opinion formed by the May 26, 2021 and May 27, 2021 repair orders—the court’s review of the respective exhibits raises some questions. Notably, the May 26, 2021 repair order (Ex. 1) does not reference the module. Rather the May 26, 2021 repair order states the following: “Customer request to install customer supplied trailer brake controller . . . truck already equipped with factory trailer brake controller.” (Ex. 1) (italics added). Viewing the repair order in a light most favorable to plaintiff, however, this is still evidence sufficient to create a triable issue of fact.

Therefore, notwithstanding the foregoing, as Plaintiff has produced evidence that the module was factory installed, then the defect is subject to Ford’s New Vehicle Warranty.

All in all, Defendant’s Motion is premised upon the notion that the Vehicle’s sole defect is with the controller. However, the pleadings delimit the issues to be considered on a motion for summary judgment/adjudication, and, here, Plaintiff’s pleading alleges defects with the controller and module, the latter defect which Defendant failed to address. Therefore, triable issues of material fact still exist as to whether the alleged defect with the module is covered by the express warranty, precluding entry of summary judgment or adjudication on an SBA cause of action.[4]

[1] In its Reply, Defendant argues that Dan Calef’s declaration “is based on new evidence not produced in discovery as well and an inspection of such evidence without even notifying defense counsel.” (Reply p. 2.) However, to the extent that Defendant argues Calef’s declaration is inadmissible evidence, it did not file an evidentiary objection.

[2] Although Reavill’s inspection did not include a test of the trailer brake controller, that is inconsequential because the threshold issue is whether the trailer brake controller is covered by the New Vehicle Limited Warranty, not whether the trailer brake controller is defective.

[3] To the extent that Defendant argues Calef’s opinion directly contradicts Plaintiff’s sworn deposition testimony and as such must be disregarded, Plaintiff is not an expert in automobile mechanics. Therefore, Plaintiff’s sworn testimony does not govern. (Reply p. 4.)

[4] In its Reply, Defendant argues “[a]ssuming the truth of [Calef’s] argument, then the defect would be the result of [P]laintiff’s failure to install the compatible module. This clearly does not support the notion that the vehicle suffers from a warrantable defect.” (Reply p. 5.) Defendant, however, has not explained why the factory-installed part (i.e., the module) is not covered by the warranty when the warranty covers factory-installed parts.