Judge Upinder S. Kalra, Case Number: 22STCV11193, Date: 2024-12-13 Tentative Ruling

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1. Summary Adjudication of Defendants’ Ninth and Tenth Affirmative Defenses asserting that Defendant maintains a qualified third-party dispute resolution program in California and that it is a shield to all civil penalties.

On April 1, 2022, Plaintiff Edgard Marroquin (Plaintiff) filed a Complaint against Defendant American Honda Motor Co., Inc. (Defendant or AHM) with two causes of action for: (1) Violation of Song-Beverly Act – Breach of Express Warranty, and (2) Fraudulent Inducement – Concealment. The Complaint alleges that Plaintiff purchased the Subject Vehicle with express and limited warranties. During these warranties, the Subject Vehicle contained defects and nonconformities. Plaintiff further alleges that these defects were not sufficiently fixed when the Subject Vehicle was brought in for repairs.

On May 6, 2022, Defendant filed a Demurrer with Motion to Strike which the court OVERRULED and GRANTED with leave to amend.

On August 8, 2023, Defendant filed a Motion for Summary Adjudication which was continued to February 10, 2025.

On August 20, 2024, Plaintiff filed the instant Motion for Summary Adjudication (MSA). On November 27, 2024, Defendant filed an opposition. On December 6, 2024, Plaintiff filed a reply.

The court rules on Plaintiff’s evidentiary objections to the Declaration of Austin R. Henderson in support of Honda’s opposition to Motion for Summary Adjudication as follows:

The court OVERRULES: Objection Nos. 1-3. The writings are sufficiently authenticated. Moreover, the documents are not being offered for the truth. Rather, for knowledge.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with 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.) “Code of Civil Procedure section 437c, subdivision (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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.) A plaintiff moving for summary judgment or summary adjudication “has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (CCP § 437(p)(1).)

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.)

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.)

Plaintiff contends AHM’s Ninth and Tenth affirmative defenses fail because it is undisputed that Honda does not maintain a “qualified third-party dispute resolution process” as defined by law. Plaintiff additionally contends these affirmative defenses fail because there is no safe harbor from willful civil penalties. AHM does not oppose dismissal of its Tenth Affirmative Defense. AHM does argue that triable issues exist as to whether AHM’s NCDS program substantially complies with the requirements of Civ. Code § 1793.22 and whether Honda’s actions were willful. Plaintiff replies willfulness is beyond the scope of this MSA and substantial compliance is not the applicable standard.

AHM’s Ninth Affirmative Defense states: “AHM is informed and believes, and on that basis alleges, that Plaintiff and/or the owner of the subject vehicle received timely notice of the availability of a third-party dispute resolution process, and that no effort was made to use such process." (Answer, pg. 3:19-23.)

AHM’s Tenth Affirmative Defense states: “AHM is informed and believes, and on that basis alleges, that is possesses a qualified third-party dispute resolution process, thereby barring Plaintiffs from any civil penalty in this lawsuit.” (Answer, pg. 3:24-28.)

Civ. Code § 1794(e)(2) provides: “If the manufacturer maintains a qualified third-party dispute resolution process which substantially complies with Section 1793.22, the manufacturer shall not be liable for any civil penalty pursuant to this subdivision.” “The Arbitration Certification Program (ACP) is a bureau within the Department of Consumer Affairs charged with certification and review of the qualified dispute resolution process . . . .” (California Department of Consumer Affairs v. Superior Court (2016) 245 Cal.App.4th 256, 260;[1] 16 Cal. Code Regs § 3399.1.) “If the [ACP] determines that the arbitration program is in substantial compliance with Civil Code Section 1793.22(d) . . . the [ACP] will certify the arbitration program.” (16 Cal. Code Regs § 3399.1(g).) “Not all automobile manufacturers must have an ACP certified program.” (California Department of Consumer Affairs, supra, at p. 260.) “But those manufacturers who choose to operate a certified arbitration process have limited lemon law liability.” (Ibid.)

Here, Plaintiff met their burden that there are no triable issues of fact as to the Ninth Affirmative Defense. First, it is undisputed that the ACP of the Department of Consumer Affairs (DCA) has not certified AHM’s dispute resolution program. (Response to Undisputed Material Fact (UMF) No. 3.) Thus, Plaintiff’s burden is met.

AHM has not met their burden. First, as noted above, it is undisputed that AHM’s dispute resolution program is not certified. (UMF No. 3.) Second, AHM’s reliance on Suman v. Superior Court (1995) 39 Cal.App.4th 1309 for the proposition that certification is not required is misplaced. Notably, Suman describes the two ways new motor vehicle manufactures can avoid incurring civil penalties. (Id. at p. 1318.) After summarizing subdivision (e) of Section 1794 and subdivision (d) of Section 1793.2, the Court concluded that “subdivision (e) seeks to ensure that courts of law are used as a last resort by consumers of new motor vehicles.” (Ibid.) Contrary to AHM’s assertion, the Court did not discuss “substantial compliance” other than quoting the statute and did not discuss certification at all. (Ibid.) Thus, Suman is not applicable to the instant dispute.[2] AHM provides no other evidence showing their program is certified. Thus, AHM’s burden is not met.

Accordingly, the court GRANTS Plaintiff’s Motion for Summary Adjudication in its entirety.

[1] While the Court predominantly addressed standing, the explanation about the ACP is pertinent to the instant dispute.

[2] AHM’s other argument that there are triable facts as to whether they substantially complied with Civ. Code § 1793.22(d) because they have every requirement except certification by the ACP is not persuasive. First, it would provide protection for “qualified” third-party dispute resolution programs whether or not the ACP reviews their application. Second, the statutes clearly state that the ACP determines whether the applicant substantially complied with Civ. Code § 1793.22(d), not the court. The court has found no authority where the court determines whether a third-party dispute resolution program is qualified. Finally, there are no disputed facts. Rather, it is a dispute in law which the court is equipped to handle.