Judge: Yolanda Orozco, Case: 20STCV33259, Date: 2022-12-12 Tentative Ruling
Case Number: 20STCV33259 Hearing Date: December 12, 2022 Dept: 31
MOTION FOR SUMMARY ADJUDICATION IS DENIED
BACKGROUND
On August 31, 2020, Plaintiffs Jennifer Seo (“Seo”) and Harine Park (“Park”) filed a Complaint alleging causes of action for (1) negligence, (2) violation of Consumer Legal Remedies Act, (3) violations of the California Unfair Competition Law, (4) breach of express warranties, (5) violation of Song-Beverly Consumer Warranty Act for breach of express warranties, (6) violation of Song-Beverly Consumer Warranty Act for breach of implied warranty of merchantability, and (7) strict liability against Defendant Tesla, Inc. (“Defendant”).
On September 26, 2022, Defendant Moved for Summary Adjudication on Plaintiff’s second, third, fourth, and fifth causes of action.
Plaintiff filed opposing papers on November 29, 2022.
Defendant filed a reply on December 07, 2022.
LEGAL STANDARD
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. Atl. 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 facie showing that there are no triable issues of material
fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th
1510, 1519.) The moving party is entitled to summary judgment if they can show
that there is no triable issue of material fact or if they have a complete
defense thereto. (Aguilar, supra, 25 Cal. 4th at 843.)¿ Summary
adjudication may be granted as to one or more causes of action within an
action, or one or more claims for damages. (Cal. Code of Civ. Proc.
§437c(f).)¿¿¿¿¿¿
¿
A defendant moving for summary judgment bears two burdens:
(1) the burden of production – presenting admissible evidence, through material
facts, sufficient to satisfy a directed verdict standard; and (2) the burden of
persuasion – the material facts presented must persuade the court that the
plaintiff cannot establish one or more elements of a cause of action, or a
complete defense vitiates the cause of action. (Code Civ. Proc., § 437c(p)(2);¿Aguilar,¿supra,
25 Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that
the claim “cannot be established” because of the lack of evidence on some
essential element of the claim.¿¿(Union Bank v. Superior Court (1995) 31
Cal.App.4th 574, 590.)¿¿Once the defendant meets this 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 defense thereto.”¿(Id.)¿¿¿¿¿
¿
“On ruling on a motion for summary judgment, the court is to
‘liberally construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal
v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.)¿¿¿
¿
On a summary judgment motion, the court must therefore
consider what inferences favoring the opposing party a factfinder could
reasonably draw from the evidence. While viewing the evidence in this manner,
the court must bear in mind that its primary function is to identify issues
rather than to determine issues. [Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999)
75 Cal.App.4th¿832, 839.)¿¿
¿
Defeating summary judgment requires only a single disputed
material fact. (See CCP § 437c(c) [a 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.”] [emphasis added].) Thus, any disputed material fact means the
court must deny the motion – the court has no discretion to grant summary
judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana
v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿
EVIDENTIARY
OBJECTIONS
Defendant
submitted evidentiary objections to the Declaration of Jake Y. Jung in support of
Plaintiff’s Opposition to the Motion for Summary Adjudication.
Defendant’s objections nos. 1 to 3 are SUSTAINED in their
entirety.
Objection Nos. 11, 12, and 43 are SUSTAINED.
DISCUSSION
Defendant moves for Summary Adjudication as to Plaintiff’s second, third, fourth, and fifth causes of action on the basis that Plaintiff cannot present evidence to support her causes of action.
4th and 5th COA: Breach of
Express Warranty and Breach of Express Warranty under the Song-Beverly Act
To prevail on a breach of an express warranty claim, the
plaintiff must prove (1) the seller’s statements constitute an affirmation of
fact or promise or a description of the goods; (2) the statement was part of
the basis of the bargain; and (3) the warranty was breached. (Weinstat v.
Denstply Internat., Inc. (2010) 180 Cal.App.4th 1213, 1227.)
Under the Song-Beverly Act, “[i]f
a manufacturer or its representatives cannot service or repair a new motor
vehicle in conformance with the express warranties after a reasonable number of
attempts, the manufacturer must either replace the vehicle or make restitution
to the buyer.”
(Lundy v. Ford Motor Co. (2001) 87 Cal.App.4th 472, 475–476, see also Civ. Code, § 1793.2 subd. (d).) The Song-Beverly Act “does not require the manufacturer to make restitution or replace a vehicle if it has had only one opportunity to repair that vehicle.” (Silvio v. Ford Motor Co. (2003) 109 Cal. App. 4th 1205, 1208.)
Defendant moves for summary adjudication as to the fifth causes of action for breach of express warranty under the Song-Beverly Act on the basis that the subject vehicle was only repaired once and Defendant did not have an obligation to make restitution or replace the subject vehicle.
a.
The June 4, 2019 Repair
Plaintiff alleges that after she experienced the first sudden unintended acceleration (“SUA”) on or about June 2, 2019, she informed Defendant and made an appointment with a service advisor of the Burbank service center. Defendant does not dispute that the subject vehicle was brought to a service center on June 18, 2019, and that Plaintiff picked up the vehicle on July 5, 2019. What Defendant disputes is Plaintiff’s assertion that the subject vehicle was first brought in for repairs on June 4, 2019, because Plaintiff cannot provide any evidence that she brought the car in for repairs on June 4, 2019.
Plaintiff’s deposition testimony states she likely contacted a salesperson the day after the incident but that she did not bring in the car for repair a day or two after the June 2, 2019 incident. Specifically, Plaintiff states:
“Actually, I could not bring the car in the next day, because I was told - - I think about a week later or so that - - strike that - - “I had to bring the car to the service station a few days later. And I was told they were going to keep the car for about a week, but my recollection is that that they held the car for a lot longer, maybe two to three weeks.”
(Jung Decl. ¶¶ 3, 8 Ex. D [Plaintiff Depo. 79:23-80:7; 95:16-23].)
Defendant has met its burden of showing that the subject vehicle was brought in for repair once on June 18, 2019. (UMF No. 4.)
The burden is on Plaintiff to show that a triable issue of fact exists as to the number of repairs on the subject vehicle. To oppose Defendant’s motion, Plaintiff needed to submit “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code of Civ. Proc. § 473c subd. (b)(1).) Plaintiff has failed to rebut Defendant’s evidence that the subject vehicle was brought in for repairs a second time on June 18, 2019. There is no declaration by Plaintiff attesting to having brought the subject vehicle in for repairs on June 4, 2019, nor reference to written discovery attesting to the fact, nor citations to Plaintiff’s deposition testimony confirming that June 18, 2019, was the second time Plaintiff brought the subject vehicle in for repairs. Moreover, Plaintiff’s reference to the Complaint as evidence to support the inference that the subject vehicle was brought in for repairs on June 4, 2019, is not evidence. The pleadings only frame the issues of the case and the materiality of a disputed fact. (See Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.)
Accordingly, Plaintiff has failed to present any evidence that a triable issue of fact exists regarding the subject vehicle being brought in for repairs on June 4, 2019.
b. December 06, 2019, Demand Letter
Plaintiff argues that a Demand Letter sent to Defendant on December 6, 2019, constitutes a presentation of repair under Civil Code section 1793.2 subd. (c). Section 1793.2 subdivision (c) states:
“The buyer shall deliver nonconforming goods to the manufacturer’s service and repair facility within this state, unless, due to reasons of size and weight, or method of attachment, or method of installation, or nature of the nonconformity, delivery cannot reasonably be accomplished. If the buyer cannot return the nonconforming goods for any of these reasons, he or she shall notify the manufacturer or its nearest service and repair facility within the state. Written notice of nonconformity to the manufacturer or its service and repair facility shall constitute return of the goods for purposes of this section. Upon receipt of that notice of nonconformity, the manufacturer shall, at its option, service or repair the goods at the buyer’s residence, or pick up the goods for service and repair, or arrange for transporting the goods to its service and repair facility. All reasonable costs of transporting the goods when a buyer cannot return them for any of the above reasons shall be at the manufacturer’s expense. The reasonable costs of transporting nonconforming goods after delivery to the service and repair facility until return of the goods to the buyer shall be at the manufacturer’s expense.”
Plaintiff argues that due to another SUA incident that occurred on September 29, 2022, the subject vehicle was destroyed, making it unfeasible to bring the subject vehicle to Defendant for repair. (Jung Decl. Ex. A.) The Demand letter states:
“After the incident, Ms. Seo contacted the Los Angeles police department to report the incident (attached hereto as Exhibit "2"). Ms. Seo also contacted Tesla, but Tesla to date has completely failed to resolve this matter. As a result, the Vehicle was towed to an auto body shop and has been stored there for more than three (3) months, incurring more damages to our Client.”
(Id. at p. 2 of 6.)
Section 1793.2 expressly places the burden on the manufacturer to “service or repair the goods at the buyer’s residence, or pick up the goods for service and repair, or arrange for transporting the goods to its service and repair facility” upon notice of written nonconformity. (Code of Civ. Proc., § 1793.2 subd. (c). All that section 1793.2 requires is that when the subject vehicle cannot reasonably be presented for repair, the buyer may provide written notice of the nonconformity to the manufacturer or its service repair facility, which is what Plaintiff’s December 06, 2019 Demand Letter did. Accordingly, the burden was on Defendant to show that Plaintiff refused to have the subject vehicle repaired after Plaintiff sent the written notice of the nonconformity.
Therefore, Plaintiff has presented evidence that a triable issue of material fact exists regarding the number of times the subject vehicle was presented to Defendant for repairs. “A trier of fact might determine that two or three or more attempts were reasonable under the circumstances of the case or were unreasonable under those circumstances.” (Silvio, supra, 109 Cal.App.4th 1205, 1209.) The trier of fact may find that Plaintiff’s December 06, 2019 Demand Letter counts as a second repair attempt and Defendant failed to act in repairing the subject vehicle and thereby breached an express warranty under the Song-Beverly Act.
c. No Breach of Express Warranty
Defendant next argues that Plaintiff cannot present any evidence that there was a breach of an express warranty under the fourth cause of action relating to a nonconformity in materials or manufacturing in the subject vehicle.
Defendant presents evidence that an analysis of the June 02, 2019 SUA incident showed that the accelerator pedal was manually pressed by the driver immediately prior to the incident and the subject vehicle operated without fault. (UMF 12.) Defendant presents no evidence that the second SUA incident on September 29, 2019, was also caused by the accelerator pedal being pressed down or that the subject vehicle was performing as intended on the day of the incident. Plaintiff presented evidence of the damage the subject vehicle suffered during the second SUA incident. (Jug Decl. ¶ 6, Ex. B.) Therefore, a crash did occur, but whether it was caused by a SUA defect remains a question of material fact that is disputed.
Second, Defendant argues that Plaintiff has only alleged a design defect and not a defect in the materials or manufacturing that are covered by the express warranty on the subject vehicle. Defendant’s contention is without merit because Plaintiff’s complaint sufficiently alleges that a design or manufacturing defect exists regarding the accelerator control system and the Automated Emergency Breaking in the subject vehicle and that Defendant’s express warranties cover those defects. (Compl. ¶¶ 57, 84, 85.) Therefore, “Tesla breached these warranties by leasing the subject vehicle with the defect, requiring repair or replacement within the applicable warranty periods, and refusing to honor the warranties by providing free repairs or replacements during the applicable warranty periods.” (Compl. ¶ 85.)
Therefore, a triable issue of fact exists as to whether a SUA defect exists.
d. Affirmation for an Express Warranty
Defendant argues that statements
made in its marketing materials like “one of the safest cars in the world” do
not create an express warranty and are instead “statements of value, opinion,
or commendation” for its vehicle. (See Keith v. Buchanan (1985) 173 Cal.App.3d 13, 19–20 [“Again, formal words are not required in order to create
an express warranty, but statements of value, opinion, or commendation do not
create a warranty.”].) Nevertheless, “statements made by a manufacturer or
retailer in an advertising brochure which is disseminated to the consuming
public in order to induce sales can create express warranties. (Id. at
22.)
Plaintiff argues that Defendant explicitly marketed its vehicles as having specific safety features, such as Forward Collision Alert and Automatic Emergency Breaking, and marketed its Model 3 as being designed to be the safest car on the road. Specifically, Plaintiff alleges that the Model 3 Owner’s Manual represented the Model 3 as being equipped with safety features called the “Forward Collision Warning” and “Automatic Emergency Barking” designed to increase safety. (Reynolds Decl. Ex. 3 [SROGS No. 32.])
Under the Song-Beverly Act, consumer remedies are in addition to those available to a consumer under the California Uniform Commercial Code. (See Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304.) Under the California Commercial Code section 2313, subdivision (1)(a) and (b):
“(a) Any affirmation of fact or promise made by the seller to the buyer
which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the
affirmation or promise. (b) Any description of the goods which is made
part of the basis of the bargain creates an express warranty that the
goods shall conform to the description.”
(Weinstat, supra, 180 Cal.App.4th at 1227.)
Similarly, under the Song-Beverly Act, an express warranty is defined in section 1791.2 in pertinent part as follows:
“(a) . . . written statement
arising out of a sale to the consumer of a consumer good pursuant to which the
manufacturer, distributor, or retailer undertakes to preserve or maintain the
utility or performance of the consumer good or provide compensation if there is
a failure in utility or performance; . . .
(b) It
is not necessary to the creation of an express warranty that formal words such
as “warrant” or “guarantee” be used, but if such words are used then an express
warranty is created. An affirmation merely of the value of the goods or a
statement purporting to be merely an opinion or commendation of the goods does
not create a warranty.
(c) Statements or
representations such as expressions of general policy concerning customer satisfaction
which are not subject to any limitation do not create an express warranty.”
(Civ. Code, § 1791.2)
Defendant argues that regardless of whether it made representations about the safety of the subject vehicle, it is immaterial because those representations were not made or considered by Plaintiff during the purchase of the subject vehicle. (Reynolds Supp. Decl. Ex. 1 [Seo Depo. 79:23-81:25].) Plaintiff’s deposition shows that Plaintiff did not research or review written material prior to her decision to buy the Model 3. (Id.) Plaintiff admits only considering the maintenance, the mileage, and the look of the vehicle when she purchased the subject vehicle. (Id.)
Accordingly, Plaintiff cannot prove that the safety features advertised on the Model 3, were an express warranty by Defendant, that Plaintiff relied on those warranties, or that Defendant breached those warranties. Accordingly, the Court finds that there were no warranties based on affirmations about the subject vehicle’s safety.
Nevertheless, summary adjudication is denied as to the fourth and fifth cause of action based on breach of express warranty related to the alleged existence of a SUA defect.
2nd COA and 3rd COA:
Violation of the Consumer Legal Remedies Act (CLRA) and the Unfair Business
Practices (UCL)
a. CLRA
The Consumer Legal Remedies Act (CLRA) protects
individuals engaging in consumer transactions. It prohibits “unfair
methods of competition and unfair or deceptive acts or practices undertaken by
any person in a transaction intended to result or which results in the sale or
lease of goods or services to any consumer.” (Civ. Code, § 1770, subd. (a).) It
sets forth twenty-seven (27) different “unfair or deceptive acts or practices”
that may constitute a violation of the Act. (Id.) In assessing
whether the representations made in the
course of the consumer transaction violate the CLRA, courts use the
reasonable consumer standard—i.e., whether a reasonable consumer would be
misled by the representation. (Consumer Advocates v. Echostar
Satellite Corp. (2003) 113 Cal.App.4th 1351, 1360.) To the
extent an alleged violation is based on the defendant’s omission of a material
fact, “to be actionable the omission must be contrary to a representation
actually made by the defendant, or an omission of a fact the defendant was
obliged to disclose.” (Daugherty v. American Honda Motor Co., Inc.
(2006) 144 Cal.App.4th 824, 835.) Reliance in concealment cases is best
expressed in terms that the plaintiff would have behaved differently had the
true facts been known. (See Mirkin v. Wasserman (1993) 5 Cal.4th 1082,
1093 [“One need only
prove that, had the omitted information been disclosed, one would have been
aware of it and behaved differently.”].)
b.
UCL
Business and Professions Code section 17200 (“UCL”) prohibits “any unlawful, unfair or fraudulent business act or practice.” (Bus. & Prof. Code, § 17200; see Clark v. Superior Court (2010) 50 Cal.4th 605, 610.) “An unlawful business practice or act is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law.” (Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969.) “A business practice is unfair within the meaning of the UCL if it violates established public policy or if it is immoral, unethical, oppressive or unscrupulous and causes injury to consumers which outweighs its benefits.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1473.) Lastly, a fraudulent business practice claim under section 17200 “is not based upon proof of the common law tort of deceit or deception, but is instead premised on whether the public is likely to be deceived.” (Pastoria v. Nationwide Ins. (2003) 112 Cal.App.4th 1490, 1499.)
Plaintiff does not deny that intentional concealment is the basis of her CLRA claim and fraud is the basis of her UCL claim. (UMF 14; Compl. ¶¶ 55, 73.) Plaintiff argues that Defendant violated the CLRA and UCL by knowingly and intentionally concealing from Plaintiff that the Model 3 suffers from a defect related to the SUA. Plaintiff’s discovery responses assert that warranties included in the purchase and verified by Tesla in its marketing materials were the safety of the subject vehicle and its collision avoidance system. Moreover, Defendant’s Basic Warranty confirmed that Defendant would correct any defect in material or workmanship for any parts manufactured or supplied by Tesla for a period of 4 years or 50,000 miles, whichever came first. Defendant does not dispute that the Basic Warranty states this.
The unfair or deceptive practice that Defendant is alleged to have engaged in is that the defect, included the accelerator control system and the Automated Emergency Braking in Model 3. Tesla breached these warranties by leasing the subject with the defect, requiring repair or replacement occur within the applicable warranty period but then refusing to honor the warranties. (Reynolds Decl. Ex. 3 [SROGS No. 32, 33].) Plaintiff also submitted photographs of the damage to the subject vehicle suffered after the second SUA incident. (Jung Ex. B.)
Defendant moves for summary adjudication as to the second and third causes of action on the basis that Plaintiff cannot produce evidence to support her CLRA and UCL claims.
First, before Plaintiff has the burden to produce evidence in support her claims, Defendant has the initial burden of showing there no triable issue of material fact exists. Plaintiff is correct in asserting that if she can prove that the SUA defect existed, Plaintiff may be able to prevail on her CLRA and UCL causes of action. Therefore, Defendant has not proved that no triable issue of fact exists regarding the existence of the alleged SUA defect.
Defendant has not provided any evidence that the second SUA incident and the resulting crash were not caused by an alleged SUA defect or that Defendant did not breach any of its expressed warranties. More importantly, discovery is ongoing. Plaintiff was deposed on September 19 and October 21, 2022. (Jung Decl. ¶ 8.) Defendant PMK has still not been deposed and a date is still being negotiated by the parties. (Jung Decl. ¶ 9.) Moreover, neither party has designated an expert. (Jung Decl. ¶ 11.)
Lastly, for the first time on a reply, Defendant argues that Plaintiff cannot prove the element of reliance on her CLRA claim. “Points raised for the first time in a reply brief will not be considered.” (Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299, 320.) Second, on a CLRA claim based on concealment, reliance can be expressed by showing that the plaintiff would have behaved differently had the true facts been known. (Mirkin, supra, 5 Cal.4th 1082, 1093.] Defendant has failed to show that plaintiff would not have acted differently had she known about the alleged SUA defect.
Since a triable issue of fact exists regarding the existence of an alleged SUA defect, Defendant has not shown it is entitled to summary adjudication as to the second and third causes of action. (See Code Civ. Proc., § 437c subd. (c) [a 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.”] [emphasis added].) Any disputed material fact means the court must deny the motion – the court has no discretion to grant summary judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)
CONCLUSION
Defendant’s Motion for Summary Adjudication is DENIED.
Defendant to give notice.