Judge: Yolanda Orozco, Case: 20STCV48832, Date: 2023-04-28 Tentative Ruling
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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.
Case Number: 20STCV48832 Hearing Date: April 28, 2023 Dept: 31
PROCEEDINGS: MOTION
FOR SUMMARY JUDGMENT
MOVING PARTY: Defendant
General Motors LLC (“GM”)
RESP. PARTY: Plaintiff
Nicole Grown
MOTION
FOR SUMMARY JUDGMENT
TENTATIVE RULING
Defendant GM’s Motion for Summary
Judgment is DENIED
Background
On December 22, 20202, Plaintiff Nicole Brown filed a
Complaint against Defendant General Motors, LLC (“GM”) and Does 1 to 20. The
Complaint alleges causes of action for:
1)
Breach of Implied Warranty under the Song-Beverly
Warranty Act and
2)
Breach of Express Warranty under the Song-Beverly
Warranty Act and
On November 07, 2022, Defendant GM moved for summary
judgment as to the two causes of action in Plaintiff’s Complaint.
Plaintiff filed opposing papers on March 07, 2023.
No reply has been filed.
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
Plaintiff
submitted evidentiary objections to the Declaration of Cameron Major.
Objections Nos. 1, 2, and 3 are OVERRULED.
Discussion
Defendant GM moves for
summary judgment, on the basis that Plaintiff purchased a used vehicle without
any express or implied warranties.
Relevant Facts
In November of 2018,
Plaintiff purchased the subject vehicle, a 2017 Chevrolet Tahoe, from
Enterprise Rent-A-Car Company (“Enterprise”) with 44,848 miles on the odometer.
(UMF 1, 2.)
GM’s records show that Rydell
Chevrolet sold the subject vehicle as a daily rental vehicle on March 03, 2017,
with nine (9) miles on its odometer. (Major Decl. ¶ 4, Ex. B.) In connection
with the sale, GM issued a New Vehicle Limited Warranty (the “GM 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/5 years or 60,000 miles. (UMF
6; Major Decl. ¶ 4, Ex. C.)
GM asserts that at the time
Plaintiff purchased the subject vehicle, the bumper-to-bumper coverage had
expired and all that remained was the power terrain warranty. (Major Decl. ¶ 5,
Ex. C.) GM asserts it believes that Enterprise, the dealership where Plaintiff
purchased the vehicle, is not a GM-Authorized dealership. (Major Decl. ¶ 2.) It
is undisputed that GM was not a party to the transaction between Plaintiff and
Enterprise. (UMF 1; DCOE Ex. A.) GM asserts that when Plaintiff purchased the
vehicle in 2018, she received only the balance coverage remaining under the GM
Warranty issued in March of 2017, which included the powertrain warranty but no
bumper-to-bumper coverage. (Major Decl. ¶¶ 5-6, Ex. A, C, & D.)
On February 12, 2020, when
the subject vehicle had 63,408 miles on the odometer, Plaintiff brought in her
vehicle for repair at Merel Stone Chevrolet in Porterville, CA. (UMF 9.) When
the subject vehicle had 68,998 miles on the odometer, Plaintiff again brought
the vehicle in for repair on September 23, 2020. (UMF 10.)
Breach of Implied
Warranty
Defendant GM now moves for
summary judgment on the basis that Plaintiff cannot pursue a Breach of Implied
Warranty claim under the Song-Beverly Act for a used vehicle.
GM cites Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, for the
proposition since it manufactured, but did not sell the subject vehicle, no
implied warranty attached. “[P]laintiff's implied warranty claim fails as a
matter of law, because in 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.” (Id. at 398.)
Civil Code section 1795.5 states
that the implied warranty, issued by a distributor or retail seller of used
consumer goods, has a duration of no “more than three months following the sale
of used consumer goods to a retail buyer. Where no duration for an express
warranty is stated with respect to such goods, or parts thereof, the duration
of the implied warranties shall be the maximum period prescribed above.” (Civ.
Code, § 1795.5 subd. (c).)
Defendant GM asserts that as the
manufacturer of the subject vehicle but not the seller, no implied warranties are
attached to the sale of the vehicle. (Kiluk v. Mercedes-Benz USA, LLC
(2019) 43 Cal.App.5th 334, 340 [finding section 1795.5 applies to a
manufacturer when it partnered with a dealership to sell used vehicles directly
to the public].)
GM has met its initial burden
that there are no triable issues of fact. The burden shifts to Plaintiff to
present evidence that GM sold the vehicle and acted as a retailer such that
section 1795.5 applies to GM.
Plaintiff argues that GM has
failed to meet its burden of showing that Enterprise is not associated with GM
and is not a GM-authorized dealership. The Court notes that in Nunez,
the burden was on plaintiff to present evidence that the defendant was the seller
of the used vehicle: “Here, plaintiff presented no evidence that defendant was ‘a
distributor or retail seller of used consumer goods’ (§ 1795.5), or in any way
acted as such.” (Nunez, supra, 61 Cal.App.5th at
399.) Accordingly, the burden is on Plaintiff to show that GM issued an implied
warranty by acting as a distributor or retailer. Plaintiff fails to do so.
Accordingly, summary
judgment may be granted as to the first cause of action.
Breach of Express
Warranty
Defendant GM asserts that it
did not issue or provide any new or additional warranty coverage to Plaintiff
when she purchased the vehicle from Enterprise. All that plaintiff received was
balance coverage remaining under the 2017 GM Warranty. (PCOE Ex. 2, Major Decl.
¶ 5, Ex. C.)
GM asserts that under Rodriguez
v. FCA US, LLC (2022) 77 Cal.App.5th 209, used vehicles with a balance
remaining on a new vehicle warranty are not considered a “new motor vehicle”
under the Song-Beverly Act, such that no warranties attached to Plaintiff’s
purchase of a used vehicle. Rodriguez is pending review before the
California Supreme Court and may be cited for its persuasive value but is not
binding on this Court pursuant to Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 45.
In Jensen v. BMW of North America, Inc. (1995) 35
Cal.App.4th 112, the Third District rejected the idea that used vehicles sold
with a balance of the warranty are not subject to the protections of the
Song-Beverly Act:
“We conclude the words of section
1793.22 are reasonably free from ambiguity and 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 123.)
Jensen
examined the legislative history of the Song Beverly Act, concluding that “section 1793.22 includes cars sold
with a balance remaining on the new motor vehicle warranty” and that such a
finding “is consistent with the Act's purpose as a remedial measure” and “also
consistent with the Department of Consumer Affairs' regulations which interpret
the Act to protect ‘any individual to whom the vehicle is transferred during
the duration of a written warranty.’ (Cal. Code Regs., tit. 16, § 3396.1, subd.
(g).)” (Jensen, supra, 35 Cal.App.4th at 126 [internal citations omitted].)
The Court finds Jensen to be not only
persuasive but binding on this court. (See Cuccia v. Superior Court (2007)
153 Cal.App.4th 347, 353–354.) Moreover, neither Nunez v. FCA US LLC
(2021) 61 Cal.App.5th 385 nor Kiluk v. Mercedes-Benz USA, LLC
(2019) 43 Cal.App.5th 334, have disproved Jensen.
Accordingly, Plaintiff may
proceed with a breach of express warranty claim against GM if she can show that
she purchased the vehicle with a balance remaining on the new car warranty
issued by the manufacturer. Plaintiff presents a GM record, titled “View
Vehicle Summary” that shows the repairs were performed as well as the
applicable warranties on the subject vehicle. (Kim Decl. Ex. 2; Major Decl. ¶
6, Ex. D.)
The “View Vehicle Summary”
report is Plaintiff’s Exhibit 2, which is Defense Exhibit D. (Major Decl. ¶ 6,
Ex. D.) The Vehicle summary states that a warranty was added on October 10, 20,
2020 and the bumper-to-bumper limited warranty states that it does not expire until
March 03, 2023, or when the odometer reaches 36,009 miles. (Id.)
Other warranties are listed,
including the powertrain limited warrant set to expire on March 03/2022 or
60,009 miles; corrosion limited warranty set to expire on March 03, 2023 or
100,0009 miles.
GM fails to explain what the
“Applicable Warranties” are in the “View Vehicle Summary” report or dispel such
warranties. Accordingly, questions of fact exist as to whether the purchased
vehicle came with express manufacturer warranties as articulated in the “View
Vehicle Summary” report.
Summary judgment as to the
second cause of action is DENIED.
Since Defendant GM did not seek
summary adjudication as to any single cause of action, the motion for summary
judgment is denied. Summary
judgment must dispose of the entire complaint. (Code Civ. Proc., § 437c, subd.
(c); see also Twain Harte Associates, Ltd. v. County of
Tuolumne (1990) 217 Cal.App.3d 71, 80.)
Since the Motion is DENIED. The
Court need not decide if Plaintiff’s request for Leave to Amend her Complaint should
be granted as the motion is not yet before the Court.
Conclusion
Defendant GM’s Motion for
Summary Judgment is DENIED.
Defendant to give notice.