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This case was last updated from Los Angeles County Superior Courts on 05/31/2019 at 03:16:02 (UTC).

JESSICA PIEROG VS MIKE THOMPSON RECREATIONAL VEHICLES ET AL

Case Summary

On 08/28/2017 JESSICA PIEROG filed a Contract - Other Contract lawsuit against MIKE THOMPSON RECREATIONAL VEHICLES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3980

  • Filing Date:

    08/28/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RANDOLPH M. HAMMOCK

 

Party Details

Plaintiff and Petitioner

PIEROG JESSICA

Defendants and Respondents

FORD MOTOR COMPANY

FOREST RIVER INC.

MIKE THOMPSON RECREATIONAL VEHICLES

DOES 1 TO 100

FORD MOTOR COMPANY - DOE 1

BILL DUNN ONE STOP SHOP INC. - DOE 2

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

MASI ANTHONY M.

Defendant Attorneys

EFSTRATIS HARRY PAUL ESQ.

HALVORSEN MICHAEL ROBERT

 

Court Documents

NOTICE OF CHANGE OF FIRM ADDRESS

3/19/2018: NOTICE OF CHANGE OF FIRM ADDRESS

PROOF OF SERVICE SUMMONS

6/27/2018: PROOF OF SERVICE SUMMONS

DEFENDANT FOREST RIVER, INC.'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MATTHEW A. GARDNER

7/31/2018: DEFENDANT FOREST RIVER, INC.'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MATTHEW A. GARDNER

FIRST AMENDED COMPLAINT FOR: 1) BREACH OF EXPRESS WARRANTY (CIVIL CODE SECTI0N 1794), ETC

8/31/2018: FIRST AMENDED COMPLAINT FOR: 1) BREACH OF EXPRESS WARRANTY (CIVIL CODE SECTI0N 1794), ETC

Motion to Be Relieved as Counsel

2/1/2019: Motion to Be Relieved as Counsel

Order Granting Attorney"s Motion to Be Relieved as Counsel-Civil

3/6/2019: Order Granting Attorney"s Motion to Be Relieved as Counsel-Civil

Minute Order

4/25/2019: Minute Order

Notice of Ruling

4/25/2019: Notice of Ruling

Minute Order

5/20/2019: Minute Order

NOTICE OF UNAVAILABILITY OF COUNSEL

11/15/2017: NOTICE OF UNAVAILABILITY OF COUNSEL

Unknown

11/17/2017: Unknown

NOTICE OF TRIAL AND RELATED DATES FROM CASE MANAGEMENT CONFERENCE

12/5/2017: NOTICE OF TRIAL AND RELATED DATES FROM CASE MANAGEMENT CONFERENCE

DEFENDANT FOREST RIVER, INC.?S ANSWER TO PLAINTIFF?S UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL

10/16/2017: DEFENDANT FOREST RIVER, INC.?S ANSWER TO PLAINTIFF?S UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL

DEFENDANT MIKE THOMPSON?S RECREATIONAL VEHICLES, INC.?S ANSWER TO PLAINTIFF?S UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL

10/16/2017: DEFENDANT MIKE THOMPSON?S RECREATIONAL VEHICLES, INC.?S ANSWER TO PLAINTIFF?S UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL

DEFENDANT FORD MOTOR COMPANY'S ANSWER TO PLAINTIFF JESSICA PIEROG'S UNVERIFIED COMPLAINT

9/27/2017: DEFENDANT FORD MOTOR COMPANY'S ANSWER TO PLAINTIFF JESSICA PIEROG'S UNVERIFIED COMPLAINT

PROOF OF SERVICE SUMMONS

9/5/2017: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

8/29/2017: PROOF OF SERVICE SUMMONS

COMPLAINT 1. BREACH OF EXPRESS WARRANTY IN VIOLATION OF THE CALIFORNIA SONG-BEVERLY CONSUMER WARRANTY ACT (RE: WHOLE CONSUMER GOOD);ETC

8/28/2017: COMPLAINT 1. BREACH OF EXPRESS WARRANTY IN VIOLATION OF THE CALIFORNIA SONG-BEVERLY CONSUMER WARRANTY ACT (RE: WHOLE CONSUMER GOOD);ETC

52 More Documents Available

 

Docket Entries

  • 05/29/2019
  • at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 05/21/2019
  • Notice of Ruling; Filed by Mike Thompson Recreational Vehicles (Defendant); Forest River, Inc. (Defendant); Bill Dunn One Stop Shop, INC. - DOE 2 (Defendant)

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  • 05/20/2019
  • at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion to Compel Further Discovery Responses - Held

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  • 05/20/2019
  • Minute Order ( (Hearing on Motion to Compel Further Discovery Responses)); Filed by Clerk

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  • 05/02/2019
  • Opposition (DEFENDANT MIKE THOMPSON?S RECREATIONAL VEHICLES, INC.?S OPPOSITION TO PLAINTIFF?S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUEST FOR SANCTIONS); Filed by Mike Thompson Recreational Vehicles (Defendant)

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  • 05/02/2019
  • Declaration (DECLARATION OF MICHAEL R. HALVORSEN IN SUPPORT OF DEFENDANT MIKE THOMPSON?S RECREATIONAL VEHICLES, INC.?S OPPOSITION TO PLAINTIFF?S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUEST FOR SANCTIONS); Filed by Mike Thompson Recreational Vehicles (Defendant)

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  • 04/25/2019
  • at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Post-Mediation Status Conference - Held - Continued

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  • 04/25/2019
  • Notice of Ruling; Filed by Mike Thompson Recreational Vehicles (Defendant); Forest River, Inc. (Defendant)

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  • 04/25/2019
  • Minute Order ( (Post-Mediation Status Conference)); Filed by Clerk

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  • 03/06/2019
  • at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion to be Relieved as Counsel - Held

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97 More Docket Entries
  • 09/05/2017
  • Proof-Service/Summons; Filed by Jessica Pierog (Plaintiff)

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  • 08/30/2017
  • Proof-Service/Summons; Filed by Jessica Pierog (Plaintiff)

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  • 08/30/2017
  • Notice; Filed by Jessica Pierog (Plaintiff)

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  • 08/30/2017
  • PROOF OF SERVICE SUMMONS

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  • 08/30/2017
  • NOTICE OF CONSENT TO RECEIVE FAX AND ELECTRONIC SERVICE

    Read MoreRead Less
  • 08/29/2017
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 08/29/2017
  • Proof-Service/Summons; Filed by Jessica Pierog (Plaintiff)

    Read MoreRead Less
  • 08/28/2017
  • Complaint; Filed by Jessica Pierog (Plaintiff)

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  • 08/28/2017
  • COMPLAINT 1. BREACH OF EXPRESS WARRANTY IN VIOLATION OF THE CALIFORNIA SONG-BEVERLY CONSUMER WARRANTY ACT (RE: WHOLE CONSUMER GOOD);ETC

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  • 08/28/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC673980    Hearing Date: July 20, 2020    Dept: 47

Jessica Pierog v. Mike Thompson Recreational Vehicles

 

GIVEN THE RECENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES REMOTE APPEARENCES BY “LACourtConnect.” PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR REMOTELY AT WWW.LACOURT.ORG/LACC/. NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C.

 

DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (X3)

MOVING PARTY: (1) Defendant Forest River, Inc.; (2) Defendant Mike Thompson Recreational Vehicles, Inc.; (3) Defendant Bill Dunn One Stop Shop, Inc.

RESPONDING PARTY(S): No opposition filed on eCourt as of July 16, 2020

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a lemon law action.

Defendants Forest River, Inc., Mike Thompson Recreational Vehicles, Inc., and Bill Dunn One Stop Shop, Inc. separately move for summary judgment or summary adjudication.

TENTATIVE RULING:

Defendant Forest River, Inc.’s motion for summary judgment is GRANTED.

Defendant Forest River, Inc.’s alternative motion for summary adjudication is DENIED AS MOOT.

Defendant Mike Thompson Recreational Vehicles, Inc.’s motion for summary judgment is GRANTED.

Defendant Mike Thompson Recreational Vehicles, Inc.’s alternative motion for summary adjudication is DENIED AS MOOT.

Defendant Bill Dunn One Stop Shop, Inc.’s motion for summary judgment is GRANTED.

Defendant Bill Dunn One Stop Shop, Inc.’s alternative motion for summary adjudication is DENIED AS MOOT.

DISCUSSION:

Analysis Applicable to All Three Motions

Errors of Service

Defendants purported to serve all three of these motions by mail with “courtesy” copies by email. Yet none of the motions were served by mail in a timely manner. All were served 79 days before their original hearing dates, not 80. The Court will consider the motions because they were timely served electronically, but Defendants should rethink their method of calculating service and filing deadlines, given that these motions were served three separate days and were all served and filed one day late based on the date of their service by mail.

Procedural Errors as to Summary Adjudication

When seeking summary adjudication, “the specific cause of action . . . must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (CRC 3.1350(b), bold emphasis added.) The separate statement must “separately” identify “[e]ach cause of action . . . that is the subject of the motion.” (CRC 3.1350(d)(1)(A), bold emphasis added.) The separate statement must also “separately” identify “[e]ach supporting material fact claimed to be without dispute with respect to the cause of action” – that is, each cause of action – “that is the subject of the motion.” (CRC 3.1350(d)(1)(B), bold emphasis added.) That means that if the same facts relate to multiple causes of action, they must be separately set forth in the separate statement as to each cause of action as to which the moving party seeks summary adjudication. Defendant’s separate statement does not comply with this requirement.

Ultimately, the motions for summary adjudication are moot in light of Defendants’ successful motions for summary judgment. Had it been necessary to consider the motions for summary adjudication, they would have been denied for failure to comply with the applicable procedural rules.

Factual and/or Typographical Errors

Every separate statement indicates that Plaintiff bought the RV on August 30, 2016. (Separate Statement (“SS”) No. 1.) Every separate statement (and memorandum of points and authorities) then goes on to discuss events in early 2016 that presumably took place in 2017.[1] The Court is told that “[w]hen plaintiff was not living in the subject Sunseeker RV at the Newport Dunes RV Park between October 25, 2016 through March 2016, she was staying with her sister, in a tent, or hotel.” (SS No. 38.) “Plaintiff moved to an apartment in Irvine in April 2016.” (SS No. 39.) “After plaintiff moved to an apartment in Irvine, she parked the subject Sunseeker RV in storage in April 2016.” (SS No. 41.) “After parking the subject Sunseeker RV in storage in April 2016, plaintiff drove to it [sic] Disneyland in Anaheim in May 2016.” (SS No. 42.) “The trip to Anaheim in early May 2016 is the only time the plaintiff drove the subject Sunseeker RV on a trip.” (SS No. 43.) “Plaintiff did not have any issues driving the subject Sunseeker RV from Newport Beach to Anaheim and back again in May 2016.” (SS No. 44.) “Plaintiff stayed in the subject Sunseeker RV at an RV park in Anaheim as part of her trip to Disneyland in May 2016.” (SS No. 45.)

If these examples are not a typos, then what relevance does any of these pre-purchase dates have to these motions? None whatsoever. And yet Defendants did not make this mistake – related to the facts that are central to their motions – inadvertently once or even twice. Defendants made this mistake consistently throughout three separate motions in which they are seeking to dispose of Plaintiff’s complaint summarily. That’s dozens of times, in three separate and distinct motions. Again, this gives the Court pause.

Nor do any of Defendants’ references to evidence in support of these misstated facts give the Court any help in locating the true facts, since they refer to evidence merely by exhibit number, with no paragraphs, lines, or any other direction.

Given these errors and the procedural errors above, Defendants’ counsel would do well to heed this advice in the Rutter Guide:

PRACTICE POINTER:

Make it as easy as possible for the court to read and review. Cite to the page and line number of declarations, depositions, etc., and copies or excerpts of the critical passages should be filed in a separate compendium (see ¶ 10:106.1 ff.) wherever possible.

(Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 10:100, bold emphasis added.) In fact, Defendants’ counsel would do well to read the whole chapter on summary judgment/adjudication.

Errors of Judgment

Not content to limit themselves to mere procedural errors and factual errors, Defendants have committed multiple errors of judgment in these motions. In particular, in stating what they claim are the “pertinent” facts, Defendants have taken it upon themselves to opine about where Plaintiff should have lived when, apparently also taking it upon themselves to express their views about the proper living arrangements for a single woman without children.

To quote singer/songwriter Sara Bareilles, among others, “[w]ho died and made you king?”[2] The Court recognizes the limited relevance of facts related to Plaintiff’s lifestyle to the issues herein, given that the RV’s fitness for the particular purpose for which Plaintiff intended to use it is relevant. This does not give Defendants carte blanche to opine (with zero evidentiary support, naturally) that Plaintiff now “lives in an apartment like she should have done directly from her parents’ home in Monarch Beach,” that Plaintiff “made a very questionable decision to purchase a RV and live at a RV park with her dog as a single woman and with a BMW parked next to it,” and that Plaintiff “quickly realized that living at Newport Dunes RV Park as a single woman was not as good as it initially sounded particularly at night.” (Motions at pp. 10, 11.) Defendants also stress that Plaintiff had “zero need for the subject Sunseeker on any level.” (Id. at p. 10.) Makes you wonder whether Defendants went into the right line of work as manufacturers, salespeople, and customizers of RVs. Maybe they would have preferred instead to counsel single women on their housing choices for a living?

Motion for Summary Judgment: Forest River, Inc.

As discussed in connection with Defendant’s motion for summary adjudication below, Defendant has demonstrated that they are entitled to prevail as to each cause of action asserted against them. Accordingly, the motion for summary judgment is GRANTED.

Motion for Summary Adjudication

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.)

When deciding whether to grant summary judgment or adjudication, the Court must consider all of the evidence set forth in the papers, except evidence to which the Court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. (Ibid.)

A moving defendant must show that either one or more elements of the “cause of action . . . cannot be established” or that there is a complete defense to that cause of action. (CCP § 437c(p)(2). Thus, a moving defendant must generally present evidence that, if uncontradicted, “would constitute a preponderance of the evidence that an essential element of the plaintiff’s case cannot be established.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that there is a triable issue of fact regarding that element of the cause of action. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.) If the plaintiff is unable to do so, the defendant is entitled to judgment as a matter of law. (Ibid.)

Issue No. 1: “Plaintiff cannot establish the element of her First Cause of Action for Breach of Express Warranty under the Song-Beverly Consumer Warranty Act because Forest River was not given a reasonable number of repair attempts to resolve any defect in the subject Sunseeker RV covered by Forest River’s written Limited Warranty.”

Civil Code § 1793.2, which contains the statutory requirements for express warranties under the Song-Beverly Act, provides as follows regarding replacement or reimbursement after a reasonable number of repair attempts:

If the manufacturer or its representative in this state is unable to service or repair a new motor vehicle, as that term is defined in paragraph (2) of subdivision (e) of Section 1793.22, to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle in accordance with subparagraph (A) or promptly make restitution to the buyer in accordance with subparagraph (B). However, the buyer shall be free to elect restitution in lieu of replacement, and in no event shall the buyer be required by the manufacturer to accept a replacement vehicle.

(Civ. Code § 1793.2(d)(2), bold emphasis added.) In her first cause of action, Plaintiff alleges that the “warranty repairs or service performed on the Motorhome did not remedy the Defects” and “Forest River failed to repair, replace, or refund the Motorhome as required by their respective warranties.” (1AC ¶¶ 43, 44.)

Defendant presents evidence that it was given only one complete opportunity to repair the RV under the express warranty, when a mobile technician was sent to repair the shower drain on November 21, 2016. (SS No. 30; Declaration of John Black ¶ 9 & Exh. C; Declaration of Daniel J. Evans ¶ 8 & Exh. C.) This followed an incomplete opportunity to repair the RV from November 10 to 11, 2016, when Plaintiff demanded the return of the RV before the repairs could be completed. (SS Nos. 25-27; Black Decl. ¶¶ 7-8 & Exh. B.) Defendant’s General Manager of Parts, Warranty & Service, Daniel J. Evans, also indicates that Forest River has no record of any communications with Plaintiff or with any authorized repair facility about the RV being not drivable or having broken down. (SS No. 35; Declaration of Daniel J. Evans ¶ 9.)

Although the reasonableness of the number of repair attempts is generally a question of fact, a “single attempt does not meet the statutory threshold, so that there is no need for a trier of fact to determine its reasonableness.” (Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1209.) Here, Defendant has proffered evidence that it was only given one opportunity to repair the RV under the express warranty. Based on this evidence, Defendant has met its initial burden to show that Plaintiff cannot establish an element of her express warranty claim. The burden therefore shifts to Plaintiff to show that there is a triable issue of fact regarding this element. Because Plaintiff did not oppose this motion, she has not made the required showing. Defendant is therefore entitled to judgment as a matter of law as to this cause of action.

Issue No. 2: “Plaintiff cannot establish the element of her Second Cause of Action for Breach of Implied Warranty of Merchantability under the Song-Beverly Consumer Warranty Act that the subject Sunseeker RV is not substantially free of defects and otherwise fit for its intended purposes of recreational travel and camping.”

Every vehicle sold at retail is “accompanied by the manufacturer’s and the retail seller’s implied warranty that the goods are merchantable.” (Civil Code § 1792.) The “core test of merchantability is fitness for the ordinary purpose for which such goods are used.” (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1246, citation omitted.) This means that the vehicle must “[p]ass without objection in the trade under the contract description” and it must be “fit for the ordinary purposes for which such goods are used.” (Civil Code § 1791.1(a)(1), (2).) Plaintiff also alleges the other statutory violations of the implied warranty of merchantability: that the RV “does not pass without objection in the trade under the contract description, . . . was not adequately contained, packaged, and labeled, and did not conform to the promises or affirmations of fact made on the container or label if any, including but not limited to the RVIA certification.” (1AC ¶ 47.)

At its essence, in the context of a vehicle sale, fitness for its ordinary purpose is shown if it is in “safe condition and substantially free of defects.” (Brand v. Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1546.) In other words, the vehicle need not be “perfect in every detail” but rather “reasonably suited for ordinary use.” (Ibid.)

Here, Defendant has met its initial burden to show that the RV was fit for the ordinary purposes for which it would be used. The evidence discussed in connection with Issue No. 1 establishes that Defendant arranged for repairs to the RV’s shower drain and that Defendant was never informed that the RV had broken down. In addition, Plaintiff stated in her deposition that she was able to get the RV from Newport Dunes to Anaheim; she did not indicate that she had any trouble driving it there. (SS No. 44; Declaration of Michael R. Halvorsen, Exh. E.) Defendant also inspected the RV and drove it from storage to a facility for inspection without any issues. (SS Nos. 51, 52.)

Because Defendant has met its initial burden, the burden shifts to Plaintiff to show that there is a triable issue of fact. Because Plaintiff did not oppose this motion, she has not made the required showing. Defendant is therefore entitled to judgment as a matter of law as to this cause of action.

Issue No. 3: “Plaintiff cannot establish the elements of her Third Cause of Action for Breach of Implied Warranty for a Particular Purpose under the Song-Beverly Consumer Warranty Act because plaintiff has no evidence the subject Sunseeker RV was not suitable for the particular purpose that plaintiff wanted to use the subject RV [sic] namely to live in the Newport Dunes RV Park.”

When a vehicle is sold at retail “by a manufacturer who has reason to know at the time of the retail sale that the goods are required for a particular purpose and that the buyer is relying on the manufacturer's skill or judgment to select or furnish suitable goods,” it is “accompanied by such manufacturer's implied warranty of fitness.” (Civ. Code § 1792.1.)

Plaintiff alleges that she was looking for a “motorhome fit for permanent human habitation” to use as “her permanent residence for her and her dog, Hannah.” (1AC ¶ 11.) She also wanted to be able to “tow her car with the motorhome.” (Ibid.) She also requested customizations consistent with her desired use for the RV, including a dog ramp, a closet, and tints and blinds for all windows. (1AC ¶ 21.)

Defendant made no argument regarding this cause of action in its memorandum of points and authorities; it skipped directly from the second to the fourth cause of action. Defendant does state in its separate statement that “Forest River made no representation to plaintiff about the usability of the Sunseeker RV for full time residence.” (SS No. 54.) The paragraphs of the Declaration of Daniel J. Evans that are cited as support for this proposition, however, do not support it. Nor does the cited exhibit (Exhibit C). Other evidence within and attached to the Evans Declaration does, however, support this proposition. Evans declares that there is “no record of any representative from Forest River being directly involved in the sale process between MTRV and Dr. Pierog.” (Evans Decl. ¶ 10.) Evans also declares that “Forest River made no representation to Dr. Pierog about the usability of the subject Sunseeker RV for full time residence. In fact, the Forest River Limited Warranty specifically excludes coverage if the unit is used for primary residence.” (Ibid.) The warranty attached to the Evans Declaration confirms that Forest River “makes no warranty with regard to any product used . . . as a permanent residence.” (Evans Decl., Exh. A, p. 2.)

Based on this evidence, though Defendant’s statement of Issue No. 3 appears intended to show that the RV was suitable for permanent residence, Defendant has shown that it did not warrant that the RV was suitable for that purpose. Because Defendant has met its initial burden, the burden shifts to Plaintiff to show that there is a triable issue of fact. Because Plaintiff did not oppose this motion, she has not made the required showing. Defendant is therefore entitled to judgment as a matter of law as to this cause of action.

Issue No. 4: “Plaintiff cannot establish the element of her Fourth Cause of Action for Failure to Promptly Repurchase Product under Section 1793.2(d) of the Song-Beverly Consumer Warranty Act because plaintiff did not give Forest River a reasonable number of repair attempts to resolve any defect covered by the Forest River Limited Warranty and otherwise has no evidence to support an obligation to [sic] Forest River to repurchase the subject Sunseeker RV.”

For the reasons discussed in connection with Issue No. 1, Defendant is entitled to judgment as a matter of law as to this cause of action.

Issue No. 5: “Plaintiff cannot establish the elements of her Fifth Cause of Action for Failure to Commence Repairs Within a Reasonable Time and to Complete [Repairs] Within 30 Days pursuant to section 1794 of the Song-Beverly Consumer Warranty Act because the evidence leaves no triable issue that the only repairs performed to the subject RV by an authorized Forest River repair facility pursuant to the Forest River Limited Warranty were commenced and completed within 30 days.”

As discussed in connection with Issue No. 1, the only repairs performed on the RV were performed from November 10 to 11, 2016, and on November 21, 2016. (SS Nos. 26-30.) Therefore, there is no evidence of any repairs that were not completed within 30 days.

Accordingly, Defendant is entitled to judgment as a matter of law as to this cause of action.

Issue No. 6: “Plaintiff cannot establish the elements of her Sixth Cause of Action for Violation of the Consumers Legal Remedies Act under Section 1750, et seq. of the Civil Code because plaintiff has no evidence that Forest River, or any Forest River authorized dealer, engaged in any conducted [sic] prohibited by Civil Code Section 1770 in the first instance and/or any prohibited conduct for the purpose of deceiving plaintiff into purchasing the subject RV.”

The Consumer Legal Remedies Act prohibits various “unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction . . . that results in the sale . . . of goods . . . to any consumer.” (CCP § 1770(a).)

Plaintiff alleges that Forest River “represented to Pierog that the Motorhome was fit for permanent habitation; the Motorhome would meet Pierog’s expectations; and the Motorhome could be customized to meet Pierog’s requirements for both her and Hanna, including but not limited to customizations that would allow Pierog to tow her car with the motorhome.” (1AC ¶ 66. She also alleges that Defendant concealed the RV’s defects from her. (¶ 67.)

As discussed in connection with the previous issues, Defendant has shown that there is no evidence the RV had any defects. As discussed in connection with Issue No. 3, Defendant has also presented evidence that it did not represent that the RV was fit for permanent habitation. As to whether she could tow her car, Defendant has also presented evidence that Defendant MTRV confirmed that it could do so. (SS No. 22.) And, although this is not included in Defendant’s separate statement, the Evans Declaration indicates that the RV has more than enough towing capacity to tow a 7-series BMW. (Evans Decl. ¶ 11.)

Based on this evidence, Defendant has met its initial burden to show that it did not conceal any defects or otherwise engage in unfair or deceptive acts or practices. Because Defendant has met its initial burden, the burden shifts to Plaintiff to show that there is a triable issue of fact. Because Plaintiff did not oppose this motion, she has not made the required showing. Defendant is therefore entitled to judgment as a matter of law as to this cause of action.

Issue No. 7: “Plaintiff cannot establish the elements of her Seventh Cause of Action for Intentional Misrepresentation because plaintiff has no evidence of (1) any false statement of material fact from Forest River, (2) that plaintiff relied on any false statement from Forest River, and/or (3) that any statement from Forest River was a substantial factor in any harm allegedly incurred by plaintiff.”

As discussed in connection with Issue No. 6, there is no evidence that Forest River made any false statement of material fact to Plaintiff.

Accordingly, Defendant is entitled to judgment as a matter of law as to this cause of action.

Issue No. 8: “Plaintiff cannot establish the elements of her Eighth Cause of Action for Fraudulent Concealment because (1) plaintiff has no evidence that Forest River and plaintiff were in a fiduciary relationship, (2) that Forest River intentionally failed to disclose [sic] any material fact from her at any time, (3) that plaintiff would have acted differently had some allegedly concealed fact been disclosed to her, and/or (4) that any conduct by Forest River was a substantial factor in causing plaintiff’s alleged harm.”

For the reasons discussed in connection with Issue No. 6, Defendant is entitled to judgment as a matter of law as to this cause of action.

Issue No. 9: “Plaintiff cannot establish the elements of her Ninth Cause of Action for False Promise because (1) plaintiff has no evidence of any false promise by Forest River, (2) that Forest River made a false promise to plaintiff that Forest River did not intend to rely upon when made, (3) that plaintiff reasonably relied on the false promise from Forest River, and (4) plaintiff was harmed by some false promise by Forest River.”

For the reasons discussed in connection with Issue No. 6, Defendant is entitled to judgment as a matter of law as to this cause of action.

Motion for Summary Judgment: Mike Thompson Recreational Vehicles, Inc.

Defendant Mike Thompson Recreation Vehicles, Inc. (“MTRV”) relies on the identical separate statement and identical evidence presented in connection with Defendant Forest River’s motion, discussed above. Defendant MTRV is not named in the first cause of action but is named in connection with the second through ninth causes of action.

For the reasons discussed in connection with Issues 2 through 9 in Forest River’s motion, Defendant MTRV’s motion for summary judgment is GRANTED.

Motion for Summary Judgment: Bill Dunn One Stop Shop, Inc.

Like Defendant MTRV, Defendant Bill Dunn One Stop Shop, Inc. relies on the identical separate statement and identical evidence presented in connection with Defendant Forest River’s motion, discussed above. Defendant Bill Dunn is named only in the second, third, seventh, eighth, and ninth causes of action.

For the reasons discussed in connection with Issues 2, 3, 7, 8, and 9 in Forest River’s motion, Defendant MTRV’s motion for summary judgment is GRANTED.

Moving parties to give notice, unless waived.

IT IS SO ORDERED.

Dated: July 20, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] It appears, perhaps, that these are merely typos, instead of irrelevant discussions of what Plaintiff’s activities were before she bought the subject vehicle. In such a case, counsel are urged to be more careful with such dates, and to carefully proofread all pleadings before filing.

[2] See Sara Bareilles, King of Anything (Official Music Video), https://www.youtube.com/watch?v=eR7-AUmiNcA (last visited July 17, 2020).

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