This case was last updated from Los Angeles County Superior Courts on 10/04/2020 at 10:37:19 (UTC).

MARY MANVELYAN, AN INDIVIDUAL VS. CARMAX

Case Summary

On 02/06/2018 MARY MANVELYAN, AN INDIVIDUAL filed a Contract - Other Contract lawsuit against CARMAX. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is RALPH C. HOFER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7976

  • Filing Date:

    02/06/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RALPH C. HOFER

 

Party Details

Plaintiffs

MANVELYAN MARY AN INDIVIDUAL

MANVELYAN MARY

Defendant

CARMAX

Attorney/Law Firm Details

Plaintiff Attorneys

ARMINE MARKOSYAN

MARKOSYAN ARMINE

Defendant Attorneys

SCHLICHTER & SHONACK LLP

MANN KIM TABIN

SCHLICHTER KURT ANDREW

PERCY WILLIAM ALEXANDER

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE...)

1/17/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE...)

Order - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

10/4/2019: Order - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

Separate Statement

9/19/2019: Separate Statement

Objection - OBJECTION OBJECTIONS TO EVIDENCE IN SUPPORT OF DEFENDANT CARMAX AUTO SUPERSTORES CALIFORNIA, LLCS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICA

9/27/2019: Objection - OBJECTION OBJECTIONS TO EVIDENCE IN SUPPORT OF DEFENDANT CARMAX AUTO SUPERSTORES CALIFORNIA, LLCS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICA

Separate Statement

7/16/2019: Separate Statement

Proof of Service (not Summons and Complaint)

7/16/2019: Proof of Service (not Summons and Complaint)

Motion for Summary Judgment

7/16/2019: Motion for Summary Judgment

Answer

4/12/2019: Answer

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE MEDIATION AND DISCOVERY;)

4/9/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE MEDIATION AND DISCOVERY;)

Summons

2/6/2018: Summons

Legacy Document - LEGACY DOCUMENT TYPE: Jury Fee Deposit by Defendant

5/10/2018: Legacy Document - LEGACY DOCUMENT TYPE: Jury Fee Deposit by Defendant

Legacy Document - LEGACY DOCUMENT TYPE: Demurrer

5/10/2018: Legacy Document - LEGACY DOCUMENT TYPE: Demurrer

Demurrer - with Motion to Strike (CCP 430.10)

10/18/2018: Demurrer - with Motion to Strike (CCP 430.10)

Minute Order - Minute Order (Status Conference re Mediation and Discovery;)

11/26/2018: Minute Order - Minute Order (Status Conference re Mediation and Discovery;)

Opposition -

8/21/2018: Opposition -

Case Management Statement -

8/16/2018: Case Management Statement -

Case Management Statement -

7/2/2018: Case Management Statement -

66 More Documents Available

 

Docket Entries

  • 07/29/2020
  • Docketat 08:30 AM in Department D; Order to Show Cause Re: Dismissal (in Light of Settlement) - Not Held - Vacated by Court

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  • 06/04/2020
  • Docketat 08:30 AM in Department D; Order to Show Cause Re: Dismissal (in Light of Settlement) - Not Held - Continued - Stipulation

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  • 04/20/2020
  • DocketRequest for Dismissal; Filed by MARY MANVELYAN (Plaintiff)

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  • 03/18/2020
  • Docketat 08:30 AM in Department D; Non-Appearance Case Review (Court Order reNotice of Settlement) - Not Held - Advanced and Vacated

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  • 03/17/2020
  • Docketat 08:30 AM in Department D; Order to Show Cause Re: (Mandatory Settlement Conference) - Not Held - Advanced and Vacated

    Read MoreRead Less
  • 03/17/2020
  • Docketat 08:30 AM in Department D; Trial Setting Conference - Not Held - Advanced and Vacated

    Read MoreRead Less
  • 03/17/2020
  • DocketMinute Order ( (Order to Show Cause Re: Mandatory Settlement Conference; Tria...)); Filed by Clerk

    Read MoreRead Less
  • 03/17/2020
  • DocketCertificate of Mailing for ((Order to Show Cause Re: Mandatory Settlement Conference; Tria...) of 03/17/2020); Filed by Clerk

    Read MoreRead Less
  • 03/16/2020
  • Docketat 09:00 AM in Department D; Jury Trial - Not Held - Advanced and Vacated

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  • 03/12/2020
  • DocketNotice of Settlement; Filed by MARY MANVELYAN (Plaintiff)

    Read MoreRead Less
111 More Docket Entries
  • 02/06/2018
  • DocketSummons; Filed by Plaintiff

    Read MoreRead Less
  • 02/06/2018
  • DocketComplaint filed-Summons Issued

    Read MoreRead Less
  • 02/06/2018
  • DocketCivil Case Cover Sheet

    Read MoreRead Less
  • 02/06/2018
  • DocketNotice of Case Assignment - Unlimited Civil Case

    Read MoreRead Less
  • 02/06/2018
  • DocketNotice of Case Management Conference

    Read MoreRead Less
  • 02/06/2018
  • DocketSummons Filed; Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 02/06/2018
  • DocketComplaint filed-Summons Issued; Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 02/06/2018
  • DocketAffidavit for Venue by Plaintiff's Attorney

    Read MoreRead Less
  • 02/06/2018
  • DocketNotice of Order to Show Cause Re Failure to Comply with Trial Court Delay Reduction Act

    Read MoreRead Less
  • 02/06/2018
  • DocketMiscellaneous-Other (PLAINTIFF'S STATEMENT OF ACTUAL AND PUNITIVE DAMAGES ); Filed by Attorney for Plaintiff

    Read MoreRead Less

Tentative Rulings

Case Number: EC067976    Hearing Date: January 17, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 25

Case Number: EC 067976

Date: 1/17/20 Trial date: March 16, 2020

Case Name: Manvelyan v. Carmax

MOTION FOR SUMMARY JUDGMENT

(OR, in the Alternative, Summary Adjudication)

[CCP § 437c; CRC 3.1350 et seq.]

Relief Requested:

Summary judgment, or in the alternative, summary adjudication in favor of CarMax and against plaintiff

Moving Party: Defendant Carmax Auto Superstores California, LLC

Responding Party: Plaintiff Mary Manvelyan

Causes of Action from Third Amended Complaint

1) Violation of Consumer Legal Remedies Act

2) Violation of Song-Beverly Consumer Warranty Act

3) Violation of California Vehicle Code §11713.18(a)(6)

4) Violation of California Business & Professions Code 17200

5) Declaratory Relief

SUMMARY OF COMPLAINT:

Plaintiff Mary Manvelyan alleges that in June of 2016, she purchased a Carmax certified vehicle from defendant Carmax as the seller, pursuant to a Retail Installment Sales Contract, and was provided with a Buyer’s Guide, providing plaintiff a 30-day warranty. Plaintiff was also provided with a Carmax Certified Quality Inspection Report showing the vehicle “has passed the rigorous CarMax 125-Point Quality Inspection.” Plaintiff alleges that she saw and relied on the Carmax advertisements concerning the Carmax Quality Certified Seal.

Shortly after the purchase, the vehicle began experiencing serious mechanical problems, as the vehicle is consuming excessive oil, and it is recommended it has valve stem seals replaced, and that the problem persists despite plaintiff having taken the vehicle to Pacific BMW on five occasions and having the valve stem seals replaced.

ANALYSIS:

Procedural

Separate Statement

The reply argues that the separate statement submitted in opposition to the motion fails to refer to supporting evidence, so cannot create a dispute of material fact. Under CCP § 437c(b)(3):

“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement shall also set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.

Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.”

(Emphasis added).

Under CRC Rule 3.1350 (f):

“The Separate Statement in Opposition to Motion must be in the two-column format specified in (h).

(1) Each material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with the moving party's references to exhibits.

(2) On the right side of the page, directly opposite the recitation of the moving party's statement of material facts and supporting evidence, the response must unequivocally state whether that fact is “disputed” or “undisputed.” An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.”

(Emphasis added).

The separate statement here does not include the evidence said by the moving party to establish each fact; this information is simply omitted, which is very inconvenient for the court. The separate statement includes references to evidence in support of the position that a fact is controverted sometimes by bare argument, and sometimes by reference to exhibits, and their titles, but without specifying what pages or lines of those documents are relied upon. The court could, in its discretion, grant the motion on the ground the separate statement is deficient, but the court elects not to do so.

The court takes note that the appellate courts have been reluctant to affirm the disposal of a motion for summary judgment on purely procedural grounds such as these, particularly where the opposing party has demonstrated that it knew what the position of the other party was and which evidence was relied upon. See Parkview Villas Association, Inc. v. State Farm Fire and Casualty Co. (2005) 133 Cal.App.4th 1197

Substantive

Issue No. 1-- First Cause of Action—Violations of Consumers’ Legal Remedies Act

Defendant Carmax argues that this claim fails because the alleged misrepresentations upon which plaintiff indicates she brings this claim are not actionable, as they are not false, or consist of puffery, and that the inspection report at issue complied with the statute.

The cause of action is brought under the Consumer Legal Remedies Act. Under Civil Code section 1761:

“As used in this title:  (a) "Goods" means tangible chattels bought or leased for use primarily for personal, family, or household purposes, including certificates or coupons exchangeable for these goods, and including goods that, at the time of the sale or subsequently, are to be so affixed to real property as to become a part of real property, whether or not they are severable from the real property.

 (b) "Services" means work, labor, and services for other than a commercial or business use, including services furnished in connection with the sale or repair of goods.  (c) "Person" means an individual, partnership, corporation, limited liability company, association, or other group, however organized.  (d) "Consumer" means an individual who seeks or acquires, by purchase or lease, any goods or services for personal, family, or household purposes.  (e) "Transaction" means an agreement between a consumer and any other person, whether or not the agreement is a contract enforceable by action, and includes the making of, and the performance pursuant to, that agreement.”

Civil Code section 1770 provides, in pertinent part:

(a) The following 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 are unlawful:  (1) Passing off goods or services as those of another.  (2) Misrepresenting the source, sponsorship, approval, or certification of goods or services.  (3) Misrepresenting the affiliation, connection, or association with, or certification by, another.  (4) Using deceptive representations or designations of geographic origin in connection with goods or services.  (5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he or she does not have.  (6) Representing that goods are original or new if they have deteriorated unreasonably or are altered, reconditioned, reclaimed, used, or secondhand.  (7) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.  (8) Disparaging the goods, services, or business of another by false or misleading representation of fact.  (9) Advertising goods or services with intent not to sell them as advertised.  (10) Advertising goods or services with intent not to supply reasonably expectable demand, unless the advertisement discloses a limitation of quantity.  (11) Advertising furniture without clearly indicating that it is unassembled if that is the case.  (12) Advertising the price of unassembled furniture without clearly indicating the assembled price of that furniture if the same furniture is available assembled from the seller.

 (13) Making false or misleading statements of fact concerning reasons for, existence of, or amounts of price reductions.  (14) Representing that a transaction confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law.  (15) Representing that a part, replacement, or repair service is needed when it is not.  (16) Representing that the subject of a transaction has been supplied in accordance with a previous representation when it has not.  (17) Representing that the consumer will receive a rebate, discount, or other economic benefit, if the earning of the benefit is contingent on an event to occur subsequent to the consummation of the transaction.  (18) Misrepresenting the authority of a salesperson, representative, or agent to negotiate the final terms of a transaction with a consumer.  (19) Inserting an unconscionable provision in the contract.”

Under Civil Code section 1780:

“a) Any consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice declared to be unlawful by Section 1770 may bring an action against that person to recover or obtain any of the following:  (1) Actual damages, but in no case shall the total award of damages in a class action be less than one thousand dollars ($1,000).  (2) An order enjoining the methods, acts, or practices.  (3) Restitution of property.  (4) Punitive damages.  (5) Any other relief that the court deems proper.”

Defendant argues that in response to discovery, plaintiff has identified the false statements as consisting of an advertisement on Carmax’s website stating that Carmax spends an average of 12 hours reviewing each car, and that the inspection process ensures each car meets the high standards, and every car sold earns the Carmax Quality Certified Seal. [See Exs. 11, 12, Special Interrogatories and Responses, No. 9].

Defendant submits evidence that Carmax actually spent about 13.6 hours inspecting and reconditioning the subject vehicle. [UMF No. 5, 8, and evidence cited; Coger Decl. ¶¶ 5, 15, Ex. 20]. Defendant submits evidence showing that every vehicle Carmax sells to retail customers has passed the inspection and vehicles that do not pass the inspection are not offered for sale to retail customers. [UMF No. 12, and evidence cited; Coger Decl. ¶ 8]. Defendant specifically submits evidence that the subject vehicle was inspected, and repaired to conform with the quality representations, and that no problems were found with the oil system, which would

have been noted. [UMF Nos.5, 8-8-11, 13]. Carmax argues that accordingly plaintiff cannot establish that it knew any representation to be false, or that plaintiff was damaged by its conduct.

This evidence is sufficient to shift the burden to plaintiff to raise triable issues of material fact.

Plaintiff in opposition argues that plaintiff has sufficiently pled that when she purchased the vehicle, Carmax provided her with a Carmax 125-point inspection, and that plaintiff relied on an advertisement posted on Carmax’s website stating that they spend an average 12 hours renewing each car. Plaintiff also argues that plaintiff has pled sufficient facts to show that if Carmax’s inspection process met their “high standards” as advertised, Carmax would have noticed the mechanical problems with which the car came. Plaintiff argues that the facts that the problems started shortly after the purchase of the “certified” vehicle and that the problems still exist, show that had Carmax inspected the vehicle as advertised, they would have noticed the serious problems the vehicle has.

A problem with the argument is that it is primarily based on what plaintiff has alleged in the pleading.

Under CCP § 437c(b)(1), in connection with opposition to a motion for summary judgment:

“The opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.”

Under CCP § 437c(p)(2), once a defendant has met its initial burden on a motion for summary judgment, the burden shifts to plaintiff to show that a triable issue of one or more material facts exists. The statute expressly states:

“The plaintiff…shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists, but, instead, shall set forth specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”

In College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, the California Supreme Court stated:

It is generally understood, for instance, that a party cannot rely on the allegations of his own pleadings, even if verified, to make or supplement the evidentiary showing required in the summary judgment context. ( Parker v. Twentieth Century Fox-Film Corp. (1970) 3 Cal.3d 176, 181 [89 Cal.Rptr. 737, 474 P.2d 689, 44 A.L.R.3d 615]; Coyne v. Krempels (1950) 36 Cal.2d 257, 262 [223 P.2d 244]; Orsetti v. City of Fremont (1978) 80 Cal.App.3d 961, 966 [146 Cal.Rptr. 75]; 2 Cal. Civil Procedure Before Trial (Cont.Ed.Bar 1993) § 43.13, p. 43-10; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1994) P 10:19, p. 10-6.) The basic purpose of summary judgment is to provide a means by which the court determines whether "the triable issues apparently raised by [the complaint and answer] are real or merely the product of adept pleading." ( Coyne v. Krempels, supra, 36 Cal.2d at p. 262.) Hence, the moving party must demonstrate the presence or absence of a genuine triable issue by "affidavit" or other competent means. (§ 437c, subds. (b), (c) & (d).)

College Hospital, at 720, n. 7.

 

Here, to the extent plaintiff relies on the allegations in the pleading to support her arguments, the court must rely only on actual evidence cited or submitted.

In addition, as argued in the reply, plaintiff has submitted no admissible evidence in support of the opposition. The evidence referenced, in fact, was not timely filed with the court. The courtroom assistant has requested a copy of what was served on defendant, and defendant argues that the documents relied upon are not authenticated. There is evidently no declaration of plaintiff submitted showing her reliance, or any evidence, for example, such as expert opinion, showing that the inspection described and documented was somehow inadequate, when Carmax has submitted evidence that the inspection complied with the law. Defendant in reply has objected to the documents served by plaintiff, which objections are sustained, if the evidence is ever actually filed by plaintiff.

Plaintiff makes a brief argument that the exhibits submitted by Carmax show that the hours spent conducting the inspection were less than the 12-hour average, with a reference to Exhibit 20 submitted by defendant, but with no declaration showing the calculation. A review of that exhibit and adding the hours spent only on the “post recon transfer” and CQI inspection shows that approximately 35 hours were spent in inspection and repair.

To the extent plaintiff seems to argue that the evidence submitted by defendant, showing that shortly after her purchase, the vehicle started having serious issues with oil consumption, is circumstantial evidence that the inspection was not thorough or of the quality promised, plaintiff does not dispute that Carmax found no problem with the oil system, or was unaware of any issues regarding undue oil consumption. [See Response to UMF Nos. 11, 13, “Undisputed]. Moreover, plaintiff also does not dispute that she purchased the vehicle on June 15, 2016. [Response to UMF No. 2, “Undisputed”]. Plaintiff does not dispute that she first brought the vehicle to Pacific BMW for repair of the oil consumption issue on October 28, 2016, which was several months after the purchase, so hardly “shortly” after the purchase. [Response to UMF No. 23, “Undisputed]. Carmax has submitted evidence that plaintiff did not become aware of any defects in the vehicle until a few months after her purchase, including responses to Requests for Admissions, Request No. 3, in which the Request was “Admit that plaintiff was not aware of any alleged defect with the 650 until a few months after plaintiff’s purchase of the 650,” and to which plaintiff responded, “Admit.” [UMF No. 21, and evidence cited; Exs. 7, 8]. In response to Special Interrogatories, Nos. 2 and 3, which ask plaintiff to identify each defect during the implied warranty period, and the date plaintiff first noticed the defect, plaintiff responds, “Vehicle consumes excessive oil,” and “September 2016.” [UMF No. 21, Exs. 11, 12]. Plaintiff in response to UMF No. 21 states in her separate statement, “Disputed. Plaintiff became aware of the defects in the Vehicle a few weeks after her purchase.” [Response to UMF No. 21]. There is no declaration of plaintiff or other evidence cited or submitted in support of this broad statement, and no explanation of why the court should consider such evidence in opposition to a motion for summary judgment when it contradicts binding admissions made in written discovery.

Plaintiff in opposition relies on federal district court cases in which it is recognized that the Carmax certification process may constitute a violation of the CRLA. In Macisaac v. CarMax Auto Superstores Cal., LLC (2014 U.S.D.C, C.D. Cal.) 2014 U.S. Dist LEXIS 185021, the federal district court denied a motion to dismiss, finding the pleading properly stated a CLRA claim under the theory that Carmax failed to inspect the subject vehicle as advertised, reasoning:

“The FAC specifically alleges that CarMax advertises that its cars undergo a rigorous inspection process so that every car meets CarMax's "high standards." (FAC ¶ 15.) In reliance on such ads, the MacIsaacs purchased their car from CarMax. (FAC ¶ 15.) However, the car they received purportedly came with defects suggestive of a failure either to perform the inspection in its entirety or to inspect in such a

perfunctory and careless way that it was meaningless. (FAC ¶ 16.) Taken as true, such conduct by CarMax is likely to mislead a reasonable consumer and constitutes a violation of the CLRA. See Stelzer, WL 6815029 at *3 (explaining that an allegation that "CarMax's certification process consists of little more than tire-kicking . . . may well be actionable under the CLRA.")”

Macisaac, at 11-12

This matter has gone beyond the pleading stage, however, and Carmax has submitted evidence to support a finding that the inspection was in fact thorough, and as advertised, contrary to plaintiff’s allegations in this regard. The case does not require this court to find that as a matter of law the Carmax inspection, once subject to an evidentiary showing, constitutes a violation of the CLRA. Plaintiff has failed to raise triable issues of material fact, and the motion as to this cause of action is granted.

Issue No. 2—Second Cause of Action—Violation of Song-Beverly Act

Defendant argues that the cause of action cannot be established by plaintiff, because under the Song Beverly Act, the duration of the implied warranty of merchantability is co-extensive with the express warranty. The express warranty here was 30 days, so that the implied warranty would also have been thirty days, and defendant has submitted substantial evidence that there was no oil issue during the inspection, and plaintiff has admitted, in response to request for admissions, that she did not detect or report a problem with oil consumption for a few months after buying the vehicle, so that the defect did not exist during the warranty period.

Under Civil Code § 1795.5(c):

“ (c) The duration of the implied warranty of merchantability and where present the implied warranty of fitness with respect to used consumer goods shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 30 days nor 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 consumer goods, or parts thereof, the duration of the implied warranty shall be the maximum period prescribed above.”

Defendant has submitted evidence showing that the duration of the express warranty issued by Carmax was 30 days. [UMF Nos 14, 15, and evidence cited; Richard Decl. ¶ 10, Ex. 16]. These facts are not disputed by plaintiff. [Response to UMF Nos. 14, 15, “Undisputed.”]. Accordingly, the implied warranty here was also thirty days.

As discussed above, defendant has also submitted evidence showing that there was no issue with the oil system prior to the sale. [UMF Nos. 8-11, and evidence cited]. Also as discussed above, defendant has submitted evidence that plaintiff purchased the vehicle on June 15, 2016, and that plaintiff has admitted in written discovery that she did not discover any defect until September of 2016. [UMF No. 2, “Undisputed,” UMF No. 21, and evidence cited, Exs. 7, 8, 11, 12]. Plaintiff also does not dispute that she first brought the vehicle to Pacific BMW for repair of the oil consumption issue on October 28, 2016, which was well beyond the thirty-day warranty period. [Response to UMF No. 23, “Undisputed].

This evidence is sufficient to shift the burden to plaintiff to raise triable issues of material fact.

Plaintiff in opposition to this argument argues that plaintiff had to take the vehicle to Pacific BMW because of excessive oil consumption issues and has taken the vehicle there six times for the same problem,

which has gotten worse, and that this is sufficient to show that the vehicle had latent defects at the time of purchase. Plaintiff does not submit any evidence in connection with this argument, but evidently relies on the fact that she does not dispute the facts set forth by defendant that she sought repair of the oil consumption issue on several occasions beginning in October of 2016. [See UMF Nos. 23-30]. Plaintiff does not submit any further evidence, such as that of an expert in oil systems, to establish that the defect was one which could not have been discovered or was in fact latent. The reply argues that plaintiff in response to substantial evidence supporting the argument that the defect was not present during the applicable warranty period, and plaintiff has admitted as much, does not offer evidence of the cause of the alleged defect, or a declaration with personal knowledge or a qualified opinion that the defect was latent, but relies on the unsupported conclusion that if the vehicle did not have a latent defect at the time of purchase, it would not have experienced issues shortly after the purchase. Again, this conclusory argument, without reference to any evidence, fails to support a reasonable inference that there was a latent defect. If a party could simply claim a defect was latent, without reference to any supporting evidence other than that it developed after the expiration of the warranty period, and persisted, then a warranty period would become meaningless. Plaintiff has failed to raise triable issues of fact with respect to this issue, and the motion also is granted as to this cause of action.

Issue No. 3—Third Cause of Action—Violation of California Vehicle Code § 11713.18(a)(6)

Defendant Carmax argues that plaintiff will be unable to establish this cause of action because the inspection report submitted to plaintiff as buyer complied with statutory requirements.

Under Vehicle Code § 11713.18 (a)(6):

“(a)

(6)

Defendant submits the inspection report and argues that the report is a list of the component inspected, and that this is all that is required under the statute. [UMF No. 18, and evidence cited; Ex. 18]. Defendant argues that the court should decline to apply federal authority in this matter, under which it has been held that a report in the form here provided, without more, does not constitute a “completed inspection report indicating all the components inspected” for purposes of the statute.

The Ninth Circuit in Gonzales v. CarMax Superstore, LLC (9th Cir. 2016) 840 F.3d 644, applying California law, reversed the district court’s granting of summary judgment to Carmax on claims brought by the purchaser of a used vehicle under the CLRA and UCL based on an alleged violation of Vehicle Code § 11713.18(a)(6), framing the issue as follows:

“The key issue before us is whether a report that fails to indicate the results of an inspection in a manner that conveys the condition of individual car components to a buyer is a “completed inspection report” under California law. Because we conclude that it is not, we reverse the district court's decision to grant summary judgment to CarMax on Gonzales's CLRA and UCL claims.”

Gonzales, at 647.

The Ninth Circuit reasoned as follows:

“With these principles of California law in mind, we first turn to the plain meaning of the statutory language. Section 11713.18(a)(6) requires sellers of used cars to provide buyers with a completed

inspection report. The statute does not define the term “inspection report,” but in the automobile industry, “inspection report” is a term of art with an established technical meaning. Consequently, we must assume that the Legislature was aware of the meaning of “inspection report” and intended this meaning to control. Cf. Prof'l Eng'rs in Cal. Gov't v. Brown, 177 Cal.Rptr.3d at 572 (explaining that the term “ ‘personal services' has an accepted meaning in the context of budget legislation” and construing the term in accordance with that accepted meaning).

In the automobile industry, an “inspection report” is understood to mean a report that lists the components inspected, with a space corresponding to each component in which the inspector designates whether or not that component is functional. A “completed inspection report” is one in which those spaces have been appropriately marked so as to indicate the result of the inspection. Examples of automobile “inspection reports” abound in statutes, regulations, and everyday usage in the *651 context of the industry. For example, this technical understanding of the term is reflected in Form OL 221A, the safety inspection report utilized by the California DMV for instructional vehicles,4 and in the “Vehicle Inspection Report” form5 used by the California Department of Transportation (“CalTrans”) under its “Enhanced Mobility of Seniors and Individuals with Disabilities Program.”6 Similarly, California Department of Highway Patrol Regulations and Federal Motor Carrier Safety Administration Regulations both demonstrate that “inspection report” is a technical term that means a list of components specifying whether the components are operational: both sets of regulations require “vehicle inspection reports” to “list any defect or deficiency discovered by or reported to the driver.” See C.F.R. § 396.11(a)(2)(i); Cal. Code Regs. tit. 13, § 1215(b)(1)(B), (e).

Finally, while § 11713.18 itself does not define “inspection report,” the statutes of other states demonstrate that this term is consistently understood to bear a technical meaning in the automobile industry, and that under this technical understanding, an inspection report must contain component-specific results. In Illinois, for example, a “vehicle inspection report” must contain a “component reject area” where an inspector can “[m]ark the appropriate bubble(s) for any defects found on the vehicle during the safety test.” Ill. Adm. Code tit. 92, § 451.150(k)(14)(A); see also N.J. Admin. Code § 13:20–43.9(a)(13) (requiring motor vehicle inspection report to include “pass/fail result of applicable visual inspections”); Ariz. Admin. Code § R18–2–1011 (requiring a “uniquely numbered vehicle inspection report” that contains, among other things, “repair requirements; final test results; [and] repairs performed”).7

The term “inspection report” in § 11713.18(a)(6) thus has a technical, industry-specific meaning. It requires commercial sellers of used cars to provide a form indicating the specific results of the inspection for the individual components inspected. The statute also requires that this “inspection report”

be “completed,” and an inspection report, under the technical meaning accorded that term across the automobile industry, is not completed without an indication of the pass/fail result with respect to each component.

To require only an unmarked list of components would disregard the requirements of an “inspection report” and render the word “completed” superfluous. Under California law, “significance should be given to every word, phrase, sentence *652 and part of an act.” Moyer v. Workmen's Comp. Appeals Bd., 10 Cal.3d 222, 110 Cal.Rptr. 144, 514 P.2d 1224, 1229 (1973) (in bank) (internal quotation marks and citation omitted). A construction that would make some words surplusage is to be avoided and words must be viewed in context, keeping in mind the nature and obvious purpose of the statute. Id.

The purpose, history, and public policy of the statute further support our interpretation of “completed inspection report.” See Imperial Merch. Servs., Inc. v. Hunt, 47 Cal.4th 381, 97 Cal.Rptr.3d 464, 212 P.3d 736, 740 (2009) (“If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy.” (internal quotation marks and citation omitted)).

Section 11713.18(a)(6) is part of a remedial statute that must be construed liberally in favor of the class whom it was passed to protect. See Cal. Assn. of Health Facilities v. Dep't of Health Servs., 16 Cal.4th 284, 65 Cal.Rptr.2d 872,940 P.2d 323, 329 (1997). The California Legislature enacted the section in 2005 as part of California's “Car Buyer's Bill of Rights,” which, according to the author of the bill, aimed to “strengthen the protections afforded [to] California car buyers by improving laws regarding the sales, marketing, and financing of new and used vehicles.” Assembly Judiciary Comm., 2005–2006 Session, Analysis of AB–68 5 (March 1, 2005).8 Prior to the enactment of this bill, there was no legal standard for use of the term “certified,” despite the growing trend for dealers to “certify” used cars. Senate Judiciary Comm., 2005–2006 Session, Analysis of AB–68 5 (June 14, 2005). This bill aimed to “provide[ ] some assurances to consumers that they are getting what they bargained for,” especially given that cars are a “big [ ] ticket item” and “scams involving auto sales can have a devastating impact on a family's budget and ability to function productively in society.” Assembly Judiciary Comm., 2005–2006 Session, Analysis of AB–68 5–7 (March 1, 2005) (quoting Consumers for Auto Reliability and Safety (CARS), the sponsor of the bill). The Legislature expressed concerns that “business practices engaged in by the automobile industry in general and automobile dealers in particular ... discourage price transparency, limit consumer choice and take advantage of consumer ignorance.” Senate Judiciary Comm., 2005–2006 Session, Analysis of AB–68 2 (June 14, 2005). The Car Buyer's Bill of Rights contained a number of provisions, including a limitation on dealer commissions for arranging financing, a requirement mandating additional disclosures concerning a buyer's credit score, and, most important

for the purposes of this appeal, an inspection report that provides information to the prospective buyer of a “certified” vehicle. Id. at 1.

A principal purpose of the Car Buyer's Bill of Rights was to promote transparency in the sale of vehicles, especially those marketed as “certified.” An interpretation of section 11713.18(a)(6) that recognized CarMax's CQI Certificates, which are devoid of any information about the condition of the individual components inspected, as “completed inspection reports” would undermine rather than foster the statute's goal of promoting transparency in used car sales.

When viewed in this context, the statute requires dealers to provide consumers with information about the results of the inspection for each particular component. Sellers cannot merely list components that have been inspected (as CarMax's CQI certificate does), thereby leaving the consumer ignorant as to whether the various components satisfactorily passed the inspection. When section 11713.18(a)(6) requires dealers to provide a “completed inspection report,” it guarantees consumers the right to know whether the individual components of a car have been found functional as the result of an inspection. Completed inspection reports, as that term is understood in the industry and in light of the statute's purpose, require the provision of that information.

Gonzales, at 650-653.

It is clear that the vehicle inspection report provided by Carmax to plaintiff does not show the actual results of the inspection for the individual components listed, but only shows that the components were inspected. [See Ex. 18]. The motion submits evidence intended to establish that the listing of each component part is a representation that each such part was inspected, and either met the Carmax quality standard, or was repaired until it did so. [See UMF Nos. 8-11, and evidence cited]. However, this evidence actually shows that there were problems with the vehicle, requiring, for example, painting of the vehicle. [See Coger Decl. ¶ 15 B]. The moving papers also submit portions of plaintiff’s deposition testimony, in which she indicates she did not receive results showing if there had been repairs to the vehicle, and that if the vehicle had had a scratch on it, she does not know if she would have bought it. [See Ex. 3, Manvelyan Depo, p. 125:2-4, 127:4-6].

It would appear that Carmax has failed to meet its initial burden to establish that plaintiff will be unable to establish this cause of action based on the inspection report relied upon. The motion accordingly is denied.

Issue No. 4—Fourth Cause of Action—Violation of Business & Professions Code § 17200, et seq.

Defendant Carmax argues that since this cause of action is derivative of the CRLA and inspection report claims, it fails for the same reasons.

However, as discussed above, the claim for Violation of Vehicle Code § 11713.18 (a)(6) survives and may form the requisite unlawful transaction to support this cause of action.

Defendant argues that plaintiff will be unable to establish actual damage sufficient to establish standing to pursue such a claim, but, as discussed above, it appears that had an inspection report been provided which

actually disclosed that the vehicle had undergone repairs, plaintiff may not have purchased the vehicle, which resulted in plaintiff losing money to repeatedly repair the vehicle. The motion is denied.

Issue No. 5—Fifth Cause of Action—Declaratory Relief

Defendant Carmax argues that the declaratory relief cause of action pleads no independent grounds and is expressly based on the allegations set forth in the previous causes of action. The TAC alleges that plaintiff incorporates all preceding paragraphs and alleges that “various false and misleading representations, failures to provide mandatory disclosures and/or unfair and deceptive practices engaged in by SELLER gives rise to damages to PLAINTIFF.” [Ex. 2, TAC ¶¶ 59, 60].

Defendant argues that generally an action in declaratory relief will not lie to determine an issue which can be determined in the underlying tort action.

CCP § 1060 provides that a person “who desires a declaration of his or her rights or duties with respect to another, or in respect to another, or in respect to or over or upon property... , may, in cases of actual controversy relating to the legal rights and duties of the respective parties...bring an...action...for a declaration of his or her rights or duties.”

Under CCP Section 1061:

“The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.”

The moving papers rely on Hood v. Superior Court (1993) 33 Cal.App.4th 319, in which the Second District dealt with the issue on summary judgment with respect to whether a party could obtain summary adjudication of a declaratory relief cause of action, reserving the issues of punitive damages and other elements raised by the underlying tort for trial. The Second District held this manner of proceeding did not dispose of a cause of action in the manner required by the summary adjudication statutes, and offered a “comment” about declaratory relief:

“We believe a comment is in order about the declaratory relief cause of action itself. The issues invoked in that cause of action already were fully engaged by other causes of action. Because they were, declaratory relief was unnecessary and superfluous. (See 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 800, p. 243; California Ins. Guarantee Assn. v. Superior Court (1991) 231 Cal.App.3d 1617, 1623 [283 Cal.Rptr. 104].) (4) “The declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action. The object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.” (General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470 [65 Cal.Rptr. 750]; California Ins. Guarantee Assn. v. Superior Court, supra, 231 Cal.App.3d at p. 1624; and see Regan Roofing Co. v. Superior Court, supra, 24 Cal.App.4th 425.)

Hood, at 324.

Defendant also cites Mendoza v. JP Morgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 820, in which the court of appeal affirmed a judgment entered by the trial court after sustaining a demurrer without leave to amend to a complaint alleging wrongful foreclosure, finding that a cause of action for declaratory relief was deficient because the subject property had been sold, and also finding, “Moreover, the substance of her allegations to secure declaratory relief is merely duplicative of her cause of action for wrongful foreclosure.” Mendoza, at 821, citing California Ins. Guarantee Assn. v. Superior Court (1991) 231 Cal.App.3d 1617, 1623-1624.

Plaintiff in opposition does not address this argument that the claim is duplicative but argues that the claim is supported by evidence. The opposition refers to plaintiff’s theories including failure to provide mandatory disclosures. There is no indication that the cause of action will determine issues different from those to be determined in the remaining causes of action, the third and fourth causes of action. The court grants the motion as to this cause of action.

Issue No. 6—The Punitive Damages Claim Fails

Defendant argues that if the court summarily adjudicates the CLRA claim, the punitive damages claim fails because the CLRA claim provides the only basis for such relief. The opposition argues that the Song-Beverly Act provides for civil penalties where a defendant has committed a willful violation of the act.

Because summary adjudication is granted as to the first and second causes of action, the motion on this issue also is granted.

In addition, the moving papers argue that plaintiff will be unable to establish any misconduct on the part of any managing agent of defendant, a corporate employer defendant.

Civil Code § 3294(b) requires that a plaintiff seeking punitive damages against a corporation must show such wrongful conduct by managing personnel of the corporation:

“(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Defendant submits evidence showing that no officer, director or managing agent of Carmax participated in the transaction with plaintiff. [UMF No. 4, and evidence cited]. Plaintiff in response to this fact states, in her separate statement, “Undisputed. Completely irrelevant to liability. Only material facts are to be included in the separate statement. CCP, § 437c(b).” [See Response to UMF No. 58 [sic]].

Plaintiff does not submit any evidence in response to this argument or evidence. No evidence is offered to raise triable issues of material fact on the issue of corporate employer or corporate ratification of any alleged wrongdoing here. The motion is granted on this ground as well.

RULING:

Defendant Carmax Auto Superstores California, LLC’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication:

Motion for Summary Judgment is DENIED.

The court notes that it has considered the separate statement submitted with the opposition, despite the failure of plaintiff to fully comply with CCP § 437c(b)(3) and CRC Rule 3.1350 (f), as the separate statement does not include reference to the evidence set forth by the moving party to establish each claimed undisputed fact, and fails to include full references to evidence where evidence is cited at all, largely omitting page and line numbers. This situation has caused great inconvenience to the parties and the court.

Issue No. 1-- First Cause of Action—Violations of Consumers’ Legal Remedies Act

Motion is GRANTED.

Defendant Carmax has submitted evidence in connection with each alleged misrepresentation upon which

plaintiff has indicated in discovery that she relies on to support this cause of action sufficient to establish that plaintiff will be unable to establish that those representations were not true. Specifically, in response to discovery, plaintiff has identified the allegedly false statements as consisting of an advertisement on Carmax’s website stating that Carmax spends an average of 12 hours renewing each car, and that the inspection process ensures each car meets the high standards, and every car sold earns the Carmax Quality Certified Seal. [See Exs. 11, 12, Special Interrogatories and Responses, No. 9].

Defendant submits evidence that Carmax actually spent about 13.6 hours inspecting and reconditioning the subject vehicle, that every vehicle sold to retail customers by Carmax has passed the inspection on the listed features, and that the subject vehicle was in fact inspected and repaired to conform to the quality representations, and no problems were found with the oil system focused on by plaintiff. [UMF Nos. 5, and evidence cited, Coger Decl. ¶¶ 8-13, and evidence cited; Coger Decl. ¶¶ 4-15; Ex. 20]. This is sufficient to establish that the statements at issue were not in fact false, shifting the burden to plaintiff to raise triable issues of material fact.

Plaintiff in opposition argues that plaintiff has sufficiently pled facts to show that if Carmax’s inspection process had met defendant’s high standards as advertised, Carmax would have noticed the mechanical problems that the car came with. The court may not, however, on a motion for summary judgment consider plaintiff’s pleading as evidence sufficient to raise triable issues. See CCP §§ 437c(b)(1), CCP § 437c(p)(2) (“The plaintiff…shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists, but, instead, shall set forth specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”) See also College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 720, n. 7.

Plaintiff has failed to timely file evidence in opposition to the motion, and it appears from the reply that the evidence served on defendant was not authenticated, so not admissible. Plaintiff has offered no evidence to show that Carmax in fact found a problem with the oil system or was aware or issues regarding undue oil consumption, and to the extent plaintiff seems to argue that circumstantially the fact that a defect developed shortly after purchase establishes falsity, plaintiff has not submitted evidence to dispute the fact that while she purchased the vehicle on June 15, 2016, she did not bring the vehicle into Pacific BMW for repair until October 28, 2016, several months later, and has admitted in binding written discovery admissions that the defect was not discovered until September 2016, undermining any argument that the closeness in time gives rise to an inference of knowledge of a defect. [See Response to UMF Nos. 2, 11, 13, 23, “Undisputed”; UMF No. 21, and evidence cited, Exs. 7, 8, 11, 12].

Overall, there is no declaration of plaintiff or other evidence cited or submitted in support of plaintiff’s arguments. Plaintiff also fails to explain why the court should consider any arguments, even if supported by evidence, which they are not, which would contradict binding admissions made in written discovery. Plaintiff has failed to raise triable issues of material fact, and the motion is properly granted.

Issue No. 2—Second Cause of Action—Violation of Song-Beverly Act

Motion is GRANTED.

Defendant establishes that the cause of action cannot be established by plaintiff, because under the Song Beverly Act, the duration of the implied warranty of merchantability is co-extensive with the express warranty, the express warranty here was 30 days, so that the implied warranty would also have been thirty days, and plaintiff cannot establish a breach of the warranty within the warranty period.

Specifically, defendant has submitted evidence showing that the duration of the express warranty issued by Carmax was 30 days. [UMF Nos 14, 15, and evidence cited; Richard Decl. ¶ 10, Ex. 16]. These facts are not disputed by plaintiff. [Response to UMF Nos. 14, 15, “Undisputed.”]. Accordingly, the implied warranty here

was also thirty days. As discussed above, defendant has also submitted evidence showing that there was no issue with the oil system prior to the sale. [UMF Nos. 8-11, and evidence cited]. Also, as discussed above, defendant has submitted evidence that plaintiff purchased the vehicle on June 15, 2016, and that plaintiff has admitted in written discovery that she did not discover any defect until September of 2016. [UMF No. 2, “Undisputed,” UMF No. 21, and evidence cited, Exs. 7, 8, 11, 12]. Plaintiff also does not dispute that she first brought the vehicle to Pacific BMW for repair of the oil consumption issue on October 28, 2016, which was well beyond the thirty-day warranty period. [Response to UMF No. 23, “Undisputed]. This is sufficient to shift the burden to plaintiff to raise triable issues of material fact.

Plaintiff in opposition to this argument also relies on her pleading, and an argument that the defect was a latent defect, but fails to submit evidence or admissible evidence, and does not offer evidence of the cause of the alleged defect, or a declaration of a person with personal knowledge or a qualified opinion that the defect was latent. Plaintiff instead relies on the unsupported conclusion that if the vehicle did not have a latent defect at the time of purchase, it would not have experienced issues shortly after the purchase. This conclusory argument, without reference to any evidence, fails to support a reasonable inference that there was a latent defect in the vehicle, and plaintiff has failed to raise triable issues of material fact.

Issue No. 3—Third Cause of Action—Violation of California Vehicle Code § 11713.18(a)(6)

Motion is DENIED.

Defendant Carmax has failed to meet its initial burden to show that the inspection report submitted to plaintiff did not violate the subject statute but was a completed inspection report indicating all the components inspected as required pursuant to Gonzales v. CarMax Superstore, LLC (9th Cir. 2016) 840 F.3d 644. [See UMF No. 18, Ex. 18]. Specifically, the vehicle inspection report provided by Carmax to plaintiff does not show the actual results of the inspection for the individual components listed, but only shows that the components were inspected. [See Ex. 18]. Defendant’s evidence shows that there were problems with the vehicle, and that if specific results for individual components had been provided to plaintiff, she may not have purchased the vehicle. [See UMF Nos. 8-11, and evidence cited; Coger Decl. ¶ 15 B; Ex. 20; Ex. 3, Manvelyan Depo, pp 125-127].

 

Issue No. 4—Fourth Cause of Action—Violation of Business & Professions Code § 17200, et seq.

Motion is DENIED in light of the denial of the motion as to the third cause of action, above.

Issue No. 5—Fifth Cause of Action—Declaratory Relief

Motion is GRANTED.

Defendant establishes that the cause of action is expressly based on the allegations set forth in the previous causes of action, those of which survive summary adjudication will dispose of the issues raised in the declaratory relief cause of action, which would render this cause of action duplicative, unnecessary and superfluous. [See Ex. 2, TAC ¶¶ 59, 60]. Under CCP Section 1061, “The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” See also Hood v. Superior Court (1993, 2nd Dist.) 33 Cal.App.4th 319, 324; Mendoza v. JP Morgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 820.

Plaintiff in opposition does not address this argument that the cause of action is duplicative but argues that the claim is supported by evidence. The opposition refers to plaintiff’s theories including failure to provide mandatory disclosures. There is no indication that the cause of action will determine issues different from those to be determined in the remaining causes of action, the third and fourth causes of action.

 

Issue No. 6—The Punitive Damages Claim Fails

Motion is GRANTED.

Plaintiff concedes in the opposition that punitive damages are sought only in connection with the second cause of action for violation of the Song-Beverly Act. That cause of action has been summarily adjudicated. Motion is granted on the additional ground that defendant has established that plaintiff will be unable to establish wrongful conduct on the part of managing personnel of the corporate defendant as required under Civil Code § 3294(b). [UMF No. 4, and evidence cited]. In response, plaintiff has failed to raise triable issues of material fact. [See Response to UMF No. 58 [sic], in which plaintiff states in response to this lack of ratification evidence “Undisputed. Completely irrelevant to liability. Only material facts are to be included in the separate statement. CCP, § 437c(b).”]

Objections to Evidence filed by Defendant Carmax Auto Superstores California, LLC are SUSTAINED. The court also notes that the evidence to which objections are made was not timely filed with the court.