ROSA MAY VS FIRST MOTOR GROUP OF ENCINO LLC ET AL

Tentative Rulings

Case Number: ****7978    Hearing Date: August 17, 2020    Dept: 24

Plaintiff Rosa May’s motion for summary adjudication is DENIED.

On December 22, 2017, Plaintiff Rosa May (“Plaintiff”) filed the instant breach of warranty complaint against Defendant First Motor Group of Encino LLC (“Defendant” or “FMG”). The Complaint alleges two causes of action for: 1) violation of Consumer Legal Remedies Act (“CLRA”); and 2) breach of implied warranty of merchantability.

The Complaint alleges that on March 27, 2012, Plaintiff purchased a pre-owned 2009 Mercedes-Benz C300 (the “vehicle”) from Defendant, an auto dealer. In April 2016, the vehicle needed to be serviced by Defendant when the SRS control unit/airbag module needed to be replaced and reprogrammed. In May 2016, Plaintiff received a letter from Mercedes-Benz USA, LLC, informing her that a defect related to safety exists. In August 2016, she received a second letter indicating that a safety defect exists. Subsequently, Plaintiff took the vehicle to Defendant many times because she was scared to continue driving herself and others. She wished to either have the defect repaired, or to accept the vehicle for a trade-in/buy-back. Defendant failed to repair or accept the vehicle on a trade in because of the safety defect.

On December 11, 2019, Plaintiff moved for summary adjudication of the implied warranty claim. On August 3, 2020, FMG filed an opposition. On August 11, 2020, Plaintiff submitted a reply.

Two hearings are pending for September 25, 2020, Defendant’s motion for summary judgment and Plaintiff’s motion for leave to amend to add fictitiously named defendants Mercedes Benz Financial Services USA LLC and Mercedes Benz of Encino.

Summary Adjudication Standard

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See CCP ;437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See CCP ;437c(n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See CCP ;437c(o)(2); Union Bank, supra, 31 Cal.App.4th at 583.)

In order to obtain summary judgment, “all that the [moving party] need do is to show that the [non-moving party] cannot establish at least one element of the cause of action.” (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see also Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457.) “Although he remains free to do so, the [moving party] need not himself conclusively negate any such element.” (Ibid.) “Once the [moving party] has made such a showing, the burden shifts to the [non-moving party] to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. If the [non-moving party] does not make such a showing, summary judgment in favor of the [moving party] is appropriate.” (See Mitchell, supra, 127 Cal.App.4th at 467.)

Until the moving party meets this evidentiary burden, the non-moving party has no burden to present evidence showing a triable issue of fact. (See Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 178; see also Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940, citing Duckett v. Pistoresi Ambulance Service, Inc. (1993) 19 Cal.App.4th 1525, 1533 [“[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff”].)

Discussion

Plaintiff moves for adjudication on the its second cause of action for a breach of implied warranty of merchantability on the grounds that FMG breached the implied warranty as to her vehicle.

Civ. Code, section 1792 provides for an implied warranty of merchantability as follows:

Unless disclaimed in the manner prescribed by this chapter, every sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer's and the retail seller's implied warranty that the goods are merchantable. The retail seller shall have a right of indemnity against the manufacturer in the amount of any liability under this section.

Civ. Code section 1791.1 states that the implied warranty of merchantability means that the consumer goods meet each of the following: (1) pass without objection in the trade under the contract description; (2) are fit for the ordinary purposes for which such goods are used; (3) are adequately contained, packaged, and labeled; and (4) conform to the promises or affirmations of fact made on the container or label. The core test of a breach is the fitness for the ordinary purpose for which such goods are used. (Isip v. Mercedes Benz USA, LLC (2007) 155 Cal.App.4th 19, 26.) Such fitness is shown if the product is in safe condition and substantially free of defects. (Id. at 27.)

First, Plaintiff presents evidence regarding the sale and warranty at issue. On March 27, 2012, Plaintiff purchased the vehicle. (SSMF 1; Exs. 1-2.) The subject vehicle had been advertised, represented, and held out to plaintiff as Certified Pre-Owned (“CPO”) meaning that it had passed MB Encino’s and Mercedes Benz USA, LLC’s, one hundred and sixty plus point inspection and that it came with an express warranty. (SSMF 2.) MB of Encino provided an implied warranty with the sale of the subject vehicle to plaintiff. (SSMF 3.)

Based on the above evidence presented, Plaintiff fails to meet her initial burden. Plaintiff fails to establish that FMG was subject to the implied warranty. Firstly, Plaintiff uses the name “MB Encino” in the separate statement, presumably in reference to FMG. (SSMF 2-3.) Plaintiff only cites the sales contract to establish the parties to the contract. (Ullman Decl., Ex. 2.) This shows a sale agreement between plaintiff Rosa May and Mercedes Benz of Encino, not FMG. This does not show that FMG is a retail seller under Civ. Code section 1792. (See Civ. Code ; 1791(l).) Plaintiff presents no evidence or material fact that “Mercedes Benz of Encino” is FMG or has any relationship with FMG. Plaintiff presents no evidence or legal theory that would support liability against FMG as a non-party to the contract. Therefore, Plaintiff has failed to establish that FMG may be liable under the warranty.

Accordingly, Plaintiff’s motion is DENIED. As the initial burden was not met, the Court did not consider Defendant's presented evidence.

Moving party is ordered to give notice.

Case Number: ****7978    Hearing Date: August 10, 2020    Dept: 24

The hearing on Defendant First Motor Group of Encino LLC’s motion is CONTINUED to September 25, 2020, at 10:30 a.m..

On December 22, 2017, Plaintiff Rosa May (“Plaintiff”) filed the instant breach of warranty complaint against Defendant First Motor Group of Encino LLC (“Defendant” or “FMG”). The Complaint alleges two causes of action for: 1) violation of Consumer Legal Remedies Act (“CLRA”); and 2) breach of implied warranty of merchantability.

The Complaint alleges that on March 27, 2012, Plaintiff purchased a pre-owned 2009 Mercedes-Benz C300 (the “vehicle”) from Defendant, an auto dealer. In April 2016, the vehicle needed to be serviced by Defendant when the SRS control unit/airbag module needed to be replaced and reprogrammed. In May 2016, Plaintiff received a letter from Mercedes-Benz USA, LLC, informing her that a defect related to safety exists. In August 2016, she received a second letter indicating that a safety defect exists. Subsequently, Plaintiff took the vehicle to Defendant many times because she was scared to continue driving herself and others. She wished to either have the defect repaired, or to accept the vehicle for a trade-in/buy-back. Defendant failed to repair or accept the vehicle on a trade in because of the safety defect.

On May 22, 2020, Defendant filed the instant motion for summary judgment. On July 24, 2020, Plaintiff filed an opposition. On August 5, 2020, Defendant filed a reply.

The Purchase Agreement and Assignment

Central to the MSJ is that Plaintiff purchased the vehicle in 2012 from a separate entity. Defendant thus argues that they are not the correct entity to sue. The UMFs attempt to show that Plaintiff bought the used car in 2012 from the predecessor dealership, Encino Motor Cars. In January 2017, Encino Motor Cars sold its dealership to Trophy Automotive Dealer Group LLC (“Trophy”) via an Asset Purchase Agreement. Prior to the closing, Trophy assigned its rights and obligations under the Asset Purchase Agreements to FMG, the defendant that currently owns/operates the dealership, via an Assignment and Assumption Agreement. Under the Agreements, all "excluded liabilities" (including breach of warranty) were retained by the seller, not assumed by the buyer. (See Watar Decl., Ex. A, sec. 2.4.)

Plaintiff attacks this argument by noting that the purchase agreement is heavily redacted. They say that FMG represented that it would produce this document. They did produce the document, but did not produce an un-redacted copy. FMG says it only redacted financial information, etc., but there is a large portion of the document redacted which comes in the "Assignment and Assumption of Liabilities" section; for example, the redactions after section 2.4(n). For this reason, the Court will require FMG to provide the full, unredacted copy of the agreement under the protective order. (See 03/26/20 Protective Order.)

Therefore, the Court will continue the MSJ hearing to September 25, 2020, at 10:30 a.m. Defendant must lodge and serve an unredacted copy of the agreements at issue. Plaintiff may submit a supplemental opposition on the issue, no longer than 5 pages and at least nine court days prior to the hearing. Defendant may serve supplemental reply brief, no longer than 5 pages, on the issue at least five court days prior to the hearing.

Moving party is ordered to give notice.