Sanctions. Plaintiff does not justify the delay in setting a deposition date in this matter and the Court does not find the delays were justified. Accordingly, sanctions are imposed in the amount of $560 payable within 30 days of this order.

3. CASE # CASE NAME HEARING NAME MOTION FOR SUMMARY ADJUDICATION ON COMPLAINT FOR BREACH OF CVRI2404704 AULLS VS FCA US, LLC. CONTRACT/WARRANTY (OVER $35,000) OF ERIC M AULLS BY FCA US, LLC. Tentative Ruling:

Moving party: Defendant FCA US LLC Responding party: Plaintiffs Eric M. Aulls and Leah V. Aulls

This is a Song-Beverly action. Plaintiffs Eric M. Aulls and Leah V. Aulls (“Plaintiffs”) allege that they leased a 2022 Jeep Wrangler Unlimited on 7/8/22, with transmission defects, engine defects, electrical defects, and brakes defects. The operative complaint, filed 8/21/24, asserts against Defendant FCA US LLC (“FCA”): (1) Civil Code §1793.2(d); (2) Civil Code §1793.2(b); (3) Civil Code §1793.2(a)(3); (4) breach of implied warranty. Trial is set for 7/10/26.

Defendant now moves for summary adjudication of the 2nd and 3rd causes of action. On the 2nd cause of action, Defendant argues that there is no evidence any repair representation was not commenced within a reasonable time or that any single repair visit exceeded 30 days. On the 3rd cause of action, Defendant argues that Plaintiffs have no evidence any repair was delayed due to a lack of replacement parts or service literature. Defendant asserts that Plaintiffs have failed to identify which specific parts or literature were withheld or not provided.

In opposition, Plaintiffs argue that Defendant’s evidence is inadmissible because it is introduced solely through the declaration of its attorney, who lacks the personal knowledge or foundation to authenticate repair orders. On the merits, Plaintiffs argue that the 2nd cause of action does not require a single 30-day repair visit, but rather a failure to repair the vehicle “so as to conform to the applicable warranties within 30 days.” (

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(b).) They argue that unsuccessful repairs, or repairs that addressed one problem but introduced another defect, create a triable issue. For the 3rd cause of action, Plaintiffs argue that the court should infer a lack of sufficient literature from the dealer’s inability to “duplicate” the brake concern and the failed repairs creating new problems.

In reply, Defendant argues that Plaintiffs have still failed to identify admissible evidence to support their claims.

A. Evidentiary Objections

Plaintiffs submit 12 written objections to the Declaration of Alejandro Blake and the 10 exhibits attached thereto. The objections primarily argue that defense counsel lacks personal knowledge and foundation to authenticate the vehicle lease, the warranty booklet, repair orders, and discovery responses, and that the documents are therefore inadmissible hearsay. The court declines to consider these objections as they are not dispositive in this motion.

From commencement to conclusion, the party moving for summary judgment bears the burden of persuasion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.)

A defendant can meet his initial burden by showing that one or more elements of the cause of action cannot be established, or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) To demonstrate that a cause of action cannot be established, the defendant must either negate an essential element of the plaintiff’s cause of action or show that the plaintiff lacks evidence. (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1301.) To negate an element, the defendant must establish that plaintiff’s claim fails as a matter of law. (Erikkson v.

Nunnick (2011) 191 Cal.App.4th 826, 849.) To demonstrate that the plaintiff lacks evidence, the defendant must show that the plaintiff does not possess and cannot reasonably obtain needed evidence. (Aguilar, supra, 25 Cal.4th at 855.) A defendant may not simply point to an absence of evidence but must show that the plaintiff cannot reasonably obtain such evidence. (Gaggero v. Yura (2003) 108 Cal.App,4th 884, 891.)

A motion for summary judgment should be granted if no triable issue exists as to any material fact and the moving party is entitled to a judgment as a matter of law. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.) “The moving party bears the burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at 850.) Once this burden has been met, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Ibid.) “Any doubts as to the propriety of granting the motion are resolved in favor of the party opposing the motion.” (American Airline v.

Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1048.) It is improper for the court to weigh the evidence or determine the credibility on a motion for summary judgment or adjudication. (Binder v. Aetna Life Insurance Co. (1999) 75 Cal.App.4th 832, 840.)

1. The Song-Beverly Act (the “Act”)

“The Song-Beverly Act is a remedial statute designed to protect consumers who have purchased products covered by an express warranty.” (Robertsons v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 740.) “If a manufacturer elects to provide an express warranty for consumer goods such as motor vehicles, the Act protects buyers in a number of ways.” (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 121.) One of such protection is the requirement that the manufacturers of consumer goods sold in this state are to maintain service and repair facilities or designate independent repair or service facilities “reasonably close to all areas where its consumer goods are sold to carry out the terms of the warranties.” (Civ. Code § 1793.2, subd. (a)(1)(A).)

Under the Act “[w]here...service or repair of goods is necessary because they do not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state ...[and] the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days.” (Civ. Code § 1793.2, subd. (b).) “If the manufacturer or its representative...is unable to service or repair a new motor vehicle...to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle...or promptly make restitution to the buyer...” (Civ.

Code § 1793.2, subd. (d)(2).) If the manufacturer fails to comply with the Act, the buyer has recourse to bring an action to recover damages and “other legal and equitable relief”, and, in the event the violation is found to have been willful, to be awarded civil penalty which is not to exceed two times the amount of actual damages. (Civ. Code § 1794, subds. (a) & (c).)

A plaintiff pursuing an action under the Consumer Warranty Act has the burden to prove the nonconformity element, the presentation element, and the failure to repair element. (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 152.) More specifically, the elements of a claim for a manufacturer’s violation of the Song-Beverly Consumer Warranty Act are: “(1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element).” (Civ. Code § 1793.2, subd. (d)(2).)

2. Civil Code section 1793.2(b) (Second Cause of Action)

Civil Code section 1793.2, subdivision (b) requires service and repair to be commenced within a reasonable time by the manufacturer or its representative and that goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days, unless the buyer agrees in writing to the contrary.

Defendants assert it is undisputed that no single repair presentation took more than 30 days. (Undisputed Material Facts “UF” no. 10.) Indeed, the repair history shows four visits, with the longest lasting 24 days beginning 2/21/24. (See, UF 3, 4, 6, 7.)

Plaintiffs argue that section 1793.2, subdivision (b), is violated when the manufacturer fails to “fully conform” the entire vehicle to warranty within 30 days of a presentation. It argues that an incomplete or defective repair that is returned to the consumer within 30 days still constitutes a violation.

In Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, the manufacturer repaired the stalling of the bridge operation, but in doing so, introduced a new defect due to the inability of the fuel pump to shut off in the event of an accident. The court affirmed the jury’s finding that the manufacturer failed to conform the car to the applicable express warranties of full functionality, rejecting what it termed “a ‘MacGyver’ half measure that simply swaps defects.” (Id. at 345-346.) Here, Plaintiffs presented evidence that after the 24-day repair visit ending on 3/15/24, they retrieved the vehicle but discovered that the oil was “low, like extremely low,” requiring Plaintiffs to “go get an oil change right after.” (Defendant’s compendium of evidence, Exh. 10 at 61:14-62:6.)

This testimony creates a triable issue of fact as to whether the vehicle was actually repaired so as to fully “conform” to the applicable warranties when it was returned to the Plaintiffs. It also creates a triable issue as to whether the repair has created a new defect, similar to the “half measure” in Santana.

Based on the foregoing, Plaintiffs have raised a triable issue of material fact, and the court denies summary adjudication of the 2nd cause of action.

3. Civil Code section 1793.2(a)(3) (Third Cause of Action)

Civil Code section 1793.2, subdivision (a)(3) requires a manufacturer to make available to authorized service and repair facilities “sufficient service literature and replacement parts to effect repairs during the express warranty period.”

Defendants argue that there is no evidence it failed to make available to its authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period in violation of Civil Code section 1793.2, subdivision (a)(3). However, Defendants failed to submit any evidence that it provided sufficient service literature and replacement parts for the repairs at issue. Thus, Defendant failed to meet its initial burden of production to show that an essential element of the claim cannot be established. As Defendant has not met its burden, the burden does not shift to Plaintiffs to produce evidence to reflect a triable issue of material fact. Accordingly, the court denies summary adjudication as to the 3rd cause of action.

Deny summary adjudication of the 2nd and 3rd causes of action.