Thomas-Pelle vs. General Motors LLC

A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.)

A defendant moving for summary judgment or summary adjudication satisfies the initial burden by submitting undisputed evidence “showing that a cause of action has no merit [because] one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc. § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-51.) However, “[t]he defendant must indeed present evidence." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855, italics original.)

In addition, if a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.)

If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.)

If the moving party meets its burden, the burden then shifts to the party opposing summary judgment to show, by reference to specific facts, the existence of a triable, material issue as to a cause of action or an affirmative defense. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.)

The nonmoving party must present substantial evidence in order to avoid summary judgment. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) “In some instances . . ., ‘evidence may be so lacking in probative value that it fails to raise any triable issue.’” (Whitmire v. Ingersoll-Rand

Co. (2010) 184 Cal.App.4th 1078, 1083-1084, quoting Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988) 199 Cal.App.3d 791, 795.)

When the moving party has met its initial burden and the responding party fails to file an opposition or establish a triable issues of material fact, the court may grant summary judgment or summary adjudication. (Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 543.)

Nonetheless, in ruling on a motion for summary judgment or summary adjudication, “the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843, citations omitted.) Courts “’construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’” (Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622, 636, quoting Seo v. All–Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201–1202.)

A court may not make credibility determinations or weigh the evidence on a motion for summary judgment or adjudication, and all evidentiary conflicts are to be resolved against the moving party. (McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.) “The court. . . does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 740, 754, citation omitted.) "[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference . . .” (Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)

1st Cause of Action (Violation of the Song-Beverly Act – Breach of Express Warranty)

Defendant contends that the 1st Cause of Action fails pursuant to Carver v. Volkswagen Group of America, Inc. (2024) 107 Cal.App.5th 864.

In that case, the Court of Appeal stated that:

To succeed on a claim for breach of an express warranty for a vehicle, the buyer plaintiff must prove that (1) the vehicle had a defect or nonconformity covered by a written warranty that substantially impaired the vehicle's use, value, or safety to a reasonable person in plaintiff's shoes (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer for repair (the presentation element); (3) the manufacturer or its authorized repair facility did not repair the defect after a reasonable number of repair attempts (the failure to repair element); and (4) the manufacturer did not promptly replace or repurchase the vehicle from the plaintiff (the failure to replace or repurchase element).

(Id. at p. 879.)

The trial court granted summary judgment to the defendant because the “plaintiff could not prove the final element — failure to replace or repurchase — because [the defendant] made an Act-compliant offer to repurchase the vehicle, which plaintiff declined.” (Ibid.)

The Court of Appeal first looked to Section 1793.2(d)(2), which “’ sets forth the manufacturer's affirmative obligation to ‘promptly’ repurchase or replace a defective vehicle it is unable to repair.’” (Ibid., quoting Kirzhner v. Mercedes-Benz USA, LLC (2020) 9 Cal.5th 966, 971.)

That statutes provides that:

(2) 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.

(Civil Code, § 1793.2, subd. (d)(2).)

The Court of Appeal found that Defendant’s offer to repurchase the vehicle 23 days after Plaintiff requested the repurchase was prompt as a matter of law, that the defendant did not miscalculate the use deduction, and that the offer did not incorporate an impermissible confidentiality provision. (See id. at pp. 880-890.)

The Court of Appeal then affirmed the trial court’s grant of summary adjudication as to the breach of express warranty claim.

In this case, Defendant submits evidence that it sent an offer to repurchase the subject vehicle to Plaintiff on June 18, 2024. (See Separate Statement of Undisputed Facts Supporting Def.’s Mot. for Summ. J. or, Alternatively, Summ. Adj. (Separate Statement), Undisputed Material Fact 9; Decl. of Bryan Jensen Supporting Def.’s Mot. for Summ. J. or, Alternatively, Summ. Adj. (Jensen Decl.), Exh. B. at pp. 20-23, Exh. E.)

The offer to repurchase states:

Per the letter General Motors sent you on 6/12/2024, advising you that we would repurchase your 2023 Chevrolet Suburban []. Below is the preliminary estimate that we prepared based upon the documents you provided.

Estimated Vehicle Repurchase Calculation

Total Sale Price $92,873.44 Less Rebate $ - Less Mileage/Usage $3,776.54 Based on 7,033 miles Less Negative Equity $ - Less Non-GM Products $2,393.00 Less Future Interest Not Paid $15,940.69

Estimated Repurchase Total $70,763.32

(Jensen Decl., Exh. E.)

Thus, Defendant has met its initial burden to show make a prima facie showing that there is no triable issue of material as to the 4th element of the cause of action for breach of express warranty.

The burden then shifts to Plaintiff to show that there is a triable issue of material fact as to that element.

Plaintiff contends that there is a triable issue of material fact as to whether Defendant offered the amount required by the Song-Beverly Consumer Warranty Act (Act), Civil Code section 1790 et seq.

Civil Code section 1793.2(d)(2) provides that:

(B) In the case of restitution, the manufacturer shall make restitution in an amount equal to the actual price paid or payable by the buyer, including any charges for transportation and manufacturer-installed options, but excluding nonmanufacturer items installed by a dealer or the buyer, and including any collateral charges such as sales or use tax, license fees, registration fees, and other official fees, plus any incidental damages to which the buyer is entitled under Section 1794, including, but not limited to, reasonable repair, towing, and rental car costs actually incurred by the buyer.

(C) . . . . When restitution is made pursuant to subparagraph (B), the amount to be paid by the manufacturer to the buyer may be reduced by the manufacturer by that amount directly attributable to use by the buyer prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity. The amount directly attributable to use by the buyer shall be determined by multiplying the actual price of the new motor vehicle paid or payable by the buyer, including any charges for transportation and manufacturer-installed options, by a fraction having as its denominator 120,000 and having as its

numerator the number of miles traveled by the new motor vehicle prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity. Nothing in this paragraph shall in any way limit the rights or remedies available to the buyer under any other law.

(Civ. Code § 1793.2, subd.s (d)(2)(B)-(C).)

Plaintiff asserts that in its offer to repurchase, Defendant reduced its offer “by that amount directly attributable to use by the buyer prior to the time the buyer first delivered the vehicle to the manufacturer” based on Plaintiff first presenting the vehicle for repair on October 31, 2023, at which time it had 7,036 miles. (See Separate Statement, Undisputed Material Facts 5; Jensen Decl., Exh. B at p. 38.)

Plaintiff submits evidence that she first presented the subject vehicle repair on July 17, 2023, when it had 2,453 miles. (See Decl. of Gabriel Paredes (Paredes Decl.), ¶ 4; Decl. of Solange Tados in Supp. of Pltf.’s Opp’n to Def.’s Mot. for Summ. J. (Tadros Decl.), ¶ 10, Exh. 2.)

Defendant argues that this evidence is insufficient, but does not explain why this evidence does not create a triable issue of material fact. Defendant also does no object to either of the declarations or attached documentation that Plaintiff has submitted.

Plaintiff contends that Defendant’s repurchase offer should have been about $2,460.88 greater in order to be compliant with the Act.

Plaintiff has met its shifted burden to show that there is a triable issue of material fact as to whether the amount of the repurchase price in the offer was compliant with Section 1793.2(d)(2).

Therefore, the court will deny the motion as to the 1st Cause of Action.

2nd Cause of Action (Violation of the Song-Beverly Act – Breach of Implied Warranty)

“The elements for this claim are lack of merchantability, causation, and damages.” (Carver v. Volkswagen Group of America, Inc., supra, 107 Cal.App.5th at pp. 889-890.)

In Carver v. Volkswagen Group of America, Inc., the Court of Appeal held that the trial court had properly granted summary adjudication as to the plaintiff’s claim for breach of implied warranty because the plaintiff could not prove damages, based on the defendant’s offer of “all the restitution [the plaintiff] could recover under section 1793.2, subdivision (d).” (Id. at p. 890.)

As the Court of Appeal explained: “It was plaintiff's choice, not [the defendant’s], to refuse that offer in order to allege damages to support this lawsuit and seek civil penalties and attorney fees. Thus, defendants have not damaged plaintiff.” (Ibid.)

In this case, Defendant contends that the 2nd Cause of Action fails for the same reason – that Defendant’s offer to repurchase the subject vehicle deprives Plaintiff of her ability to prove damages.

However, for the same reasons that Plaintiff has met her burden to show that there is a triable issue of material fact as to the 1st Cause of Action, she has also met her burden to show that there is a triable issue of material fact as to the 2nd Cause of Action.

Thus, the court will deny the motion as to the 2nd Cause of Action.

3rd Cause of Action (Violation of the Song-Beverly Act Section 1793.2(b))

In the 3rd Cause of Action, the Complaint alleges that Defendant has violated Section 1793.2(b) because “Defendant’s authorized facilities did not conform the Subject Vehicle to warranty within 30-days and/or commence repairs within a reasonable time, and GENERAL MOTORS LLC has failed to tender the Subject Vehicle back to Plaintiff in conformance with its warranties within the timeframes . . . . “ (Compl., ¶ 57.)

The Complaint then contends that “Plaintiff is entitled to replacement or reimbursement pursuant to Civil Code, section 1794, et seq.” (Id., ¶ 60.)

Defendant contends that it has not violated Section 1793.2(b) because it made a prompt offer to repurchase the subject vehicle.

However, Plaintiff has presented facts and evidence to show that there is a triable issue of material fact whether Defendant’s offer to repurchase was compliant with Section 1793.2.

Accordingly, the court will deny the motion as to the 3rd Cause of Action.

Summary Judgment

Summary judgment, as opposed to summary adjudication, is not proper unless there is no merit or no defense to the entire action or proceeding. (See Code of Civil Procedure section 437c, subd. (a).)

Thus, if any cause of action survives, a grant of summary judgment is improper. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2002) ¶¶ 10:26 to 10:27, p. 10–9.)

Here, because one or more of the claims of the Complaint survive, the court will deny the motion for summary judgment.

Plaintiff shall give notice of this ruling.

Motion for Summary Judgment and/or Summary 2 30-2024-01421309 Adjudication

Torre vs. Reddam There is no written tentative ruling on Defendant John Paul Reddam’s and Cashcall, Inc.’s Motion for Summary Judgment or Summary Adjudication. The court will hear from the parties or their counsel.

Demurrer 3 30-2023-01363812