Lee vs. Volkswagen Group of America, Inc.

This notice period is mandatory and jurisdictional, and the court has no discretion to shorten the notice period absent the parties’ express stipulation. (See McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 116; Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 763-766, 768 [court cannot “infer[] from silence” plaintiff’s “waiver of the right to the statutorily mandated minimum notice period for summary judgment hearings.”].)

Nor can the court cure a defect in notice by continuing the hearing so that the hearing is held the required number of days after notice was given because notice of the new hearing date must be given at least 81 days before the continued date. (See Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268.)

Here, Defendants gave notice of the motion by electronic mail on March 3, 2026. (See ROA #42.) The hearing on this motion is set for May 18, 2026, so notice had to be given at least 81 days plus 2 court days before the hearing, or February 24, 2026.

Here, notice was not given in a timely manner, which divested the court of jurisdiction to hearing this motion.

Therefore, the court must deny motion.

Standard for Summary Judgment or Summary Adjudication

However, even if the court were to consider the motion on the merits, it would still deny the motion.

A party may move for summary judgment, which “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

In addition, “[a] party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).)

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.)

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 (Breach of Express Warranty Violation of the Song Beverly Consumer Warranty Act)

Defendants contend that the motion should be granted with respect to the 1st Cause of Action because the undisputed evidence shows that Defendants did not have a reasonable opportunity to repair the subject vehicle.

The reasonableness of the number of repair attempts is a question of fact to be determined in light of the circumstances, but at a minimum, there must be more than one opportunity to fix the nonconformity. (See Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208–1209 [noting that Song-Beverly Act uses plural “attempts”].)

Further, each occasion that an opportunity for repairs is provided counts as an attempt, even if no repairs are actually undertaken. (See Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1103, [all six occasions on which plaintiff presented vehicle to dealer to find and repair source of oil leak counted as repair attempts, even if parts were replaced on only one occasion].)

Here, the evidence shows that Plaintiff brought in the subject vehicle for repairs on three occasions. Whether that is a reasonable number of opportunities is a question for the factfinder to decide at trial.

In response, Defendants contend that two of the three service visits were for issues unrelated to those in this action.

However, even by Defendants’ recitation of the facts:

1. “On July 13, 2023, at 1,137 miles, the Subject Vehicle was towed to Audi Long Beach with concerns that the vehicle had no power and would not lock/unlock.” (Separate Statement of Undisputed Material Facts in Supp. of Def.’s Mot. for Summ. J. or, in the Alternative, Mot. for Summ. Adj. (Separate Statement), Undisputed Material Fact 7.)

2. “Plaintiff later returned to Audi Long Beach on August 28, 2023 at 1,228 miles, reporting the vehicle’s range displayed on the instrument cluster did not align with the phone application and that there was wind sounds coming from the A/C vents.” (Separate Statement, Undisputed Material Fact 9.)

3. “On December 19, 2023 at 4,613 miles, Plaintiff presented the Subject Vehicle to Audi Long Beach, reporting that on one occasion it stopped charging at home, that the MMI screen

intermittently froze, and that the front and rear washer jets were not spraying properly.” (Separate Statement, Undisputed Material Fact 11.)

From this evidence, a reasonable factfinder could decide that on two occasions, the subject vehicle was brought in due to problems with the power and charging system, and that on all three occasions, the subject vehicle was brought in due to problems with its electronic systems.

Thus, there is a triable issue of material fact as to how many opportunities Defendants were given to repair the subject vehicle and whether that number of opportunities was reasonable under the circumstances.

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

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

Defendants argue that the motion should be granted as to the 2nd Cause of Action because Plaintiffs cannot show that the subject vehicle was unmerchantable or unfit for its ordinary use.

Defendants contend that since Plaintiff’s first and only warrantable repair visit on July 13, 2023, Plaintiff has not brought back the vehicle for the same issues.

Defendants also assert that during Plaintiff’s two other service visits, the dealership determined that the vehicle was operating normally.

The implied warranty of merchantability may be breached by a latent defect undiscoverable at the time of sale. (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304).

Indeed, “[u]ndisclosed latent defects . . . are the very evil that the implied warranty of merchantability was designed to remedy.” (Id. at p. 1305).

“In the case of a latent defect, a product is rendered unmerchantable, and the warranty of merchantability is breached, by the existence of the unseen defect, not by its subsequent discovery.” (Ibid.)

“Thus, although a defect may not be discovered for months or years after a sale, merchantability is evaluated as if the defect were known.” (Id.)

Here, Defendants’ argument rests on the assumption that the 2nd and 3rd service visits were for issues unrelated to the 1st service visit. However, that is a disputed issue of fact that cannot be decided on a motion for summary judgment.

Further, the fact that Defendants determined that the subject vehicle was operating normally is not irrebuttable evidence that the subject

vehicle did not have a latent defect.

The problems faced by the Plaintiff, which were the reason that Plaintiff brought in the subject vehicle for repair, is evidence that there was a latent defect.

Plaintiff’s evidence that there was a latent defect and Defendant’s evidence that there was not a latent defect create a triable issue of material fact.

Finally, Plaintiff presents evidence that, in January 2024, he received a safety recall notice related to a problem in the vehicle’s charging system. (See Decl. of Paul B. Lee in Opp’n to Def.s’ Mot. for Summ. J. or, in the Alternative, Summ. Adj., ¶ 7.)

This also creates a dispute of fact as to the existence of a latent defect and merchantability that will need to be decided at trial.

Accordingly, the court will deny the motion as to the 2nd 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, both of the causes of action of the Complaint survive.

Therefore, the court must deny the motion for summary judgment.

Plaintiff shall give notice of this ruling.

14 Dinh vs. There is no full written tentative ruling. The court provides the following Nguyen summary tentative ruling:

Motion for Summary Judgment

30-2025- Defendants Minh Phuong Nguyen’s and Que Tam Trinh’s Motion for 01488040 Summary Judgment as to Plaintiffs’ Complaint Based on Settlement and Release is DENIED.

There is a triable issue of material fact as to whether Plaintiffs Thien Dinh and Ngan Nguyen, through their counsel, accepted the settlement presented by Defendants Minh Phuong Nguyen and Que Tam Trinh.