ESCAMILLA VS AMERICAN HONDA MOTOR CO., INC., A CALIFORNIA CORPORATION

Plaintiffs do not contend every settlement requires an executed writing; they rely on open negotiations, unfinished client communication, no Seavey assent to the asserted walkaway, and no PDSSA approval.

(People v. Williams (2022) 75 Cal.App.5th 584 and Levine v. Berschneider (2020) 56 Ca1.App.5th 916 concern candor, not authority to settle an organizational client's case. Rule 3.3's correction duty is consistent with Plaintiffs' reliance on Garcia's failure to correct the CM-200 after immediate repudiation.

Finally, the Opposition's corporate history, family relationships, historical demands, and merits narrative are collateral to assent and punitive state of mind. Counsel was free to advise that claims were weak, remedies unrealistic, or trial expensive; those opinions did not transfer PDSSA's settlement decision to counsel. Nor do Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoft (1999) 69 Ca1.App.4th 223 or Skarbrevik v. Cohen, England & Whitfield (1991) 231 Cal.App.3d 692 establish authority that the entity expressly reserved. Plaintiffs do not claim Garcia represented every director individually; they rely on PDSSA's entity rights and the individual Plaintiffs' rights and harms already presented in the Motion. Factual disputes call for weighing under section 3295(c), not automatic denial.

2. CASE # CASE NAME HEARING NAME HEARING RE: MOTION TO COMPEL HEATH VS CITY OF PALM CVPS2407578 PERSON(S) MOST KNOWLEDGEABLE SPRINGS DEPOSITION AND DOCUMENTS Tentative Ruling: No tentative ruling. Hearing will be conducted on Monday, August 24, 2026 at 8:30 a.m., Department PS2.

3. CASE # CASE NAME HEARING NAME HEARING ON MOTION FOR SUMMARY ADJUDICATION ON COMPLAINT FOR ESCAMILLA VS AMERICAN BREACH OF CONTRACT/WARRANTY HONDA MOTOR CO., INC., CVPS2407621 (OVER $35,000) OF JOSE M. A CALIFORNIA ESCAMILLA BY AMERICAN HONDA CORPORATION MOTOR CO., INC., A CALIFORNIA CORPORATION Tentative Ruling: Granted.

Moving party to file proposed judgment within 10 days of this order becoming final.

Moving party to provide notice pursuant to CCP 1019.5.

In November of 2022 Plaintiffs Jose Escamilla and Lisset Acosta purchased a used 2020 Honda Civic manufactured by defendant American Honda Motor Co. and sold by Unicars Honda, an independently-owned dealership. When the vehicle had first been sold, it had come with a standard new vehicle limited warranty, which had not expired at the time the plaintiffs purchased the vehicle. In addition, plaintiffs received a Certified Pre-Owned Vehicle warranty. The terms of the CPO Warranty have not been described in detail to the court; however, in discovery responses Honda admitted “that it provided an express limited Certified Pre-Owned Warranty for the SUBJECT VEHICLE at the time of ... Plaintiffs’ purchase.” (Defendant’s response to RFA #7, Virasingh declaration, Exhibit “2”.)

The operative complaint alleges causes of action for (1) violation of Civil Code §1793.2(d); (2) violation of Civil Code §1793.2(b); (3) violation of Civil Code §1793.2(a)(3); and (4) breach of implied warranty of merchantability under Civil Code §§1791.1 and 1794.

Honda now moves for summary adjudication of each cause of action. It contends that, because the vehicle was purchased used, it is not liable on any of the causes of action under Rodriguez v. FCA US, LLC (2024) 17 Cal.5th 189.

Plaintiffs oppose, arguing that the CPO Warranty makes the vehicle a “new car” as the term is defined in the Song-Beverly Consumer Warranty Act (Civ. Code §§1790 et seq.). Alternately, plaintiffs argues that they are entitled to “lesser remedies” provided by section 1793.2(d)(1) and that Honda’s arguments thus do not fully dispose of any cause of action (rendering the issue not subject to summary adjudication) or that there is a triable issue of fact.

Procedural Issue(s)

Cal. Rules of Court, rule 8.1115 states that “an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.” (Cal. Rules of Court, rule 8.1115, subd. (a).) The rules do not prohibit citation of unpublished decisions from federal courts (Clark v. Superior Court (2021) 62 Cal.App.5th 289, 307 [footnote 20]), which may be cited as “persuasive, although not precedential, authority.” (City of Hawthorne ex rel.

Wohler v. H&C Disposal Co. (2003) 109 Cal.App.4th 1668, 1678 [footnote 5].) Citation to unpublished opinions of California courts, including California trial courts, however, is prohibited. (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831.) The court will permit the unpublished federal cases cited, but the two opinions of California superior courts cited by the parties must be disregarded as “clear violation[s] of rule 8.1115.” (Alviso v. Sonoma County Sheriff’s Dept. (2010) 186 Cal.App.4th 198, 213 [footnote 8] [ordering counsel “to comply with rule 8.1115 in all his future filings, or risk having his briefs rejected for filing”].)

Here, the court strikes all references to unpublished decisions of other California superior courts from both parties’ briefs and admonishes each side to not do so in the future.

Request for Judicial Notice (RJN)

Plaintiffs request that the court take judicial notice of five documents: two documents purportedly from Honda’s website, two SEC filings, and a decision issued by the Los Angeles Superior Court in an unrelated case. For the reasons just discussed above, the court will not take judicial notice of the last document. The two documents that purportedly come from Honda’s website are also not judicially noticeable. Plaintiffs contend that they are subject to judicial notice under Evid. Code §452(h) as documents “not subject to reasonable dispute and capable of immediate and accurate determination by resort to reliable sources.”

However, “the internet is not typically a reliable source of information” (Gonzales v. Unum Life Ins. Co. of America (2012) 861 F.Supp.2d 1099, 1104 [footnote 4]) and plaintiff does not provide sufficient information from which the court can determine even that the website the documents were found from was maintained by Honda. The two SEC filings, on the other hand, are government records and judicial notice will be taken of them. (Compare Romero v. Securus Technologies, Inc. (S.D. Cal. 2016) 216 F.Supp.3d 1078, 1084 [footnote 1] [taking judicial notice of the existence and authenticity of items maintained on government websites].)

Evidentiary Objection(s)

Plaintiffs raise various objections to the declaration of Jennifer Pacheco, Honda’s Mediation QA Supervisor. Objection #8 is sustained insofar as Pacheco declares (in ¶10) that Unicars “is not an agent of AHM” as this is a legal conclusion; all other objections to the Pacheco declaration are overruled.

Defendant objects to portions of the declaration of plaintiff’s attorney, Ann Katherine Virasingh. Both objections are overruled.

Summary Judgment/Adjudication

“A defendant moving for summary judgment has the burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action.” (Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 945; Code Civ. Proc., §437c(p)(2).) When the defendant moves for summary judgment on the ground that one or more element of the “cause of action ... cannot be established,” the defendant must present evidence that, if uncontradicted, “would constitute a preponderance of evidence that an essential element of the plaintiff’s case cannot be established ....” (Kids’ Universe v.

In2Labs (2002) 95 Cal.App.4th 870, 879; Code Civ. Proc., §437c(p)(2).) Once the defendant meets this burden, “the burden shifts to plaintiff to present evidence showing there is a triable issue of material fact” as to that essential element of the case or the defense asserted. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781; Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) The pleadings thus “frame the issues on a motion for summary adjudication and a party cannot successfully resist such a motion based on allegations that are not contained in the complaint.” (Heritage Marketing & Ins.

Services, Inc. v. Chrustawka (2008) 160 Cal.App.4th 754, 764.) A motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment” (Code Civ. Proc., §437c(f)(2).)

First, the court notes, Honda does not move for summary judgment. The court may not resolve issues not raised in the notice. (Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498 [court may not grant summary adjudication when only summary judgment has been noticed].)

1st Cause of Action – Song Beverly

The Song-Beverly Act applies to more than cars; it establishes consumer warranty protections for all sorts of consumer goods. (Civ. Code §1791(a).) The various remedies provided by the Act, however, are at times restricted by the type of good. Pertinent to the first issue in this motion, subdivision (d)(2) of section 1793.2, which provides a refund-or-replace remedy, is applicable only when “the manufacturer 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.’” (Rodriguez, 17 Cal.5th 189, 195.)

Section 1793.22 is the Tanner Consumer Protection Act, and subdivision (e)(2) defines a “new motor vehicle” as:

a new motor vehicle that is bought or used primarily for personal, family, or household purposes. “New motor vehicle” also means a new motor vehicle with a gross vehicle weight under 10,000 pounds that is bought or used primarily for business purposes by a person, including a partnership, limited liability company, corporation, association, or any other legal entity, to which not more than five motor vehicles are registered in this state. “New motor vehicle” includes the chassis, chassis cab, and that portion of a motor home devoted to its propulsion, but does not include any portion designed, used, or maintained primarily for human habitation, a dealer-owned vehicle and a “demonstrator” or other motor vehicle sold with a manufacturer’s new car warranty but does not include a motorcycle or a motor vehicle which is not registered under the Vehicle Code because it is to be operated or used exclusively off the highways. A demonstrator is a vehicle assigned by a dealer for the purpose of demonstrating qualities and characteristics common to vehicles of the same or similar model and type.

Interpretation of this definition has been the subject of several published cases, beginning with Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112. In Jensen the plaintiff leased a used vehicle with an already-existing warranty that was issued when the car was new. The court concluded that it was a “new vehicle.” Going through the language of section 1793.22(e)(2), the court identified the different types of “new motor vehicles” in the statute beyond the basic definition in the first two sentences of this paragraph.

Four of the additional types of “new motor vehicles” in the third sentence of this paragraph were clear: the chassis, chassis cab, portion of motor home devoted to propulsion, and a dealer-owned vehicle. The parties disagreed on whether the remaining language in this sentence (“a ‘demonstrator’ or other motor vehicle sold with a manufacturer’s new car warranty”) was one or two additional types of vehicles. The court sided with the plaintiff that they were two, making for six additional categories in this sentence: the four listed, demonstrators, and “other motor vehicles sold with a manufacturer’s new car warranty.”

The Jensen court reasoned: “The use of the word ‘or’ in the statute indicates ‘demonstrator’ and ‘other motor vehicle’ are intended as alternative or separate categories of ‘new motor vehicle’ if they are ‘sold with a manufacturer’s new car warranty.’” (Jensen, 35 Cal.App.4th 112, 123 [disapproved of by Rodriguez, 17 Cal.5th 189 as discussed below].)

Kiluk v. Mercedes-Benz USC, LLC (2019) 43 Cal.App.5th 334 came next. While the Kiluk court expressed some “reservations about that holding” in Jensen (that a used car sold during the period of a transferrable new vehicle warranty was a “new motor vehicle”), it avoided engaging with the question of whether “Jensen was correctly decided because, even if the vehicle was not a ‘new motor vehicle’ under Song-Beverly Act, Mercedes Benz was still liable under the used goods provisions of section 1795.5.” (Kiluk, 43 Cal.App.5th 334, 339-340.)

In addition to finding the plaintiff was entitled to remedies under section 1795.5, Kiluk found additional section 1793.2 remedies only because the manufacturer there had sold directly to the plaintiffs and was a retailer as well. “Here, Mercedes Benz partnered with a dealership to sell used vehicles directly to the public by offering an express warranty as part of the sales package, which is a crucial incentive for buyers like plaintiff. By partnering with the dealership, Mercedes Benz stepped into the role of a retailer and was subject to the obligations of a retailer under section 1795.5.

That section provides that a retailer’s obligations are the ‘same’ as a manufacturer under section 1793.2. Accordingly, it was entirely proper to permit the jury to analyze Mercedes Benz’s liability under section 1793.2.” (Kiluk, 43 Cal.App.5th 334, 340.) That is to say, the question of whether the vehicle in Kiluk was new or had a “new car warranty” was irrelevant because the manufacturer was also the seller and had liability that way under section 1793.2.

Rodriguez ultimately rejected the holding in Jensen that the unexpired existing new car warranty made the vehicle a “new motor vehicle.” “[I]f the Legislature had intended to define ‘new motor vehicle’ to include a potentially vast category of used cars with unexpired new car warranties, it would have been done so more clearly and explicitly.... [Citations.] [¶] Indeed, although demonstrators and dealer-owned vehicles are not truly ‘new,’ the statutory definition of ‘new motor vehicle’ makes an exception for them along with ‘other motor vehicle[s] sold with a manufacturer's new car warranty’ [Citation], and the general rule is that exceptions in a statute are to be narrowly construed. [Citations.]” (Rodriguez, 17 Cal.5th 189, 199 [internal quotation marks omitted].)

So far this only precludes applying Jensen to include as a “new vehicle” a used vehicles with preexisting warranties. However, what follows is important to the question at hand, because the Rodriguez court took a narrower definition of what was an “other motor vehicle sold with a manufacturer’s new car warranty” as that language is used in section 1793.22: “By specifically mentioning dealer-owned vehicles and demonstrators, the Legislature highlighted vehicles for which a manufacturer’s new car warranty arises upon sale to a retail buyer.

Thus, the phrase ‘other motor vehicle sold with a manufacturer’s new car warranty’ is most naturally understood to mean other vehicles for which such a warranty is issued with the sale. [Citation.] The phrase serves as ‘a catchall to ensure that manufacturers cannot evade liability under the Act by claiming a vehicle doesn't qualify as new because the dealership hadn’t actually used it as a demonstrator.’ [Citation.] For example, it would cover a car owned by a manufacturer or distributor for marketing purposes.” (Rodriguez, 17 Cal.5th 189, 199–200 [emphasis added].)

The Rodriguez case based its ruling on the important distinction the Legislature has drawn between new and used products before concluding that “the phrase ‘other motor vehicle sold with a manufacturer’s new car warranty’ ... means a vehicle for which a manufacturer’s new car warranty is issued with the sale.” (Rodriguez, 17 Cal.5th 189, 206.) This sentence alone does not actually make clear whether the “new car warranty” means “new warranty for a car” or “warranty for new car.” But it needs to be read in the context in which it arises, and in particular the discussion in Rodriguez about the distinction between new and used products in the SBA and the legislative purpose in distinguishing between demonstrator and dealer owned cars and other used cars.

Jensen had concluded that a used car with an existing new car warranty was a “new vehicle under the Act”, and Kiluk had questioned that. The issue is the interpretation of the definition in section 1793.22(e)(2), and the term being defined there is “new motor vehicle”, not “new motor vehicle warranty.” The Rodriguez court resolved the question of whether Jensen was correct by focusing on the distinctions between new cars and used cars and interpreting the “other motor vehicle sold with a manufacturer’s new car warranty” language not in the context of whether the warranty was new but in what makes the vehicles distinctive and new-car like.

In so doing the Rodriguez court rejected the Jensen’s court reading that “other motor vehicle” was a separate category from “demonstrator.” Jensen broke down the relevant sentence as:

“New motor vehicle” includes:

1. the chassis,

2. chassis cab,

3. and that portion of a motor home devoted to its propulsion, but does not include any portion designed, used, or maintained primarily for human habitation,

4. a dealer-owned vehicle and

5. a “demonstrator” or

a. other motor vehicle sold with a manufacturer’s new car warranty

but does not include a motorcycle or a motor vehicle which is not registered under the Vehicle Code because it is to be operated or used exclusively off the highways...

The alternate reading, which the Jensen court had acknowledged was “superficially plausible” under “the peculiar grammatical structure of this section” (Jensen, 35 Cal.App.4th 112, 123) would be: “New motor vehicle” includes:

1. the chassis,

2. chassis cab,

3. and that portion of a motor home devoted to its propulsion, but does not include any portion designed, used, or maintained primarily for human habitation,

4. a dealer-owned vehicle and

5. a “demonstrator” or other motor vehicle sold with a manufacturer’s new car warranty

but does not include a motorcycle or a motor vehicle which is not registered under the Vehicle Code because it is to be operated or used exclusively off the highways...

Rodriguez held that the Legislature did not intend to create a broad new category of all used motor vehicles that still had an existing warranty but instead interpreted the “other motor vehicle sold” language as being other vehicles sufficiently like the “demonstrator” category of vehicles to be considered in the same category. Rodriguez specifically provided an example of what such an “other motor vehicle” might be: a “car owned by a manufacturer or distributor for marketing purposes”—that is, a car that is similar to a demonstrator in that it remained in the possession of the distributor and was put to some use by the distributor but was not technically a demonstrator due to the type of use.

Plaintiff’s interpretation of the statutory language to mean that a used car with a new warranty is an “other motor vehicle sold with a manufacturer’s new car warranty” is thus at odds with Rodriguez. That is because under Rodriguez the “other motor vehicle” does not mean any motor vehicle sold with new warranty but is instead a motor vehicle like a “demonstrator” sold with a new car warranty. Consistent with this interpretation, the “new car warranty” for the “other motor vehicle” would be a “warranty for a new car”, not a “new warranty for a car”—because the “other” car has to retain the new-car like features that demonstrators have. Plaintiff’s car was used... “used” in the most basic sense of the word (i.e. Vehicle Code §665) without having been a demonstrator, a car like a demonstrator, a dealer-owned vehicle, the propulsion portion of a motor home, and so forth.

This answers the question of whether plaintiffs are entitled to new car remedies under Civil Code §1793.2(d)(2) but not whether defendant is entitled to summary adjudication of this cause of action. “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.” (Code Civ. Proc., § 437c(f)(1), (2); Maria D. v. Westec Residential Sec., Inc. (2000) 85 Cal.App.4th 125, 133.) In the first cause of action plaintiffs allege a violation of section 1793.2(d), pray for actual damages, and allege a failure to repair. Subdivision (d) states:

(1) Except as provided in paragraph (2), if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that amount directly attributable to use by the buyer prior to the discovery of the nonconformity. However, if the manufacturer or its representative in this state does not service or repair a travel trailer or a portion of a motor home designed, used, or maintained for human habitation, to conform to the applicable express warranties after a reasonable number of attempts, the buyer shall be free to elect reimbursement in lieu of replacement, and in no event shall the buyer be required by the manufacturer to accept a replacement travel trailer or motor home.

(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.

(A) In the case of replacement, the manufacturer shall replace the buyer’s vehicle with a new motor vehicle substantially identical to the vehicle replaced. The replacement vehicle shall be accompanied by all express and implied warranties that normally accompany new motor vehicles of that specific kind. The manufacturer also shall pay for, or to, the buyer the amount of any sales or use tax, license fees, registration fees, and other official fees which the buyer is obligated to pay in connection with the replacement, 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.

(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.

Subdivision (d)(2) does not apply because this is not a new motor vehicle, but subdivision (d)(1) is not limited to new motor vehicles. It applies to all consumer goods for which a warranty is issued—toaster ovens, power tools, socks, and other goods, including cars.

There are two important distinctions between subdivision (d)(1) and subdivision (d)(2): in the remedy provided and in the scope of their applicability. For remedies:

Under subdivision (d)(1), a buyer of defective consumer goods gets either replacement or reimbursement of the purchase price minus a usage credit, at the manufacturer’s option and may be able to recover incidental or consequential damages through section 1794(b) and the UCC.

Under subdivision (d)(2), (i) the buyer chooses between replacement and restitution; (ii) any replacement vehicle must be substantially identical and accompanied by full new-car warranties; (iii) restitution includes the amount paid to date with finance charges (plus any amount still owed), transportation and manufacturer-installed options, and taxes / license / registration / other official fees; (iv) reasonable repair, towing, and rental car costs come in as incidental damages; and (v) the use offset is fixed by a statutory formula

For applicability, subdivision (d)(2) applies to new motor vehicles while subdivision (d)(1) applies to “consumer goods.” Civil Code §1791(a) defines: “‘Consumer goods’ means any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables. ‘Consumer goods’ shall include new and used assistive devices sold at retail.”

A used car is thus not inherently a consumer good, but the Act contains additional provisions that can extend liability for a used consumer good. First, Civil Code §1795.5 provides that “the obligation of a distributor or retail seller of used consumer goods in a sale in which an express warranty is given shall be the same as that imposed on manufacturers”; it is “the obligation of the distributor or retail seller making express warranties with respect to used consumer goods (and not the original manufacturer, distributor, or retail seller making express warranties with respect to such goods when new) to maintain sufficient service and repair facilities within this state to carry out the terms of such express warranties.” (Civ. Code §1795.5(a).)

A “distributor” is “any individual, partnership, corporation, association, or other legal relationship that stands between the manufacturer and the retail seller in purchases, consignments, or contracts for sale of consumer goods.” (Civ. Code §1791(e).) Honda is thus not a “distributor”— it does not stand in between itself and the seller. So Honda is not liable under section 1793.2(d)(1) as a manufacturer of a used good.

Kiluk, however, provides an alternate route to liability under section 1793.2(d)(1). Recognizing that “[t]he Song-Beverly Act provides similar remedies in the context of the sale of used goods, except that the manufacturer is generally off the hook” (Kiluk, 43 Cal.App.5th 334, 339), the court found the manufacturer there was also a retail seller because it “partnered with a dealership to sell used vehicles directly to the public by offering an express warranty as part of the sales package, which is a crucial incentive for buyers like plaintiff. By partnering with the dealership, [the manufacturer] stepped into the role of a retailer and was subject to the obligations of a retailer under section 1795.5.” (Kiluk, 43 Cal.App.5th 334, 340.)

This theory of liability though is not addressed by the parties in connection with this cause of action, but more importantly it is not pled in the operative complaint. Accordingly, summary adjudication of the first cause of action must be granted. GRANTED

2ND Cause of Action - Song Beverly

In the second cause of action plaintiffs allege that Honda’s representatives failed to commence repairs within a reasonable time. Civil Code §1793.2(b) states: “Where those service and repair facilities are maintained in this state and service or repair of the 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. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days. Delay caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.”

As per the above discussion, liability under subdivision (b) requires the product to be a “consumer good”, which the vehicle is not under section 1791. GRANTED

3RD Cause of Action – Song Beverly

Third Cause of Action (Civ. Code §1793.2(a)(3)): Subdivision (a)(3) requires the manufacturer of consumer goods to “[m]ake available to authorized service and repair facilities sufficient literature and replacement parts to effect repairs during the express warranty period.” However, since subdivision (a) applies to manufacturers of consumer goods for which the manufacturer has made an express warranty, and this is not a consumer good, this cause of action is unsupported for the same reason as the previous two. GRANTED

4TH Cause of Action - Breach of Implied Warranty of Merchantability

In the fourth cause of action, plaintiffs allege that the vehicle was subject to an implied warranty of merchantability that extended, per Civil Code §1791.1(c), for the same duration as the express warranty. Civil Code §1794(a) allows a “buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter” to bring an action for relief. The implied warranty under section 1791.1, like the right of relief under section 1794, applies to “consumer goods.”

In the opposition, plaintiffs for the first time argue that under Kiluk, Honda is liable for having partnered with the retailer to sell goods directly to the public. On summary adjudication the court identifies the issues “framed by the pleadings because the court’s sole function on a motion for summary judgment [or summary adjudication] is to determine from the submitted evidence whether there is a ‘triable issue as to any material fact’ [Citation], and to be ‘material’ a fact must relate to some claim or defense in issue under the pleadings.” (Zavala v. Arce (1997) 58 Cal.App.4th 915, 926 [emphasis in original].) The complaint does not allege that Honda is liable as a retailer of used goods under Civil Code §1795.5. It alleges that Honda is liable as the manufacturer or distributor of the vehicle. (Complaint, ¶9.)

This is not an abstract or technical distinction. Plaintiffs’ theory of liability in the complaint is that Honda is liable as an issuer of a new warranty. Even in arguing Kiluk, plaintiffs still frame the liability as: “[u]nder Kiluk, Defendant AHM is liable because it issued a new CPO warranty with the sale of the Vehicle.” (Opposition, p. 7.) But the Song-Beverly Act, as discussed at length above, does not impose liability for issuing a new warranty. The various statutes differ, but for the purposes of the specific statutes at issue here the Act imposes liability for (a)(1) manufacturing a new consumer product with a warranty or (2) selling a used consumer product with a warranty (with Kiluk adopting the second of these) and (b) failing to repair it to conform to the warranties.

The plaintiffs have to take one of these paths (new consumer good [with new motor vehicle as a subset] or used consumer good and seller) to get to the available remedies. They can’t jump to the end and say that this is a new warranty and therefore the type of good is irrelevant, because the statutes, remedies, and duties relate to the specific definitions of the goods as well as the terms of the warranty.

Beyond that, plaintiffs have presented no evidence that Honda was a seller of the vehicle in the sense that Kiluk described it. UMF #6, presented by defendant, was that Honda “did not distribute the used subject vehicle to Unicars Honda for sale.” While plaintiffs’ response claims that this fact was disputed, they do not disagree with it, instead they argue that “[t]his fact is irrelevant to this cause of action. The relevant fact is that AHM manufacturer the Vehicle that was sold to Plaintiffs with AHM’s CPO warranty. [¶] Defendant AHM issued a new CPO warranty with the sale of the Subject Vehicle to Plaintiffs.” (Plaintiffs’ response to UMF #6 [emphasis added].)

None of the cited evidence—not even the requests for judicial notice of materials on the internet that the court has rejected—show any partnering or other relationship between Honda and Unicars. Plaintiffs’ theory of liability is, and has always been, that Honda is liable as the issuer of a new warranty and not as a seller. There are theories (breach of contract, for one) under which the issuer of a warranty may be liable without the product being a new consumer good or the issuer also being a retailer.

The provisions of the Act which form the basis of the specific causes of action being alleged here, requires either a “consumer good” (for sections 1793.2(d)(1), 1793.2(b), 1793.3(a)(3), or 1791.1(c)) or a “new motor vehicle” (for section 1793.2(d)(2)), two terms which have specific definitions under the Act which do not apply to a used motor vehicle, even if that used motor vehicle has a new warranty. GRANTED.