Dave Hawker v. FCA US, LLC, et al.

tolling. Defendant further produced evidence establishing that the existence of the defects in the vehicle prior to purchase was known or should have been known by no later than June of 2020 through the repair orders and Plaintiffs' deposition testimonies. An absence of evidence may reasonably be inferred from the evidence provided by Defendant, as may a finding that Plaintiffs knew or should have known of the defect by a particular time in light of the facts and unrefuted evidence presented. The burden, therefore, is on Plaintiffs to raise a triable issue of fact as to when Defendant's wrongdoing became known to Plaintiffs.

Plaintiffs again argue that the fifth cause of action was tolled under the discovery rule, as Defendant has failed to establish that Plaintiff knew or should have known that the vehicle contained defects and could not be repaired under the warranty or reason to know any wrongdoing by Defendant. (Opp., p. 12:28-13:2.) The Court disagrees. Defendant has provided unrefuted and uncontradicted evidence that from 2019 through mid-2020, (1) Plaintiff began experiencing electrical and transmission issues with the vehicle within one month of purchase, (2) Plaintiff presented the vehicle for repairs and none of the issues were ever resolved, (3) Plaintiff presented the vehicle approximately two to three times for each issue with the vehicle, (4) at the time the issues were presenting in the vehicle, Plaintiff was not under the belief that Defendant had fixed the issue (Allison Decl., Ex. 6, p. 82:6-19), (5) Plaintiff was not under the impression that Defendant was incapable of fixing the issue or that the issues had been resolved, (6) Plaintiff was scared and felt unsafe driving the vehicle, (7) Plaintiff stopped driving to work and worked from home for a number of months because of the vehicle issues, (8) Plaintiff avoided driving on highways due to recurrent issues when the car exceeded speeds of 50 miles per hour, (9) Plaintiff avoided towing anything with the vehicle due to power issues, and (10) Plaintiff raised her concerns multiple times without remedy.

This evidence is sufficient to establish that no triable issue of material fact exists as to whether Plaintiffs knew or with reasonable diligence should have known of the defects. Plaintiffs have provided no evidence to contradict that presented by Defendant, and no evidence that Plaintiffs did not know, and could not have known in the exercise of reasonable diligence, of the facts giving rise to their cause of action, particularly so in light of the fact that these defects manifested within one month of purchase.

Plaintiffs rely in part on Hammond v. BMW of N. Am., LLC, 2019 WL 2912232, at *3 (C.D. Cal. June 26, 2019) to support the argument that Defendant has failed to satisfy its burden of establishing that Plaintiff believed or should have believed that the problems manifesting in the vehicle were result of a defect that could not be repaired under the vehicle's warranty. However, in Hammond, the plaintiff presented a vehicle twice for excessive oil consumption, and the dealer told her the level of oil consumption was normal.

The court found that this was insufficient to establish that no jury could find that Plaintiff did not discover or have reason to discover the underlying defects giving rise to her causes of action. Here, Defendant has provided sufficient evidence for the Court to find that no triable issue of material fact exists, particularly because Plaintiffs have failed to provide any evidence whatsoever to support delayed discovery, and where Plaintiff herself testified that she believed Defendant could identify, disclose, and repair the issue and failed to do so as early as 2019, and thereafter felt too unsafe to drive the vehicle in the manner for which it was intended.

Accordingly, Defendant's motion for summary judgment is GRANTED. ----- VI.

Conclusion

Defendant General Motors, LLC's Motion for Summary Judgment is GRANTED. [1] Plaintiffs object to some of these facts to the extent that Defendant attempts to assert them to support certain of its arguments. However, Plaintiffs do not dispute the underlying facts or statements themselves. Case Number: 25AVCV00374 Hearing Date: August 28, 2026 Dept: A14 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - NORTH DISTRICT DAVE HAWKER, Plaintiff, v.

FCA US, LLC; HUNTER DODGE CHRYSLER JEEP RAM FIAT; and DOES 1 through 10, inclusive, Defendants. | Case Number 25AVCV00374 [TENTATIVE] RULING ON MOTION Date of Hearing: August 28, 2026 Dept. A-14 Judge William H. Forman | I.

Background

This is a Song-Beverly Action. Defendant FCA US, LLC (FCA) moves for summary adjudication as to the first, second, third, and fourth causes of action. On March 20, 2025, Plaintiff Dave Hawker filed a complaint against Defendants FCA and Axis Automotive Group, LLC dba Hunter Dodge Chrysler Ram Fiat (erroneously sued as Hunter Dodge Chrisler Jeep Ram Fiat) (Axis) asserting five causes of action for (1) violation of subdivision (d) of Civil Code section 1793.2, (2) violation of subdivision (b) of Civil Code section 1793.2, (3) violation of subdivision (a)(3) of Civil Code section 1793.2, (4) breach of the implied warranty of merchantability pursuant to Civil Code sections 1791.1, 1794, and 1795.5, (5) negligent repair, and (6) fraudulent inducement concealment.

Plaintiff alleges that on August 7, 2022, he entered into a warranty contract with FCA regarding a 2022 Ram 2500, which provided various warranties, including a bumper-to-bumper warranty, powertrain warranty, and emission warranty. (Compl., P.P. 7-8, Ex. A.) Plaintiff asserts that an engine defect, along with other transmission and electrical defects and others, manifested in the vehicle during the applicable express warranty period, and that Defendant had a duty to offer repurchase or replacement at the time it failed to conform the vehicle to warranty after a reasonable number of repair attempts but failed to do so in violation of the Song Beverly Consumer Warranty Act (Song-Beverly Act). (Compl., P.P. 12, 16, 28-30.)

On July 28, 2025, FCA filed a demurrer to the complaint, which was subsequently sustained with leave to amend. On August 13, 2025, Axis filed an answer. On October 14, 2025, Plaintiff filed the operative first amended complaint (FAC). On November 17, 2025, Axis filed an answer to the FAC. On March 9, 2026, FCA filed an answer to the FAC. On May 7, 2026, FCA filed the present motion for summary adjudication. This motion is unopposed. ----- II. Request for Judicial Notice Defendant's Request for Judicial Notice - Defendant requests judicial notice be taken of Plaintiff's FAC filed in this case.

The Court notes that judicial notice of documents within the present case is unnecessary, but Defendant's request is GRANTED pursuant to Evidence Code sections 452, subdivision (d) and 453. ----- III.

Legal Standard

Standard for Motion for Summary Adjudication - "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, as specified in Section 3294 of the Civil Code, or that one or more

defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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., Sec. 437c, subd. (f)(1).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at Sec.437c, subd. (p).)

A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence "and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence." (Aguilar, supra, 25 Cal.4th at 865-66.) Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence.

Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (See Code Civ. Proc. Sec. 437c, subd. (p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D'Amico v.

Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) ----- IV.

Discussion

Application - FCA moves for summary adjudication as to the first, second, third, and fourth causes of action pursuant to Code of Civil Procedure section 437c, subdivision (f)(1)-(2) and California Rules of Court rule 3.1350 on the grounds that there is no triable issue as to any material fact and FCA is entitled to judgment as a matter of law under Silvio v. Ford Motor Company (2003) 109 Cal.App.4th 1205 because Plaintiff did not present the vehicle for any repairs under the vehicle's express warranty. (Notice of Motion, p 2:7-22.) a.

First Cause of Action - Violation of Civil Code Sec. 1793.2(d) As to the first cause of action, FCA argues that this cause of action fails as a matter of law because the undisputed repair history establishes that Plaintiff did not complain of or experience any of the issues or engine defects alleged in the FAC, and Plaintiff therefore cannot establish a violation of Section 1793.2(d) because FCA was never afforded a reasonable number of repair attempts for any alleged nonconformity to warranty. (Motion, p. 7:21-8:1.)

A plaintiff pursuing an action under the Song-Beverly Act has the burden to prove that "(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)." (Oregel v.

American Isuzu Motors, Inc., 90 Cal. App. 4th 1094, 1101; see Civ. Code, Sec. 1793.2.) "[T]he only affirmative step the Act imposes on consumers is to 'permit[] the manufacturer a reasonable opportunity to repair the vehicle.' [Citation.]" (Id. at 1103.) As to the presentation element, in Silvio, a consumer presented his car for repair only once, and when the problem persisted, demanded a repurchase. (Silvio, supra, 109 Cal.App.4th at 1207.) Based on this factual scenario, the Court of Appeal held that the consumer had not stated a claim under Civil Code section 1793.2, subdivision (d), because that statute offers remedies where the car manufacturer is "unable to service or repair a new motor vehicle . . . to conform to the applicable express warranties after a reasonable number of attempts." (Civ.

Code, Sec. 1793.2, subd. (d)(2).) Construing the statutory language referring to "a reasonable number of attempts," the Court noted that "attempts" is plural, thus requiring that more than one repair opportunity was necessary to state a claim. (Silvio, supra, at 1208-09.) "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." (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.

App. 4th 785, 799.) Whether a manufacturer or authorized repair dealership is able to verify, replicate, and repair

the issue on presentation of the Vehicle is also inapposite. "Each occasion that an opportunity for repairs is provided counts as an attempt, even if no repairs are actually undertaken. (Oregel v. American Isuzu Motors, Inc. [(2006)] 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 only on one occasion were parts replaced].)" (Ibid.) FCA presents the sale documents and Retail Installment Sale Contract entered into with Plaintiff, establishing the purchase date as August 7, 2022, Plaintiff's FAC, attached to which are the warranties provided by FCA, and the Monroney Label for the vehicle, evidencing the warranties provided by FCA, including (1) a basic limited warranty with coverage for 3 years or 36,000 miles and (2) a powertrain warranty with coverage for 5 years or 100,000 miles. (Ex.

A-C.) FCA argues the vehicle's implied and basic manufacturer's warranties expired in August 2023 and August 2025 respectively based on the purchase date. (UMF, P. 3.) The vehicle's powertrain warranty is set to expire in August 2027, or once the vehicle's odometer reaches 100,000 miles, whichever comes first. (UMF, P. 4.) FCA further contends that during the basic limited warranty and powertrain warranty periods between 2022 and 2025, Plaintiff presented the vehicle to Hunter, an authorized repair dealer, two times for recall-related repairs on January 31, 2024 and April 25, 2025 and provides as evidence (1) a warranty claim report, (2) a repair order detailed report, (3) a warranty claim summary report, (4) a repair order from January 21, 2024, and (5) a repair order from April 25, 2025. (UMF, P. 5; Ex.

D-H.) On January 31, 2024, Plaintiff presented the vehicle to Hunter for regular maintenance and repairs related to Recalls 13A, Y43, and ZA3, and the repairs were completed and the vehicle was out of service for two days. (EUMF, P.P. 6-7, Ex. E, G.) On April 25, 2025, Plaintiff presented the vehicle to Hunter for maintenance and repairs related to Recalls 55B and 66B, and the repairs were completed with the vehicle being out of service for four days. (UMF, P.P. 8-9, Ex. E, H.) FCA contends that this evidence does not support that Plaintiff attempted to bring the vehicle to an FCA-authorized dealership for repair of any of the issues alleged in the FAC. (UMF, P. 14.)

Plaintiff then filed the present complaint on March 20, 2025 and the FAC on October 14, 2025, in which Plaintiff alleges the vehicle has an engine defect causing issues including loss of power, stalling, engine running rough, engine misfire, failure or replacement of the engine, loss of control, fire, and failure without warning. (FAC, P.P. 20-21.) Plaintiff asserts he purchased the vehicle manufactured with FCA's defective engine, and that FCA still has not fixed the engine defect. (FAC, P.P. 19, 31.)

FCA is correct that the undisputed evidence provided establishes that Plaintiff presented the vehicle for recall-related repairs on only two occasions and that there is nothing stated within the repair orders, summaries, and reports provided that expressly evidences Plaintiff's complaining or suffering of engine issues as alleged in the FAC. However, FCA's argument fails for a number of reasons. First, the Song-Beverly Act does not distinguish between recall-related repairs and non-recall related repairs where a defect relating to a recall manifested.

Some courts have delineated a distinction under the Song-Beverly Act between repairs for recall-related defects which actually manifested and recall-related repairs where no nonconformity to warranty presented. (See, e.g., McGee v. Mercedes-Benz USA, LLC (2020) 612 F.Supp.3d 1051, 1059 [a recall letter is insufficient to satisfy the element of nonconformity of a vehicle where no evidence is presented that the defect existed in the vehicle, recall notices were sent and recall-related repairs were done as a preemptive safety measure, and it is undisputed that the vehicle presented no other problems]; see also Adams v.

FCA US LLC, 2016 U.S. Dist. LEXIS 188899, *15-16 ["because Plaintiff experienced no defects in her Jeep, only potential defects that were the subject of the recall notices (and repaired before any defect manifested), Plaintiff cannot satisfy the nonconformity element."].) However, FCA does not assert, and has not provided evidence, that the vehicle never experienced nonconformities to warranty or that the defects resolved by the recall-related repairs did not manifest as symptoms in Plaintiff's vehicle prior to repair.

FCA provides no authority which makes the distinction between manifested recall-related repairs and manifested non-recall-related repairs, and the Court is aware of none. To exempt all defects within a recall notice from the purview of the Song-Beverly Act is inconsistent with the statutes as plainly read. From a review of the evidence presented, it appears Plaintiff presented the vehicle on more than one occasion for repair, and the Court is not provided with evidence that these repairs were done as a

preemptive measure as opposed to manifest issues presenting in the vehicle. Second, to the extent FCA argues that the recall-related repairs are unrelated to one another, there is no conclusive evidence provided to this end, and the Silvio Court did not hold that there must be multiple repair opportunities for the same vehicle problem. The Silvio holding pertained to a plaintiff who sought repair one time for one issue, and on the recurrence of the issue, stated he did not want the vehicle repaired and instead wanted the manufacturer to repurchase the vehicle. (Id at 1207.)

Silvio is silent as to whether multiple repair attempts for various nonconformities satisfy the "reasonable number of attempts" standard, and therefore does not support FCA's argument. Third, the Court agrees with FCA that the unrefuted evidence presented generally negates Plaintiff's allegations that he presented the vehicle for repair of the engine defect and that the FCA and Hunter failed to repair the engine after a reasonable number of attempts. If that were the extent of Plaintiff's allegations, the Court would agree with FCA that summary adjudication would be proper here in the absence of any conflicting evidence.

However, Plaintiff does not allege that the only defect or nonconformity to warranty is the engine defect. Plaintiff alleges that "[d]efects and nonconformities to warranty manifested themselves within the applicable express warranty period, including but not limited to, engine defects, transmission defects, electrical defects; among other defects and non-conformities. " (FAC, P. 16.) The first cause of action as asserted in the FAC is not only targeted to the alleged engine defect, and the evidence presented by FCA establishes that Plaintiff presented the vehicle on more than one occasion for recall-related repair, including for "Electrical System; Recall 13x," "Emission System; Recall Y4x; Emissions Recall Y43...(68RFE Transmission Only)," "Transmission; Recall Zax; Safety Recall ZA3 - Automatic Transmission Venting Enhancements," "Software Flash; Recall 55x; Safety Recall 55B - Anti-Lock Brake System Control Module Software," and "Software Flash; Software Flash; Safety Recall 66B - Rearview Camera Visibility." (Ex.

D.) These repairs were all categorized as warranty repairs. (Ex. E.) Even if the evidence presented by FCA establishes that no triable issue of material fact exists as to the engine defect, the Court cannot find that the evidence conclusively establishes that no triable issue of material fact exists as to other nonconformities to warranty which may have manifested in the vehicle, for which Plaintiff presented the vehicle on more than one occasion. Therefore, the Court finds that FCA has failed to meet its burden.

Accordingly, because the Court cannot rule on the engine defect allegations alone, as doing so would not dispose of the entire first cause of action on the grounds raised by FCA, FCA's motion for summary adjudication is DENIED as to the first cause of action. b. Second Cause of Action - Violation of Civil Code Sec. 1793.2(b) As to the second cause of action for violation of Section 1793.2(b), FCA argues that this provision does not apply here, as Plaintiff's vehicle was promptly repaired and the repair history is minimal.

FCA also argues that the undisputed evidence establishes that Plaintiff's vehicle was never out of service for 30 cumulative days during the applicable warranty period and was never out of service for a prolonged repair period related to the issues raised in the complaint. (Motion, p. 9:12-16.) Civil Code section 1793.2, subdivision (b) states that service and repair for a nonconformity to warranty in a vehicle must be commenced within a reasonable time by the manufacturer or its representative in California, and unless otherwise agreed in writing by the buyer, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days.

California courts have not resolved whether Civil Code section 1793.2, subdivision (b) requires that a plaintiff show that a single repair took more than 30 days, or that more than 30 days of cumulative repair time has elapsed. (See, e.g., Ramos v. Mercedes-Benz USA, LLC (2020) 55 Cal.App.5th 220, 226, fn. 2 ["We have not been asked to decide whether the 30 days of failure to complete repairs must be 30 consecutive days."].) Unpublished federal authority has interpreted the provision, in context, to mean that "under any reasonable reading of the statute, Sec. 1793.2(b) requires only that [a defendant] complete any single repair attempt within 30 days." (Schick v.

BMW of North America, LLC (9th Cir. 2020) 801 Fed.Appx. 519, 521.) The Court finds this reading persuasive. However, in either event, FCA has met its burden. The repair history provided establishes that the vehicle was

presented on two occasions: (1) on January 31, 2024, during which the vehicle was out of service for two days (UMF, P. 7, Ex. E, G) and (2) on April 25, 2025, during which the vehicle was out of service for four days (UMF, P. 9, Ex. E, H.) Separately considered, no repair resulted in the vehicle being rendered out of service for more than four days. Considered cumulatively, Plaintiff's vehicle was in repair for six days at most. The evidence presented also establishes that FCA commenced repairs within a reasonable time given the short repair windows.

Thus, FCA has met its burden. Plaintiff does not oppose this motion and therefore presents no evidence to raise a triable issue of material fact as to the downtime of the vehicle for repairs or the reasonableness of the time in which FCA commenced repair. Accordingly, FCA's motion is GRANTED as to the second cause of action. a. Third Cause of Action - Violation of Civil Code Sec. 1793.2(a)(3) As to the third cause of action for violation of Section 1793.2(a)(3), FCA argues that because the vehicle was never brought to an authorized repair dealership for an attempt to repair the issues alleged in the FAC, the repair facilities and parts requirement do not apply.

Code of Civil Procedure section 1793.2, subdivision (a)(3) states that "[e]very manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall... [m]ake available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period." (Civ. Code, Sec.1793.2(a)(3).) For the reasons stated above, the Court cannot grant summary adjudication on the third cause of action on the grounds raised by FCA regarding the first cause of action.

FCA has not provided any evidence to establish compliance with the repair facility, service literature, and replacement parts requirement. Accordingly, FCA's motion is DENIED as to the third cause of action. b. Fourth Cause of Action - Breach of Implied Warranty of Merchantability "As defined in the Song-Beverly Consumer Warranty Act, 'an implied warranty of merchantability guarantees that 'consumer goods meet each of the following: [P.] (1) Pass without objection in the trade under the contract description. [P.] (2) Are fit for the ordinary purposes for which such goods are used. [P.] (3) Are adequately contained, packaged, and labeled. [P.] (4) Conform to the promises or affirmations of fact made on the container or label.'" (Isip v.

Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 26-27 (internal citations omitted); Civ. Code, Sec. 1791.1, subd. (a).) As to the fourth cause of action, FCA argues this fails as a matter of law because there is no evidence to support that an engine defect or any alleged issues existed in the vehicle and the evidence does not support that the vehicle was otherwise unfit for ordinary purposes due to the issues alleged in the FAC, and Plaintiff therefore cannot show a breach of the implied warranty of merchantability. (Motion, p. 11:3-9.)

FCA asserts that the only period when the facts support that Plaintiff was unable to use the vehicle was when the vehicle was being repaired by Hunter for a period of six days. FCA also cites to American Suzuki Motor Corp. v. Superior Court (1995) 37 Cal.App.4th 1291, 1296 in support of the argument that a vehicle's purpose is to be driven, and the implied warranty merely guarantees that a vehicle will operate in a safe condition and substantially free of defects, and therefore, where a car can provide safe and reliable transportation, it is generally considered merchantable. (Motion, p. 10:1-7, 23-25.)

FCA's argument fails for three reasons. First, while the evidence provided by FCA establishes that Plaintiff's vehicle was out of service for only six days during repairs at Hunter, it does not conclusively establish what, if any, defects were present in the vehicle in any time before or after those repairs were completed. The Court is left guessing whether Plaintiff's vehicle presented transmission issues, electrical issues, or other symptoms which prompted him to present the vehicle for repair in the first place, or whether he merely came in with an asymptomatic vehicle on receipt of a recall notice as a preventative, cautionary measure.

The Court is not provided any evidence to this end. Second, FCA cannot merely rely on a conclusory statement that Plaintiff cannot provide evidence that the vehicle did not conform to the implied warranty on a motion for summary adjudication. On such a motion, if a moving party seeks to establish that a cause of action fails on the basis that there is no evidence to support one

or more element, he or she must present evidence "and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence." (Aguilar, supra, 25 Cal.4th at 865-66.) FCA has not provided any evidence establishing that Plaintiff does not possess evidence of the vehicle's nonconformity to the implied warranty and provides no deposition transcripts, discovery responses, or document production to establish a reasonable inference that Plaintiff lacks any evidence to support this cause of action.

Finally, FCA's arguments were expressly rejected in Brand v. Hyundai Motor America (2014) 226 Cal.App.4th 1538. In Brand, the plaintiff purchased a vehicle which had a defective sunroof that would open and close spontaneously while plaintiff was driving, and the plaintiff brought suit for breach of the implied warranty of merchantability under the Song-Beverly Act. (Brand, supra, 226 Cal.App.4th at 541.) On review of the trial court's granting nonsuit in favor of defendant Hyundai, the Appellate Court was confronted by a similar argument from Hyundai that under American Suzuki, the "implied warranty of merchantability can be breached only if the vehicle manifests a defect that is so basic it renders the vehicle unfit for its ordinary purpose of providing transportation." (Brand, supra, 226 Cal.App.4th at 1546.)

The Court rejected this argument, holding that "a merchantable vehicle under the statute requires more than the mere capability of 'just getting from point 'A' to point 'B.''" (Ibid.) In distinguishing America Suzuki, the Court relied the holding in Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 25, wherein the Court noted "[t]he issue in American Suzuki was whether the trial court had properly certified for class treatment the plaintiffs' claims that vehicles they had purchased were prone to rolling over and therefore breached the implied warranty of merchantability. [Citation.]

However, because the majority of the plaintiffs' vehicles had not rolled over, the claim was too speculative to warrant class certification. It was in the context of discussing cases in which no damage had been suffered that the court wrote that a vehicle violates the implied warranty of merchantability only if the vehicle is unfit for its ordinary purpose of providing transportation. [Citation.]." (Isip, supra, 155 Cal.App.4th at 25.) The Court agrees with both the Brand and Isip Courts that the "suggestion [] that a vehicle 'necessarily does not violate the implied warranty of merchantability' if it can simply 'provide[] transportation from point A to point B'" is a misstatement of the law. (Brand, supra, 226 Cal.App.4th at 1546; Isip, supra, 155 Cal.App.4th at 27.)

Thus, whether Plaintiff was actually able to drive the vehicle because it was not actively being repaired is not conclusive evidence as to whether the implied warranty of merchantability was breached. Furthermore, returning to Brand, the Hyundai defendant argued, relying in Isip, that a plethora of defects is required before a seller may be found to violate the implied warranty of merchantability, and suggested that it was entitled to multiple repair attempts over an extended period of time before a buyer could rescind under the implied warranty. (Brand, supra, 226 Cal.App.4th at 1547.)

Hyundai argued that unlike the subject vehicle in Isip, which suffered from leaking transmission, transmission hesitation, and brake problems, for which the manufacturer had six repair attempts, the "single, minor problem with Brand's sunroof, which was easily fixable, was insufficient to support a finding of liability on a breach of implied warranty theory." (Ibid.) The Court again rejected Hyundai's argument, as Isip provides only one example of a breach of the implied warranty of merchantability, and in any case, consumer safety is an important consideration. (Ibid.)

The Court reiterated that "the implied warranty ensures not simply a product 'substantially free of defects,' but in particular that 'a vehicle ... is 'in safe condition ... .' [Citation]; see Carlson v. General Motors Corp. (4th Cir. 1989) 883 F.2d 287, 297 [a merchantable vehicle is "'substantially free of defects'" and "'can provide safe, reliable transportation'" (italics added)].)" (Ibid.) The Court reasoned that a jury could reasonably infer a multitude of unsafe scenarios arising from a defective sunroof, including the driver becoming suddenly distracted, buffeted, or incapacitated due to the defect occurring while driving. (Ibid.)

Here, as discussed, there is insufficient evidence for the Court to find as a matter of law that no reasonable trier of fact could find that the defects which manifested in Plaintiff's vehicle, if any, did not result in unsafe conditions. Finally, the Court notes that a consumer may still rescind a purchase or seek other remedies for breach of the implied warranty without giving the manufacturer an opportunity to repair the defect. (Mocek v. Alfa Leisure, Inc. (2003) 114 Cal. App. 4th 402, 406.)

FCA has not established that there is no triable issue of material fact as to whether the vehicle complied with the implied warranty. Therefore, Defendants' motion is DENIED as to the fourth cause of action.

----- V.

Conclusion

Defendant FCA US, LLC's Motion for Summary Adjudication is GRANTED as to the Second Cause of Action for Violation of Civil Code Sec. 1793.2, subdivision (b). Defendant FCA US, LLC's Motion for Summary Adjudication is DENIED as to the First Cause of Action for Violation of Civil Code Sec. 1793.2, subdivision (d), the Third Cause of Action for Violation of Civil Code Sec. 1793.2, subdivision (a)(3), and the Fourth Cause of Action for Breach of the Implied Warranty of Merchantability. | Home -->)" -->