Joanna Loresto v. Ford Motor Company et al

Case No. 24CV447321 Motion for Summary Judgment/Adjudication Before the court is Ford Motor Company’s motion for summary judgment/ adjudication. Pursuant to California Rule of Court 3.1308, the court issues its tentative ruling as follows.

I. BACKGROUND In this action, plaintiff Joanna Loresto (“Plaintiff”) alleges, among other things, defendant Ford Motor Company (“Ford”) and others violated the Song-Beverly Consumer Warranty Act (“Act”) with regard to a 2022 Ford Maverick vehicle (“Vehicle”). In particular, Plaintiff alleges the Vehicle suffered various defects, including a transmission defect, engine defect, and electrical defect, among others. (Complaint, ¶12).

On September 13, 2024, Plaintiff filed a complaint against defendant Ford and others asserting 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 (5) Negligent Repair [against defendant All Star Ford only] On October 25, 2024, defendant All Star Ford filed a motion to compel arbitration and to stay action. On February 13, 2025, Plaintiff filed a request for dismissal of defendant All Star Ford.

On February 11, 2026, defendant Ford filed the motion now before the court, a motion for summary judgment/ adjudication of Plaintiff’s complaint.

The Court notes that Defendant Ford has not yet filed an Answer. A defendant “may move for summary judgment even if they have not yet filed an answer.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2025) ¶10:62).

II. LEGAL STANDARD Pursuant to Code of Civil Procedure section 437c, subd. (a)(1): “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., §437c, subd. (a)(1)).

“A defendant or cross-defendant has met that party’s burden of showing that a cause of action has no merit if the party has shown that 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. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., §437c, subd. (p)(2)). “The motion for summary judgment 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)).

III. ANALYSIS

A. FIRST CAUSE OF ACTION As to the first cause of action of Plaintiff’s complaint, defendant Ford acknowledges:

A plaintiff pursuing an action under the 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). (Civ. Code, § 1793.2; Ibrahim v. Ford Motor Co. (1989) 214 Cal. App. 3d 878, 886-887 [263 Cal. Rptr. 64]).(Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101).

Specifically with regard to the third element, defendant Ford cites Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208 (Silvio) where the court explained: The statute requires the manufacturer to afford the specified remedies of restitution or replacement if that manufacturer is unable to repair the vehicle "after a reasonable number of attempts." "Attempts" is plural. The statute does not require the manufacturer to make restitution or replace a vehicle if it has had only one opportunity to repair that vehicle.

Here, defendant Ford proffers evidence that there was only one warranty repair on the Vehicle. (Ford Motor Company’s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment/ Adjudication (“Ford UMF”), Issue No. 1, Fact No. 4). Defendant Ford acknowledges the Vehicle was presented at three other times for recalls and at three times for routine maintenance, but contend such visits do not count. Defendant Ford relies upon the federal trial court decision in Noori v.

Jaguar Land Rover N. Am., LLC (C.D. Cal. Mar. 31, 2021, No. 2:19-cv-08624-FLA (JPRx)) 2021 U.S.Dist.LEXIS 65924, at *13-14 (Noori) where the court explained: In Adams, 2016 U.S. Dist. LEXIS 188899, 2016 WL 9136170, at *5, the district court granted summary judgment in favor of a defendant car manufacturer, finding repairs conducted pursuant to recall notices were insufficient to support breach of express warranty claims under the Song-Beverly Act, where the plaintiff did not experience or complain about any defects in the vehicle and, as a result of the recall work performed, the plaintiff never experienced any of the problems associated with the recalls.

As the Adams court explained, "the Song-Beverly Consumer Warrant[y] Act requires a 'reasonable number of attempts' at repair of a specific defect before any liability can arise under the statute. However, because Plaintiff experienced no defects in her [vehicle], only potential defects that were the subject of the recall notices (and repaired before any defect manifested), Plaintiff cannot satisfy the nonconformity element." Id. (emphasis in original). Other federal courts have similarly held that an asymptomatic recall cannot satisfy the nonconformity element of a breach of express warranty claim under the Song-Beverly Act.

See McGee v. Mercedes-Benz USA, LLC, Case No. 19-cv-513-MMA (WVG), 2020 U.S. Dist. LEXIS 55949, 2020 WL 1530921, at *4 (S.D. Cal. Mar. 30, 2020) (holding an interim notice letter regarding a recall in Takata airbags could not satisfy the nonconformity element where it was undisputed the alleged defect never manifested in the plaintiff's vehicle).(emphasis added).

Plaintiff does not directly address this authority in her opposition instead attempting to raise a triable issue by proffering evidence that, on or around October 29, 2024, shortly after Plaintiff filed this lawsuit, Plaintiff brought the Vehicle to an authorized repair facility for basic maintenance “as well as additional recall repair efforts under Recall 23S27, which once again reportedly related to the under-hood fire associated with the 2.5L HEV/PHEV engine.” (Declaration of Ben Fuchs in Support of Plaintiff’s Opposition to Motion for Summary Judgment/ Adjudication (“MSJ/MSA”) ¶12). Without citation to any relevant legal authority, Plaintiff argues additionally that the presentation requirement “is measured with respect to the entire vehicle and not with respect to any particular nonconformity.” (Memorandum of Points and Authorities in Support of Opposition to Defendant’s MSJ/MSA, p. 7, lines 21-22).

The court does not find Plaintiff’s unsupported argument persuasive. Defendant Ford’s authority is more compelling and the court agrees that the asymptomatic recalls (of the same issue or different issues) that Plaintiff focuses upon do not create a triable issue. Defendant Ford is entitled to summary adjudication of Plaintiff’s first cause of action.

B. SECOND CAUSE OF ACTION Civil Code section 1793.2, subdivision (b), states, in relevant part, “the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days.” Here, defendant Ford proffers evidence that the subject Vehicle was in service for no more than 11 days, not in violation of the Act. (Ford UMF, Issue No. 1, Fact Nos. 1 – 10).

In opposition, Plaintiff contends it is not enough for a defendant to show that it has attempted, unsuccessfully, to service or repair the Vehicle or that such attempt spanned more than 30 days. According to Plaintiff, defendant Ford must establish the Vehicle was actually or successfully brought into conformity with the warranty within 30 days.

In reviewing the evidence submitted, defendant Ford affirmatively indicates the “repair was covered” and “recall[s were] completed proactively and in the absence of any corresponding concern.” (Ford UMF, Issue No. 1, Fact Nos. 4 – 8). Even if the court accepts Plaintiff’s assertion that the Act requires successful repair and conformity with the warranty within 30 days, the court finds defendant Ford has met its initial burden in that regard. In order for Plaintiff to create a triable issue, Plaintiff would have to present some evidence showing otherwise, but Plaintiff has not done so here.

C. THIRD CAUSE OF ACTION Civil Code section 1793.2, subdivision (a)(3), states, “Every manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall . . . Make available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.”

Defendant Ford proffers evidence that the repair records do not indicate Ford failed to make sufficient service literature and replacement parts available to authorized service and repair facilities. (Ford UMF, Issue No. 1, Fact Nos. 11). In opposition, Plaintiff contends the opposite inference arises from the fact that Plaintiff presented the Vehicle several times during the warranty period including twice presenting the Vehicle for the same engine/fire risk issue. In the court’s opinion, such an inference does not arise from the fact that Plaintiff presented the Vehicle several times for different issues.

However, such an inference might be drawn where Plaintiff has presented the Vehicle for the same issue on more than one occasion. Plaintiff’s evidentiary support for such an inference is a declaration from her counsel who asserts Plaintiff presented the Vehicle for Safety Recall 22S47 on or about September 14, 2022 to address “under hood fire” risk and then again presented the Vehicle on or about October 29, 2024 to again address Safety Recall 23S27, an “under hood fire” risk. (Declaration of Ben Fuchs in Support of Plaintiff’s Opposition to MSJ/MSA ¶¶7 and 12). A triable issue of material fact exists with regard to whether defendant Ford “[made] available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.”

D. FOURTH CAUSE OF ACTION Under the implied merchantability warranty, “every sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer's and the retail seller's implied warranty that the goods are merchantable.” (Civ. Code § 1792). The warranty “‘arises by operation of law’” and therefore applies despite its omission from a purchase contract. (Mega RV Corp. v. HWH Corp. (2014) 225 Cal.App.4th 1318, 1330 [170 Cal. Rptr. 3d 861]; see American Suzuki Motor Corp. v. Superior Court (1995) 37 Cal.App.4th 1291, 1295 [44 Cal. Rptr. 2d 526] (American Suzuki)). Merchantability,

as pertinent here, means that the goods “[p]ass without objection in the trade under the contract description,” and are “fit for the ordinary purposes for which such goods are used.” (§ 1791.1, subd. (a)). (Brand v. Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1545 (Brand)).

a “‘“core test of merchantability is fitness for the ordinary purpose for which such goods are used.”’” (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1303 [95 Cal. Rptr. 3d 285] (Mexia)). “Such fitness is shown if the product ‘is “in safe condition and substantially free of defects” . . . .’ [Citation.]” (Ibid.; see American Suzuki, supra, 37 Cal.App.4th at p. 1296 [implied warranty does not promise to fulfill buyer's expectations, but provides instead for minimum level of quality]). Thus, a new car need not “be perfect in every detail”; rather, its implied merchantability “requires only that a vehicle be reasonably suited for ordinary use.” (Keegan v. American Honda Motor Co., Inc. (C.D.Cal. 2012) 838 F.Supp.2d 929, 945).(Brand, supra, 226 Cal.App.4th at p. 1546).

Defendant Ford proffers evidence that the Vehicle was presented twice during the one-year implied warranty period: once for routine maintenance on [November] 11, 2022, and once for the application of Recall 22S47 on September 14, 2022. (See Ford UMF, Issue No. 1, Fact Nos. 5 and 9).

In opposition, Plaintiff explains: “to show a breach of the implied warranty of merchantability under California Uniform Commercial Code (Cal. U. Com. Code, § 2725, subd. (2)), “the purchaser was required to show that the defect existed at the time the product was sold or delivered.” (Jones v. Credit Auto Center, Inc. (2015) 237 Cal.App.4th Supp. 1, 9-10 (Jones)). A breach occurs “when the latent defect came to light.” (Jones, supra, 237 Cal.App.4th Supp. At p. 10). A plaintiff’s “burden [is] solely to show the vehicle became unfit during the warranty period.” (Ibid.).

In the court’s opinion, defendant Ford’s evidence is sufficient to meet its initial burden of showing that no defect existed during the one-year implied warranty period since, under Noori, supra, an asymptomatic recall is insufficient to establish a non-conformity and there appears to be no dispute that routine maintenance, similarly, does not establish the existence of a non-conformity.

In opposition, Plaintiff contends an inference of a nonconformity arises from the fact that Plaintiff presented the Vehicle for recalls within the warranty period and shortly (11 days) after expiration of the one-year warranty period. However, as noted above, the court agrees with Noori that an asymptomatic recall is insufficient to establish a nonconformity. By extension, the court is of the opinion that an inference of non-conformity/ defect does not arise from a recall unaccompanied by any symptoms. Consequently, Plaintiff has not presented any evidence which would create a triable issue.

IV. CONCLUSION Based on the foregoing, defendant Ford’s motion for summary judgement is DENIED.

Defendant Ford’s motion for summary adjudication of the third cause of action (violation of subdivision (a)(3) of Civil Code section 1793.2) of Plaintiff’s complaint is DENIED.

Defendant Ford’s motion for summary adjudication of the first (violation of subdivision (d) of Civil Code section 1793.2); second (violation of subdivision (b) of Civil Code section 1793.2), and fourth causes of action (breach of the Implied Warranty of Merchantability) of Plaintiff’s complaint is GRANTED.

The Court will prepare the formal Order.

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