Erlach vs. General Motors

See below 12 Ford Motor Company, et. al.

employee’s job duties.” (Lab. Code § 1102.5, subd. (b).) As previously stated above, the September 29, 2025 order expressly stated that “Plaintiff’s allegations regarding Defendants’ alleged retaliatory actions from July to September 2022 not only lack factual specificity as to what laws/rules/regulations were violated, but also facts supporting her reasonable belief that the undefined laws/rules/regulations were violated.” The California Supreme Court has noted that “statutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v.

Super. Ct. (Inclan) (2004) 32 Cal.4th 771, 790.) Here, as with the FAC, the SAC fails to identify any laws, rules or regulations that Plaintiff believes was violated. The Court cannot be made to guess what Accordingly, the demurrer to the first cause of action for violation of Labor Code section 1102.5 on the ground that it fails to state facts sufficient to constitute a cause of action is SUSTAINED with 10 days leave to amend so as to allege facts after August 29, 2021 regarding Plaintiff’s “reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation,” as required by subdivision (b).

As to the second cause of action for intentional infliction of emotional distress, it is apparently based on the same allegations of the first cause of action as the second cause of action does not identify the “outrageous and unprivileged conduct” that is the basis for the cause of action. (See SAC, pp.37-38, ¶¶ 8-10.) In light of the Court’s ruling with respect to the first cause of action, Defendants’ demurrer to the second cause of action is likewise SUSTAINED with 10 days leave to amend.

Defendants shall prepare and submit a proposed final order consistent with this tentative ruling.

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Case Name: Bernadette Erlach v. General Motors LLC Case No.: 24CV454184

On March 9, 2021, plaintiff Bernadette Terese Erlach (“Erlach”) purchased a 2018 Chevrolet Volt (the “Subject Vehicle”). (Complaint, ¶ 8.) Defendant General Motors LLC (“GM”) delivered the Subject Vehicle to Erlach with express, new vehicle limited warranties. (Id. at ¶ 10.) Within the express warranty periods, the Subject Vehicle exhibited defects, including failures of the engine, battery, and electrical system. (Id. at ¶ 12.)

On December 16, 2024, Erlach filed a complaint against GM, asserting the following causes of action: (1) breach of implied warranty of merchantability; (2) breach of express warranty; (3) violation of Civil Code section 1793.2, subdivision (d)(2); and (4) violation of Civil Code section 1793.2, subdivision (b). GM moves for summary judgment as to all four causes of action alleged in the complaint on the grounds that it promptly offered to repurchase the Subject Vehicle, satisfying its duties under the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”). (Notice of Summary Judgment Motion, p. 1:1-15.)

The parties’ burdens on a motion for summary judgment or adjudication.

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 (Aguilar).) “A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. . . . The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R.

Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable finder of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850.) A “party cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.” (Christina C. v.

County of Orange (2013) 220 Cal.App.4th 1371, 1378, internal citations and quotation marks omitted.)

GM has met its burden as to the complaint’s express warranty causes of action.

Under the Song-Beverly Act, “a consumer may bring claims for breach of the implied warranty of merchantability (§ 1791.1) and breach of an express warranty (§ 1791.2).” (Carver v. Volkswagen Gorup of America, Inc. (2024) 107 Cal.App.5th 864, 878 (Carver). “A fundamental difference between an express warranty claim and an implied warranty of merchantability claim is that before bringing an express warranty claim under the Act, the plaintiff must present the defective vehicle to an authorized representative of the manufacturer for repair and give the manufacturer a reasonable opportunity to fix the vehicle.” (Ibid., internal citations omitted.) “To succeed on a claim for breach of an express warranty for a vehicle, the buyer plaintiff must prove that (1) the vehicle had a defect or nonconformity covered by a written warranty that substantially impaired the vehicle’s use, value, or safety to a reasonable person in plaintiff’s shoes (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer for repair (the presentation element); (3) the manufacturer or its authorized repair facility did not repair the defect after a reasonable number of repair attempts (the failure to repair element); and (4) the manufacturer did not promptly

replace or repurchase the vehicle from the plaintiff (the failure to replace or repurchase element).” (Id. at p. 879, internal citations omitted.)

Civil Code section 1793.2, subd. (d)(2) states that:

If the manufacturer . . . is unable to service or repair a new motor vehicle . . . 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).

(Civ. Code, § 1793.2, subd. (d)(2).)

GM argues that Erlach cannot prove that GM failed to promptly offer to repurchase the Subject Vehicle. (Memorandum of Points and Authorities in Support of Motion for Summary Judgment (“MPA”), p. 4:22-25, citing Carver, supra, 107 Cal.App.5th at p. 871.) In Carver, the plaintiff leased a vehicle on July 29, 2021. (Id. at p. 872.) On March 3, 2022, the plaintiff brought this vehicle to Volkswagen’s authorized service facility with several complaints. (Ibid.) On April 6, 2022, the plaintiff sent a letter to Volkswagen expressly exercising his right to revoke acceptance of the vehicle. (Ibid.)

On April 28, 2022, Volkswagen sent the plaintiff an offer to repurchase the vehicle. (Ibid.) On May 25, 2022, the plaintiff filed a lawsuit against Volkswagen, asserting breach of implied warranty of merchantability and breach of express warranty of merchantability. (Id. at p. 874.) Volkswagen moved for summary judgment, arguing that the plaintiff could not prove breach of express warranty because Volkswagen promptly offered to repurchase the vehicle. (Id. at p. 875.) The trial court granted this motion, and the plaintiff appealed. (Id. at pp. 875-876.)

The Court of Appeal found that 23 days was a sufficiently “prompt” offer to repurchase the vehicle; Volkswagen properly calculated the amount of restitution offered; and a confidentiality provision in Volkswagen’s offer did not violate the Song-Beverly Act. (Id. at pp. 880, 881, 884.) Ultimately, the Court of Appeal concluded that defendants satisfied their express warranty duties under the Song-Beverly Act by making a “prompt, Act-compliant offer of restitution.” (Id. at p. 871.)

Here, GM submits evidence that it sent Erlach a preliminary repurchase offer letter thirtyfour days after Erlach contacted GM with her repurchase request. (Declaration of Bryan Jensen in Support of GM’s Motion for Summary Judgment (“Jensen Decl.”), ¶ 6, Ex. C; ¶ 5, Ex. B at pp. 74-75.) Erlach does not dispute this in her opposition. (Erlach’s Opposition to GM’s Summary Judgement Motion, p. 2:6-11 [“[T]hat thereafter she asked for a repurchase of her vehicle on August 15, 2024 . . .”]; Erlach’s Separate Statement in Opposition to GM’s Summary Judgment Motion, no. 4 [Erlach does not dispute that GM sent Erlach a preliminary repurchase offer “just thirty-four days after Plaintiff’s request”].)

The court finds that thirty-four days is sufficiently “prompt” under Carver, and therefore also finds that GM has met its initial burden of establishing that no triable issue of fact exists as to whether it “promptly” offered to repurchase the Subject Vehicle. (Carver, supra, 107 Cal.App.5th at p. 880 [“Thus, only 23 days elapsed between plaintiff’s first request for repurchase and VWGA’s written offer. As a matter of law, this offer was prompt.”]; see also id. at p. 879 [“the buyer plaintiff must prove that . . . the

manufacturer did not promptly replace or repurchase the vehicle from the plaintiff (the failure to replace or repurchase element).”].)

In opposition, Erlach has demonstrated a triable issue of fact as to the complaint’s express warranty causes of action.

In turn, the court finds that Erlach has demonstrated that a triable issue of material fact exists as to “promptness” and whether GM submitted to Erlach a repurchase offer that complied with Civil Code section 1793.2. First, the court is persuaded by Erlach’s argument under Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294 (Krotin), and the court notes that GM does not directly address this decision on reply. In Krotin, the Court of Appeal held that a manufacturer “has an affirmative duty to replace a vehicle or make restitution to the buyer if the manufacturer is unable to repair the new vehicle after a reasonable number of repair attempts, and the buyer need not reject or revoke acceptance of the vehicle at any time.

The buyer need only provide the manufacturer with a reasonable opportunity to fix the vehicle.” (Krotin, supra, 38 Cal.App.4th at p. 303.) In Krotin, the Court of Appeal noted that “the manufacturer seldom on its own initiative offers the consumer the options available under the Act: a replacement vehicle or restitution. Therefore, as a practical matter, the consumer will likely request replacement or restitution. But the consumer’s request is not mandated by any provision in the Act. Rather, the consumer’s request for replacement or restitution is often prompted by the manufacturer’s unforthright approach and stonewalling of fundamental warranty problems.

An automobile manufacturer need not read minds to determine which vehicles are defective; it need only read its dealers’ service records.” (Ibid.)

Erlach submits evidence to the court indicating that she first presented the Subject Vehicle to GM for repair in March 2021 and that the Subject Vehicle has remained under continuous service since September 2023. (See Declaration of Sally Ayvazian in Opposition to GM’s Motion for Summary Judgment (“Ayvazian Decl.”), ¶ 7, Ex. 4 at p. 4; Declaration of Bernadette Terese Erlach in Opposition to GM’s Motion for Summary Judgment (“Erlach Decl.”), ¶¶ 3-9; Jensen Decl., ¶ 5, Ex. B. at pp. 65-86 [indicating that GM “found an internal fault in the battery pack” on September 26, 2023].)

GM offered to repurchase the Subject Vehicle on September 18, 2024, roughly a year later. (Jensen Decl., Ex. C.) The Song-Beverly Act creates an “affirmative duty” upon a manufacturer “to replace a vehicle or make restitution to the buyer if the manufacturer is unable to repair the new vehicle after a reasonable number of repair attempts . . .” (Krotin, supra, 38 Cal.App.4th at p. 303; see also Niedermeier v. FCA US LLC (2024) 15 Cal.5th 792, 818-819 [“The Act requires a buyer to deliver the defective vehicle to the manufacturer’s service and repair facility for the purpose of allowing the manufacturer a reasonable number of repair attempts.

Once the manufacturer is unable to repair the vehicle after a reasonable number of attempts, the manufacturer’s obligation to promptly provide restitution to the buyer arises.”], internal citations omitted.; Rheinhart v. Nissan North America, Inc. (2023) 92 Cal.App.5th 1016, 1026 [“Once the duty to offer replacement or restitution arises, a manufacturer must ‘promptly’ comply regardless of whether a buyer requests those remedies.”], internal citations omitted.)

The court notes that the Court of Appeal in Carver explained that it did not decide to whether there were any issues under Krotin, first because Volkswagen’s offer to repurchase was

“prompt” whether calculated from the date plaintiff requested restitution or the date Volkswagen became aware of the vehicle’s defects; second because no “stonewalling” occurred in that the “undisputed” evidence at trial showed that Volkswagen “made efforts to repair the vehicle” and regularly communicated with the plaintiff. (Carver, supra, 107 Cal.App.5th at pp. 880-881.) The Court of Appeal in Carver noted that much “of the delay” in Volkswagen’s offer appeared attributable to the plaintiff’s conduct. (Id. at p. 881.)

For reasons already discussed, the court finds that the distinctions discussed by the Court of Appeal in Carver are not present here. First, Erlach submits evidence to the court that there was roughly a year in between GM’s discovery of the Subject Vehicle’s defects and its offer to repurchase, rather than 50 days. Second, and relatedly, Erlach has submitted evidence indicating to the court that the “stonewalling” discussed by the Court of Appeal in Carver is present here—for example, GM did not repair the Subject Vehicle for roughly a year.1

Second, Erlach persuasively argues that GM’s offer did not comply with Civil Code section 1793.2, subdivision (d)(2). (Opposition, pp. 3:7-6:21.) Civil Code section 1792.3, subdivision (d)(2)(B) requires that a manufacturer shall “make restitution in an amount equal to the actual price paid or payable by the buyer, including . . . 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.” (Civ. Code, § 1793.2, subd. (d)(2)(B), emphasis added.) Erlach submits evidence that she told GM that she had to pay for a rental car as part of the Subject Vehicle’s repair, that she sent a copy of an Enterprise Car Rental Receipt to GM, and GM sent a repurchase offer that did not include reimbursement of rental car costs. (Ayvazian

1 The court notes that it is less persuaded by Erlach’s argument that GM incorrectly contends that its “prompt” preliminary offer prevents Erlach from pursuing all four of the complaint’s causes of action. (Opposition, pp. 12:23-15:20.) In Carver, the plaintiff filed a lawsuit alleging breach of implied warranty of merchantability and breach of express warranty of merchantability, seeking replacement or restitution, incidental and consequential damages, costs and attorney fees, the difference between the value of the vehicle as accepted and the value the vehicle would have had if it had been as warranted, and an award of civil penalties in an amount not to exceed two times the plaintiff’s actual damages. (Carver, supra, 107 Cal.App.5th at pp. 874-875.)

The Court of Appeal in Carver affirmed the trial court’s decision to grant Volkswagen’s motion for summary judgment. (Id. at p. 891.) Here, the complaint seeks similar damages for its express warranty causes of action as those sought by the plaintiff in Carver. (Complaint, p. 7:16-24.) Therefore, the court is not convinced by Erlach’s argument that at “this point in the proceedings, there is no way for the Court conclude [sic] as a matter of law that all of Plaintiff’s damages would be covered by a refund . . .” (Opposition, p. 15:16-20.)

Decl., ¶ 6, Ex. 3; Erlach Decl., ¶¶ 8-9; Jensen Decl., ¶ 6, Ex. C.) The court agrees with Erlach that this creates a triable issue of fact as to whether GM’s repurchase offer complied with Civil Code section 1792.3.

Erlach also argues that GM’s offer took an illegal full mileage offset for every mile that Erlach drove the Subject Vehicle. (Opposition, pp. 4:15-6:21.) Civil Code section 1793.2, subdivision (d)(2)(C) states that:

[T]he amount to be paid by the manufacturer to the buyer may be reduced by the manufacturer by that amount directly attributable to use by the buyer prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity. The amount directly attributable to use by the buyer shall be determined by multiplying the actual price of the new motor vehicle paid or payable by the buyer, including any charges for transportation and manufacturer-installed options, by a fraction having as its denominator 120,000 and having as its numerator the number of miles traveled by the new motor vehicle prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity.

(Civ. Code, § 1793.2, subdivision (d)(2)(C).)

Erlach submits evidence to the court that she first delivered the Subject Vehicle to GM in March 2021 when the Subject Vehicle’s odometer read 29,296 miles. (Erlach Decl., ¶ 3; Ayvazian Decl., Ex. 4 at p. 4.) GM’s repurchase offer, however, appears to have used 36,960 miles. (Jensen Decl., Ex. C.) This creates a triable issue of fact as to whether the repurchase offer complies with Civil Code section 1793.2, subdivision (d)(2)(C). (Civ. Code, § 1793.2, subdivision (d)(2)(C) [requiring that the amount to be paid by the manufacturer be calculated using the “number of miles traveled by the new motor vehicle prior to the time the buyer first delivered the vehicle to the manufacturer or distributor . . . for correction of the problem that gave rise to the nonconformity.”].)

GM argues that Civil Code section 1793.2, subdivision (d)(2)(B) only requires that a manufacturer promptly offer restitution once a repurchase obligation arises. (Reply, p. 2:13-14.) However, Civil Code section 1793.2, subdivision (d)(2) states that a manufacturer shall promptly make restitution in accordance with subparagraph (B). (Civ. Code, § 1793.2, subd. (d)(2).) As the court has discussed, “subparagraph B” states that a manufacturer shall “make restitution in an amount equal to the actual price paid or payable by the buyer, including . . . 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.” (Civ. Code, § 1793.2, subd. (d)(2)(B), emphasis added.)

Moreover, GM does not appear to dispute that its repurchase offer did not include an offer to reimburse Erlach for rental car expenses or that Erlach presented the Subject Vehicle to GM for repair in March 2021 and September 2023. Instead, GM argues in its reply brief that a

manufacturer “satisfies its statutory duty by promptly determining that a repurchase is warranted and communicating restitution calculated under the statute.” (Reply, pp. 2:26-3:1.) According to GM, the Court of Appeal in Carver rejected the argument that an offer must be “final,” “unconditional,” or delivered in any particular format, instead explaining that the Song-Beverley Act “requires only that the manufacturer convey the terms of restitution based on section 1793.2(d)(2)(B)-(C).” (Id. at p. 3:1-4; see also id. at p. 3:9-12 [“Under Carver, a calculation is compliant so long as it reflects the inputs and deductions required by section 1793.2(d)(2), which GM’s letter did exactly that: it itemized the restitution figure, applied the mileage offset, and explained the calculations mandated by Civil Code § 1793.2(d)(2)(B).”].)

The court does not find this argument persuasive. First, it does not appear that the Court of Appeal in Carver held that “a manufacturer satisfies its statutory duty by promptly determining that a repurchase is warranted and communicating restitution calculated under the statute. The court rejected the argument that an offer must be ‘final,’ ‘unconditional,’ or delivered in any particular format, explaining that the Act requires only that the manufacturer convey the terms of restitution . . .” (Reply, pp. 2:25-3:4., citing Carver, supra, 107 Cal.App.5th at pp. 885-887.)

In fact, the decision spends a significant portion of time discussing how the repurchase offer did comply. First, that “there was no error in using the agreed-upon value of the vehicle as reflected in the lease to calculate the mileage offset.” (Carver, supra, 107 Cal.App.5th at p. 884.) Second, that the California state Legislature “did not intend to prohibit repurchase offers conditioned on financial confidentiality provisions.” (Id. at p. 887.) In reviewing the Carver decision; and the pages from Carver cited by GM in reply, the court struggled to find any language supporting GM’s interpretation of the Court of Appeal’s holding.

Relatedly, the court notes that, along with Carver, GM cites three opinions in support of this argument. (Reply, p. 3:4-6, citing Herrera v. Ford Motor Co. (2023) 94 Cal.App.5th 1042, Rivera v. FCA US, LLC (2020) 50 Cal.App.5th 497, Dominguez v. Ford Motor Co. (2020) 53 Cal.App.5th 369.) None of these opinions appear to actually exist, at least in the form they are cited. The court reminds GM of its obligations under Rule of Professional Conduct 3.3 and cautions GM for the future regarding its usage of cases that do not appear to exist—it appears that these citations may have intended to be citations to federal decisions, but this is unclear to the court.

GM has failed to meet its burden regarding the complaint’s implied warranty cause of action.

GM argues that Erlach’s implied warranty cause of action fails because Erlach cannot prove that she suffered any damages. (MPA, p. 7:9-13.) Specifically, GM contends that Erlach received a prompt repurchase offer that GM calculated in compliance Civil Code section 1793.2, subdivision (d)(2). (Id. at p. 7:14-23; see also Carver, supra, 107 Cal.App.5th at p. 890 [“Assuming without deciding that the implied warranty of merchantability was breached, plaintiff cannot prove damages. As explained above, prior to litigation, VWGA offered plaintiff all the restitution he could recover under section 1793.2, subdivision (d).

It was plaintiff's choice, not VWGA’s, to refuse that offer in order to allege damages to support this lawsuit and seek civil penalties and attorney fees. Thus, defendants have not damaged plaintiff.”].) Therefore, according to GM, Erlach cannot prove damages. (MPA, p. 7:23-25.)

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