PENNY L LENNEMANN WHIGHAM vs FORD MOTOR COMPANY, et al.

2024CUBC031403: PENNY L LENNEMANN WHIGHAM vs FORD MOTOR COMPANY, et al. 07/23/2026 in Department 44 Motion for Summary Judgment

Effective January 5, 2026, Judge Charmaine H. Buehner and all cases previously assigned to Department J4 at the Juvenile Justice Center in Oxnard transferred to Department 44, located at the Hall of Justice, 800 South Victoria Avenue, Ventura, California 93009.

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Motion: Defendant Ford Motor Company’s (“Ford” or “Defendant”) Motion for Summary Judgment or, Alternatively, Summary Adjudication

Tentative Ruling:

Ford’s Motion for Summary Judgment or, Alternatively, Summary Adjudication of 11 issues (“Motion”), is DENIED in its entirety.

Plaintiff shall give notice.

2024CUBC031403: PENNY L LENNEMANN WHIGHAM vs FORD MOTOR COMPANY, et al.

I. Preliminary Matters

A. Objections to Evidence

For completeness of record, the Court rules on objections and materials not relevant to the disposition.

1. Plaintiff’s Objections

Plaintiff’s objection to paragraph 3 and Exhibit 2 of the Declaration of Nathan J. Rodriguez is SUSTAINED.

2. Defendant’s Objections

Defendant’s objections, Nos. 1 – 19, to the Declaration of Gregory Yu are all SUSTAINED.

Defendant’s objections, Nos. 1-17, to the Declaration of Penny Lennemann Whigham are all OVERRULED, with the exception of Defendant’s Objection No. 16 to the last phrase of the sentence as to what “constitutes notice to the manufacturer under California law,” to which the objection is SUSTAINED.

B. Undisputed and Additional Material Facts

1. Defendant’s Undisputed Material Facts (“UMF”)

For purposes of this Motion only, the following UMF are:

Undisputed and Established: UMF Nos. 1, 8 and 9, only to the extent the evidentiary bases for these facts are complaint allegations.

Disputed but Established: UMF Nos. 2, 3, 4, and 5.

Not Established: UMF Nos. 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25 and 26. The facts stated are unsupported by the evidence cited or are immaterial to the extent Defendant attempts to infer “undisputed” facts from Plaintiff’s equivocal discovery responses and objections, or from Plaintiff’s objection-only response to discovery. (See e.g., Bayramoglu v. Nationstar Mortgage LLC (2020) 51 Cal.App.5th 726, 736 [“[A] defendant cannot contend a plaintiff’s discovery responses are factually devoid for purposes of summary judgment merely because they include only improper objections.”], and Gaggero v. Yura (2003) 108 Cal.App.4th 884, 893 [improper privacy objection to deposition question not equivalent to a factually devoid interrogatory response].)

Omitted: Defendant’s papers do not contain UMF 21.

2. Plaintiff’s Additional Material Facts (“AMF”)

2024CUBC031403: PENNY L LENNEMANN WHIGHAM vs FORD MOTOR COMPANY, et al.

For purposes of this Motion only, the following AMF are:

Undisputed and Established: AMF Nos. 1 and 2.

Disputed but Established: AMF Nos. 3 through 9.

Not Established: AMF Nos. 10 through 27.

II. Relevant Background

This lemon law action arises out of Plaintiff’s January 2021 purchase of a new 2021 Ford Explorer and problems she experienced with the vehicle thereafter. Plaintiff’s complaint, filed October 2, 2024, alleges five claims against vehicle manufacturer Ford including four causes of action under the Song-Beverly Warranty Act and one claim, the sixth cause of action, for fraudulent concealment. The Song-Beverly claims are: 1) breach of the express warranty, 2) failure to timely commence or complete repairs, 3) failure to provide sufficient literature and repair facilities, and 4) breach of implied warranty. The fifth cause of action was alleged against the Ford dealership only, ESA Envision Ford Oxnard (“Envision”), for negligent repair. Both defendants are represented by the same attorneys.

On December 16, 2024, the Court sustained Defendants’ demurrer to the fifth and only cause of action against the Envision for negligent repair with leave to amend, and overruled Defendants’ demurrer to the sixth cause of action for fraudulent concealment. The parties later dismissed Envision on February 18, 2025.

On March 4, 2026, Ford filed this Motion. Ford seeks summary judgment, or in the alternative summary adjudication of 11 issues, that relate to each cause of action, and are supported by the following established UMFs as follows:

Cause of Action MSA No triable Issue of Fact as to: UMFs in Support Issue No. 1st: Breach of 1 Plaintiff cannot prove Ford Express Warranty failed to repair after reasonable Established: 1-5, 8-9 (Civ. Code § number of repair attempts. 1793.2(d)) Not Established: 6, 7, 10

2nd: Failure to 2 Plaintiff cannot prove any Timely Commence warranty repair took longer than Established: 1-5, 8-9 or Complete 30 days during warranty period. Repairs 3 Not Established: 6-7, 11, (Civ. Code § Plaintiff has no damages. 12, 13, 17 1793.2(b)) 3rd: Failure to 4 Plaintiff cannot establish Ford Make Available failed to make available Established: 1-5, 8-9 Repair Facilities or facilities, sufficient literature, or Literature repair parts. Not Established: 6-7, 14-17

2024CUBC031403: PENNY L LENNEMANN WHIGHAM vs FORD MOTOR COMPANY, et al.

Cause of Action MSA No triable Issue of Fact as to: UMFs in Support Issue No. (Civ. Code § 5 Plaintiff has no damages. 1793.2(a)(3))

4th: Breach of 6 Plaintiff cannot establish a Implied Warranty breach Established: 1-5, 8-9 (Civ. Code §§ 7 Plaintiff has no damages 1791.1, 1794 & Not Established: 6-7, 17-18 1795.5) 5th: Negligent 8 Plaintiff’s claim is barred by the Repair Economic Loss Rule Established: 1-5, 8-9

Not Established: 6-7, 10, 19, 20

6th: Fraud by 9 Ford had no duty to disclose Established: 1 & 9 Concealment 10 Plaintiff cannot establish Ford’s Established: 1 & 9 knowledge of any defect Not Established: 10, 22, 23, & 26 11 The economic loss rule bars Established: 1 & 9 Plaintiff’s claim. Not Established: 10, 24, 25

Notwithstanding the Court’s December 16, 2024 ruling sustaining the demurrer as to Envision, and the parties stipulation to dismiss Envision in February filed February 18, 2025, Ford requests this Court adjudicate the negligent repair cause of action, identified as the eighth issue.

Trial was initially set for June 15, 2026, and was continued to June 22, 2026. The Motion was set for hearing on May 28, 2026, on the Court’s finding good cause to hear the Motion less than 30 days before trial. On May 28, 2026, Defendant raised concerns about the service of Plaintiff’s opposition that foreclosed Defendant’s opportunity to file a reply brief. The Court continued the Motion hearing to July 23, 2026, and continued the trial.

Trial of this matter is now scheduled for August 31, 2026, at 1:30 p.m. in Department 44.

III. Legal Standard: Summary Judgment and Summary Adjudication

“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).) “A cause of action has no merit if either of the following exists: (1) One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded. (2) A defendant establishes an affirmative defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (o).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The

2024CUBC031403: PENNY L LENNEMANN WHIGHAM vs FORD MOTOR COMPANY, et al.

supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.” (Code Civ. Proc., § 437c, subd. (b)(1); Cal. Rules of Court, rule 3.1350, subds. (d), (h).)

“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. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ.

Proc., § 437c, subd. (c).) What issues are “material” is determined by the pleadings and substantive law. (Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 156; Seibert Security Services, Inc. v. Superior Court (1993) 18 Cal.App.4th 394, 404, fn. 2.)

“A defendant moving for summary judgment has the initial burden[.]” (Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144.) “For purposes of motions for summary judgment and summary adjudication: . . . (2) A defendant or cross-defendant has met his or her 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.” (Code Civ. Proc., § 437c, subd. (p)(2).) “[A] moving defendant need not support his motion with affirmative evidence negating an essential element of the plaintiff's case; instead, the defendant may point to the absence of evidence in support of the plaintiff’s case.” (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752.)

“If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff's opposing evidence and the motion must be denied.” (Dollinger DeAnza Associates v. Chicago Title Ins. Co., supra, 199 Cal.App.4th at p. 1144.)

“[I]f the moving papers make a prima facie showing that justifies a judgment in the defendant's favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact.” (Id.)

“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. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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.” (LaChapelle v. Toyota

2024CUBC031403: PENNY L LENNEMANN WHIGHAM vs FORD MOTOR COMPANY, et al.

Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981.) A statement in the separate statement that a material fact is not disputed is a conclusive admission of fact for purposes of the summary judgment motion only, which a court is entitled to rely upon in deciding the motion. (City of San Diego v. DeLeeuw (1993) 12 Cal.App.4th 10, 14; Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 747, as modified (Nov. 20, 2009).)

“Inasmuch as summary judgment is a drastic procedure and should be used with caution [citation], the moving party's papers are strictly construed, while the opposing party's papers are liberally construed [citations].” (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 840 [internal citation omitted].) “Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party.” (Weiss v. People ex rel. Dept. of Transportation (2020) 9 Cal.5th 840, 864.)

“If any triable issue of fact exists, it is error for the trial court to grant a party's motion for summary judgment.” (Robinson v. City and County of San Francisco (1974) 41 Cal.App.3d 334, 337.) “[A]ny doubts about the propriety of summary adjudication must be resolved in favor of the party opposing the motion.” (See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900.) “[S]ummary judgment law turns on issue finding rather than issue determination.” (Diep v. California Fair Plan Assn. (1993) 15 Cal.App.4th 1205, 1207 [19 Cal.Rptr.2d 591, 592], as modified (June 10, 1993).)

“A summary adjudication motion is subject to the same rules and procedures as a summary judgment motion.” (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819; see also Code Civ. Proc., § 437c, subd. (f)(2) [“A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.”].)

IV. Application

A. MSA Issue 8: Fifth Cause of Action for Negligent Repair

The Court previously sustained the demurrer as to this cause of action with leave to amend. Rather than amend the complaint, plaintiff subsequently dismissed Envision from the lawsuit. Accordingly, the Court DENIES summary adjudication of this claim as moot.

B. MSA Issues 1-7 and 9-11

Defendant failed to establish UMFs except with respect to facts 1 through 5, and facts 8 and 9. These proven facts establish only: that Plaintiff purchased a new Ford from a Ford dealership in 2021; that she received the 7,500-mile service in September 2021 and received the vehicle back that same day; that she received the 15,000-mile service plus brakes in February 2022, and the vehicle was returned to her 15 days later; and, that on the same day she filed the lawsuit in October 2024, she also took the car in for maintenance and recalls. These facts are insufficient to either negate an element of any of the five remaining causes of action or to establish an affirmative defense, and thus Defendant fails to shift the burden to Plaintiff to demonstrate there

2024CUBC031403: PENNY L LENNEMANN WHIGHAM vs FORD MOTOR COMPANY, et al.

is a triable issue of fact as to any of the causes of action. With respect to the fraud by concealment cause of action, the only “facts” Defendant establishes are those alleged in the Complaint (i.e., UMF 1 & 9). With respect to the fraud by concealment cause of action, whether a manufacturer had exclusive knowledge of a defect and made any representations or failed to make any representations is a question of fact. (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 311.) Mere reference to complaint allegations in this case does not negate any aspect of whether, and the extent to which, Ford knew anything about the vehicle.

Additionally, under Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 44-45, the economic loss rule does not bar a claim for fraud by concealment in this context, where plaintiff has alleged a factual basis for establishing a duty of disclosure independent of the warranty. The facts established by Defendant here do not negate this claim.

Accordingly, Defendant’s motion is DENIED in its entirety.

Plaintiff shall give notice.

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