Zamora vs. General Motors LLC

A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.) Alternatively, a moving defendant can show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses, that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action. (Aguilar v.

Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff's lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see Sheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information].)

Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) To meet this burden, the plaintiff must present substantial and admissible evidence creating a triable issue. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Theoretical, imaginative, or speculative submissions are insufficient to stave off summary judgment. (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481; Bushling v. Fremont Med. Center (2004) 117 Cal.App.4th 493, 510.)

The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

The motion and opposition must be accompanied by a separate statement. (Cal. Rules of Ct., Rule 3.1350, subd. (c)(2), (d), (e)(2), (f), and (g); Code Civ. Proc. §437c, subd. (b).) The separate statement must set 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).) The format of the separate statement must comply with the requirements set forth in California Rules of Court, Rule 3.1350, subd. (d), (f), and (h).

Merits

Plaintiff’s Complaint alleges two causes of action against Defendant – violation of the Song- Beverly Consumer Warranty Act breach of express warranty and breach of implied warranty (Song Beverly).

First cause of action for violation of Song-Beverly Consumer Warranty Act Breach of Express Warranties

Plaintiff’s Complaint alleges Defendant “violated the Song-Beverly Consumer Warranty Act by failing to confirm the Vehicle to the express written warranties win a reasonable number of repair attempts or within the warranty periods, and by failing to promptly replace the vehicle or make restitution to Plaintiff.” (Complaint, ¶ 12.)

“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).” (Carver v. Volkswagen Group of America, Inc. (2024) 107 Cal.App.5th 864, 879.)

“There is no set timeframe for an offer to be ‘prompt.’ However, courts have found offers to be prompt where 40 to 50 days elapsed between the consumers’ initial requests for repurchase/replacement and the manufacturers’ offers. (Dominguez v. American Suzuki Motor Corp. (2008) 160 Cal.App.4th 53, 59, 72 Cal.Rptr.3d 354 (Dominguez) [offer prompt where there was six weeks between the plaintiff's first demand and the manufacturer's offer]; De Leon v. Ford Motor Co. (C.D.Cal., Nov. 13, 2019, No. CV 18-7975 PSG (FFMx)) 2019 WL 7195325, at *6 [“Courts have generally found that a manufacturer makes a prompt offer when it is made within fifty days.”]; Medrano v.

Volkswagen Group of America, Inc. (C.D.Cal. July 6, 2012, No. 2:12-cv-02198-SVW-MAN) 2012 WL 12882428 at *3 [45 days between an initial request and an offer to repurchase or replace would be prompt].)” (Carver v. Volkswagen Group of America, Inc., 107 Cal.App.5th at 879-880.)

Defendant met its initial burden to show Defendant promptly offered to repurchase the Subject Vehicle from Plaintiff. (Defendant’s Material Fact [“DMF”] No. 5-10.)

Plaintiff contends, without any supporting evidence, that the offer was not promptly made and was not properly calculated in accordance with Civil Code section 1793.2, subdivision (d).

Civil Code section 1793.2, subdivision (d) provides, in pertinent part, as follows:

(d)(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... (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. ... (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. (C) When the manufacturer replaces the new motor vehicle pursuant to subparagraph (A), the buyer shall only be liable to pay the manufacturer an amount directly attributable to use by the buyer of the replaced 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.

When restitution is made pursuant to subparagraph (B), the 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.

Nothing in this paragraph shall in any way limit the rights or remedies available to the buyer under any other law. (Civ. Code, § 1793.2.)

Plaintiff submitted no evidence to raise a triable issue as to whether Defendant’s offer to repurchase was promptly made. Defendant showed the repurchase offer was made 42 days after Plaintiff brought the Subject Vehicle in for repairs. (DMF No. 5 and 8.) This is well within the 40-50 day timeframe set forth in Carver. Plaintiff submitted no evidence to show the amount Defendant offered was not properly calculated. Plaintiff did not meet Plaintiff’s shifted burden to raise a triable issue of material fact as to whether Defendant’s offer to repurchase was promptly made or whether the offered amount was properly calculated.

Second cause of action for breach of implied warranty (Song Beverly)

Plaintiff’s second cause of action for breach of implied warranty (Song Beverly) alleges Defendant “breached the implied warranty of merchantability as stated in Cal. Civ. Code § 1791.1 and 1792 in the vehicle has malfunctions, and nonconformities render the Vehicle unfit for the ordinary purpose for which it is used, and it would not pass without objection in the trade.” (Complaint, ¶ 23.)

The elements for breach of the implied warranty of merchantability are lack of merchantability, causation, and damages. (Carver v. Volkswagen Group of America, Inc., 107 Cal.App.5th at 888-889.)

“Pursuant to section 1794, subdivision (a), ‘Any buyer of consumer goods who is damaged by a failure to comply with any obligation ... under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.’ (§ 1794, italics added.) Thus, ‘the statute contemplates that a buyer must have been damaged to bring an action under Song-Beverly.’ (Duff v. Jaguar Land Rover North America, LLC (2022) 74 Cal.App.5th 491, 504–505, 289 Cal.Rptr.3d 533; see Jensen v.

BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 121, 41 Cal.Rptr.2d 295 [same], disapproved on another ground in Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189, 205, 326 Cal.Rptr.3d 440, 557 P.3d 735.) Section 1794, subdivision (b) further provides: ‘The measure of the buyer's damages in an action under this section shall include the rights of replacement or reimbursement as set forth in subdivision (d) of Section 1793.2.’” (Carver v. Volkswagen Group of America, Inc., 107 Cal.App.5th at 889.)

A “plaintiff cannot prove damages to support his breach of implied warranty cause of action given [the manufacturer’s] prompt, Act-compliant restitution offer that significantly exceeded the restitution amount required by the Act.” (Carver v. Volkswagen Group of America, Inc., 107 Cal.App.5th at 890.) In addition, the Carver Court found the defendants did not damage plaintiff when prior to litigation, the manufacturer offered plaintiff all the restitution he could recover under section 1793.2, subdivision (d). (Id.) The Court noted it was plaintiff's choice to refuse that offer in order to allege damages to support this lawsuit and seek civil penalties and attorney fees. (Id.)

Defendant met its initial burden to show Defendant made a prompt offer to repurchase pursuant to CCP section 1793.2, subdivision (d). (DMF No. 5-10.)

Plaintiff did not meet Plaintiff’s shifted burden to show a triable issue of material fact as to whether the offer was prompt or whether the offer was compliant with section 1793.2, subdivision (d). Plaintiff offered no evidence to show Defendant failed to comply or that Defendant’s failure to comply was willful. (See, Civ. Code, § 1794, subd. (c).)

Accordingly, Defendant’s motion for summary judgment is granted. In light of this ruling, the Court declines to consider Defendant’s alternative motion for summary adjudication.

Defendant shall give notice.

103 2024-01438736 Motion to Terminate Arbitration

Stafford vs. Plaintiff Joshua Stafford’s motion to terminate arbitration is denied. Fitness International, LLC Code Civ. Proc., § 1281.98 provides that if the drafting party of an arbitration agreement fails to pay certain fees and costs associated with an employment or consumer arbitration, the drafting party is in material breach of the agreement and waives its right to compel the employee to arbitrate his claims.

In this matter, Defendants’ payment of arbitration fees was due on 2/5/26; Defendants were late and paid the fees on 2/10/26. (Trostad Decl., Exs A-D.)

Plaintiff thus argues that pursuant to Code Civ. Proc., § 1281.98, Defendants waived their right to arbitration by willfully failing to timely pay the required fees.

Defendants submit evidence in opposition that counsel’s failure to remit the filing fees was not willful given that the correspondence regarding payment was not addressed to all members of Defendants’ litigation team pursuant to the operative service list. (David Decl., ¶¶ 5-9.) Once Defense counsel was included on the emails between Plaintiff’s counsel and AAA, it paid the invoice for the required fees. (David Decl., ¶ 11.)

Recently the California Supreme Court in Hohenshelt v. Superior Court (2025) 18 Cal.5th 310, addressed the application of § 1281.98 to a situation like this, where the defendant failed to timely pay the arbitration fees. The Court held that “under general contract law principles as under section 1281.98, a drafting party cannot avoid discharging the other party's contractual duty to proceed in arbitration if it willfully withholds fees necessary to move arbitration forward,” however, “if the drafting party acted in good faith, it may seek relief... and its claim should be evaluated under the usual principles in law and equity governing relief from forfeiture or default, including whether the other party has been prejudiced.” (Id. at 344.)

The Court reversed the Court of Appeal’s Order which found that because payment was untimely, the arbitration stay should be lifted. (Id. at 349.)

Based on the foregoing, the Court denies Plaintiff’s motion to terminate the arbitration. Neither willfulness, nor prejudice has been shown.

Defendants shall give notice.