Jonathan Ledesma-Luna v. General Motors LLC

Code of Civil Procedure section 437c, subdivision (c) provides that 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." A defendant moving for summary judgment has the initial burden of presenting 6

evidence that a cause of action lacks merit because the plaintiff cannot establish an element of the cause of action or there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 (Aguilar).) If the defendant satisfies this initial burden, the burden shifts to the plaintiff to present evidence demonstrating there is a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850.)

The trial court must "carefully scrutinize the moving party's papers and resolve all doubts regarding the existence of material, triable issues of fact in favor of the party opposing the motion." (Connelly v. County of Fresno (2006) 146 Cal.App.4th 29, 36.) The court must strictly construe the moving party's declarations and liberally construe the opposing party's declarations. (Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 575 [affirming trial court's granting of employer's summary judgment motion]; Binder v.

Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [reversing summary judgment where evidence suggested strong possibility trier of fact would resolve issues in favor of moving defendant, but not necessarily so].) "A triable issue of fact is created when the evidence reasonably permits the trier of fact, under the applicable standard of proof, to find the purportedly contested fact in favor of the party opposing the motion." (Loomis v. Amazon.com LLC (2021) 63 Cal.App.5th 466, 475 [reversing summary judgment where genuine issues of material fact existed on consumer's strict products liability claim].)

GM Fails to Satisfy Its Initial Burden

The Act, popularly known as the "lemon law," provides various remedies to buyers of defective motor vehicles. The Act includes Civil Code section 1793.2, which governs a manufacturer's repair duties for an express warranty. GM moves for an order granting summary judgment, and alternatively, summary adjudication on the ground that GM promptly offered to repurchase Plaintiff's vehicle, satisfying its duties under the Act.

First Cause of Action – Breach of Express Warranty

For his first cause of action Plaintiff alleges he is entitled under the Act to reimbursement of the price paid for the vehicle less an amount directly attributable to use by the Plaintiff prior to the first presentation of nonconformities. (Comp., ¶ 31.) The Act provides that "[i]f the vehicle cannot be repaired, the manufacturer must offer to replace or repurchase the vehicle from the consumer." Carver v. Volkswagen Group of America, Inc. (2024) 107 Cal.App.5th 864, 878, citing Civ. Code, § 1793.2, subd. (d) (Carver).)

Civil Code section 1793.2, subdivision (d) 2) provides:

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. 7

The elements Plaintiff must prove to succeed on his breach of warranty claim are as follows:

(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, supra, 107 Cal.App.5th at p. 879.) In Carver, the manufacturer prevailed on summary judgment by establishing that the manufacturer's offer, made 23 days after plaintiff's first request for repurchase, was not only prompt, but also complied with the Act's provisions. The court also noted other courts have found reasonably prompt repurchase offers to occur 40 to 50 days after the manufacturer's obligation to repurchase arises. (Id. at p. 880.)

Here, GM contends it is entitled to summary judgment because Plaintiff cannot prove the failure to repurchase element. GM contends its provided a prompt repurchase offer that complies with the Act. Plaintiff contends GM is not entitled to summary judgment because its repurchase offer improperly calculated the mileage use offset, therefore, the offer does not comply with the Act.

In Carver, the plaintiff contended the use-offset amount was incorrect because the manufacturer used the wrong value for the subject vehicle in its calculations. (Carver, supra, 107 Cal.App.5th at p. 882.) The trial court granted the manufacturer's summary judgment motion, and the appellate court affirmed the judgment, concluding "there was no error in using the agreed-upon value of the vehicle as reflected in the lease to calculate the mileage offset." (Carver, 107 Cal.App.5th at p. 884.) Here Plaintiff contends GM used the wrong date for its use-offset calculations.

Civil Code section 1793.2, subdivision (d)(2) requires the manufacturer to calculate a use offset for mileage by using a specific formula as set forth in subsection (C):

(C) ... 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 8

distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity.1

(Ibid., italics added.)

If a defendant fails to address an issue in a motion for summary judgment that has been raised in the plaintiff's complaint, the defendant fails to meet the initial burden to show the plaintiff's action has no merit. (Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67 Cal.App.5th 833, 846.) Here, Plaintiff alleges he "first presented the [Silverado] for repairs in April 2023, with approximately 1,158 miles on the odometer and reported the 'Service Axle Lockers' [warning] message appearing on the instrument cluster." (Comp., ¶ 11.) Plaintiff also alleges:

In May 2024, with approximately 9,689 miles on the odometer, Plaintiff presented the [Silverado] again and reported another instance of delayed and harsh gear shifting. Additionally, the "Service Axle Lockers" message appeared for the third time.

(Comp., ¶ 14, emphasis original.) To prevail on summary judgment by establishing that its repurchase offer complies with the Act, GM must address the issue of when Plaintiff first presented the Silverado for correction of the problem that gave rise to the nonconformity.

GM argues "Plaintiff does not dispute that he submitted a repurchase request on June 13, 2024, and just 19 days later, on July 2, 2024, GM sent Plaintiff a repurchase offer." (Rpy., p. 3:11-12, emphasis original.) While this fact might be relevant to determine the promptness of the repurchase offer, it has no relevance to the offset formula, which includes as a variable the date when Plaintiff "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, subd. (d)(2)(C).) The court finds GM fails to satisfy its initial burden because the eight facts in GM's separate statement do not establish that GM's repurchase offer complies with the Act. GM fails to include a starting date for the mileage calculation and fails to identify the problem that gave rise to the nonconformity. Without the starting date and the identity of the problem that gave rise to the nonconformity, the court cannot determine whether GM complied with the statutory formula.

1Civil Code section 1793.2, subdivision (d)(2), subsection (B) provides:

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.

GM fails to address an issue that Plaintiff raised in the complaint, therefore, GM fails to meet its initial burden to show Plaintiff's action has no merit. (Hedayati v. Interinsurance Exchange of the Automobile Club, supra, 67 Cal.App.5th at p. 846.) When the defendant fails to make the initial showing, it is unnecessary to review the plaintiff's opposing evidence and the court must deny the motion. (Aguilar, supra, 25 Cal.4th at p. 849.) Therefore, the burden does not shift to Plaintiff to raise a triable issue of fact and the court may stop its analysis of the first cause of action here.

Second Cause of Action – Breach of Implied Warranty

GM contends "Plaintiff's implied warranty claim also fails because Plaintiff cannot prove that he suffered any damages, an essential element of Plaintiff's claim." (Memo., p. 9:1-2.) GM again relies on Carver, where the court determined the plaintiff could not recover for breach of the implied warranty of merchantability because the plaintiff could not recover more than the manufacturer's Act-compliant restitution offer. Here, GM fails to establish that its restitution offer complies with the Act. Thus, GM fails to meet its initial burden to show Plaintiff cannot prove the essential element of damages as to the second cause of action, and the burden does not shift to Plaintiff to raise a triable issue of material fact.

Third Cause of Action - Violation of Civil Code Section 1793.2, Subdivision (b)

Plaintiff's third cause of action arises under Civil Code section 1793.2, subdivision (b), which governs a manufacturer's repair duties for an express warranty. GM contends it is entitled to summary adjudication as to Plaintiff's third cause of action because its repurchase offer complies with the Act. In its separate statement, GM provides no additional facts as to the third cause of action and expressly states the eight facts presented are common to all issues. GM's evidence fails to meet its initial burden of persuasion and production to show, as a matter of law, that Plaintiff cannot prove an essential element of the third cause of action. Therefore, the burden does not shift to Plaintiff to raise a triable issue of material fact as to the third cause of action.

Evidentiary Standard and Objections

In its reply, GM fails to address the critical variables required to determine if GM's offer complies with the statutory formula. Also, GM misstates its own evidentiary standard as the moving party on summary judgment motions in California as follows:

At the summary judgment stage, evidence need[] not be in trial-admissible form so long as it is reasonably capable of being presented in admissible form at trial. (Sweetin v. County of Nevada (2023) 89 Cal.App.5th 1041, 1052–53.)

The court has been unable to locate the cited "Sweetin" case. Although GM's authority may be correct in the federal courts,2 that is not the standard in California. In

2For example, in Block v. City of Los Angeles (9th Cir. 2001) 253 F.3d 410, the court addressed the

evidentiary standard as follows: "To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the 10

California, Code of Civil Procedure, section 437c, subdivision (d) expressly requires "admissible evidence" at the summary judgment stage:

Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. An objection based on the failure to comply with the requirements of this subdivision, if not made at the hearing, shall be deemed waived.

On summary judgment, opposing declarations are liberally construed, while the moving party’s evidence is strictly construed. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) “The rule that a trial court must liberally construe the evidence submitted in opposition to a summary judgment motion applies in ruling on both the admissibility of expert testimony and its sufficiency to create a triable issue of fact.” (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189.)

The court declines to rule on the parties' evidentiary objections because none are material to the disposition of GM's motion. (Code Civ. Proc., § 437c, subd. (q).) Furthermore, objections must be submitted in the proper format required by California Rules of Court, rule 3.1354 (filed separately, numbered consecutively, quoting the objectionable material, and clearly stating the grounds for objections).

Request for Judicial Notice

The court denies Plaintiff's request for judicial notice of the unsigned and unfiled tentative rulings on other motions in other courts. (See, People v. Preslie (1977) 70 Cal.App.3d 486, 495 [denying request for judicial notice not accompanied by certified copy of documents desired to be noticed].)

Conclusion

When the moving party fails to make the initial showing, it is unnecessary to review the opposing party's evidence and the court must deny the motion. (Aguilar, supra, 25 Cal.4th at p. 849-850; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940 [defendant's motion for summary judgment should have been denied without looking at opposing evidence because defendant failed to refute tenable pleaded theories].) Here, the burden here does not shift to Plaintiff to raise a triable issue of fact and the court may stop its analysis here.

Furthermore, the court denies GM's motion for the additional reason that Plaintiff raises at least one triable issue of material fact about the date he first presented the Silverado for repair and reported the “Service Axle Lockers” warning message appearing on the instrument cluster. (See Pltf.'s Fact Nos. 3, 4, 5.) Therefore, the court denies GM's

requirements of Federal Rules of Civil Procedure 56." (Id. at pp. 418-419, citing Celotex Corp. v. Catrett (1986) 477 U.S. 317, 324.)

motion for summary judgment and the alternative motion for summary adjudication on the first, second, and third causes of action of the complaint.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JS on 8/10/2026. (Judge’s initials) (Date)

12