Gillespie vs. Ford Motor Company

Objections

Cross-Defendant Nguyen asserts objections to the declaration of Paul Pham and the declaration of Dale Washington. The court declines to rule on these objections pursuant to Code Civ. Proc. § 437c, subd. (q), as Cross-Defendant Nguyen failed to meet his initial burden.

Cross-Complainant Paul Pham shall give notice.

13 Gillespie vs. TENTATIVE RULING: Ford Motor Company For the reasons set forth below, the unopposed Motion for Summary Judgment brought by Defendants Ford Motor Company and Ken Grody Ford is GRANTED.

Requests for Adjudication

The Motion identifies nine issues for adjudication; however, multiple issues are associated with the same causes of action.

Pursuant to Code of Civil Procedure section 437c, subdivision (f)(1), a party may seek summary adjudication as “to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty...” (Code Civ. Proc., § 437c, subd. (f)(1).)

Additionally, “[i]f summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court rule 3.1350(b).)

As the Notice of Motion does not identify any specific affirmative defense, claim for damages or issues of duty and, instead, only references the causes of action, the court interprets the Notice as seeking adjudication of each cause of action.

Applying the above herein, the Court will rule on each of the six causes of action and need not rule on duplicative issues, asserting the same claims fail for different reasons.

First Cause of Action: Violation of Civil Code §1793.2(d):

Pursuant to Civil Code section 1793.2, subdivision (d), a manufacturer who is “unable to service or repair a new motor vehicle...to conform

to the applicable express warranties after a reasonable number of attempts...shall either promptly replace the new motor vehicle...or promptly make restitution to the buyer...” (Civ. Code, § 1793.2, subd. (d)(2.)

“Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.” (Civ. Code, § 1794, subd. (a).)

As explained in Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, “[t]he 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.’” (Id. at p. 1208.) “‘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.” (Ibid.)

“A single attempt does not meet the statutory threshold, so that there is no need for a trier of fact to determine its reasonableness.” (Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1209.)

Here, the undisputed evidence indicates Defendant was provided only one opportunity to repair any alleged defect.

Initially, the First Amended Complaint identifies only one repair attempt on January 18, 2021. (¶43 of FAC.) Per the Complaint, on that day, Plaintiff “presented the Subject Vehicle to Defendant’s authorized repair facility for complaints regarding the transmission, including, inter alia, that the Vehicle would not go past third gear, slipp[ed] in gear, delayed engagement into gear” and experienced “hard shifts” and “clanking.” (Ibid.)

Consistent with the above allegation, Defense Counsel declares that only a single repair order was produced by Plaintiff in this action. (¶5 of Marrett Declaration and Exhibit 4 thereto.) This repair order is dated January 18, 2021, and indicates Plaintiff reported the following: “Intermittent the wrench warning light came won’t go past 3rd gear slipping delayed engagement condition, shifting hard and clanking condition felt, 2-3 flare ups and 3-4 and upshifts are late slipping condition CK and advise 3636.” (Id. [capitalization altered from original].)

Per Plaintiff, other than the above and “maybe another one for an oil change and...door adjustment” he did not recall bringing his vehicle

to a dealership for repairs. (¶9 of Marret Declaration and Exhibit 8 thereto [see pg. 271 of ROA No. 114].)

The Complaint does not allege a defect with the door; however, even assuming the referenced “door adjustment” constitutes an attempt to repair a defect, the above testimony indicates only one visit occurred, for this purpose.

Thereafter, the Complaint alleges Defendant failed to repair the identified transmission complaints, “despite a reasonable number of repair opportunities” (¶43-¶44 of FAC); however, (although not cited by Defendant), Plaintiff testified that the transmission performs fine right now, stating: “Yes. As far as I can tell, it’s okay. I noticed some time it got a little lag in it – it’s – it’s all right.” (¶9 of Marret Declaration and Exhibit 8 thereto [see pg. 274 of ROA No. 114].)

Based on the above, the undisputed evidence proves that Defendant was provided only one opportunity to perform repairs, which is insufficient to support a claim pursuant to Civil Code section 1793.2, subdivision (d). Moreover, the undisputed evidence suggests that transmission issues were repaired.

For the above reasons, Defendant’s request for summary adjudication on the First Cause of Action id GRANTED.

Second Cause of Action: Violation of Civil Code §1793.2(b)

Civil Code section 1793.2, subdivision (b) states that “the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days.” (Civ. Code, § 1793.2, subd. (b).)

Within the Second Cause of Action, Plaintiff alleges Defendant failed to “service or repair the Vehicle so as to conform to the applicable warranties within 30 days,” as required by the above provision. (¶66 of FAC.)

However, as referenced above, the undisputed evidence indicates the single repair attempt in January of 2021, lasted less than 30-days. Per the Repair Order produced by Plaintiff, the vehicle was delivered to Ken Grody Ford on January 18, 2021, and returned on January 26, 2021. (¶5 of Marrett Declaration and Exhibit 4 thereto.) Plaintiff does not dispute the contents of this Repair Order or otherwise object thereto.

Additionally, Plaintiff testified that the truck was at Ken Grody Ford “for six or seven days.” (¶9 of Marret Declaration and Exhibit 8 thereto [see pg. 269 of ROA No. 114].)

Further, the undisputed evidence indicates the vehicle was never presented for additional repairs to the transmission and the transmission now operates “all right.” (See ¶9 of Marret Declaration and Exhibit 8 thereto [pgs. 271 and 274 of ROA No. 114].)

Based on the above, the undisputed evidence proves Defendant did not violate Civil Code section 1793.2, subdivision (b).

For the above reasons, Defendant’s request for summary adjudication on the Second Cause of Action is GRANTED.

Third Cause of Action: Violation of Civil Code §1793.2(a)(3):

Civil Code section 1793.2, subdivision (a)(3) requires manufacturers “[m]ake available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.” (Civ. Code, § 1793.2, subd. (a)(3).)

In violation of the above, Plaintiff alleges “Defendant FMC failed to make available to its authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.” (¶71 of FAC.)

In seeking adjudication of this claim, Defendant cites federal authority which addresses the pleading standard for claims arising from Civil Code section 1793.2, subdivision (a)(3). The offered citation suggests Defendant is challenging only the sufficiency of the allegations; however, Defendant nonetheless asserts “Ken Grody had sufficient literature available between January 21, 2021, and January 26, 2021, to diagnose the F-150 and complete the repairs.” (See SSUF No. 14 [ROA No. 111].)

Consequently, Defendant is seeking to challenge the sufficiency of the underlying evidence.

In support of the above statement, Defendant offers the January 18, 2021, Repair Order and the above discussed testimony from Plaintiff, which indicates the vehicle was delivered for transmission repairs only once. (See SSUF No. 14 [ROA No. 111], citing ¶5 and ¶9 of Marrett Declaration and Exhibits 4 and 8 thereto.)

As indicated above, Defense Counsel declares that only a single repair order was produced by Plaintiff in this action. (¶5 of Marrett Declaration and Exhibit 4 thereto.) Similarly, Plaintiff’s testimony indicates that only one transmission repair attempt was made. (¶9 of Marret Declaration and Exhibit 8 thereto [see pg. 271 of ROA No. 114].) Further, Plaintiff testified that the transmission performs fine right now, stating: “Yes. As far as I can tell, it’s okay. I noticed some time it got a little lag in it – it’s – it’s all right.” (¶9 of Marret Declaration and Exhibit 8 thereto [see pg. 274 of ROA No. 114].)

The undisputed evidence proves the vehicle was repaired and, necessarily, sufficient service literature and replacement parts were provided, where the repair was completed.

For the above reasons, Defendant’s request for summary adjudication on the Third Cause of Action is GRANTED.

Fourth Cause of Action: Implied Warranty

1. Statute of Limitations

The implied warranty of merchantability has a maximum duration of one-year. (Civ. Code, § 1791.1, subd. (c).) Additionally, “[t]he statute of limitations for breaches of the implied warranty of merchantability is four years.” (Montoya v. Ford Motor Co. (2020) 46 Cal.App.5th 493, 494.)

“California courts have held that the statute of limitations for an action for breach of warranty under the Song-Beverly Act is governed by the same statute that governs statute of limitations for warranties arising under the Uniform Commercial Code: section 2725 of the Uniform Commercial Code.” (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1305-1306, citing Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 215.)

Per Commercial Code section 2725, “[a] breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” (Com. Code, § 2725, subd. (2).)

Citing non-binding federal authorities, Defendant asserts this claim accrued upon tender of delivery. (See Motion: 16:10-12 (citing Yetter v. Ford Motor Co. (N.D. Cal. 2019) 438 F.Supp.3d 210, 221 and Ferris v. Ford Motor Co. (N.D. Cal. 2019) 2019 WL 1100376 at 3.)

However, the Court in Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297 expressly analyzed a claim brought pursuant to the Song-Beverly Act and held “[t]he implied warranty of merchantability may be breached by a latent defect undiscoverable at the time of sale.” (Id. at p. 1304.) “In the case of a latent defect, a product is rendered unmerchantable, and the warranty of merchantability is breached, by the existence of the unseen defect, not by its subsequent discovery.” (Id. at p. 1305.) “Thus, although a defect may not be discovered for months or years after a sale, merchantability is evaluated as if the defect were known.” (Ibid.)

“[B]y giving the implied warranty a limited prospective existence beyond the time of delivery, the Legislature created the possibility that the implied warranty could be breached after delivery.” (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1309.) “As discussed above, this is a change from the Uniform Commercial Code, under which the implied warranty could be breached only at the time of delivery.” (Ibid.)

In sum, the Mexia Court concluded: “In light of the plain language of the duration provision, and the policy considerations at play in construing a provision of the Song-Beverly Act, we interpret the duration provision as providing the implied warranties under the Song- Beverly Act with a limited prospective existence beyond the date of delivery.” (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1311.)

Based on the above, delayed discovery may apply to Plaintiff’s Fourth Cause of Action; however, Plaintiff has not submitted any evidence which supports its application herein.

Where a statute of limitations defense is raised, a moving defendant bears the initial burden to demonstrate the claim is barred. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1197.) Once that burden is met, the burden shifts to plaintiff “to demonstrate his claims survive based on one or more nonstatutory exceptions to the basic limitations period.” (Ibid.; See also Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1030 and Acosta v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278, 1292- 1293.)

“That plaintiffs may have anticipated defendants’ reliance on a limitations defense by alleging facts supporting a statutory exception to that defense is not sufficient to justify shifting the burden that

otherwise would be imposed on plaintiffs.” (Acosta v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278, 1293.)

Here, it is undisputed that Plaintiff purchased his vehicle on May 5, 2018. (See ¶27 of FAC; See also ¶2 of Marrett Declaration and Exhibit 1 thereto [Retail Installment Sale Contract dated May 5, 2018].) Absent application of a statutory exception, such as delayed discovery or tolling, the relevant statute of limitation ran on May 5, 2022; however, this action was not initiated until October 5, 2023. (See ROA No. 2.)

Based on the above, Defendant established that Plaintiff’s Fourth Cause of Action is barred by the statute of limitations.

While Plaintiff alleged multiple exceptions to the limitations period (See ¶12-¶26 of FAC), Plaintiff did not oppose this motion or otherwise establish a triable issue regarding the above, via admissible evidence. (See Aryeh v. Cannon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1197.)

While it is undisputed that Plaintiff’s sole presentation of the vehicle for repairs occurred in January of 2021 (see discussion above), there has been no additional evidence offered which indicates this was the earliest Plaintiff could discover the defect.

In order to rely on delayed discovery, Plaintiff was required to show “(1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” (Fox v. Ethicon Endo-Surery, Inc. (2005) 35 Cal.4th 797, 808.)

For the above reasons, the court finds that the Fourth Cause of Action is barred by the applicable statute of limitations and the court grants summary adjudication on that basis.

Fifth Cause of Action: Fraud:

“[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.”

(Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248 [emphasis added].)

As noted by Defendant, “[t]he very existence of a warranty presupposes that some defects may occur.” (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 345.) Thus, to show concealment, Plaintiff must establish Defendant was aware of a defect and either unwilling or unable to fix it. (Id. at pp. 345-346.)

In addition to the above, “[t]he complaint limits the issues to be addressed at the motion for summary judgment.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258.) “A moving party seeking summary judgment or adjudication is not required to go beyond the allegations of the pleading....” (Johnson v. The Raytheon Co., Inc. (2019) 33 Cal.App.5th 617, 636.)

Here, in alleging concealment, Plaintiff asserts that “at no point prior to purchase was Plaintiff advised the Vehicle and its 10-Speed automatic transmission were defective.” (¶80 of FAC.) All allegations asserting Defendant Ford had knowledge of a defect, specifically reference a 10-Speed transmission. (See ¶45, ¶47-¶55 and ¶84 of FAC.)

Per the Complaint, “[p]rior to Plaintiff purchasing the Vehicle, Defendant FMC knew that vehicles equipped with the same 10-speed transmission as the Vehicle suffered from one or more defects that can cause the vehicles and their 10-speed transmission to experience hesitation and/or delayed acceleration; harsh and/or hard shifting; jerking, shuddering, and/or juddering (‘Transmission Defect’).” (¶45 of FAC; See also ¶84 of FAC.)

To support the existence of knowledge, the Complaint identifies multiple Technical Service Bulletins (“TSBs”), relating specifically to a “10R80 Automatic Transmission.” (¶47-¶55 of FAC.) Plaintiff cites the same TSBs and 10-Speed Transmission in response to discovery, when asked to describe the information supporting his allegation of knowledge. (¶8 of Marrett Declaration and Exhibit 7 thereto, at SROG No. 65.)

In contrast to the allegations in the Complaint, however, the undisputed evidence indicates Plaintiff’s vehicle is equipped with a 6- Speed transmission. (See SSUF No. 27 and ¶9 of Marret Declaration and Exhibit 8 thereto [see pg. 268 of ROA No. 114].)

Additionally, the undisputed evidence indicates only a single repair was performed and Plaintiff’s transmission is now performing fine.

(See ¶5 of Marrett Declaration and Exhibit 4 thereto; See also ¶9 of Marret Declaration and Exhibit 8 thereto [see pgs. 271 and 274 of ROA No. 114].)

The undisputed evidence indicates that, to the extent a defect exists in Ford’s 10-Speed transmission, any concealment of this fact was immaterial to Plaintiff and his 6-Speed vehicle.

For the above reasons, Defendant’s request for summary adjudication on the Fifth Cause of Action is GRANTED.

Sixth Cause of Action: Negligent Repair

Defendant Ken Grody seeks summary adjudication of the Sixth Cause of Action, solely on the basis the claim is barred by the economic loss rule.

“The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise.” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988.) However, no contract is identified, as between Defendant Ken Grody and Plaintiff.

Relying on the allegation the “causes of action arise out of the warranty obligations” (See ¶31 of FAC), Defendant asserts the claim arises from the warranty contract; however, the warranty contract is alleged to have been entered into, solely between Plaintiff and Defendant FMC. (¶27 of FAC.)

Additionally, regardless of the general allegation stated above, the claim for Negligent Repair makes no reference to the warranty. Instead, Plaintiff alleges he “delivered the Subject Vehicle to Defendant KEN for substantial repair,” “Defendant KEN owed a duty to Plaintiff to use ordinary care and skill in storage, preparation and repair of the Subject Vehicle,” and this duty was breached. (¶97-¶99 of FAC.)

As explained by the California Supreme Court in Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, tort claims “are barred when they arise from – or are not independent of – the parties’ underlying contracts.” (Id. at p. 924.)

Absent a contract between Plaintiff and Defendant Ken Grody, this argument fails.

Although not explicitly stated or argued, Defendant appears to suggest the Repair Order produced by Plaintiff in discovery constitutes a contract. (See ¶5 of Marrett Declaration and Exhibit 4 thereto); however, authority indicates that service contracts are not subject to the economic loss doctrine.

As explained by the Court in North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764 (North American), “in actions arising from the sale or purchase of a defective product, plaintiffs seeking economic losses must be able to demonstrate that either physical damage to property (other than the defective product itself) or personal injury accompanied such losses; if they cannot, then they would be precluded from any tort recovery in strict liability or negligence.” (Id. at p. 780.) “However, such authorities would seem to have little or no application when the commercial relationship of the parties does not involve the sale of goods or products, nor the rules developed under the law merchant and the Uniform Commercial code, but rather relates only to the performance of services.” (Id. at pp. 780- 781.) “Thus, in circumstances such as those presented by this case, the policy concerns underlying the limitations on recovery of economic losses articulated by the Seely court and its progeny are not present.” (Id. at p. 781.)

“[B]ecause this case arises from a contract for the performance of services rather than the sale of goods, and the negligent performance of that contract allegedly resulted in foreseeable economic loss to North American, the so-called ‘economic loss rule’ does not bar recovery even though (1) the only damages that North American seeks are based solely on economic loss and (2) contractual privity is present.” (Id. at p. 770.)

While Defendant suggests that Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905 (Sheen) overruled North American Chemical, no references to this decision are included within Sheen. Nor does Sheen find the contractual economic loss rule broadly applies against service contracts.

Instead, the Sheen Court acknowledged the “recognized exception to the economic loss rule for consumers who contract for certain kinds of professional services.” (Sheen, supra, 12 Cal.5th at p. 933.) “[I]n that context...a cause of action for negligence ensures that the consumer receives the services the professional agreed to provide. In such settings, professionals generally agree to provide ‘careful efforts’ in rendering contracted-for services, but ‘most clients do not know enough to protect themselves by inspecting the professional’s work or by other independent means.’ ” (Ibid.) “Given this disparity, a claim

for professional negligence can serve the important purpose of ensuring that professionals render the ‘careful efforts’ they have contracted to provide.” (Ibid.)

Defendant draws attention to language within Sheen which discusses the Biakanja factors; however, this language addresses the element of duty. In Sheen the Court concluded it could not “rely on Biakanja to impose a tort duty on a contracting party to avoid negligently causing monetary harm to another party to that contract.” (Sheen, supra, 12 Cal.5th at p. 938.) “[T]he Biakanja factors are not applicable when, as here, the litigants are in contractual privity and the plaintiff’s claim is not ‘independent of the contract arising from principles of tort law.’” (Id. at p. 942.) The Court in Sheen ultimately held that “a lender owes no tort duty sounding in general negligence principles to ‘process, review and respond carefully and completely to’ the borrower’s application.” (Id. at 948.)

The above holding is not contrary to the holding in North American Chemical, as the Court in North American Chemical was not relying on the Biakanja factors to establish the existence of a duty.

Instead, the Court in North American Chemical explained: “[F]or over fifty years California has also recognized the fundamental principle that ‘[a]ccompanying every contract is a common-law duty to perform with care, skill, reasonable expedience, and faithfulness the thing agreed to be done, and a negligent failure to observe any of these conditions is a tort, as well as a breach of contract.’” (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774.) “A contract for the performance of services, as we have already discussed, necessarily carries with it both the reasonable expectation and implied at law promise that it will be performed with reasonable care.” (Id. at p. 785 [emphasis added].)

Having found the existence of a duty sufficient to support a negligence claim, the Court in North American Chemical proceeded, in a separate portion of the opinion, to hold that the economic loss rule did not apply to service contracts, where the economic loss was foreseeable (a Biakanja factor.) (Id. at p. 770.) As the Court in North American Chemical did not rely on the Biakanja factors to establish the existence of a duty, it is not inconsistent with Sheen.

Based on the above, looking solely at the argument presented in the motion, the court might deny summary adjudication of the Sixth Cause of Action; however, as indicated above, the undisputed evidence (cited in connection with other claims) indicates Defendant Ken Grody was not negligent.

“The elements of a negligence cause of action are duty, breach, causation, and damages.” (Coyle v. Historic Mission Inn Corporation (2018) 24 Cal.App.5th 627, 634.) Additionally, there exists a “common-law duty to perform with care, skill, reasonable expedience, and faithfulness the thing agreed to be done....” (Stonegate Homeowners Assn. v. Staben (2006) 144 Cal.App.4th 740, 748.)

The undisputed evidence indicates that only a single repair was performed. (See ¶5 of Marrett Declaration and Exhibit 4 thereto; See also ¶9 of Marret Declaration and Exhibit 8 thereto [see pg. 271 of ROA No. 114].) Per Plaintiff, he did not bring his vehicle back to any Ford dealerships, for any other repairs. (Ibid.) Finally, Plaintiff indicates his transmission is now performing fine. (¶9 of Marret Declaration and Exhibit 8 thereto [see pg. 274 of ROA No. 114]; See, generally, SSUF Nos. 2, 5, 14, 28 and 29.)

Based on the above, the undisputed evidence indicates Defendant Ken Grody did not breach any duty to Plaintiff.

Of note, while Defendant offered only one legal argument directed towards the Sixth Cause of Action, “[t]he 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).)

Here, reviewing all the offered evidence indicates there are no triable issues, as to the Sixth Cause of Action.

For the above reasons, Defendant’s request for summary adjudication on the Sixth Cause of Action is GRANTED.

Moving party to give notice.

14 Palomar CMC Specialty Insurance Company vs. Savant Construction, Inc. 15 Governing TENTATIVE RULING: Board of the Los Alamitos Petitioner Governing Board of the Los Alamitos Unified School Unified School District (“LAUSD”) has moved under Code Civ. Proc. § 1094.5(g) District vs.