Andy Nickerson v. Eric Icenogle

Case No.: 24STCV08986 Hearing Date: August 19, 2026 [TENTATIVE] order RE: plaintiff's motion for summary judgment or adjudication | | | BACKGROUND On April 9, 2024, Plaintiff Andy Nickerson filed this action against Defendant Eric Icenogle. Plaintiff filed the operative First Amended Complaint on May 7, 2024, asserting causes of action for (1) violation of the Unfair Competition Law (UCL) and (2) violation of the Consumer Legal Remedies Act (CLRA). The FAC alleges that Plaintiff purchased a Ford Bronco from Defendant based on Defendant's false representations about the characteristics and quality of the vehicle.

On May 15, 2026, Plaintiff filed the instant motion for summary judgment or adjudication. Defendant filed an opposition on July 30, 2026. Plaintiff filed a reply on August 7, 2026. LEGAL STANDARD The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

Code of Civil Procedure section 437c(c) "requires the trial judge to grant summary judgment if all the evidence submitted, and 'all inferences reasonably deducible from the evidence' and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) "[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact;

if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1101.) To establish a triable issue of material fact, the party opposing the motion must produce "substantial responsive evidence." (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts "liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." (Dore v.

Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) DISCUSSION I. CLRA Under CLRA, a consumer must provide notice to the defendant 30 days before filing suit. (Civ. Code, Sec. 1782(a).) However, notice is not required if the action is for injunctive relief. (Id., Sec. 1782(d).) If a consumer initiates an action for injunctive relief, he may amend the complaint to include a request for damages after complying with the notice requirement and after 30 days of filing the original complaint. (Ibid.)

Here, Plaintiff sent a CLRA notice to Defendant on April 2, 2024. (FAC P. 25.) However, on April 9, 2024, within 30 days of the notice, Plaintiff filed his "Complaint for Damages and Injunctive Relief," praying for "incidental damages" and "consequential damages." The complaint clearly alleged that "Plaintiff seeks damages from Defendants, and each of them, for incidental, consequential, exemplary, and actual damages including interest, costs, and actual attorneys' fees." (Compl. P. 10.) By filing a complaint for damages less than 30 days after serving the notice, Plaintiff failed to follow CLRA's notice provision.

Moreover, even if Plaintiff had only asserted injunctive relief in the original complaint, he was still required to wait at least 30 days after filing that complaint before filing the FAC for damages. (See Civ. Code, Sec. 1782(d) [an amended complaint for damages must be asserted "[n]ot less than 30 days after the commencement of an action for injunctive relief"].) Plaintiff's cited case confirms this: "the statute expressly allows such an amendment, as long as it is done 30 days or more after filing of the original complaint." (Morgan v.

AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1260.) However, Plaintiff filed the FAC on May 7, 2024, less than 30 days after filing the original complaint on April 9, 2024. Therefore, Plaintiff failed to follow the notice requirement under CLRA. This precludes summary adjudication of the CLRA claim in Plaintiff's favor. II. UCL a. "Unlawful" Conduct Business and Professions Code section 17200 prohibits unlawful, unfair, or fraudulent business acts or practices. Each of the three prongs is an independent basis for relief. (Smith v.

State Farm Mutual Automobile Insurance Co. (2001) 93 Cal.App.4th 700, 718.) Unlawful conduct is defined as any practice forbidden by law. (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 383.) UCL actions

alleging unlawful conduct "borrow" from other statutes or common law causes of action outside Section 17200. (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.) "[T]he general rule is that a UCL cause of action borrows the substantive portion of the borrowed statute to prove the 'unlawful' prong of that statute, but not the limitations procedural part of the borrowed statute." (Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 364.) Thus, for example, a claim may be timely under the UCL's four-year statute of limitations even if the predicate statute has a shorter limitations period. (Ibid.)

However, "[a] plaintiff may . . . not 'plead around' an 'absolute bar to relief' simply 'by recasting the cause of action as one for unfair competition.'" (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 182, quoting Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 283.) The test is whether the predicate provision "actually bar[s]" relief. (Id. at p. 184.) Here, CLRA's notice provision is a procedural requirement that does not absolutely bar relief.

The statute permits a complaint for injunctive relief without following the notice requirement and permits a damages claim once the plaintiff complies with the notice requirement and waits 30 days. (Civ. Code, Sec. 1782(d).) Moreover, a CLRA claim that does not comply with the notice provision "must simply be dismissed until 30 days or more after the plaintiff complies with the notice requirements." (Morgan, supra, 177 Cal.App.4th at p. 1261.) This is the opposite of an absolute bar. Therefore, Plaintiff may maintain a UCL claim under the "unlawful" prong with CLRA as the predicate statute even if he has failed to comply with CLRA's notice provision.

The issue, then, is whether Plaintiff has proven a violation of CLRA's substantive provisions as a matter of law. b. Misrepresentation of Characteristic or Quality CLRA prohibits deceptive conduct "intended to result or that results in the sale or lease of goods or services." (Civ. Code, Sec. 1770(a).) Prohibited conduct includes: "Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have;" and "Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another." (Id., Sec. 1770(a)(5), (a)(7).)

Here, Plaintiff's motion is premised on the fact that Defendant promised the Bronco would come with a "crate" engine, meaning a new engine sold in a shipping crate by the manufacturer. (Nickerson Decl. P. 6.) Specifically, when Plaintiff texted Defendant to ask if the engine was "a crate engine," Defendant replied, "Yes, it is a crate engine." (Id., P. 2, Ex. A.) The purchase agreement listed the engine as "Blue Print Crate Ford 302 Engine w/ Holley Sniper Fuel Injection." (Id., Ex. B.) Plaintiff contends that the engine was not a "crate" engine because Defendant admitted that he took the engine from another vehicle that he had purchased. (Barry

Decl., Ex. E at 48:8-24.) Plaintiff's expert, Randall Bounds, inspected the Bronco and found that the engine "appeared to be a poorly rebuilt engine that needed substantial repairs shortly after purchase." (Bounds Decl. P.P. 16-18.) Bounds concluded that the engine was not new and did not contain new parts. (Ibid.) Bounds was unable to locate the warranty information that is ordinarily stamped on BluePrint crate engines. (Ibid.) Plaintiff's evidence satisfies his initial burden on the motion of showing that Defendant engaged in deceptive conduct in violation of CLRA by representing goods to have a characteristic or quality that they did not have. (See Civ.

Code, Sec. 1770(a)(5), (a)(7).) Namely, the evidence shows that Defendant promised to deliver a vehicle with a "crate" engine but instead delivered a vehicle with an engine sourced from a different vehicle with parts that were not new. Defendant does not object to Plaintiff's declaration that a crate engine is "a new engine sold in a shipping crate by a manufacturer" (Nickerson Decl. P. 6), nor does Defendant present contrary evidence. Defendant similarly does not object to the Bounds declaration that the subject engine was rebuilt with defective parts (Bounds Decl.

P. 18), or present contrary evidence. Defendant's testimony that "to my knowledge it was new, and I was told it was new, and it had all the documentation as being new" does not raise a triable issue. (See Barry Decl., Ex. E at 48:9-11.) First, this does not change the fact that Defendant lifted the engine from a different vehicle, meaning it was not a "crate" engine by definition. Second, Defendant's subjective belief based on what he heard or read does not change the actual nature of the engine as attested by Plaintiff's expert who inspected the engine.

Defendant has no evidence rebutting the expert's declaration. In fact, Defendant testified that he had no paperwork regarding the engine or the vehicle that it came in. (Id. at 48:25-49:2, 50:5-7.) This falls short of the "substantial responsive evidence" required to raise a triable issue. (See Sangster, supra, 68 Cal.App.4th at p. 166.) Plaintiff has otherwise proven that he "has suffered injury in fact and has lost money or property as a result of the unfair competition." (See Bus. & Prof. Code, Sec. 17204.)

Plaintiff avers that he would not have contracted to pay $120,000 for the Bronco unless the vehicle had a crate engine. (Nickerson Decl. P. 6.) Defendant presents no contrary evidence. Thus, Plaintiff indisputably suffered an injury in fact and lost money as a result of the misrepresentation. In sum, Plaintiff has proven a violation of CLRA, and therefore a violation of the UCL, as a matter of law. III. Affirmative Defenses Defendant argues that the motion fails to dispose of his affirmative defenses.

However, it is well-settled that "summary judgment law in this state no longer requires a plaintiff moving for summary judgment to disprove any defense asserted by the defendant." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) "All that the plaintiff need do is to 'prove[] each element of the cause of action.'" (Ibid., quoting Code Civ. Proc., Sec. 437c(o)(1).) For the reasons articulated above,

Plaintiff has satisfied his burden of proving a claim under the UCL. The burden shifted to Defendant to raise a triable issue as to any affirmative defense. Defendant fails to meet this burden. Plaintiff's purported failure to mitigate does not preclude liability under the CLRA or UCL. The as-is disclaimers and warranty waivers do not absolve misrepresentation under CLRA or unlawful conduct under the UCL. CONCLUSION Plaintiff's motion for summary judgment is DENIED. Plaintiff's alternative motion for summary adjudication is GRANTED as to the first cause of action and DENIED as to the second cause of action. Case Number: 24STCV18864 Hearing Date: August 19, 2026 Dept: 406 KARLA LEIVA, Plaintiff, v. AIDS HEALTHCARE FOUNDATION, Defendant. |