Salazar v. General Motors, LLC

(03) Tentative Ruling

Re: Salazar v. General Motors, LLC Case No. 24CECG05197

Hearing Date: August 19, 2026 (Dept. 403)

Motion: Defendant General Motors’ Motion for Summary Judgment, or in the Alternative Summary Adjudication

Tentative Ruling:

To deny General Motors’ motion for summary judgment, and the alternative motion for summary adjudication. (Code Civ. Proc., § 437c.)

Defendant's counsel, Austin Abernathy, is ordered to appear in person at the hearing and to bring a full copy of the case, Sweetin v. County of Nevada (2023) 89 Cal.App.5th 1041, cited on page 4 of the reply. Counsel must highlight all supporting language corresponding to the pinpoint citation attributed to pages 1052-1053.

Explanation:

GM has moved for summary judgment, or alternatively for summary adjudication of the separate causes of action, on the theory that it promptly offered to repurchase plaintiffs’ vehicle soon after they complained about the vehicle’s defects, and therefore plaintiffs cannot prevail on their causes of action under the Song-Beverly Act. (Carver v. Volkswagen Group of America, Inc. (2024) 107 Cal.App.5th 864, 878, citing Civ. Code, § 1793.2, subd. (d) (Carver).) However, GM has failed to meet its burden of showing that it made a repurchase offer that complied with the requirements of the Song-Beverly Act.

In Niedermeier v. FCA US, LLC (2024) 15 Cal.5th 792, the California Supreme Court held that a manufacturer’s offer to repurchase a vehicle must strictly comply with the requirements of Civil Code section 1793.2, and cannot include any offsets that are not specifically enumerated under the statute, such as an offset for the trade-in value of the vehicle. (Id. at pp. 806-807.) “[T]he Act's plain language lays out a specific formula for calculating the amount of restitution to be paid by the manufacturer as damages in an action pursuant to section 1794.

The statutory restitution remedy has clearly enumerated exceptions, none of which includes the offset requested by FCA. [¶] Nowhere does section 1793.2 provide that a restitution award must be reduced by any amount a buyer receives when trading in or selling the defective vehicle to a third party.” (Ibid, citations omitted.) “As noted above, the statute excludes nonmanufacturer-installed options from the restitution calculation and permits the restitution award to be reduced by the amount of a buyer's predelivery use of the vehicle.

The choice to include these exceptions, and no others, indicates that the Legislature intended to specify how restitution awards for new motor vehicles must be calculated, including limiting the number and type of offsets to those explicitly enumerated. The Legislature recognized there were multiple sources of 9

potential offsets to the restitution remedy yet did not include trade-in credits or sales proceeds in the statute. The Legislature could have stated that trade-in or sale amounts were to be offset or reduced from the statutory restitution remedy. It did not do so. ‘We will not create an exception the Legislature did not enact.’” (Id. at p. 807, citations and footnote omitted.) “The plain language of section 1793.2, subdivision (d)(2) does not contemplate an unenumerated reduction to the statutory restitution remedy for a tradein credit or sale proceeds received after the purchase of a defective vehicle.” (Id. at p. 810.)

Here GM’s repurchase offer included an offset for negative equity of $6.011.35, which was apparently based on the trade-in value of plaintiffs’ old vehicle. (Exhibits C and D to Jensen decl.) However, as the Supreme Court held in Niedermeier, GM was not allowed to include an offset for the trade-in value of the old vehicle as part of its repurchase offer because such an offset is not expressly allowed under the Song-Beverly Act. (Niedermeier, supra, at pp. 806-810.) By improperly including the offset for the tradein value of the old vehicle, GM reduced the repurchase offer by over $6,000.

Therefore, the repurchase offer did not comply with the Song-Beverly Act, and GM has not met its burden of showing that it is entitled to summary judgment or adjudication based on the fact that it made the offer.2 Therefore, the court intends to deny the motion for summary judgment, and the alternative motion for summary adjudication of the separate causes of action. Finally, the court orders defense counsel Austin Abernathy to appear in person and explain why he cited to a non-existent case in his reply brief.

In the reply, GM claims that, “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, that is not the standard in California. In California, “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.” (Code Civ. Proc., § 437c, subd. (d).) Thus, defendant’s reply brief materially misstates the law in California regarding evidence that is allowable on summary judgment. Defense counsel has also cited to an

2 After Niedermeier was decided, the legislature passed Code of Civil Procedure section 871.27,

which added language that “[t]he defendant [manufacturer] is entitled to an offset for negative equity incorporated in the transaction from prior vehicles.” (Code Civ. Proc., § 871.27, subd. (c).) However, section 871.27 did not become effective until January 1, 2025. There is no language in the statute that indicates that it was intended to be retroactive, so it is presumed to be prospective only. (Code Civ. Proc., § 3; Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 840.)

Here, plaintiffs filed their lawsuit in the present case in December of 2024, shortly before the new statute was effective. Defendant also made its offer in November of 2024. Therefore, the new provisions of section 871.27 allowing the manufacturer to include an offset for the trade-in value of the plaintiffs’ prior vehicle do not apply the GM’s repurchase offer.

apparently non-existent case to support his argument. By citing to a non-existent case that is inconsistent with applicable California law, counsel has engaged in potentially unethical conduct by misrepresenting the law to the court and the opposing party. Therefore, the court orders counsel to appear and explain why he has cited to a nonexistent case and misstated the law to the court. If he does not provide a satisfactory explanation, the court may impose sanctions against him. Also, the court notes that Mr.

Abernathy has previously submitted the same nonexistent citation and misstatement of the law in another case that came before Judge Skiles earlier this month, Ledesma-Luna v. General Motors, LLC, case no. 24CECG05553. The hearing in Ledesma-Luna took place after the reply brief in the present case was filed, but the court is still concerned that Erskine Law and Mr. Abernathy have apparently filed multiple briefs in various cases that provide the same false and misleading citations and arguments.

They also failed to withdraw the reply in this case, despite their promise to withdraw any misleading briefs at the last hearing. Therefore, the court will consider imposing sanctions on Mr. Abernathy for his repeated submission of false or misleading briefs in this court.3

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: SMC on August 18, 2026. (Judge’s initials) (Date)

3 The court will not 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). Here, the parties have not submitted properly formatted objections, so the court declines to rule on the objections.

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