MICHAEL J. BARRY VS. GENERAL MOTORS LLC

August 24, 2026 LAW AND MOTION CALENDAR PAGE 8 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________

02:00 PM 24-CIV-08178 MICHAEL J. BARRY VS. GENERAL MOTORS LLC, A DELAWARE LIMITED LIABILITY LINE 3 COMPANY

MICHAEL J. BARRY MICHAEL H. ROSENSTEIN GENERAL MOTORS LLC RYAN ANTHONY BOWTON

DEFENDANT: GENERAL MOTORS, LLC’S MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

Defendant General Motors LLC’s Motion for Summary Judgment is DENIED.

Plaintiff Michael J. Barry’s Request for Judicial Notice is DENIED as Moot. (See Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 341.)

Plaintiff Michael J. Barry’s evidentiary objections set forth in the separate statement are OVERRULED as procedurally improper. A separate statement in opposition must only contain those items set forth in rule 3.1350(f) in the California Rules of Court, and written objections to evidence must be submitted in the format required by rule 3.1354(b).

Defendant General Motors LLC (“GM”) moves for summary judgment on the Complaint, which asserts three causes of action for separate violations of the Song–Beverly Consumer Warranty Act (“SBCWA”): (1) breach of express warranty (Dec. 20, 2024 Complaint, ¶¶ 16–30), (2) breach of implied warranty (id., at ¶¶ 31–42), and (3) failure to make timely repairs (id., at ¶¶ 43–56).

Legal Standard on Summary Judgment “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) Summary judgment will only 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.” (Id., at subd. (c).)

A defendant moving for summary judgment has an initial burden of showing either that one or more elements of each cause of action cannot be established or that there is a complete defense to each cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the initial burden has been carried, the burden shifts to the opposing party to show that a triable issue of material fact exists as to either the cause of action or a defense thereto, as applicable. (Id.)

The moving party’s ultimate burden of persuasion that there are no issues of triable fact, however, never shifts to the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) This burden is unaffected by the strength or weakness of the showing in opposition to the motion (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519), and summary judgment must be denied—despite deficiencies in the opposition—if the burden has not been carried (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 416).

August 24, 2026 LAW AND MOTION CALENDAR PAGE 9 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ Because summary judgment deprives an adverse party of the right to a trial, any doubts are resolved in favor of the party opposing the motion. (See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900.) Thus, “[t]he moving party’s affidavits are to be strictly construed, and ... all conflicts in the affidavits are to be resolved in favor of the opposing party and all reasonable inferences are to be drawn in favor of that party as well.” (Hufft v. Horowitz (1992) 4 Cal.App.4th 8, 20.)

Unlike summary adjudication—for which GM has not moved here—summary judgment can only be granted when there are no triable issues of material fact as to the entire action. (See Code Civ. Proc., § 437c, subds. (a)(1), (c), (f).) Thus, the failure of a moving party to carry its burden with respect to any of the causes of action set forth in the complaint requires denial of the motion.

Discussion

The initial memorandum of points and authorities in support of the motion sets forth no separate analysis or argument of the third cause of action. Indeed, the only mentions of its existence are in the opening paragraph, where GM requests “summary judgment[]on Counts I–III” and at the end Section A in a parenthetical. (Jan. 29, 2026 Motion for Summary Judgment, p. 1, l. 11 and p. 7, l. 22)

The cause of action is based on subdivision (b) of Civil Code section 1793.2, which provides in relevant part:

[S]ervice and repair shall be commenced within a reasonable time by the manufacturer ... . Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days. Delay caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.

(Civ. Code, § 1793.2, subd. (b).) A consumer who is damaged by a violation of this section may recover damages and civil penalties, among other relief. (Civ. Code, § 1794, subds. (a)–(e).) The statutory obligation that repairs be commenced within a reasonable time is independent of the obligation to replace or reimburse when “the manufacturer ... is unable to service or repair a new motor vehicle[.]” (Id., at § 1793.2, subd. (d)(2); see Gomez v. Volkswagen of America, Inc. (1985) 169 Cal.App.3d 921, 925 [“Plaintiff had pleaded that he was such a buyer who was injured by a “willful” violation of Civil Code section 1793.2, subdivision (b) which ... requires that ... service and repair shall be commenced within a reasonable time”]; CACI No. 3205.)

GM addresses this cause of action only for the first time on reply, contending that, because GM offered to repurchase or replace on October 30, 2023, Barry has not identified nor did he suffer any damages from any previous failures to commence repair in a reasonable time. However, the Complaint expressly alleges an entitlement to damages beyond replacement or repurchase, including “cover” damages for replacement costs and civil penalties. (Complaint, ¶¶ 54–56.) Certainly, if a manufacturer warrants a vehicle conforms to its purpose and then delays in commencing repair after it is presented, thereby depriving the consumer of the use of not just a conforming vehicle but all use whatsoever, then the consumer has been injured by the failure to commence repair in a reasonable time.

A later offer to repurchase or replace the vehicle does not cure the time spent without a vehicle while the manufacturer sits idly in possession of the vehicle. As the party moving for summary judgment, GM bears the onus of demonstrating that Barry is incapable of proving any compensable injury from the dilatory repair attempts.

August 24, 2026 LAW AND MOTION CALENDAR PAGE 10 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ In support of its argument, GM cites only one case, Davis v. Ford Motor Credit Co. LLC (2009) 179 Cal.App.4th 581, 597, for the proposition that when a manufacturer offers to repurchase a vehicle, the consumer cannot have suffered any injury for a delay in commencing repairs. The case has nothing to do with the SBCWA and comes nowhere close to standing for the proposition, for which it is cited. It is addressing what injury a plaintiff must prove in an unfair competition claim.

The facts set forth in the separate statement fail to address whether a violation occurred, and they do not make out a prima facie case that Barry suffered no injury from GM’s alleged failure to commence its repair attempts in a timely fashion. (See Jan. 29, 2026 Separate Statement, passim.) Accordingly, GM has failed to carry its initial burden with respect to the third cause of action, and the motion is therefore denied.

Any party who contests a tentative ruling must email Dept11@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to California Rules of Court, rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the California Rules of Court. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be efiled only, do not email or mail a hard copy to the Court.