Star vs. TopRank Motorworks Inc.

volume, pedestrian volume, collision history, and the physical conditions present at the intersection (UMF 52); during the 10 years prior to the Accident, approximately 500,000 pedestrians used the subject crosswalk and 77 million vehicles entered the Intersection, and there were only nine reported collisions involving pedestrians (UMF 47); and no conditions exist at the Subject Intersection that would have prevented a driver exercising reasonable due care from seeing pedestrians lawfully within the crosswalk and yielding accordingly (UMF 55).

Further, pursuant to Vehicle Code section 21950, while a driver must yield the right-of-way to a pedestrian crossing the roadway, nothing therein relieves a pedestrian from the duty of using due care for his or her own safety. (Veh. Code, § 21950, subds. (a), (b).) Instead, both parties owe a duty of due care to each other. (Id., § 21950, subds. (b), (c).)

Given this mandate, the high visibility of the crosswalk and the signage, and the significant line of sight available to both pedestrians and motorists utilizing the Subject Intersection, Defendant has established there was no failure to warn of a concealed trap.

Plaintiff’s opposition fails to address the second cause of action for failure to warn.

Defendant to submit a proposed judgment within 5 days.

Clerk to give notice.

11 Star vs. TopRank Motion for Summary Judgment and/or Summary Motorworks Inc. Adjudication 30-2024- Defendant Toprank Motorworks, Inc.’s motion for 01434530-CU- summary judgment, or in the alternative for summary BC-CJC adjudication, on all causes of action alleged in plaintiff Keven Star’s Complaint is DENIED.

The court declines to rule on Toprank’s Evidentiary Objections to Plaintiff’s evidence as they are not material to the disposition of the Motion.

Breach of Implied Warranty of Merchantability under the Song-Beverly Consumer Warranty Act (SBA):

Plaintiff has shown there are triable issues of material fact as to whether the used 1995 Nissan GT-R Vspec (“Subject Vehicle”) Plaintiff purchased from Toprank was sold with an express warranty.

Plaintiff has shown there are triable issues of fact as to whether the written addendum to the Bill of Sales creates an express warranty. The Bill of Sales states: “Must go through CARB Compliance to gain California Registration and will be delivered upon registration.” (AMF 50.) Based on the language in the Bill of Sales there is a triable issue of material fact as to whether the language creates an express warranty the Subject Vehicle would be brought into CARB compliance prior to delivery.

Further, Plaintiff has shown there are triable issues of material fact as to whether Toprank’s disclaimers complied with Civil Code section 1792.4. Toprank’s Buyer’s Guide, Bills of Sale, and Vehicle Purchase Disclosure and Waiver of Liability do not contain the specific statement required by section 1792.4, subdivision (a)(3) that “the buyer and not the manufacturer, distributor, or retailer assumes the entire cost of all necessary servicing or repair.” (UMF No. 7.)

Breach of Implied Warranty Under the Magnusson-Moss Warranty Act (Magnuson-Moss):

Magnuson-Moss warranty claims may be predicated on the SBA or the warranty provisions in the California Uniform Commercial Code. (Orichian v. BMW of North America, LLC (2014) 226 Cal.App.4th 1322, 1332.)

Defendants move on grounds Plaintiff does not have any implied warranty claim under the California Commercial Code that would support its Magnuson-Moss cause of action. However, as discussed above, Plaintiff has shown there are triable issues of material fact as to whether Plaintiff has a claim for implied warranty under the SBA. As such, Defendant has not met its initial burden on the Motion.

Violation of Consumer Legal Remedies Act (CLRA):

Plaintiff’s CLRA Notice dated October 27, 2023, is deficient because it fails to provide notice of the particular CLRA violations alleged in the Complaint. The CLRA Notice only states Toprank had violated the CLRA through their “representations about the time and money it would take to update the vehicle to be California Compliant.” (UMF 39, 42.)

However, failure to comply with the prelawsuit notice requirements of section 1782 only entitles Toprank to a dismissal without prejudice. (Morgan v. AT&T Wireless

Services, Inc. (2009) 177 Cal.App.4th 1235, 1260–1261.) Toprank has not requested a dismissal without prejudice.

Clerk to give notice.