Jeremy Williams vs Ford Motor Company et al

“The 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)).

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). In analyzing motions for summary judgment or adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v.

Oakshade Town Center (2005) 135 Cal.App.4th 289, 294). “[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519). A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ.

Proc., § 437c, subd. (p)(2)). If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468). Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at 849-50). Therefore, summary judgment or adjudication is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (Code Civ.

Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741).

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854)(emphasis added). It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891). The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Id.).

The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855). “Once the defendant. . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2)). The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v.

Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467).

III. ANALYSIS A. FIRST CAUSE OF ACTION As to the first three causes of action of Plaintiff’s complaint, defendant Ford acknowledges: A plaintiff pursuing an action under the Act has the burden to prove that (1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element). (Civ. Code, § 1793.2; Ibrahim v. Ford Motor Co. (1989) 214 Cal. App. 3d 878, 886- 887 [263 Cal. Rptr. 64]).(Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101).

Specifically with regard to the third element, defendant Ford cites Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208 (Silvio) where the court explained: The 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." "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.

Here, defendant Ford proffers evidence that there was only one warranty repair on the Vehicle. 1 Pursuant to Silvio, one attempt does not trigger defendant Ford’s obligation to make restitution or replace the Vehicle under the Act. Plaintiff does not proffer any evidence in opposition which would create a triable issue of material fact.

B. SECOND CAUSE OF ACTION Civil Code section 1793.2, subdivision (b), states, in relevant part, “the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days.” Here, defendant Ford proffers evidence that the subject Vehicle was in service for no more than 15 days, not in violation of the Act. 2 Plaintiff does not proffer any evidence in opposition which would create a triable issue of material fact.

C. THIRD CAUSE OF ACTION Civil Code section 1793.2, subdivision (a)(3), states, “Every manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall . . . Make available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.”

Defendant Ford proffers evidence that the repair records do not indicate Ford failed to make service literature and replacement parts available to authorized service and repair facilities.3 Plaintiff does not proffer any evidence in opposition which would create a triable issue of material fact.

D. FOURTH CAUSE OF ACTION Under the implied merchantability warranty, “every sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer's and the retail seller's implied warranty that the goods are merchantable.” (§ 1792). The warranty “‘arises by operation of law’” and therefore applies despite its omission from a purchase contract. (Mega RV Corp. v. HWH Corp. (2014) 225 Cal.App.4th 1318, 1330 [170 Cal. Rptr. 3d 861]; see American Suzuki Motor Corp. v. Superior Court (1995) 37 Cal.App.4th 1291, 1295 [44 Cal. Rptr. 2d 526] (American Suzuki)). Merchantability, as pertinent here, means that the goods “[p]ass without objection in the trade under the contract description,” and are “fit for the ordinary purposes for which such goods are used.” (§ 1791.1, subd. (a)).(Brand v. Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1545 (Brand)).

A “‘“core test of merchantability is fitness for the ordinary purpose for which such goods are used.”’” (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1303 [95 Cal. Rptr. 3d 285] (Mexia)). “Such fitness is shown if the product ‘is “in safe condition and substantially free of defects” . . . .’ [Citation.]” (Ibid.; see American Suzuki, supra, 37 Cal.App.4th at p. 1296 [implied warranty does not promise to fulfill buyer's expectations, but provides instead for minimum level of quality]). Thus, a new car need not “be perfect in every detail”; rather, its implied merchantability “requires only that a vehicle be reasonably suited for ordinary use.” (Keegan v. American Honda Motor Co., Inc. (C.D.Cal. 2012) 838 F.Supp.2d 929, 945). (Brand, supra, 226 Cal.App.4th at p. 1546).

1 See Ford Motor Company’s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment/ Adjudication (“Ford UMF”), Fact Nos. 5, 6, and 10. 2 See Ford UMF, Fact No. 6, 10, and 11. 3 See Ford UMF, Fact No. 12. 9

Here, defendant Ford proffers evidence that the Vehicle was presented once for a noise when closing the door and contends this does not render the Vehicle unfit for its ordinary purpose, as a matter of law.4 Plaintiff does not proffer any evidence in opposition which would create a triable issue of material fact.

E. FIFTH CAUSE OF ACTION Plaintiff’s fifth cause of action alleges negligent repair. Defendant Ford proffers evidence that the Vehicle was presented once for a noise when closing the door and repair of this issue was made with the subject Vehicle being in for service no more than 15 days.5 Plaintiff does not proffer any evidence in opposition which would create a triable issue of material fact.

F. SIXTH CAUSE OF ACTION Plaintiff’s sixth cause of action alleges fraudulent concealment of the Transmission Defect. Defendant Ford proffers evidence that Plaintiff did not present the Vehicle for a single transmission complaint or repairs.6 In the absence of a transmission defect, defendant Ford contends there can be no fraudulent concealment of such a defect. Plaintiff does not proffer any evidence in opposition which would create a triable issue of material fact.

As discussed above, the court finds defendant Ford has met its initial burden of showing that the causes of action asserted in Plaintiff’s complaint have no merit. Having filed no opposition, Plaintiff has failed to show that a triable issue of one or more material facts exists.

IV. CONCLUSION Based on the foregoing, Defendant Ford’s motion for summary judgment as to Cause of Actions 1 through 6 is GRANTED. The Court will prepare the formal Order.

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