Tyler Powell v. General Motors, LLC

Case Number

23CV01453

Case Type

Hearing Date / Time

Wed, 03/27/2024 - 10:00

Nature of Proceedings

General Motors LLC’s Motion For Summary Judgment

Tentative Ruling

For Plaintiff Tyler Powell: Tionna Dolin, Ebony Randolph, Strategic Legal Practices

For Defendant General Motors LLC: Mary Arens McBride, Arash Yaraghchian, Erskine Law Group, APC

                  

RULING:

For all reasons discussed herein, the motion of defendant General Motors LLC for summary judgment is denied.

Background

On April 6, 2023, plaintiff Tyler Powell filed a complaint for violation of statutory obligations against defendant General Motors LLC (GM) alleging five causes of action: (1) violation of subdivision (d) of Civil Code section 1793.2; (2) violation of subdivision (b) Civil Code section 1793.2; (3) violation of subdivision (a)(3) of Civil Code section 1793.2; (4) breach of the implied warranty of merchantability; and (5) violation of the Magnuson-Moss Warranty Act. As alleged in the complaint:

On December 7, 2022, plaintiff entered into a warranty contract with GM regarding a 2019 Chevrolet Suburban 1500 vehicle (the vehicle) which was manufactured and distributed by GM. (Complaint, ¶ 6.) The warranty included bumper-to-bumper, powertrain, and emission warranties. (Id. at ¶ 7 & Exh. A.) During the express warranty period, defects and nonconformities manifested in the vehicle which included transmission defects, engine defects, electrical defects, and infotainment defects. (Id. at ¶ 11.) The defects impair the use, value, or safety of the vehicle. (Id. at ¶ 12.) After a reasonable number of repair attempts, GM failed to conform the vehicle to the terms of the express warranty and to replace the vehicle or make restitution in accordance with the Song-Beverly Consumer Warranty Act or the Magnuson-Moss Act. (Id. at ¶¶ 14 & 15.)

GM filed its answer to plaintiff’s complaint on May 8, 2023, generally denying its allegations and asserting twenty-five affirmative defenses.

On January 5, 2024, GM filed a motion for summary judgment on the grounds that plaintiff purchased the vehicle used with more than 24,400 miles, and without any new or additional warranty coverage apart from the balance of coverage remaining under the warranty issued by GM in connection with the original delivery of the vehicle two years prior to plaintiff’s purchase. For this reason, GM argues, plaintiff cannot pursue breach of warranty claims under Civil Code section 1790 et seq. (the Song-Beverly Consumer Warranty Act or SBA). Because plaintiff cannot pursue breach of warranty claims against GM as alleged in the complaint, GM further argues, the fifth cause of action brought under 15 U.S.C. section 2301 et seq. (the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act or Magnuson-Moss) also fails. Plaintiff opposes the motion.

The parties do not dispute or reasonably dispute the following facts set forth in GM’s separate statement:

The vehicle was delivered by GM to Bunnin Chevrolet Cadillac (Bunnin) in Santa Barbara, California on January 13, 2019, with 4004 miles on its odometer and an “employee stock” notation. (Opp. Sep. Stmt. at ¶ 2 & evidence cited therein [not reasonably disputed on this point].) In connection with the delivery of the vehicle to Bunnin on January 13, 2019, GM issued a “New Vehicle Limited Warranty” (the warranty) with bumper-to-bumper coverage for the earlier of 36 months or 36,000 miles and powertrain coverage for the earlier of 60 months or 60,000 miles. (Opp. Sep. Stmt. at ¶¶ 2, 5 & evidence cited therein [not reasonably disputed on this point].) The bumper-to-bumper coverage under the warranty expired on January 13, 2022, and the powertrain coverage is set to expire on January 13, 2024 or at 60,000 miles, whichever is the earlier. (Opp. Sep. Stmt. at ¶ 6 & evidence cited therein [not reasonably disputed on this point].)

Plaintiff purchased the vehicle from Bunnin on December 7, 2020, for a total sale price of $63,544.60. (Opp. Sep. Stmt. at ¶¶ 2, 4 & evidence cited therein [not reasonably disputed on this point]; see also Plaintiff’s Additional Material Facts (PAF) at ¶ 8 & evidence cited therein.) GM was not a party to the transaction between plaintiff and Bunnin. (Opp. Sep. Stmt. at ¶ 2 & evidence cited therein [not reasonably disputed on this point].)

At the time plaintiff purchased the vehicle from Bunnin, the vehicle had 24,453 miles. (Opp. Sep. Stmt. at ¶ 2 & evidence cited therein [not reasonably disputed on this point].) Plaintiff received the balance of coverage remaining under the warranty but GM did not issue or provide any new or additional warranty coverage to plaintiff or for the vehicle when plaintiff purchased the vehicle. (Opp. Sep. Stmt. at ¶ 2 & evidence cited therein [not reasonably disputed on this point]; see also PAF at ¶¶ 10, 11 & evidence cited therein .)

The above summary is not intended to be exhaustive and the court has considered all relevant, admissible evidence offered in support of and in opposition to the motion of GM.

Analysis

A motion for summary judgment asks the court to determine “that the action has no merit or that there is no defense to the action or proceeding”, and to terminate the action without the necessity of a trial (Code Civ. Proc., § 437c, subd. (a)(1); Hood v. Superior Court (1995) 33 Cal.App.4th 319, 323.) A 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 judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) “From commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845, 850 (Aguilar).)

A defendant moving for summary judgment bears the burden of persuasion that “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 235 Cal.4th at p. 850, 853 [defendant is not required to conclusively negate the element that defendant contends the plaintiff cannot establish].) A moving defendant also bears an initial burden of production to make a sufficient prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 845, 850-851.)

If a moving defendant carries its burden of production, this “causes a shift, and the [plaintiff] 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.” (Aguilar, supra, 25 Cal.4th at p. 850.) The plaintiff must set forth specific facts showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (o).) If the plaintiff cannot meet its burden of proof regarding an essential element of plaintiff’s case, defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.) However, there is no obligation by the plaintiff to establish anything unless and until the defendant has by affidavit stated facts establishing every element necessary to sustain a judgment in its favor. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

(1) Procedural Matters

Sufficiency of the notice of the motion:

In the memorandum submitted in support of the motion, GM offers legal authority applicable to motions for summary adjudication. The court interprets these arguments as effectively requesting summary adjudication to the extent the court finds that GM has not met its burden to demonstrate that it is entitled to summary judgment of the entire action. (See, e.g., Mahon v. City of San Diego (2020) 57 Cal.App.5th 681, 702 [a defendant is entitled to summary judgment upon a showing that plaintiff “cannot establish one or more elements of all of his causes of action, or that the defendant has a complete defense to each cause of action”].)

Though a defendant may move for summary adjudication “as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty”, summary adjudication may not be granted unless such relief is specifically requested in the notice of the motion. (Cal. Rules of Court, rule 3.1350(b); Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498 [also noting that any gains in efficiency by adjudicating sub issues are “outweighed by the unfairness to the defending party”]; Code Civ. Proc., § 437c, subd. (f)(1) & (2).) In addition, the matters for which the defendant seeks summary adjudication must be “repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court, rule 3.1350(b).)

In the notice of the motion, GM does not request summary adjudication of any specific cause of action or issue of duty as described in Code of Civil Procedure section 437c, subdivision (f)(1), either by itself or as an alternative to summary judgment. In addition, the separate statement of GM does not identify any specific cause of action, affirmative defense, claim of damages, or issues of duty for which GM seeks summary adjudication.

For all reasons discussed above, the court may not grant summary adjudication of specific causes of action, affirmative defenses, or other matters described in Code of Civil Procedure section 437c, subdivision (f)(1), irrespective of whether GM has demonstrated an entitlement to summary adjudication. Therefore, GM must demonstrate that the entire action is without merit or that there exists an affirmative defense to all claims alleged against GM. (Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 398; 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1216, fn. 12.)

Plaintiff’s separate statement in opposition to the motion:

Papers opposing a motion for summary judgment must include a separate statement in opposition to the motion that “responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed.” (Code Civ. Proc., § 437c, subd. (b)(3); Cal. Rules of Court, rule 3.1350(e)(2).)

“The duty to comply with the law regarding separate statements applies to both sides of a motion for summary judgment or adjudication. The opposing party’s responses to the separate statement must be in good faith, responsive, and material. Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists.” (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 875 (Beltran).)]

Plaintiff’s responses to the separate statement submitted by GM fail to, in good faith, address and respond to the facts stated in the moving separate statement and fail to admit facts that are not in dispute or not reasonably in dispute. For example, plaintiff’s response to paragraph 2 of the separate statement fails to address facts stating the date the vehicle was originally delivered to Bunnin in 2019, the miles on the vehicle when it was originally delivered to Bunnin, the date plaintiff purchased the vehicle from Bunnin, and the mileage on the vehicle’s odometer on the date plaintiff purchased the vehicle from Bunnin. Rather than address these stated facts and, to the extent these facts are not in dispute, admit these facts, plaintiff attempts to evade the stated facts by asserting arguments regarding whether a “used” car is considered new under the SBA. By doing so, plaintiff improperly attempts to create a dispute regarding the facts stated by GM where none reasonably exists.

A separate statement submitted in opposition to a motion for summary judgment shall “also shall set forth plainly and concisely any other material facts the opposing party contends are disputed.” (Code Civ. Proc., § 437c, subd. (b)(3).) Facts are material if they “relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and [] could make a difference in the disposition of the motion.” (Beltran, supra, 97 Cal.App.5th at p. 875; see also Cal. Rules of Court, rule 3.1350(a)(2) [material facts do not include any “facts that are not pertinent to the disposition of the motion”].)

“The separate statement serves two important functions in a summary judgment proceeding: it notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74.) Accordingly, “[t]he point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them.” (Beltran, supra, 97 Cal.App.5th at p. 875.)

In the separate statement submitted in opposition to the motion, plaintiff sets forth what plaintiff contends are other or additional disputed material facts. However, plaintiff also includes in the opposing separate statement matters pertaining to a notice of deposition of the person most knowledgeable of GM served by plaintiff, the parties’ efforts to meet and confer regarding the deposition notice, the filing by plaintiff of a motion to compel and an ex parte application, and legal argument. (See Pl. Opp. Sep. Stmt., ¶¶ 25-27, 29 & 32-44.) These matters do not constitute facts which are material to the subject of the motion. Therefore, plaintiff’s inclusion of these matters in the opposing separate statement is improper and impedes the court’s ability to determine in a convenient and expeditious matter whether there exist truly disputed facts.

A failure to comply with the requirements of a separate statement “ may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code Civ. Proc., § 437c, subd. (b)(3).) Though the court declines to grant the motion on this ground, plaintiff’s counsel is reminded of their obligation to comply with statutory requirements and court rules.

Plaintiff’s responding memorandum:

In addition, California Rules of Court, rule 2.104, requires that papers filed with the court be prepared using “a font size not smaller than 12 points….” (Cal. Rules of Court, rule 2.104.) California Rules of Court, rule 2.108(1), requires that page spacing be one-half or double-spaced.

Plaintiff’s responding memorandum is written in  a font size that is 11.5 points. In addition, plaintiff provides citations to authority using footnotes written in a font size that is 10 points. The footnotes are also single-spaced. For these reasons, the responding memorandum violates California Rules of Court, rules 2.104 and 2.108(1). In addition, the use of a font size that is smaller than 12 points as required by court rules makes it difficult for the court to efficiently review the memorandum.

Furthermore, the use of single-spaced footnotes written in a font size that is 10 points causes the responding memorandum to exceed the 20-page limit. (See Cal. Rules of Court, rule. 3.1113(d).) For example, the memorandum itself is 20 pages with footnotes occupying approximately 41 lines of single-spaced text. Applying rough calculations, the use of single-spaced footnotes written in a font size that is smaller than permitted by court rules results in a responding memorandum which exceeds the page limit by at least 2 or 3 pages. Though a party may apply to the court for permission to file a longer memorandum, plaintiff has not done so here. (See Cal. Rules of Court, rule 3.1113(e).)

Moreover, under California Rules of Court, rule 3.1113(g), “[a] memorandum that exceeds the page limits of these rules shall be filed and considered in the same manner as a late-filed paper.” The court has discretion to refuse to consider a late-filed paper. (Cal. Rules of Court, rule 3.1300(d).)

The court further notes that, while the use of footnotes can, in limited circumstances, be useful, an unsparing use of footnotes is counterproductive because it interrupts the flow of the text and is distracting. The use of footnotes may also result in cited authority or significant points being overlooked or ignored. (See, e.g., Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 419-420 [addressing the disfavored use of footnotes on appeal for stating contentions or substantive legal argument].) Furthermore, the use of footnotes that are single-spaced and written in small font size causes the court to expend more time reviewing the papers than would normally be required, resulting in a waste of scarce judicial resources.

Future failures by plaintiff to comply with applicable court rules may result in the court exercising its discretion to refuse to consider the papers submitted or issuing sanctions.

Plaintiff’s request to continue the hearing on the motion:

Plaintiff requests that the court continue or deny the motion because, according to plaintiff, GM has not produced its person most knowledgeable for deposition. (See Tirmizi Decl., ¶ 14; Memorandum at p. 20.)

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (Code Civ. Proc., § 437c, subd. (h).)

“ ‘The nonmoving party seeking a continuance “MUST SHOW: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]’ [Citation.].” [Citation.] The trial court need not grant a continuance where the proposed discovery is focused on matters beyond the scope of the dispositive issues framed by the pleadings. [Citation.] The decision whether to grant a continuance is within the discretion of the trial court.” (Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1023.)

In the declaration submitted in support of the request for a continuance, plaintiff’s counsel asserts in an abstract and conclusory manner that “[t]he outstanding testimony and documents are directly related to [GM’s] service literature parts, etc.” (Tirmizi Decl., ¶ 17.) Counsel offers no evidence or information describing what facts exist that plaintiff hopes to obtain through further discovery or demonstrating how or why the reference testimony and documents are relevant or essential to opposing the motion. (See California Automobile Ins. Co. v. Hogan (2003) 112 Cal.App.4th 1292, 1305 [insufficient declaration]; see also Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 [continuance not mandatory if submitted declaration fails to make the necessary showing].)

Because plaintiff has failed to sufficiently demonstrate that facts essential to justify plaintiff’s opposition to the motion may exist but cannot be presented, the court will deny plaintiff’s request for a continuance.

(2) The Motion

The parties focus their respective arguments in support of and in opposition to the motion on whether the vehicle is a “new motor vehicle” as that term is defined in the SBA. GM argues that under the holding in Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, review granted July 13, 2022, S274625 (Rodriguez), the express warranty provisions of the SBA do not apply to the vehicle because plaintiff bought the vehicle in used condition and did not receive any new or additional warranty coverage from GM. Therefore, GM argues, under Rodriguez, plaintiff cannot pursue his breach of express warranty claims against GM under the SBA, as alleged in the first, second, and third causes of action of the complaint.

GM also asserts that because the vehicle was used when purchased by plaintiff and because plaintiff cannot produce evidence that GM was a distributor or retail seller of the used vehicle, plaintiff’s implied warranty claim alleged in the fourth cause of action also fails. Because plaintiff’s warranty claims fail, GM contends, plaintiff also cannot state a claim under Magnuson-Moss.

In his opposition to the motion, plaintiff contends that the court should follow what plaintiff asserts is well-established precedent providing that used car owners are entitled to protection under the SBA as set forth in Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112 (Jensen). Plaintiff also argues that, because the Supreme Court of California has granted the petition for review of Rodriguez, the holding in Jensen remains controlling authority. Plaintiff further contends that under Jensen, the vehicle falls within the definition of a “new motor vehicle” and therefore plaintiff is entitled to assert claims under the SBA.

Plaintiff in Jensen leased a 1988 BMW from a dealership in Santa Clara, California, in January 1989. (Jensen, supra, 35 Cal.App.4th at p. 119.) At the time of the lease, the vehicle’s odometer read 7,565 miles. (Id. at p. 119.) The salesman told plaintiff that she would get a 36,0000-mile warranty “on top of the miles already on the car”, but did not tell plaintiff that the dealership had obtained the car at an auction. (Id. at pp. 119-120 [noting that the salesman told plaintiff the car had been used as a “demonstrator”].)

After brake problems surfaced in the vehicle which BMW dealerships were unable to repair, plaintiff requested a refund. (Jensen, supra, 35 Cal.App.4th at p. 120.) When BMW representatives refused to provide a refund, plaintiff filed suit against BMW of North America, Inc. (BMW), alleging a claim for willful violation of the SBA based on the refusal by BMW to replace the vehicle or to issue a refund after BMW was unable to repair defects in the vehicle’s braking system. (Id.  at pp. 119, 120.)

After a jury returned a verdict in favor of plaintiff, both plaintiff and BMW appealed. (Jensen, supra, 35 Cal.App.4th at p. 119.) “The principal issue in BMW’s appeal [was] whether [the] vehicle [was] a “new motor vehicle” within the meaning of section 1793.22, subdivision (e)(2), [of the Act].” (Id. at p. 119.)

Examining the language and the legislative history of the SBA and noting that “there is a national wholesale market for previously owned cars, including those under manufacturers’ warranty”, the Jensen court concluded that the definition of “new motor vehicle” under Civil Code section 1793.22, subdivision (e)(2), was “free from ambiguity” and included vehicles “with a balance remaining on the manufacturer’s new motor vehicle warranty….” (Jensen, supra, 35 Cal.App.4th at pp. 123, 124.) The court further noted that its conclusion was consistent with “the [SBA’s] purpose as a remedial measure” and with “the Department of Consumer Affairs’ regulations which interpret the [SBA] to protect ‘any individual to whom the vehicle is transferred during the duration of a written warranty.’ [Citation.]” (Id. at p. 126.)

Under the facts of Rodriguez, plaintiffs purchased a two-year-old Dodge truck from a used car auto center with over 55,0000 miles. (Rodriguez, supra, 77 Cal.App.5th at p. 215.) The truck’s original three-year/36,000-mile warranty had expired, but a balance remained on the five-year/100,000-mile limited powertrain warranty. (Ibid.)

A year after the plaintiffs in Rodriguez purchased the truck, the truck exhibited electrical problems necessitating multiple service trips to an authorized dealer for FCA US, LLC (Chrysler). (Rodriguez, supra, 77 Cal.App.5th at p. 215.) Plaintiffs in Rodriguez sued Chrysler for violation of the “ ‘new motor vehicle’ refund-or-replace provision” of section 1793.2, subdivision (d)(2), of the SBA. (Id. at pp. 215-216.)

Chrysler moved for summary judgment on the grounds that the SBA’s refund-or-replace provision applies only to new vehicles and not the used truck purchased by plaintiffs. (Rodriguez, supra, 77 Cal.App.5th at p. 216.) The trial court granted Chrysler’s motion for summary judgment, concluding that a previously owned vehicle sold with a balance remaining on one express warranty does not qualify as a “new motor vehicle” under the SBA. (Ibid.)

On appeal, the sole issue before the court in Rodriguez was “whether the phrase ‘other motor vehicle sold with a manufacturer's new car warranty’ covers sales of previously owned vehicles with some balance remaining on the manufacturer’s express warranty.” (Rodriguez, supra, 77 Cal.App.5th at p. 215.) The court noted that the issue was “one of first impression” and that “no California court has addressed whether a used car purchased from a retail seller unaffiliated with the manufacturer qualifies as a ‘new motor vehicle’ simply because there is some balance remaining on the manufacturer’s warranty.” (Id. at p. 223.)

The court in Rodriguez examined the statutory context in which the definition of “new motor vehicles” appeared and determined that the phrase “other motor vehicle sold with a manufacturer’s new car warranty”, which appears in the definition, required a more narrow interpretation. (Rodriguez, supra, 77 Cal.App.5th at pp. 217-220 [also stating that “a hallmark of the [SBA] is that its consumer protections apply against the party who sold the product to the buyer and issued the express warranty”].)

The court noted that the terms “dealer-owned vehicle” and “demonstrator”, which precede the phrase “other motor vehicle sold with a manufacturer’s new car warranty”, comprise a “specific and narrow class of vehicles.” (Rodriguez, supra, 77 Cal.App.5th at p. 220.) The court further stated that, notwithstanding the fact that “demonstrators and dealer owned cars” were “used in the sense that they will have been driven for various purposes before sale”, these vehicles were “unique” because manufactures treat them as new upon sale by “providing the same type of manufacturer’s warranty that accompany new cars.” (Ibid.) Because demonstrators and dealer-owned vehicles fell within a what the court stated was a “narrow category of basically new vehicles”, the court found that the phrase “other motor vehicle sold with a manufacturer’s new car warranty” referred to vehicles that have “never been previously sold to a consumer and come with full express warranties.” (Ibid.)

Further finding that the phrase “other motor vehicle sold with a manufacturer’s new car warranty” was intended to function as a “catchall to ensure that manufacturers cannot evade liability under the [SBA] by claiming a vehicle doesn’t qualify as new because the dealership hadn’t actually used it as a demonstrator”, the court concluded that the phrase “unambiguously refers to cars that come with a new or full express warranty.” (Rodriguez, supra, 77 Cal.App.5th at pp. 221-222.) Accordingly, the court in Rodriguez held that “previously sold cars accompanied by some balance of the original warranty” do not meet the definition of a “new motor vehicle” subject to the refund-or-replace provisions of the SBA. (Id. at p. 225.)

Under California Rules of Court, rule 8.1115(e)(1), when review of a published opinion has been granted and unless otherwise ordered, the opinion “has no binding or precedential effect, and may be cited for potentially persuasive value only” pending review and filing of the of the opinion of the California Supreme Court. (Cal. Rules of Court, 8.1115(e)(1).) As the holding in Rodriguez is pending review, it may be cited for its persuasive value only.

As further discussed above, the decisions in Jensen and Rodriguez are in conflict with respect to whether a vehicle purchased with a balance remaining on the original warranty constitutes a “new motor vehicle” under the SBA. The rule that a “tribunal exercising inferior jurisdiction must follow decisions of court exercising superior jurisdiction” has “no application where there is more than one appellate court decision, and such appellate decisions are in conflict. In such a situation, the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.” (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 456.)

In addition, there exists some ambiguity as to whether the court in Rodriguez is taking an expansive position that only cars sold by an affiliated dealer with a full warranty constitute “new motor vehicles” under the SBA (less the particular exceptions noted in that case), whether the court’s holding applies only to vehicles not previously sold (i.e., used only by the affiliated dealer), or if the holding is limited to cars sold by an unaffiliated dealer that by happenstance have a balance remaining on the manufacturer’s original warranty. (See, e.g., Rodriguez, supra, 77 Cal.App.5th at pp. 223 & 224 [limiting the issue to cars sold an unaffiliated dealer]; 215, 220, 222 & 224-225 [referring to previously owned or sold vehicles which the court noted were “conceptually different” from dealer-owned vehicles].)

Assuming that the court in Rodriguez intended to take the more expansive position as further described above, the SBA “is manifestly a remedial measure, intended for the protection of the consumer; it should be given a construction calculated to bring its benefits into action.” (Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 184; see also DeNike v. Mathew Enterprise, Inc. (2022) 76 Cal.App.5th 371, 384 [noting that the statute is “strongly” pro-consumer].) In resolving the purely legal issue regarding whether a vehicle sold with a balance remaining on the original warranty constitutes a “new motor vehicle” under the SBA, the court finds that the holding in Jensen more closely aligns with the SBA’s purposes and intended benefits, and therefore brings the benefits of the statute into action. For this reason, the court finds the holding in Jensen to be more persuasive.

Under Jensen, there exist triable issues of fact with respect to whether the vehicle at issue here is a “new motor vehicle” under the SBA. Moreover, under Jensen, the facts offered by GM are insufficient to demonstrate that the vehicle is not a “new motor vehicle” under the SBA. For these reasons, GM has failed to meet its burden to show that plaintiff cannot establish the elements of, or that there exists a complete defense to, the causes of action for violation of the SBA alleged in plaintiff’s complaint. Therefore, and for all reasons discussed above, the court will deny the motion.