Tentative Ruling: Randy Kohn vs Ford Motor Company et al

Case Number

24CV03205

Case Type

Hearing Date / Time

Fri, 08/07/2026 - 10:00

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

For all reasons stated herein, the motion of defendants Ford Motor Company and Perry Ford Mazda for motion for summary adjudication and for summary judgment is denied.

Background:

This is a dispute over a vehicle warranty pursuant to the Song-Beverly Consumer Warranty Act (Song-Beverly Act), Civil Code sections 1790 et seq., and related claims. The original complaint was filed by plaintiff Randy Kohn on June 7, 2024, against defendants Ford Motor Company (FMC) and Perry Ford Mazda (Perry Ford).

The operative first amended complaint (FAC) was filed by plaintiff on October 21, 2024. The FAC sets forth six causes of action for: (1) violation of subdivision (d) of Civil Code section 1793.2 (against FMC); (2) violation of subdivision (b) of Civil Code section 1793.2 (against FMC); (3) violation of subdivision (a)(3) of Civil Code section 1793.2 (against FMC); (4) breach of the implied warranty of merchantability (against FMC); (5) negligent repair (against Perry Ford); and (6) fraudulent inducement – concealment (against FMC).  

As alleged in the FAC:

On November 5, 2021, plaintiff entered into a warranty contract with FMC regarding a 2021 Ford F150 (Vehicle) manufactured and distributed by FMC. (FAC, ¶ 7.) The warranty contract included bumper-to-bumper, powertrain, and emission warranties. (Id. at ¶ 9 & Ex. A.)

Transmission defects, engine defects, infotainment defects, electrical defects, among other defects and non-conformities, manifested in the Vehicle during the warranty period which impair its use, value, and safety. (FAC, ¶¶ 12-13.) Plaintiff delivered the Vehicle to Perry Ford for repairs, but Perry Ford failed to repair the Vehicle in accordance with industry standards. (Id. at ¶¶ 71-73.) FMC failed to conform the Vehicle to the terms of the warranty after a reasonable number of repair attempts, and failed to replace the Vehicle or make restitution. (Id. at ¶¶ 17-17.)

Before plaintiff purchased the Vehicle, FMC knew that other vehicles equipped with the same 10-speed transmission suffered from defects that can cause the vehicles and their transmissions to experience hesitation, delayed acceleration, harsh or hard shifting, jerking, shuddering, or juddering (collectively, Transmission Defects). (FAC, ¶ 25.) FMC acquired knowledge of the Transmission Defects through various sources, including pre-production testing; design failure mode and analysis data; production failure mode and analysis data; consumer complaints made to FMC’s network of dealers and directly to FMC; warranty data compiled from FMC’s network of dealers; testing conducted by FMC in response to consumer complaints; and repair orders and parts data received by FMC from its network of dealers. (Id. at ¶ 26.) As a result of its internal knowledge and investigations of the Transmission Defects, FMC issued technical service bulletins which failed to fix the Transmission Defects. (Id. at ¶¶ 27-34.)

Although it was aware of the Transmission Defects at the time of purchase and repair of the vehicle, FMC concealed from plaintiff the existence and nature of the Transmission Defects. (FAC, ¶ 34.) Plaintiff would not have purchased or would have paid less for the Vehicle had plaintiff known of the Transmission Defects. (Id. at ¶ 35.)

On November 27, 2024, Perry Ford filed an answer to the FAC, generally denying the allegations therein and setting forth 23 affirmative defenses.

On March 3, 2025, after demurrer proceedings, FMC filed an answer to the FAC, generally denying the allegations therein and setting forth 27 affirmative defenses.

On April 6, 2026, in a single joint motion, defendant FMC moved for summary adjudication as to the first cause of action under the Song-Beverly Act, fourth cause of action for breach of implied warranty, and sixth cause of action for concealment, and defendant Perry Ford moved for summary judgment as to the fifth cause of action for negligent repair (the only cause of action against Perry Ford). (Motion, p. 2, ll. 1-7.) Defendants’ motion is based on the following seven issues as argued by defendants: (1) as to the first cause of action against FMC, plaintiff cannot establish that FMC failed to conform the Vehicle to warranty after a reasonable number of repair attempts; (2) as to the fourth cause of action against FMC, plaintiff cannot establish the element of breach; (3) as to the sixth cause of action against FMC, plaintiff cannot establish that FMC had knowledge of a defect at the time of sale; (4) as to the sixth cause of action against FMC, plaintiff cannot establish that FMC had any transactional relationship triggering any duty to disclose a known defect at the time of sale; (5) as to the sixth cause of action against FMC, plaintiff cannot establish damages resulting from FMC’s concealment; (6) as to the sixth cause of action against FMC, plaintiff cannot establish the fraudulent inducement exception to the economic loss rule; and (7) as to the fifth cause of action against Perry Ford, this cause of action for negligent repair is barred by the economic loss rule. (Motion, p. 2, l. 9 – p. 3, l. 6.) This motion is opposed by plaintiff.

Analysis:

(1)       Standard on Summary Judgment and Summary Adjudication

A defendant may move for summary judgment if the defendant contends the action against it has no merit. (Code Civ. Proc., § 437c, subd. (a).) To obtain summary judgment, a defendant must show “there is no triable issue as to any material fact and [the defendant] is entitled to a judgment as a matter of law.” (Id., subd. (c).)

A defendant has “met that party’s 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, 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).) 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.” (Ibid.) However, “[f]rom 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.)

“A party 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, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“The question is whether defendant ‘conclusively negated a necessary element of the plaintiff’s case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial.’ [Citations.] Moreover, ‘we must view the evidence in a light favorable to plaintiff as the [opposing] party [citation], liberally construing [his] evidentiary submission while strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor. [Citations.]’ [Citations.] And a plaintiff resisting a motion for summary judgment bears no burden to establish any element of his or her case unless and until the defendant presents evidence either affirmatively negating that element (proving its absence in fact), or affirmatively showing that the plaintiff does not possess and cannot acquire evidence to prove its existence.” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 106–107 (Reeves), internal quotation marks omitted.)

“The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(1).) “ ‘Material facts’ are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.” (Cal. Rules of Court, rule 3.1350(a)(2).) “The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” (Id., rule 3.1350(d)(2).) Litigants are to “[i]nclude only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied! [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)

(2)       Issue One – Nonconformity to Warranty

FMC argues that plaintiff cannot establish warranty nonconformity because plaintiff cannot present evidence that FMC failed to repair the Vehicle after a reasonable number of repair attempts. “If the manufacturer or its representative in this state is unable to … conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle in accordance with subparagraph (A) or promptly make restitution to the buyer in accordance with subparagraph (B). However, the buyer shall be free to elect restitution in lieu of replacement, and in no event shall the buyer be required by the manufacturer to accept a replacement vehicle.” (Civ. Code, § 1793.2, subdivision (d)(2), italics added.)

FMC argues that FMC did not have a reasonable number of attempts to repair the vehicle as to any single issue. While FMC concedes there were multiple attempts to repair the Vehicle, FMC argues that the repairs on the different occasions all related to different issues. FMC argues that under the case law, unrelated repairs as to disparate issues cannot satisfy Civil Code section 1792.2, subdivision (d). Plaintiff disagrees and contends he has presented triable issues of fact as to whether a reasonable number of attempts at repair occurred.

“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.” (Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208, italics in original.) “The reasonableness of the number of repair attempts is a question of fact to be determined in light of the circumstances, but at a minimum there must be more than one opportunity to fix the nonconformity.” (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 799.)

The court agrees with plaintiff. Defendants’ separate statement and evidence cited therein establishes that multiple attempts at repair were undertaken. (See Alarcon Decl., Exs. 8-12; Def. UMF, Nos. 7-19; Plaintiff Resp. to UMF, Nos. 7-19.) The parties do not dispute that multiple attempts at repair were undertaken. (Ibid.) The evidence supports plaintiff’s position that the Vehicle was presented for the following repairs: on May 10, 2022 at 18,057 miles, pertaining to software; on October 14, 2022, at 9,848 miles [note: potential typo error in mileage] for electrical system diagnosis and the right rear window not rolling up; on January 4, 2023, at 26,638 miles for the performance of repairs under Recall 22s56 (loose/sagging underbody insulators) and under Recall 22s17 (reprogram integrated trailer relay module); on July 18, 2023, at 34,853 miles for electrical system issues; and on April 4, 2024 at 45,224 miles for the performance of repairs under Recall 22S71 (windshield wiper motor replacement), repairs under Recall 23S35 (suspect wiring harness chafe to rear axle), and electrical system issues. (See Alarcon Decl., Exs. 8-12.)

The statutory language does not require multiple attempts as to the same issue. (Civ. Code, § 1793.2, subdivision (d)(2).) The statute requires multiple attempts to conform the Vehicle to the applicable warranties. (Ibid.) Even assuming arguendo that multiple repair attempts are required for related issues, as argued by FMC, the repair notes indicate that there were multiple attempts at repair for electrical system issues. (See Alarcon Decl., Exs. 8-12.) There appears to be at least some evidence supporting the element challenged by FMC’s motion. (Ibid.) FMC has not carried its burden to show that one or more elements of this cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) There are triable issues as to nonconformity to warranty. (Civ. Code, § 1793.2, subdivision (d)(2).) The court will deny the motion for summary adjudication as to the first cause of action for violation of Civil Code section 1792.2, subdivision (d).

(3)       Issue Two – Breach of Implied Warranty

FMC argues that plaintiff cannot raise triable issues of fact as to whether FMC breached the implied warranty of merchantability. “Unlike an express warranty, ‘the implied warranty of merchantability arises by operation of law’ and ‘provides for a minimum level of quality.’ [Citation.] The California Uniform Commercial Code separates implied warranties into two categories. An implied warranty that the goods ‘shall be merchantable’ and ‘fit for the ordinary purpose’ is contained in California Uniform Commercial Code section 2314. Whereas an implied warranty that the goods shall be fit for a particular purpose is contained in section 2315. [¶] Thus, there exists in every contract for the sale of goods by a merchant a warranty that the goods shall be merchantable. The core test of merchantability is fitness for the ordinary purpose for which such goods are used.” (Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 26 (Isip).) The duration of the implied warranty for merchantability extends for a period of one year as to new consumer goods. (Cal. Civ. Code § 1791.1, subd. (c).)

The court agrees with plaintiff that there are triable issues of fact as to whether there was a breach of the implied warranty of merchantability as evidenced by the multiple repair attempts. (See Alarcon Decl., Exs. 8-12; Def. UMF, Nos. 7-19; Plaintiff Resp. to UMF, Nos. 7-19.) “We reject the notion that merely because a vehicle provides transportation from point A to point B, it necessarily does not violate the implied warranty of merchantability. A vehicle that smells, lurches, clanks, and emits smoke over an extended period of time is not fit for its intended purpose.” (Isip, supra,155 Cal.App.4th at p. 27.) Although a number of the repair attempts occurred outside the one-year implied warranty period, that does not mean that the defects did not exist at the time of sale. “[T]he fact that the alleged defect resulted in [unfitness] two years after the sale of … does not necessarily mean that the defect did not exist at the time of sale.” (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1308.)

Notably, there is evidence that the electrical system issues began occurring within the one-year implied warranty period and that various recall issues may have existed at the time of purchase. (See Alarcon Decl., Exs. 8-12; Def. UMF, Nos. 1-2, 7-19; Plaintiff Resp. to UMF, Nos. 1-2, 7-19.) It is undisputed there were multiple repair attempts. (Ibid.) FMC has not “conclusively negated [the element of breach] of the plaintiff’s [implied warranty claim] or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial.” (Reeves, supra, 121 Cal.App.4th at pp. 106–107.) There are triable issues as to whether there was a breach of implied warranty. FMC has not carried its burden. (Code Civ. Proc., § 437c, subd. (p)(2).) The court will deny the motion for summary adjudication as to the fourth cause of action for breach of the implied warranty for merchantability.

(4)       Issue Three – Knowledge of Defect at Time of Sale

FMC argues that plaintiff cannot present evidence that FMC had knowledge of a defect at the time of sale. The court has reviewed the evidence presented by FMC. The evidence shows there were several electrical systems and recall issues that may have existed at the time of sale. (See Alarcon Decl., Exs. 8-12; Def.’s UMF, Nos. 1-2, 7-19; Plaintiff’s Resp. to UMF, Nos. 1-2, 7-19.) FMC did not submit a declaration or deposition testimony establishing that it did not have knowledge of these issues.

The evidence gives rise to inferences that knowledge of these defects may have existed. (See Alarcon Decl., Exs. 8-12; Def.’s UMF, Nos. 1-2, 7-19; Plaintiff’s Resp. to UMF, Nos. 1-2, 7-19.) “[S]ummary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).) “It may be inferred that [FMC] concealed the [defects] with fraudulent intent, for the purpose of making a profit; it may also be inferred that plaintiff, who was unaware of the [defects], would have acted differently had he known of the suppressed fact.” (Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 1016F, 96.)

The evidence before the court do not conclusively establish that FMC lacked knowledge of the asserted defects or that there is no disputed material fact of such knowledge. FMC did not demonstrate “that under no hypothesis is there a material issue of fact [as to FMC’s knowledge] that requires the process of trial.” (Reeves, supra, 121 Cal.App.4th at pp. 106–107.) FMC did not make an “affirmative[] showing that the plaintiff does not possess and cannot acquire evidence [of FMC’s knowledge] to prove its existence.” (Ibid.) FMC did not carry its burden of persuasion. (Code Civ. Proc., § 437c, subd. (p)(2).) The court finds there are triable issues of fact as to FMC’s knowledge that cannot be resolved by summary adjudication.

(5)       Issues Four, Five, and Six – Transactional Relationship with FMC, Economic Loss Rule, and Damages

“[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (SCC Acquisitions Inc. v. Central Pacific Bank (2012) 207 Cal.App.4th 859, 864.)

In the context of consumer allegations that a car manufacturer concealed known defects, a cause of action for fraudulent concealment/inducement is sufficiently alleged against the manufacturer where: “vehicles (including the one plaintiffs purchased) were defective; [manufacturer] knew of the defects and the hazards they posed; [manufacturer] had exclusive knowledge of the defects but intentionally concealed and failed to disclose that information; [manufacturer] intended to deceive plaintiffs by concealing known [defects]; plaintiffs would not have purchased the car if they had known of the defects; and plaintiffs suffered damages in the form of money paid to purchase the car.” (Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 844 (Dhital).)

FMC argues that it had no duty to disclose as to the sixth cause of action for concealment. FMC argues that plaintiff did not have a transactional relationship with FMC that could give rise to a duty to disclose by FMC.

“There are ‘four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. [Citation.]’ ” (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.) Aside from a fiduciary relationship, “[e]ach of the other three circumstances in which nondisclosure may be actionable presupposes the existence of some other relationship between the plaintiff and defendant in which a duty to disclose can arise.” (Id. at pp. 336-337.)

Contrary to FMC’s arguments, there is evidence that FMC manufactured and distributed the Vehicle, and that plaintiff purchased the Vehicle from an FMC dealership. (See Alarcon Decl., Ex. 6 at p. 28, l. 23 – p. 29, l. 2, p. 31, ll. 15-17.); Def. UMF, No. 1.) Defendants concede that “[o]n November 5, 2021, Plaintiff purchased a 2021 Ford F-150 from Vista Ford in Oxnard, California.” (Def. UMF, No. 1.) The evidence shows that plaintiff paid $90,000 for the Vehicle that he argues was sold with known defects. (See Alarcon Decl., Ex. 6 at p. 28, l. 23 – p. 29, l. 2, p. 31, ll. 15-17.) This is sufficient to establish a triable issue of fact as to a transactional relationship between plaintiff and FMC for purposes of the concealment claim. (See Dhital, supra, 84 Cal.App.5th at p. 844 [“Plaintiffs alleged that they bought the car from a Nissan dealership, that Nissan backed the car with an express warranty, and that Nissan’s authorized dealerships are its agents for purposes of the sale of Nissan vehicles to consumers. In light of these allegations, we decline to hold plaintiffs’ claim is barred on the ground there was no relationship requiring Nissan to disclose known defects.”].)

Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1 (Rattagan), cited by FMC, is distinguishable and does not compel the result sought by FMC. Rattagan involved a case brought by a corporate attorney hired to assist in a ride-share platform in Argentina against the company that contracted with him to perform this work. (Rattagan, supra, 17 Cal.5th at pp. 13-18.) Rattagan held in response to a certified question from United States Court of Appeals for the Ninth Circuit that, “[a] plaintiff may assert a fraudulent concealment cause of action based on conduct occurring in the course of a contractual relationship if the elements of the claim can be established independently of the parties’ contractual rights and obligations, and the tortious conduct exposes the plaintiff to a risk of harm beyond the reasonable contemplation of the parties when they entered into the contract.” (Id. at p. 38.) “The guiding and distinguishing principle is this. If the alleged breach is based on a failure to perform as the contract provides, and the parties reasonably anticipated and allocated the risks associated with the breach, the cause of action will generally sound only in contract because a breach deprives an injured party of a benefit it bargained for. However, if the contract reveals the consequences were not reasonably contemplated when the contract was entered and the duty to avoid causing such a harm has an independent statutory or public policy basis, exclusive of the contract, tort liability may lie.” (Id. at p. 27.)

Here, the concealment/inducement cause of action is based on conduct that occurred before the contract was completed that induced plaintiff to enter into this contract. Plaintiff argues he did not reasonably contemplate that FMC or its agents were selling him a car with known defects. The injury resulting from the alleged fraud is not the failure to repair the Vehicle under the warranty. Rather, the alleged injury is that plaintiff would not have purchased the Vehicle or entered into the warranty contract had plaintiff known he was being defrauded. This alleged harm is independent of FMC’s contractual warranty obligations under these circumstances. (See Dhital, supra, 84 Cal.App.5th at pp. 838-844.) There are triable issues of fact a to the sixth cause of action for concealment.

(6)       Issue Seven – Economic Loss Rule as to Negligent Repair

The elements of negligence are duty, breach, causation, and damages. (Burgess v. Superior Court, 2 Cal. 4th 1064, 1072.) “[T]he economic loss rule allows a plaintiff to recover … in tort when a product defect causes damage to ‘other property,’ that is, property other than the product itself. The law of contractual warranty governs damage to the product itself.” (Jimenez v. Superior Court (2002) 29 Cal.4th 473, 483, italics in original.) “To apply the economic loss rule, we must first determine what the product at issue is. Only then do we find out whether the injury is to the product itself (for which recovery is barred by the economic loss rule) or to property other than the defective product (for which plaintiffs may recover in tort).” (Ibid.) “California decisional law has long recognized that the economic loss rule does not necessarily bar recovery in tort for damage that a defective product (e.g., a window) causes to other portions of a larger product (e.g., a house) into which the former has been incorporated.” (Jimenez v. Superior Court (2002) 29 Cal.4th 473, 483.)

Here, there were a number of issues addressed via repairs by Perry Ford to various parts of the Vehicle. (See Alarcon Decl., Exs. 8-12.) Multiple attempts were made to repair the electrical systems and recall repairs that may impact various other vehicle operations. (Ibid.) The court finds this evidence raises triable issues of fact as to whether the negligent repair of various defective components of the Vehicle may have contributed to the Vehicle itself being defective, thereby potentially falling outside of the economic loss rule in part. Perry Ford has not “demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial” as to whether the economic loss rule completely bars plaintiff’s claim for negligent repair. (Reeves, supra, 121 Cal.App.4th at pp. 106–107.) Since the motion does not completely resolve this cause of action, the motion must be denied. (Code Civ. Proc., § 437c, subd. (f)(1).)

(7)       Defendants’ Separate Statement of Undisputed Material Facts

“The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(1).) “ ‘Material facts’ are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.” (Cal. Rules of Court, rule 3.1350(a)(2).) “The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” (Id., rule 3.1350(d)(2).)

Here, defendants “assert[] various ‘undisputed facts’ in terms not of relevant events but of what a witness has said about events, e.g., [what plaintiff] “stated [in deposition] … But what [plaintiff] might have said in deposition is not, as such, a ‘material fact.’ ” (Reeves, 121 Cal.App.4th at p. 106.) The majority of the material facts submitted by defendants are descriptions by defendants of what plaintiff said in deposition. (See Def. UMF, Nos. 7, 8, 10, 12, 13, 15, 17, 18, 20, 21, 22, 25, 26, 32, 33, 34, 35, 36.) Others contain descriptions by defendants of what is reflected in documents or in discovery responses or in pleadings. (See id. at Nos. 4, 9, 11, 14, 16, 19, 24, 26, 27, 28, 29, 30, 31.) These are more akin to arguments, not material facts that establish a right to a summary judgment or adjudication under Code of Civil Procedure section 437c. (See Cal. Rules of Court, rule 3.1250(f)(1), (h).) The court will deny defendants’ motion for this additional reason.

(8)       Evidentiary Objections to Evidence and to Request for Judicial Notice

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).) The court’s ruling is based on the evidence presented by defendants and the arguments presented by the parties as to that evidence. Plaintiffs’ request for judicial notice was not material to the court’s ruling.

For all these reasons, the court will deny the motion for summary adjudication and for summary judgment.