Case Number: SC119959 Hearing Date: April 18, 2014 Dept: O

SC119959
McCOLLUM v. MILLER-DM

Defendant’s MSJ and MSA are DENIED. The undisputed evidence demonstrate that the salesperson represented to Plaintiff that the car had no major mechanical issues or repairs, that the car had malfunctioned just prior to the sale such that it had to be towed back to the dealer, that the malfunction was a defective differential and that Defendant performed a $4600 repair of the differential just before the sale to Plaintiff. The undisputed evidence also demonstrates that the electronic display panel was functioning when Plaintiff dropped the car off for repair and that it was not functioning when Plaintiff picked the car up after Defendant repaired the transmission. Based on these undisputed facts triable issues of fact remain as to all causes of action.

ANALYSIS: Defendant moves for summary judgment, or adjudication, on grounds that it never made any of the alleged misrepresentations. Even if it had, Defendant argues those misrepresentations had nothing to do with the failure of the car’s electrical display panel, the only remaining mechanical defect in the car. Defendant also argues it used due care in repairing the transmission issue and the electronic display panel did not break due to its negligent repair.

Plaintiff opposes on grounds that Defendant misrepresented that the vehicle did not have any serious mechanical problems. Plaintiff claims the representation was false and concealed the fact that the vehicle had to be towed prior to the sale. Plaintiff also argues she suffered damages because she now has a vehicle that she would not have purchased were it not for the misrepresentations.

The CLRA, 17200 and common law fraud claims are all based on Defendant’s alleged failure to disclose certain mechanical defects and service visits and affirmatively representing that the care had no serious mechanical problems. Defendant fails to negate each and every one of the alleged misrepresentations alleged at ¶¶10-12 and SSUMF No.8. Most significantly, Defendant fails to negate the falsity of its representation that the vehicle had no serious mechanical issues or no history of mechanical problems. See Plaintiff’s Opposition SSUMF No. 8. Defendant admits that the vehicle had to be towed due to shifting issues just prior to its sale to Plaintiff. Id. at SSUMF No. 4. The shifting issues were ultimately determined to be the result of a faulty differential and not the transmission. Id.

The failure to disclose this repair and the representation that there were no serious mechanical problems are reasonably construed as misrepresentations in light of the differential repair. The faulty differential caused the car to cease working such that it had to be towed back to the dealership. A reasonable person could construe this as a “serious” mechanical problem.

The salesperson also testified that he had no way of knowing of the prior towing, that salespersons in general do not have any responsibility for being aware of a vehicle’s mechanical history and that if a vehicle were towed due to a transmission problem, this would be a material fact subject to disclosure. See Plaintiff’s Opposition SSUMF No. 1. As such, there are triable issues of fact remaining as to whether Defendant intentionally concealed or misrepresented the quality of the vehicle by stating there were no serious mechanical issues or problems.

Defendant next argues that the alleged misrepresentations had nothing to do with the only remaining defect in the car, the broken electronic display panel. However, Plaintiff is not suing merely for the repair of the car. Plaintiff is suing for rescission of the sales contract on grounds that she would never have entered into it but for the fraudulent representation that the car had no history of serious mechanical problems. Plaintiff testifies that she would not have purchased the car had she known of the differential repair and also the undisclosed tendency of the car to suffer from the precise transmission defect Plaintiff experienced on 12/8/12. See SSUMF Nos.1 and 22. Plaintiff was also forced to hire an attorney to convince Defendant to repair the transmission. Whether Plaintiff would actually have refrained from purchasing the vehicle in light of the true facts is an issue of credibility that cannot be resolved on summary judgment.

In order to invoke res ipsa loquitur, the plaintiff has the burden to establish three conditions: “(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” Ybarra v. Spangard (1944) 25 Cal.2d 486, 489, 154 P.2d 687.) If the plaintiff establishes these conditions, the doctrine applies and the defendant is presumptively negligent.

“The conclusion that negligence is the most likely explanation of the accident, or injury, is not for the trial court to draw, or to refuse to draw so long as plaintiff has produced sufficient evidence to permit the jury to draw the inference of negligence even though the court itself would not draw that inference; the court must still leave the question to the jury where reasonable men may differ as to the balance of probabilities. The inference of negligence is not required to be an exclusive or compelling one. It is enough that the court cannot say that reasonable men could not draw it. The existence of the conditions upon which the operation of the doctrine is to be predicated is a question of fact and the right of the jury to find those facts must be carefully preserved.” Dunn v. Vogel Chevrolet Co. (1959) 168 Cal.App.2d 117, 121. Where there is “evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence,” the trier of fact determines whether defendant was negligent without regard to the presumption, simply by weighing the evidence.

Plaintiff’s negligence claim is based on res ipsa loquitur. Plaintiff is correct that it is for the jury to decide whether res ipsa loquitur applies. The facts presented are sufficient for reasonable persons to draw the conclusion that negligence caused the electronic display panel to fail. As Plaintiff points out, a car does not ordinarily come back from a repair with more or new defects. The jury should be left to weigh the expert testimony that the car was properly repaired and the evidentiary presumption of negligence raised by res ipsa loquitur.

MSJ and MSA—DENY.

Triable issues of fact remain as to whether Defendant made material misrepresentations of fact inducing Plaintiff to purchase the vehicle, whether she suffered damage and whether Defendant was negligent while the car was in its care, such that the electronic display panel broke.