Case Number: BC501147 Hearing Date: June 11, 2014 Dept: 73

Department 73
Rafael A. Ongkeko, Judge presiding

ANDREWS,
Plaintiff(s),
v.
FORD, ET AL.
Defendant(s).

Case No.: BC501147

Hearing Date: 6/11/14

[TENTATIVE] RULING RE:
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADUDICATION

Counsel for defendant/moving party: Mary Arens (Baker, etc.)
Counsel for plaintiff /opposing party: David Barry (The Barry Law Firm)

Defendant Ford Motor Company’s motion for summary judgment or, in the alternative, summary adjudication (filed 3/27/14) is granted.

Defendant’s unopposed request for judicial notice (filed 3/27/14) is granted.
Plaintiff’s unopposed request for judicial notice (filed 5/28/14) is granted.
Defendant’s supplemental request for judicial notice (filed 6/4/14) granted.
Defendant’s objections to Barry declaration: Overruled. The objections are not numbered separately. CRC 3.1354(b).
Defendant’s motion for leave to amend answer: Not filed.

MDL class action. Defendant has not met its burden to show due process compliance with notice to plaintiff. Fact 9. Plaintiff has raised a triable issue of material fact on the issue of whether he opted out or otherwise was excluded from the settlement. Fact 10.

1st cause of action for breach of the implied warranty of merchantability under Song-Beverly:
On 11/1/04, plaintiff purchased the vehicle. Repairs were made on various occasions until 11/28/06. On 11/5/09, defendant advised plaintiff that the warranty had expired when plaintiff complained of an oil leak. Plaintiff filed his complaint on 2/15/13.

It is undisputed that a four-year statute of limitations applies to this cause of action under Calif. Uniform Comm. Code § 2725. The parties dispute the accrual date. Defendant contends that the latest possible accrual date is 11/1/05 under Civil Code 1791.1, one year after purchase, requiring that a complaint should have been filed on or before 11/1/09. Citing the Mexia case, plaintiff contends that the accrual date was the date of discovery of any latent defect, which plaintiff contends was the date when Ford refused to repair the vehicle (here, 11/5/09), thus bringing his case within the 4-year period. This particular holding in Mexia has not been followed in any California published case, much less within the Second Appellate District. Several federal district courts have criticized the case as well. Defendant’s legislative history lends support to its position, which the court now adopts. The motion is granted as to the first cause of action (Issue #2). Facts 17, 22.

2ndt cause of action for breach of express warranty under Song-Beverly:
Applying the same four-year statute of limitations, the court agrees with defendant’s moving and reply papers that the complaint should have been filed on or before 11/28/10, within four years of the last repair within the warranty period (11/28/06). Plaintiff fails to raise a triable issue of material fact regarding tolling of the statute, whether due to fraud, misrepresentation, concealment, or failure to disclose. The motion is granted as to the second cause of action (Issue #3). Facts 23-24, 27, 28.

Having granted the motion for summary judgment based on the statute of limitations issues, and having adjudicated issues 2 and 3, judgment is ordered issued in favor of defendant. Defendant to prepare a proposed form of judgment with a proof of service. All future dates are vacated.

Unless waived, notice of ruling by moving party.