S-CV-0038175 Hovsepian, Nadia, et al vs. The Hertz Corporation, et al
Motion for Summary Adjudication

Rulings on Requests for Judicial Notice and Objections to Evidence

The parties’ requests for judicial notice are granted.

Plaintiffs’ objections to the Declaration of Jennifer Williams are overruled.

Ruling on Motion

Defendants’ Motion for Summary Adjudication is denied.

Defendants move for summary adjudication of plaintiffs’ first cause of action for violation of the Consumer Legal Remedies Act (CLRA), and fourth cause of action for violation of the Song-Beverly Consumer Warranty Act (Song-Beverly Act). A defendant may move for summary adjudication if it contends that there is no merit to one or more causes of action alleged in the complaint. Code Civ. Proc. § 437c(f)(1). A moving defendant has the initial burden of showing that a cause of action has no merit, or there is a complete defense to the cause of action. Code Civ. Proc. § 437c(p)(2). If defendant meets its initial burden, the burden shifts to plaintiff to show the existence of a triable issue of material fact as to the cause of action or defense. Code Civ. Proc. § 437c(p)(2). The trial court views the supporting evidence, and all inferences reasonably drawn therefrom, in the light most favorable to the opposing party. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.

The motion is denied with respect to plaintiffs’ first cause of action for violation of the CLRA. Defendants argue that this cause of action fails because plaintiffs failed to give notice in writing to defendants prior to filing suit pursuant to Civil Code section 1782. Civil Code section 1782 provides:

(a) Thirty days or more prior to the commencement of an action for damages pursuant to this title, the consumer shall do the following: (1) Notify the person alleged to have employed or committed methods, acts, or practices declared unlawful by Section 1770 of the particular alleged violations of Section 1770. (2) Demand that the person correct, repair, replace, or otherwise rectify the goods or services alleged to be in violation of Section 1770. The notice shall be in writing and shall be sent by certified or registered mail, return receipt requested, to the place where the transaction occurred or to the person’s principal place of business within California. (b) Except as provided in subdivision (c), no action for damages may be maintained under Section 1780 if an appropriate correction, repair, replacement, or other remedy is given, or agreed to be given within a reasonable time, to the consumer within 30 days after receipt of the notice.

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While plaintiffs do not pray for “actual damages” in connection with their first cause of action, defendants argue that restitution still constitutes a claim for damages. However, California courts have distinguished between the two remedies. See Colgan v. Leatherman Tool Group, Inc. (2006) 135 Cal.App.4th 663. In Colgan, the trial court could not determine the amount of actual damages to which plaintiffs were entitled based on a violation of the CLRA, and awarded them only $1,000, the statutory minimum. However, the trial court went on to award plaintiffs approximately $13 million in restitution under the CLRA, False Advertising Law and Unfair Competition Law. The appellate court found no inconsistency in the trial court’s rulings, noting that “damages” under the CLRA were a different remedy from restitution under the False Advertising and Unfair Competition Laws. Id. at 695. The appellate court further emphasized that there was “nothing to suggest that the restitution remedy provided under the CLRA should be treated differently than the restitution remedies provided under the False Advertising or Unfair Competition Laws.” Id. at 694. It follows that plaintiffs’ prayer for restitution in the instant action does not equate to a claim for damages, and the first cause of action is therefore not barred by plaintiffs’ failure to send a presuit notice under Civil Code section 1782.

The motion is also denied with respect to plaintiffs’ fourth cause of action for violation of the Song-Beverly Act. Under the Song-Beverly Act, the sale of consumer goods includes an implied warranty by the seller that the goods are merchantable. Civ. Code § 1792. The implied warranty is coextensive with the duration of an express warranty, which in this case was for 60 days, or 2,000 miles, whichever came first. It is undisputed that plaintiffs did not discover the alleged defect in the vehicle during the warranty period. Thus, plaintiffs must submit evidence supporting the contention that the defect existed during the warranty period. Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304.

Plaintiffs’ complaint alleges that the implied warranty of merchantability was breached in this case “given the Vehicle’s improperly repaired accident damage it was sold in a condition subject to flooding, with mildew in the interior. The Vehicle would not pass without objection due its prior accident damage.” (Complaint at 9:14-17.) Plaintiffs’ expert witness, Mark Jannesari, testified at his deposition that he found remnant damage to the left driver’s side front wheel panel, and attempted repairs, and evidence of extreme prior damage and repairs to the entire front bumper, and evidence of suspension and alignment issues. Defendants’ expert witness, Scott Police, testified that the vehicle frame was damaged from impact, there was impact damage behind the right front wheel, and the undercarriage was damaged. Both experts testified that if the vehicle had been in the same condition when it was purchased, it should not have passed without objection in the trade. Plaintiffs have testified that they suffered only one minor accident during the time that they owned the vehicle, which caused little or no damage to the right rear bumper. From the above cited evidence, a reasonable inference may be drawn that the damage identified by the parties’ experts did not occur during their ownership of the vehicle, thus precluding summary adjudication of plaintiffs’ fourth cause of action for breach of the Song-Beverly Act.

Based on the foregoing, defendants’ Motion for Summary Adjudication is denied.