Motion for Summary Judgment by Defendant Ford Motor Company to the Complaint of Plaintiff Robert Rios
Evidence
The court declines to rule on Ford’s evidentiary objections as there is no proposed order in compliance with California Rules of Court, rule 3.1354(c). Even if there was a proposed order, the court does not need to address the objections as Ford has failed to meet its initial burden for the reasons stated below.
Motion for Summary Judgment
On September 17, 2012, Plaintiff filed a complaint against Ford, asserting causes of action for violations of the Song-Beverly Consumer Warranty Act, California Civil Code section 1790 et seq. and the Magnuson-Moss Warranty Act, 15 United States Code section 2301, subdivision (a). In addition to actual damages, Plaintiff seeks to recover a civil penalty for Ford’s willful failure to comply with its statutory responsibilities.

On January 2, 2014, Ford filed the motion presently before the court, a motion for summary judgment or, in the alternative, summary adjudication to the complaint. (Code Civ. Proc. § 437c.) In opposition, Plaintiff requests that the motion be denied or, in the alternative, a continuance to conduct additional discovery.

As a preliminary matter, Ford seeks summary adjudication on the following grounds:

• The implied warranty claims in the first and second causes of action are time barred by Civil Code section 1791.1, subdivision (c) and Commercial Code section 2725; and
• There are no triable issues of fact with respect to the breach of express warranty claims for failure to repair within a reasonable number of repair attempts in the first and second causes of action.

However, summary adjudication must completely dispose of the cause of action, defense, damage claim or duty issue to which it is directed. (See Code Civ. Proc. § 437c(f)(1); McCaskey v. California State Auto Ass’n (2010) 189 Cal.App.4th 947, 975 [“if a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered”].) Here, the two causes of action in the complaint allege breaches of both express warranties and implied warranties. Thus, the grounds asserted for summary adjudication will not dispose of any cause of action in the complaint. Therefore, there is no basis for summary adjudication and the court treats Ford’s application as a single motion for summary judgment.
“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. 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 that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

On summary judgment, Ford makes the following arguments: (1) the express warranty claims in the first and second causes of action lack merit because the “No Start” concern was repaired after two attempts; and (2) the implied warranty claims in the first and second causes of action are time barred.

Plaintiff’s first cause of action is a claim under the Song-Beverly Act. “The Song-Beverly Act is a remedial statute designed to protect consumers who have purchased products covered by an express warranty. One of the most significant protections afforded by the act is found at section 1793.2, subdivision (d), which provides with respect to consumer goods that ‘if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer…’ A buyer of consumer goods who is damaged by the manufacturer’s failure to comply with the act may bring an action to recover damages and other legal and equitable relief, and if the buyer proves the violation was willful, the judgment may also include a civil penalty which shall not exceed two times the amount of actual damages.” (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 798.)

“A plaintiff pursuing an action under the Song-Beverly Act has the burden to prove the following elements: (1) the product had a defect or nonconformity covered by the express warranty; (2) the product was presented to an authorized representative of the manufacturer for repair; and (3) the manufacturer or its representative did not repair the defect or nonconformity after a reasonable number of repair attempts.” (Robertson v. Fleetwood Travel Trailers of California, Inc., supra, 144 Cal.App.4th at pp. 798-799.)

On summary judgment, Ford argues that Plaintiff’s vehicle was subject to repairs on April 16, 2008 and February 11, 2009. (See Ford’s Separate Statement of Undisputed Facts at Nos. 6, 7, and 8.) California cases hold that 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. (See Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208.) Thus, Ford asserts that a vehicle that has been successfully repaired after two attempts is not subject to the Song-Beverly Act.

However, “the reasonableness of the number of repair attempts is a question of fact to be determined in light of the circumstances.” (Robertson v. Fleetwood Travel Trailers of California, Inc., supra, 144 Cal.App.4th at p. 799.) “A trier of fact might determine that two or three or more attempts were reasonable under the circumstances of a case or were unreasonable under those circumstances.” (See Silvio v. Ford Motor Co., supra, 109 Cal.App.4th at p. 1209.) To the extent that Ford relies on Silvio, that case did not address whether two repair attempts could be subject to the Song Beverly Act. Rather, the appellate court simply concluded that restitution or replacement was not required under the statute after a single repair attempt. (Id. at p. 1208; see Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1160 [cases are not authority for propositions not considered].) Thus, the issue of whether two repair attempts were reasonable in this case remains an issue for the trier of fact.

Since triable issues of fact exist with respect to the express warranty claims in the first and second causes of action, Ford’s motion for summary judgment is DENIED. Given this ruling, the court declines to address Ford’s statute of limitations argument and Plaintiff’s alternative request to continue the motion to conduct additional discovery.