37 Cal.App.4th 1291, B088343, American Suzuki Motor Corp. v. Superior Court

Docket Nº:B088343
Citation:37 Cal.App.4th 1291, 44 Cal.Rptr.2d 526
Opinion Judge:[13] Nott
Party Name:American Suzuki Motor Corp. v. Superior Court
Attorney:[7] Sidley & Austin, Theodore N. Miller, James M. Harris, Gene C. Schaerr, Catherine M. Valerio Barrad, Crosby, Heafey, Roach & May, Ned N. Isokawa, Mary C. Oppedahl, McCutchen, Doyle, Brown & Enersen, David M. Heilbron, Kirkland & Ellis, and James H. Schink, for Petitioner. [8] Fred L. Main, Wil...
Case Date:August 23, 1995
Court:California Court of Appeals

Page 1291

37 Cal.App.4th 1291

44 Cal.Rptr.2d 526




DIERDRE CARNEY et al., Real Parties in Interest.


California Court of Appeal, Second District, Second Division

August 23, 1995

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Sidley & Austin, Theodore N. Miller, James M. Harris, Gene C. Schaerr, Catherine M. Valerio Barrad, Crosby, Heafey, Roach & May, Ned N. Isokawa, Mary C. Oppedahl, McCutchen, Doyle, Brown & Enersen, David M. Heilbron, Kirkland & Ellis and James H. Schink for Petitioner.

Fred L. Main, William Campbell, Charles H. Lockwood II, O'Melveny & Myers, Carl R. Schenker, Jr., and John H. Beisner as Amici Curiae on behalf of Petitioner.

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No appearance for Respondent.

King & Williams, Terrence P. Keelan, David E. Stanley, Ralph O. Williams III and Larry D. Schwartz for Real Parties in Interest.

Robert A. Graham as Amicus Curiae on behalf of Real Parties in Interest.



Where class-action plaintiffs allege they have suffered no personal injury or property damage from a vehicle they claim is defectively designed, and it is impliedly conceded that their vehicles have—since the date of purchase—remained fit for their ordinary purpose, can plaintiffs state a cause of action in breach of implied warranty? We conclude they cannot, and that the superior court erred in certifying for class treatment plaintiffs' implied warranty claims, and in thereafter refusing to decertify the class.

Petitioner, American Suzuki Motor Corporation (Suzuki) seeks a writ of mandate directing the superior court to vacate its order denying Suzuki's motion to decertify a class.

I. Factual and Procedural Background

Real parties, Deirdre Carney and John Robinson, filed a class action lawsuit on behalf of themselves and others similarly situated, i.e., "all persons who purchased a [1986-1994 model year] Suzuki Samurai motor vehicle in California on or after September 5, 1985."

In their complaint, real parties attempted, inter alia, to plead causes of action against Suzuki for breach of the implied warranty of merchantability set forth in California Uniform Commercial Code section 2314 1, the implied warranty of fitness for a particular purpose set forth in section 2315, and the implied warranty provisions of the Song-Beverly Consumer Warranty Act (Song-Beverly Act) set forth in Civil Code section 1790 et seq. Real parties alleged as to these causes of action that they and 45,000 other consumers had purchased during the class period a sport utility vehicle called the Samurai, manufactured by Suzuki; that the vehicle "brings together a high center of gravity, a narrow tread width, and light weight which combine to create an unacceptable risk of a deadly roll-over accident when driven under reasonably anticipated and foreseeable driving conditions"; and that because of this

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design flaw the Samurai is unfit for its "ordinary purpose" which is to "transport people and cargo on the highways and byways of this [s]tate."

Real parties did not allege they had been injured personally or had incurred any consequential property damage as a result of the design defect. They sought damages "measured by the cost of repairing the inherent safety defect in the Samurai."

Shortly after filing their complaint, real parties moved to certify the class, submitting in support of the motion the declaration of an expert who opined that the Samurai did, indeed, have a rollover design defect which rendered it unsafe.

In opposition, Suzuki presented evidence indicating that the vast majority of the vehicles sold during the class period have, since the date of purchase, provided basic transportation without manifesting the alleged rollover defect.

The superior court found that real parties had presented sufficient evidence tending to show that the Samurai has an "inherent defect" consisting of "a roll-over propensity by reason of a high center of gravity and a narrow [track width]," and certified for class treatment real parties' two Commercial Code-based implied warranty counts and their Song-Beverly Act claim. Thereafter, the court denied Suzuki's motion to decertify the class. This writ petition followed.

II. Discussion

Suzuki contends "the superior court committed clear error of law in holding that class action plaintiffs may maintain claims for breach of the implied warranty of merchantability when the vast majority of the products at issue have concededly remained fit for their ordinary purpose."

A. Standard of Review

Code of Civil Procedure section 382 provides that a class action may be brought "when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court[.]"

A prerequisite to the maintenance of a class action is the existence of an ascertainable class. (Occidental Land, Inc . v. Superior Court (1976) 18 Cal.3d 355, 360-361 [134 Cal.Rptr. 388].) For a class to be

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considered ascertainable, its members must have a plausible cause of action against the defendant. (See Collins v. Safeway Stores, Inc. (1986) 187 Cal.App.3d 62, 72 [231 Cal.Rptr. 638].) If multiple plaintiffs fail to meet this elementary standard, no ascertainable class exists, and a class action may not be maintained. (Ibid.) In order to determine whether multiple members of the proposed class have a viable cause of action, the trial court is required to examine the issues framed by the pleadings, the law applicable to the cause of action alleged, and "the actual performance of [the product], as revealed by the record developed between filing the complaint and moving for certification." (Feinstein v. Firestone Tire and Rubber Co. (S.D.N.Y. 1982) 535 F.Supp. 595, 603.)

B. Implied Warranty Claims

This case principally implicates the implied warranty of merchantability set forth in section 2314 2 which provides as follows:

"(1) Unless excluded or modified ... a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind....

"(2) Goods to be merchantable must be at least such as * * *

"(c) Are fit for the ordinary purposes for which such goods are used[.]"

Unlike express warranties, which are basically contractual in nature, the implied warranty of merchantability arises by operation of law. (Hauter v. Zogarts (1975) 14 Cal. 3d 104, 117 [120 Cal.Rptr. 681, 74 A.L.R.3d 1283]

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(Hauter).) It does not "impose a general requirement that goods precisely fulfill the expectation of the buyer. Instead, it provides for a minimum level of quality." (Skelton v. General Motors Corp. (N.D.Ill. 1980) 500 F.Supp. 1181, 1191, revd. on other grounds, 660 F.2d 311 (7th Cir. 1981), cert. den., 456 U.S. 974 [72 L.Ed.2d 848, 102 S.Ct. 2238] (1982); see also Burr v. Sherwin Williams Co. (1954) 42 Cal.2d 682, 694 [268 P.2d 1041]; Moore v. Hubbard & Johnson Lumber Co. (1957) 149 Cal.App.2d 236, 240-241 [308 P.2d 794]; Steen v. Southern California Supply Co. (1925) 74 Cal.App. 265, 268 [239 P. 1098]; Remsberg v. Hackney Manufacturing Co. (1917) 174 Cal. 799, 806 [164 P. 792].)

Courts in other jurisdictions have held that in the case of automobiles, the implied warranty of merchantability can be breached only if the vehicle manifests a defect that is so basic it renders the vehicle unfit for its ordinary purpose of providing transportation. (See Feinstein v. Firestone Tire & Rubber Co., supra, 535 F.Supp. 595; Carlson v. General Motors Corp. (4th Cir. 1989) 883 F.2d 287, 297-298, cert. den.; Taterka v. Ford Motor Co. (1978) 86 Wis.2d 140 [271 N.W.2d 653]; Skelton v. General Motors Corp., supra, 500 F.Supp. 1181, 1191.)

In Feinstein v. Firestone Tire and Rubber Co., supra, 535 F.Supp. 595, for example, the plaintiffs sought damages arising from an alleged breach of the implied warranty of merchantability as to those putative class members whose Firestone tires remained failure free throughout the time they were used. (Id. at p. 601.) After noting that the vast majority of the tires had not malfunctioned, the court disposed of plaintiffs' claims as follows: "That raises the question of whether the owners of such tires [which have not failed] have suffered any damages. Plaintiffs say they have. They claim that all Firestone tires contained common defects; and their damage theory is '... that the purchase of a defective tire, ipso facto, caused economic loss.' " (Id. at p. 602.) "No persuasive authority is cited for that proposition, and I reject it. Tires which lived full, productive lives were, by demonstration and definition, 'fit for the ordinary purposes' for which they were used; hence they were 'merchantable' under [Uniform Commercial Code] § 2-314 3, and no cause of action for breach of an implied warranty can arise. This is quite basic[.]" (Ibid.)

In Carlson v. General Motors Corp., supra, 883 F.2d 287, plaintiffs who had experienced no malfunction sought certification of an implied warranty

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class alleging that a latent defect caused their vehicles to experience "diminished resale value." (Id. at pp. 297-298.) In dismissing these claims the court held that Uniform Commercial Code section 2-314 did not encompass plaintiffs' "loss of resale value claims." The difficulty according to the court was that the vehicles at issue "have served the traditionally recognized 'purpose' for which automobiles are used. Since cars are designed to provide transportation, the implied warranty of merchantability is simply a guarantee that they will operate in a 'safe condition' and 'substantially free of defects.' [Citation.] Thus, 'where a car can...

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