Leber v. DKD of Davis, Inc.

• Decision Date: 12 May 2015
• Docket Number: C075204
• Citation: 237 Cal.App.4th 402,187 Cal.Rptr.3d 731
• Court: California Court of Appeals Court of Appeals
• Parties: Justin LEBER et al., Plaintiffs and Appellants, v. DKD OF DAVIS, INC., Defendant and Respondent.

237 Cal.App.4th 402

187 Cal.Rptr.3d 731

Justin LEBER et al., Plaintiffs and Appellants

v.DKD OF DAVIS, INC., Defendant and Respondent.

C075204

Court of Appeal, Third District, California.

Filed May 12, 2015

The Bickel Law Firm, San Diego and Alexandra R. Byler, for Plaintiffs and Appellants.

Toschi, Sidran, Collins & Doyle, David R. Sidran, Thomas M. Crowell, and Hayden S. Alfano, Oakland, for Defendant and Respondent.

Opinion

DUARTE, J.

Justin Leber and Katherine Neumann (collectively, Leber) sued DKD of Davis, Inc. (DKD), under California's “lemon law,”¹ after buying a Silverado truck with an allegedly defective transmission. Leber timely appeals from a judgment following the trial court's order granting DKD summary judgment. We shall affirm.

BACKGROUND

In the operative complaint, Leber sued DKD and General Motors Company (not a party on appeal) under the Act. Leber alleged the Silverado was “a new motor vehicle,” and DKD and General Motors issued an “express warranty.” The Silverado has a defect, despite a reasonable number of repairs, and is not fit for ordinary purposes, but neither defendant replaced it or offered restitution.

DKD denied the allegations, pleading Leber did not state a claim under the Act, no warranty was given, and the Silverado was sold “as is.”

DKD presented evidence the truck had previously been sold to another buyer, who traded it in nearly a year later. During the sale now at issue, Leber signed various documents, including a “Buyers Guide” which states the Silverado was bought “used,” “AS IS--NO WARRANTY,” and with over 10,000 miles on it. The “as-is” part states: “YOU WILL PAY ALL COSTS FOR ANY REPAIRS. The dealer assumes no responsibility for any repairs....”

Leber opposed DKD's motion with a combination of legal arguments and facts regarding a warranty by General Motors. Leber also proffered several opposing facts, including that the General Motors warranty was transferrable to subsequent owners, and General Motors had paid for the unsuccessful attempts to fix the alleged defect. The trial court sustained objections to some of Leber's evidence including evidence showing how other dealers filled out the Buyers Guide to account for the transfer of a manufacturer's warranty.²

DKD replied that Leber had not refuted that Leber acknowledged on sale that the Silverado was “used” and sold “as is” with no warranty from DKD. However, DKD did not dispute that the General Motors warranty had not expired at the time of sale.

The trial court ruled DKD produced evidence it did not give Leber an express warranty, and Leber provided no contrary evidence, but instead bought the Silverado as is, which precluded the existence of any implied warranty by DKD.³

DISCUSSION

IStandard of Review

“In reviewing a defense summary judgment, we apply the traditional three-step analysis used by the trial court, that is, we (1) identify the pleaded issues, (2) determine if the defense has negated an element of the plaintiff's case or established a complete defense, and if and only if so, (3) determine if the plaintiff has raised a triable issue of fact.” ( Meddock, supra, 220 Cal.App.4th at p. 175, 162 Cal.Rptr.3d 796.)

“We review the trial court's grant of summary judgment de novo. [Citation.] We consider all the evidence offered in connection with the motion, except that which the trial court properly excluded. [Citation.] In conducting our de novo review, we must view the evidence in a light favorable to plaintiffs, liberally construing their evidentiary submission while strictly scrutinizing defendant's showing, and resolving any evidentiary doubts or ambiguities in plaintiffs' favor.” (Salas, supra, 198 Cal.App.4th at p. 1067, 129 Cal.Rptr.3d 690.)

IIContentions and Analysis

There is no dispute that the Silverado was not a new vehicle as that term is used in common parlance, and no dispute that DKD sold it with an as is disclaimer in the Buyer's Guide. The dispute revolves around the special definition of a new vehicle under the Act, and the effect, if any, of the as is clause in the Buyer's Guide provided by DKD in this case, because of the alleged existence of the transferable General Motors warranty.

Leber first contends triable issues remain because he can pursue claims of breach of implied warranty of merchantability or breach of implied warranty of fitness for a particular use. We disagree, because no implied warranties exist.

As we have explained, “Enacted in 1970, the Act ‘regulates warranty terms, imposes service and repair obligations on manufacturers, distributors, and retailers who make express warranties, requires disclosure of specified information in express warranties, and broadens a buyer's remedies to include costs, attorney's fees, and civil penalties.’ ” (Joyce v. Ford Motor Co. (2011) 198 Cal.App.4th 1478, 1486, 131 Cal.Rptr.3d 548 (Joyce ).)

Under the Act, “ ‘Consumer goods' means any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables. ‘Consumer goods' shall include new and used assistive devices sold at retail.” (§ 1791, subd. (a), italics added.) Thus, the Act applies to “new” products as defined, with an exception for assistive devices--devices to aid the disabled--sold at retail, in which case the Act applies to both “new and used” devices.

Leber points out that the Act provides for an implied warranty of merchantability and implied warranty of fitness in connection with the sale of consumer goods. (§ 1791.1, subds. (a) & (b).) However, after defining consumer goods to refer to new goods, and having provided one exception for used assistive devices, the Legislature presumably intended the Act to apply to and only to new products, unless otherwise explicitly so stated. (See, e.g., ... Schweisinger v. Jones (1998) 68 Cal.App.4th 1320, 1326, 81 Cal.Rptr.2d 183 [“expressio unius est exclusio alterius ”]; People ex rel. Cranston v. Bonelli (1971) 15 Cal.App.3d 129, 135, 92 Cal.Rptr. 828 [“legislative enumeration of certain exceptions by necessary implication excludes all other exceptions”].)

Leber does not persuade us that a used, as is vehicle qualifies as a new vehicle for purposes of triggering the implied warranties in section 1791.1, part of the Act.⁴

Leber does point to a statute providing that no disclaimer of an implied warranty is effective unless the buyer is informed in a “conspicuous writing” attached to the goods which clearly states each of the following: “(1) The goods are being sold on an ‘as is' or ‘with all faults' basis. [¶] (2) The entire risk as to the quality and performance of the goods is with the buyer. [¶] (3) Should the goods prove defective following their purchase, the buyer and not the manufacturer, distributor, or retailer assumes the entire cost of all necessary servicing or repair.” (§ 1792.4, subd. (a).) He contends the Buyer's Guide does not qualify as a disclaimer under this “very strict” statute. His theory is that by failing to mention the continuation of the General Motors warranty, the disclaimer was misleading.

However, the statute Leber relies on applies to goods “governed by the provisions of this chapter,” (§ 1792.4, subd. (a)), and therefore, because he has not first demonstrated that the vehicle falls within the definition of “consumer goods” as defined by section 1791.1, section 1792.4 has no apparent application to the facts of this case.⁵

Instead, this case is governed by a different statute, providing: “Notwithstanding the provisions of subdivision (a) of Section 1791 defining consumer goods to mean ‘new’ goods, the obligation of a distributor or retail seller of used consumer goods in a sale in which an express warranty is given shall be the same as that imposed on manufacturers under this chapter ...” with certain exceptions. (§ 1795.5, italics added.) Thus, in this second statutory exception to the “new” goods definition of section 1791, the Legislature decreed that the Act would apply where--and only where--“an express warranty” is provided during the sale of used goods. No express warranty was provided by DKD: To the contrary, DKD cautioned Leber that the sale was “AS IS--NO WARRANTY” and that he was responsible for any repairs needed to this used Silverado.

Leber contends that because a balance remained on the warranty provided by General Motors at the time DKD sold him the Silverado, it was still a new vehicle. For this proposition, he relies on a superficial reading of our opinion in Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 41 Cal.Rptr.2d 295 (Jensen ).

Leber's opening brief does not quote the statute interpreted in Jensen, nor explain the factual and procedural posture of that case. Jensen involved the Tanner Consumer Protection Act, which sets forth what “nonconformities” breach a warranty, and provides, inter alia, regulations for any alternative dispute resolution mechanism. (§ 1793.22, subds. (a)-(d).) The precise subdivision at issue provides in part: “ ‘New motor vehicle’ includes ... a dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer's new car warranty ....” (§ 1793.22, subd. (e)(2), italics added.) This definition applies to the rest of section 1793.22, and to section 1793.2, which explicitly governs the duties and liability of manufacturers. (See § 1793.2, subd. (a).)

Jensen successfully sued the manufacturer of a “low-mileage 1988 BMW she leased in 1989” that had defective brakes. (Jensen, supra, 35 Cal.App.4th at p. 119, 41 Cal.Rptr.2d 295.) Jensen had been told that the car was a “demonstrator” and had over 7,500 miles on it, but that she would receive BMW's 36,000-mile warranty “on top” of those miles, and she was given a warranty booklet. (Ibid. ) We held “the words of section 1793.22 are reasonably free from ambiguity and cars sold with a balance remaining on the manufacturer's new motor vehicle warranty are included within its definition of ‘new motor vehicle.’ ...