McEwen v. Delong
| Decision Date | 25 June 2021 |
| Docket Number | No. CV-19-05192-PHX-SMB,CV-19-05192-PHX-SMB |
| Parties | Brandon Charles McEwen, Plaintiff, v. William Edward Delong, Jr., et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Pending before the Court is Defendant Henry Brown Buick GMC, LLC's ("Henry Brown Buick") Motion for Summary Judgment, (Doc. 75), and Defendant Henry Brown Buick's Statement of Facts in Support of Motion for Summary Judgment. (Doc. 76.) Defendants Jose Galvez and Perico's Construction, LLC ("Perico's Construction") jointly filed a response in which they joined Defendant Henry Brown Buick's Motion for Summary Judgment. (Doc. 80.) Plaintiff Brandon McEwan filed a response, (Doc. 81), and Plaintiff's Response in Opposition to Defendant's Statement of Facts and Controverting Statement of Facts. (Doc. 82.) Defendant Henry Brown Buick filed a reply, (Doc. 86), and a response to Plaintiff's Separate Statement of Facts. (Doc. 87.) The Court has declined to hold oral argument, finding that it is unnecessary. See LRCiv 7.2(f). The Court has considered the pleadings and relevant authority and now issues this order denying the motion.
This action arose from the sale of a 2008 GMC 2500 Duramax diesel truck, VIN 1GTHK23688F109288 (the "GMC truck") from Advantage Auto Motor Sports ("Advantage Auto") to Plaintiff on March 29, 2019. The relevant facts are as follows:
On March 29, 2019, Plaintiff bought the GMC truck from Defendant William Edward Delong, Jr., doing business as Advantage Auto. (Doc. 76 ¶ 1.) Advantage Auto represented that the GMC truck had a clean title with 160,438 miles. (Id. ¶ 2.) Plaintiff subsequently obtained document which led him to believe that there were actually many more miles on the GMC truck. (Id. ¶ 3.)
The title of the GMC truck shows that it was originally purchased by Defendant Galvez, d.b.a. Perico's General Construction, on October 16, 2007. (Id. ¶ 5.) At that time, the GMC truck had only 15 miles. (Id.) On February 15, 2012, Defendant Galvez obtained a new Arizona title to the GMC truck. (Id. ¶ 6.) At that time, the title reflected that the GMC truck had 135,000 miles. (Id.) On October 27, 2018, Defendant Galvez sold the GMC truck to Henry Brown Buick. (Id. ¶ 7.) Before taking the GMC truck in on trade from Defendant Galvez, Henry Brown Buick acquired a CarFax Vehicle History Report on the truck. (Doc. 82 ¶ 18.) A sales manager at Henry Brown Buick acquired the CarFax report in order to determine whether the vehicle had been in an accident and how many owners it had. (Doc. 82-1, Ex. H at 2.) The CarFax report acquired by Henry Brown Buick showed that the GMC truck's mileage was recorded at 275,292 miles when it was serviced on January 14, 2018. (Doc. 82 ¶ 23.) The CarFax report showed five instances between November 19, 2012 and January 14, 2018 where the mileage was recorded in excess of the 160,360 miles reflected on the GMC truck's odometer. (Doc. 82 ¶ 25.) Nonetheless, Henry Brown Buick noted that it had a clean "Box A title" and noted that Defendant Galvez had signed the odometer reading form stating that the mileage reading on the GMC truck's odometer was accurate. (Doc. 82-1, Ex. H at 3.) Henry Brown Buick prepared the Arizona Secure Power of Attorney which included the entry of 160,380 miles and gave to it to Defendant Galvez to sign. (Doc. 82 ¶ 27.) Henry Brown Buick kept the October 29, 2018 CarFax report in the deal jacket for the GMC truck. (Doc. 82 ¶ 28.) At that time, the title of the GMC truck said that truck had 160,360 actual miles. (Doc. 76 ¶ 7.) Further,Defendant Galvez signed a Secure Odometer Disclosure certifying that the odometer reading on the GMC truck was 160,360 actual miles. (Id. ¶ 8.) On November 3, 2018, Henry Brown Buick obtained a new Arizona certificate of title to the GMC truck that reflected that the truck had 160,360 actual miles. (Id. ¶ 11.) After acquiring the GMC truck, Henry Brown Buick sent the truck to Manheim Auction to be sold. (Id. ¶ 14.) After it sent the GMC truck to the auction, Henry Brown received notice from the auction that a customer wanted to negotiate the sales amount due to a possible "TMU" or true mileage unknown issue with the odometer on the GMC truck. (Doc. 82 ¶ 33.)
On or about March 21, 2019, Advantage Auto bought the GMC truck from Manheim Auction where it had been sent by Henry Brown Buick for sale. (Doc. 76 ¶ 14.) At the time of the sale to Advantage Auto, the title of the GMC truck stated that it had 160,438 miles. (Id. ¶ 15.) Plaintiff then bought the GMC truck from Advantage Auto on March 29, 2019. (Id. ¶ 1.) During Plaintiff's purchase of the GMC truck from Advantage Auto, Advantage Auto prepared and signed a Secure Odometer Statement on the truck stating that the odometer reading was 160,480 miles. (Id. ¶ 16.) After purchasing the GMC truck, Plaintiff attempted to trade in the truck at a different dealership. (Doc. 82 ¶ 37.) The dealership showed Plaintiff the CarFax Vehicle History Report on the GMC truck showing that the truck had more miles than were listed on the odometer. (Id. ¶ 39.) A different dealership showed Plaintiff a Workbench report showing that the GMC truck was serviced at a GMC dealership on December 29, 2017 with the odometer reading of 275,292 miles. (Id. ¶ 42.)
Plaintiff has now brought this lawsuit against Defendants Delong Jr., Advantage Auto, Henry Brown Buick, Galvez and Perico's Construction alleging violations of Odometer Act, 49 U.S.C. §§ 32701, et seq., breach of express warranty, and violation of the Arizona Consumer Fraud Act, A.R.S. §§ 44-1521, et seq. (Doc. 1.) Only the Odometer Act claim is alleged against Defendants Henry Brown Buick, Galvez, and Perico's Construction. (Doc. 1 ¶¶ 99-106.)
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is any factual issue that might affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record" or by "showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A), (B). The court need only consider the cited materials, but it may also consider any other materials in the record. Id. 56(c)(3). Summary judgment may also be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Initially, the movant bears the burden of demonstrating to the Court the basis for the motion and "identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323. If the movant fails to carry its initial burden, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the movant meets its initial responsibility, the burden then shifts to the nonmovant to establish the existence of a genuine issue of material fact. Id. at 1103. The nonmovant need not establish a material issue of fact conclusively in its favor, but it "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmovant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Liberty Lobby, 477 U.S. at 247-48. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted). However, in the summary judgment context, the Court believes the nonmovant'sevidence, id. at 255, and construes all disputed facts in the light most favorable to the nonmoving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). If "the evidence yields conflicting inferences [regarding material facts], summary judgment is improper, and the action must proceed to trial." O'Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 1150 (9th Cir. 2002).
Defendant Henry Brown Buick advances two arguments in its Motion for Summary Judgment. First, it argues that 49 C.F.R. 580.17(a)(3) of the Odometer Act exempts from the disclosure requirement vehicles manufactured in or before the 2010 model year that are transferred at least 10 years after January 1 of the calendar year corresponding to its designated model year. 49 C.F.R. § 580.17(a)(3)(i). Because the GMC truck was manufactured in 2007 as a model year 2008 and sold to Henry Brown Buick in October 2018, Henry Brown Buick argues that it was exempt from the disclosure requirement and that it cannot be held liable under the Act. In the alternative, if the Court determines that the GMC truck was not exempt from the Odometer Act, Henry Brown Buick argues that it is not liable under the Act because there is no evidence that it intended to make any false statement or defraud any transferee as required by the Act. Thus, it argues that it is entitled to summary judgment.
Defendants Galvez and Perico's Construction join in Defendant Henry Brown Buick's Motion for Summary Judgment. Additionally, Defendant Perico's Construction argues that "Plaintiff has submitted no evidence that Defendant Galvez did business as Perico's Construction, L.L.C." (Doc. 80 at 5.) Therefore, they argue that summary judgment is appropriate for both Defendants Galvez and Perico's...
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