DUARTE, J. —
Justin Leber and Katherine Neumann (collectively, Leber) sued DKD of Davis, Inc. (DKD), under California's "lemon law,"
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."
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 Buyer's Guide to account for the transfer of a manufacturer's warranty.
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.
"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
"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.)
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.
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.
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.
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.) 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
If the Legislature had intended the definition of "new" vehicle in section 1793.22, subdivision (e) to apply throughout the Act, it would not have explicitly limited its applicability by providing: "For the purposes of subdivision (d) of Section 1793.2 and this section, the following terms have the following meanings...," explicitly limiting the ambit of the various definitions that followed. (§ 1793.22, subd. (e).)
Leber continues his claim as follows: "Even if [§] 1795.5 applied to this case, it would not require a retail seller of used goods to issue its own express warranty at the time of sale in order to be liable under implied warranties, only that an express warranty be given." He focuses on the passive voice used in the phrase "a sale in which an express warranty is given" and reasons that because the General Motors warranty existed, the sale by DKD was a sale in which an express warranty was given within the meaning of section 1795.5. He points to section 1791.2, subdivision(a)(1), which defines an express warranty in part as: "A written statement arising out of a sale to the consumer of a consumer good pursuant to which the manufacturer, distributor, or retailer undertakes to preserve or maintain the utility or performance of the consumer good or provide compensation if there is a failure in utility or performance...." He reads this to mean that if any of the named entities — manufacturer, distributor, or retailer — provides an express warranty, each of those entities is deemed to have done so.
The judgment is affirmed. Leber and Neumann shall pay DKD of Davis, Inc.'s, costs of this appeal. (See Cal. Rules of Court, rule 8.278.)
Hull, Acting P. J., and Mauro, J., concurred.