Opinion
No. A148817.
02-09-2018
SAMUEL DURAN et al., Plaintiffs and Appellants, v. U.S. BANK NATIONAL ASSOCIATION, Defendant and Respondent.
[Modification of opinion (19 Cal.App.5th 1234; ___ Cal.Rptr.3d ___), upon denial of rehearing.]
THE COURT. — It is hereby ordered that the opinion filed herein on January 30, 2018, be modified as follows:
1. On page 2, the first full paragraph [19 Cal.App.5th 1238, advance report, 2d opinion par.] beginning with, "As to the alleged," is deleted and the following paragraph is inserted in its place.
As to the alleged breach of the implied warranty of merchantability, we conclude Gutierrez failed to adequately allege facts showing the existence of the safety recall relating to the vehicle's stop lamp switch rendered the vehicle unfit for ordinary purposes. Gutierrez did not allege the switch in her vehicle was actually defective and did not allege her use of the vehicle was restricted or impaired due to the recall.
2. On page 7, the first word of line 2 of the second full paragraph [19 Cal.App.5th 1242, advance report, 3d full par., line 2], "implied" is deleted.
3. On page 8, the last full paragraph [19 Cal.App.5th 1243, advance report, 4th full par.] beginning with, "Fourth, CarMax contends" is deleted.
4. On page 12, line 3 [19 Cal.App.5th 1246, advance report, 1st full par., 6th line], the words "by the omissions" are changed to "due to the lack" so the end of that sentence reads: "we experienced no inefficiencies due to the lack of repeated citations to the complaint."
5. Beginning on page 12, subsections 1, 2, and 3 under heading "D. Implied Warranty Cause of Action" [19 Cal.App.5th 1246, advance report, pt. D] are deleted and the following sections and paragraphs are inserted in its place, which will require renumbering of all subsequent
1. Elements of a Claim
In generic terms, the elements of any cause of action are wrongdoing, causation and harm. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797,
807 [27 Cal.Rptr.3d 661, 110 P.3d 914] [claims for strict liability, negligence and breach of implied warranty].) Here the alleged wrongdoing is a breach of the implied warranty of merchantability imposed by the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.). Under the circumstances of this case, which involves the sale of a used automobile, the element of wrongdoing is established by pleading and proving (1) the plaintiff bought a used automobile from the defendant, (2) at the time of purchase, the defendant was in the business of selling automobiles to retail buyers, (3) the defendant made express warranties with respect to the used automobile, and (4) the automobile was not fit for ordinary purposes for which the goods are used. (Civ. Code, §§ 1792, 1791.1, subd. (a)(2) [definition of implied warranty of merchantability], 1795.5 [sale of used consumer goods]; see CACI No. 3210.) Generally, "[t]he core test of merchantability is fitness for the ordinary purpose for which such goods are used." (Atkinson v. Elk Corporation of Texas (2006) 142 Cal.App.4th 212, 228 .)
There are other ways to plead and prove this last element, but they are not relevant in this appeal. (See Civ. Code, § 1791.1, subd. (a)(1), (3), (4); CACI No. 3210.)
Stating a complete cause of action for a breach of the Song-Beverly Consumer Warranty Act's implied warranty of merchantability also requires the plaintiff to allege facts establishing the generic elements of causation and harm. These elements are addressed by the statutory provisions that define the relief available for a breach of the implied warranty. For instance, Civil Code section 1791.1, subdivision (d) states: "Any buyer of consumer goods injured by a breach of the implied warranty of merchantability ... has the remedies provided in Chapter 6 (commencing with Section 2601) and Chapter 7 (commencing with Section 2701) of Division 2 of the Commercial Code, and, in any action brought under such provisions, Section 1794 of this chapter shall apply."
Similarly, Civil Code section 1794, subdivision (a) states that "[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation ... under an implied ... warranty ... may bring an action for the recovery of damages or other legal and equitable relief." In accordance with these provisions, the buyer of consumer goods must plead he or she was injured or damaged by the alleged breach of the implied warranty of merchantability.
In this appeal, the disputed elements of the cause action for a breach of the Song-Beverly Consumer Warranty Act's implied warranty of merchantability are whether Gutierrez has alleged sufficient facts to show (1) the Hyundai was not fit for ordinary purposes, (2) Gutierrez was injured, and (3) the injury was proximately caused by the alleged breach of the implied warranty.
2. Alleging a Vehicle Is Unfit for Ordinary Purposes
Whether an automobile is fit for the ordinary purpose for which vehicles are used has been addressed in a number of decisions. For example, a vehicle that is inoperable is unfit for transportation, which is an ordinary purpose for which a vehicle is used. (Jones v. Credit Auto Center, Inc. (2015) 237 Cal.App.4th Supp. 1, 9 .) However, a vehicle that is capable of providing transportation from point A to point B does not necessarily fulfill the implied warranty of merchantability. (Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 27 [upholding jury instruction that stated implied warranty required a vehicle that is "`in safe condition and substantially free of defects'"]; see Hodges v. Johnson (2009) 288 Kan. 56 [used Mercedes breached implied warranty of merchantability because its air-conditioner failed].) Based on the view that "an important consideration under the implied warranty is consumer safety," the Fourth District concluded a reasonable jury could find a vehicle sunroof that opens and closes on its own created a substantial safety hazard and, therefore, violated the implied warranty. (Brand v. Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1547 .) Consequently, the court reversed a judgment entered after the trial court granted the manufacturer's motion for nonsuit on the claim for breach of implied warranty of merchantability. (Id. at p. 1541.) For purposes of this appeal, we conclude allegations showing an alleged defect that created a substantial safety hazard would sufficiently allege the vehicle was not "fit for the ordinary purposes for which such goods are used" and, thus, breached the implied warranty of merchantability. (Civ. Code, § 1791.1, subd. (a)(2).)
3. Unfitness Due to the Safety Recall
First, we conclude the general assertions in the complaint that the Hyundai "was not fit for its intended use" and "was virtually useless due to safety defects" are not allegations of fact sufficient to state a breach of the implied warranty of merchantability. Gutierrez does not argue these general assertions are sufficient. Second, we conclude the allegation of the existence of a safety recall relating to a stop lamp switch, by itself, is insufficient to state facts showing that the vehicle was unfit for ordinary purposes. (Civ. Code, § 1791.1, subd. (a)(2); see generally Blanco v. Baxter Healthcare Corp. (2008) 158 Cal.App.4th 1039, 1055, 1056 .) In other words, the existence of the safety recall does not adequately allege a substantial safety hazard existed. Based on the foregoing conclusions, we turn to the other allegations of fact stated in the complaint and consider whether those allegations adequately show the Hyundai presented a substantial safety hazard.
The complaint's allegation that CarMax breached the implied warranty because the Hyundai "was not fit for its intended use" was followed by the clause "as described above." The previous paragraphs in the complaint described mechanical problems and vehicle unreliability involving failures to accelerate, stalling, and inoperable steering. However, there were no allegations connecting these problems with the existence of the safety recall for the stop lamp switch. As noted by CarMax, there is no allegation that the switch was actually defective or failed to function before it was replaced. Furthermore, we located no allegation explaining how Gutierrez's use of the vehicle was restricted or otherwise affected by the existence of the safety recall. For example, Gutierrez did not allege she became aware of the safety recall on a particular date and thereafter was reluctant to drive the Hyundai due to safety concerns related to the stop lamp switch. Therefore, we conclude Gutierrez has failed to allege facts sufficient to show the Hyundai was unfit for ordinary purposes due to the safety recall.
On appeal, Gutierrez does not argue unfitness for ordinary purposes based on the alleged defects involving steering, stalling and hesitant acceleration.
Gutierrez's petition for rehearing assumed she adequately alleged the Hyundai was unfit for ordinary purposes and addressed whether she is entitled to relief. Her arguments raise questions about the elements of injury and causation that we need not decide.
There is no change in the judgment.
Appellant's petition for rehearing filed on February 14, 2018, is hereby denied.