Preview
Tionna Carvalho (SBN 299010)
1 tcarvalho@slpattorney.com
2 James L. Carroll (SBN: 243684)
jlcarroll@slpattorney.com
3 STRATEGIC LEGAL PRACTICES
A PROFESSIONAL CORPORATION
4 1888 Century Park East, 19th Floor
Los Angeles, CA 90067
5 Telephone: (310) 929-4933
6 Facsimile: (310) 943-3838
7 Attorneys for Plaintiff,
TYLER POWELL
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF SANTA BARBARA
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11 TYLER POWELL, Case No.: 23CV01453
12 Complaint Filed: April 6, 2023
Plaintiff,
13 Hon. Thomas P. Anderle
v. Dept. 3
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GENERAL MOTORS LLC; and DOES 1 PLAINTIFF’S OPPOSITION TO
15 DEFENDANT’S MOTION IN LIMINE
through 10, inclusive,
NO. 2 TO EXCLUDE EVIDENCE OF
16 ISSUES PLAINTIFF DID NOT
Defendants. EXPERIENCE
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18 Complaint Filed: April 6, 2023
Pre-Trial Conf.: April 24, 2024
19 Trial: April 25, 2024
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22 MEMORANDUM OF POINTS & AUTHORITIES
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24 I. INTRODUCTION
25 Plaintiff TYLER POWELL (“Plaintiff”) submits the following Opposition to
26 Defendant/warrantor GENERAL MOTORS LLC’s (“GM” and “Defendant”) Motion in Limine
27 No. 2 to exclude evidence of issues Plaintiff did not experience. This action was brought by the
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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE
OF ISSUES PLAINTIFF DID NOT EXPERIENCE
1 purchaser of an automobile against the automobile’s distributor for violations of its statutory
2 obligations. The underlying action involves various issues Plaintiff experienced with his 2019
3 Chevrolet Suburban, vehicle identification number 1GNSCJKJ4KR125701 (the “Subject
4 Vehicle”), reflected in various repair presentations made to Defendant GM’s authorized repair
5 facility. Plaintiff claims that the Subject Vehicle was defective, and that Defendant was unable to
6 repair the vehicle to match the written warranty within a reasonable number of repair
7 presentations.
8 GM’s Motion should be denied. It improperly seeks summary adjudication of Plaintiff’s
9 claim as a form of relief. In addition, case law supports the applicability of evidence of recalls,
10 campaigns, special service messages (SSMs), and technical service bulletins (TSBs) about
11 unrelated issues with the Subject Vehicle that Defendant alleges Plaintiff never experienced.
12
13 II. LEGAL ANALYSIS
14 A. Defendant’s Vague Motion Fails to Specify Evidence Excluded
15 GM’s Motion fails to specify exactly what evidence is being opposed; what evidence
16 should be deemed irrelevant; and why the probative value of such evidence is substantially
17 outweighed by a risk of undue prejudice—all pre-requisite showings in accordance with Evidence
18 Code sections 350 and 352. (See Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659,
19 669-70; See also Los Angeles Sup. Ct. Civil Local Rule 3.57 requiring both “specific
20 identification of the matter alleged to be inadmissible and prejudicial” and a “statement of the
21 specific prejudice that will be suffered by the moving party if the motion is not granted.”).
22 Defendant notably makes no reference to depositions, declarations, or to specific
23 irrelevant recalls or bulletins that Plaintiff purportedly seeks to bring into evidence. Instead, GM’s
24 Motion seeks to exclude an entire category of evidence (“evidence or arguments concerning
25 service bulletins or recall notices that relate to issues that do not relate to Plaintiff’s vehicle, or do
26 not relate to Plaintiff’s complaints about the Vehicle”) without identifying any specific evidence
27 they seek to exclude.
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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE
OF ISSUES PLAINTIFF DID NOT EXPERIENCE
1 Bulletins and recalls are frequently performed in response to complaints, malfunctions,
2 and defects. Warrantors distribute these to dealers precisely for diagnosis and repair. Trial
3 testimony from Plaintiff, Defendant’s PMQ, and parties’ experts will establish bulletins’
4 relevance and provide the jury with information necessary to weigh the evidence and determine
5 whether Plaintiff’s car was repaired. These are intensely factual questions not suited to resolution
6 by a motion devoid of factual content. Defendant will have every opportunity at trial to object to
7 the relevance of specific evidence.
8 Consequently, GM’s motion seeks to force the Court to “rule in a vacuum.” (Kelly, 49
9 Cal.App.4th at 670). Without a clear identification of the evidence, Plaintiff is otherwise unable
10 to demonstrate the admissibility of the particular evidence and the Court is unable to engage in
11 the balancing of interests required under Evidence Code section 352.
12 B. Recalls Should Be Properly Assessed by Their Relevance to Plaintiff’s Claims
Under the Evidence Code
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Here, in order to prevail on his claims, Plaintiff must demonstrate:
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(1) the vehicle had a nonconformity covered by the express warranty that substantially
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impaired the use, value, or safety of the vehicle (the nonconformity element);
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(2) the vehicle was presented to an authorized representative of the manufacturer of the
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vehicle for repair (the presentation element); and
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(3) the manufacturer or his representative did not repair the nonconformity after a
19
reasonable number of repair attempts (the failure to repair element).
20
(Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101).
21
“Reasonable number” is assessed with respect to the entire vehicle, not a single defect.
22
(See CACI 3201 (“That the vehicle had [a] defect[s] that [was/were] covered by the warranty and
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that substantially impaired its use, value, or safety to a reasonable person in [name of plaintiff]’s
24
situation” (emphasis added); Santana v. FCA US (2020) LLC, 56 Cal. App. 5th 334, 346,
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successful repair of a vehicle under the SBA restores “full functionality, not a “MacGyver” half
26
measure that simply swaps defects.”; Silvio v. Ford Motor Company (2003) 109 Cal. App. 4th
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1205, 1208, "The statute requires the manufacturer to afford the specified remedies of restitution
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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE
OF ISSUES PLAINTIFF DID NOT EXPERIENCE
1 or replacement if that manufacturer is unable to repair the vehicle after a reasonable number of
2 attempts.'" (emphasis added)).
3 Ultimately, only two repair opportunities are necessary to meet the "reasonable number of
4 repairs" standard. (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal. App.
5 4th 785, 799, 800-03).
6 Plaintiff does not need to prove a specific defect (or cause), but rather that his car did not
7 operate the way a person would ordinarily expect despite repairs (including bulletins) attempted
8 by Defendant. (See Lundy v. Ford Motor Co. (2001) 87 Cal. App. 4th 472, 478, 104, “what a
9 reasonable person would understand to be a defect....within the specific circumstances of the
10 buyer” (internal citations omitted); Schreidel v. American Honda Motor Co. (1995) 34 Cal. App.
11 4th 1242, 1253,“it was not necessary to pinpoint the exact mechanical detail within the slave
12 cylinder of the clutch system to prove Schreidel's case”; Oregel (2001) 90 Cal. App. 4th at 1102,
13 n. 8, “[The manufacturer] also argues it was incumbent on [the plaintiff] to prove not only that the
14 car leaked oil but also to show the cause of the leak, and that he failed to meet this burden because
15 he produced no expert testimony proving the cause of the leak. . . . [P]roof that there was a
16 persistent leak that [the dealer] could not locate or repair suffices. We do not interpret the statute
17 as depriving a consumer of a remedy if he cannot do what the manufacturer, with its presumably
18 greater expertise, was incapable of doing, i.e. identify the source of the leak.” (internal citations
19 and quotations omitted)).
20 In order to prove each of these elements Plaintiff must produce sufficient evidence. Under
21 Evidence Code section 350 “no evidence is admissible except relevant evidence.” (Evid. Code §
22 350). Evidence Code section 351 indicates that “except as otherwise provided by statute, all
23 relevant evidence is admissible.” (Evid. Code § 351). Evidence is relevant if it has any tendency
24 to prove or disprove any disputed fact that is of consequence to the determination of the action.
25 (Evid. Code § 210). Therefore, if the evidence of the recalls GM seeks to preclude are relevant
26 the evidence should be admitted.
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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE
OF ISSUES PLAINTIFF DID NOT EXPERIENCE
1 C. Applicable Recalls and TSBs Are Clearly Relevant to Song Beverly Claims
2 Case law is clear that recalls and bulletins performed count as attempted repairs under the
3 Song-Beverly Act cases. (See Donlen v. Ford Motor Co. (2013) 217 Cal. App. 4th 138, 141, “The
4 first warranty repair, in August of 2005 at 11,618 miles, occurred pursuant to a recall notice
5 Plaintiffs received from Ford. The recall concerned the truck's transmission.” (emphasis added)).
6 Adequacy of recalls is frequently at the center of disputes over both nonconformity and
7 willfulness. (See Santana at 347 (supra); Donlen at 141 (supra) and 153, “Ford had already issued
8 a special service message concerning the transmission before Plaintiffs purchased the truck. It had
9 warned of harsh shifting if the transmission's adaptive shift feature was temporarily lost. The
10 transmission was known as problematic among industry personnel he had contacted”; Jensen at
11 135, “BMW issued a technical bulletin in October 1990 which alerted dealerships about a brake
12 shimmy in the 528e model”).
13 Indeed, the performance of recalls and technical service bulletins —and what a defendant
14 knows about their efficacy —was precisely at issue in Santana, and supported Plaintiff’s request
15 for civil penalties:
16 Here, there was evidence to support a finding that Chrysler's “repair” of the faulty
fuel pump relay was intentionally inadequate during the warranty period.
17 Specifically, the bridge operation solved one problem—stalling or failing to
start—only to introduce a new defect: the inability of the fuel pump to shut off in
18 the event of an accident. Contemporaneous internal e-mails demonstrated that
Chrysler was aware of the problem. And Santana's expert testified there was no
19 evidence that Chrysler's recall procedure ever accounted for the new risk, and
that, in fact, Santana's vehicle was left with the new defect after the bridge
20 operation. Although Chrysler did not include the actual warranty in our record,
presumably it requires a repair that restores full functionality, not a “MacGyver”
21 half measure that simply swaps defects. From this evidence, the jury could infer
that Chrysler intentionally chose not fully to honor the express warranty, which is
22 sufficient to support a civil penalty under Civil Code section 1794, subdivision (c).
23 (Santana v. FCA US, LLC (2020) 56 Cal. App. 5th 334, 347 (emphasis added)).
24 Here, there is no question that the subject vehicle failed to conform to warranty. However,
25 GM contends that recalls and bulletins simply should not count as repair opportunities or relate
26 to the car’s nonconformity. Not only is this a question for experts and a jury, but bulletins also
27 frequently state their relevance to problems experienced by vehicles. Defendant’s attempt to hide
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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE
OF ISSUES PLAINTIFF DID NOT EXPERIENCE
1 these recalls is an effort to prevent the jury from knowing relevant information that indicates
2 liability. These are precisely the sort of continuing nonconformities at issue in the Santana case,
3 which would cause a jury and a Court to conclude that GM not only failed to conform a vehicle
4 to warranty but was aware of that failure.
5 As discussed above, GM’s motion provides too little information to allow evaluation.
6 Recalls and bulletins performed on Plaintiff’s vehicle are necessarily relevant to its repair history,
7 its state of repair, and Defendant’s awareness of the same. (See Donlen v. Ford Motor Co. (2013)
8 217 Cal. App. 4th 138, 141). As the evidence would be relevant to demonstrate the
9 nonconformities in the Subject Vehicle, this evidence should be allowed. Additionally, pursuant
10 to Evidence Code section 352 this evidence would not be unduly prejudicial as it has a high
11 probative value. Additionally, the prejudicial effect or likelihood of confusing the jury is very low.
12 Therefore, this evidence is admissible.
13 With no evidentiary basis to exclude the evidence, GM’s Motion comes before this Court
14 to request broad exclusion by motion in limine solely to prejudice Plaintiff’s case and prevent
15 relevant and admissible evidence from being presented to the jury.
16 D. Defendant’s Motion is an Improper Motion for Summary Adjudication
17 A motion in limine may not be used as a vehicle to bring a backdoor motion for summary
18 adjudication. Such motions may only be brought pursuant to the requirements set forth in Code
of Civil Procedure sections 437(a-c).
19
Indeed, GM’s requested relief is tantamount to summary adjudication of Plaintiff’s lemon
20
law claims, particularly his claim under 1793.2(d)(2). Defendant requests summary ruling,
21
without the input of expert witnesses or jury deliberation, that certain unspecified evidence be
22
considered unrelated to the Vehicle’s nonconformity because GM considers them unrelated.
23
Leaving aside the vagueness of the request, and the fact that this is squarely within the province
24
of juries and experts, under 1793.2(d)(2) the number of presentations to Defendant’s facilities,
25
and whether it is a reasonable number, is an essential element of a claim. The vagueness and ambit
26
of Defendant’s proposed exclusion threatens to sweep in relevant evidence and may result in
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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE
OF ISSUES PLAINTIFF DID NOT EXPERIENCE
1 improper summary adjudication of Plaintiff’s claims. The Court should deny the Motion on this
2 ground too.
3
4 III. CONCLUSION
5 Accordingly, this Court should deny GM’s motion in limine No.2.
6
7 Dated: April 17, 2024 STRATEGIC LEGAL PRACTICES, APC
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By:
10 TIONNA CARVALHO
Attorneys for Plaintiff,
11 TYLER POWELL
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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE
OF ISSUES PLAINTIFF DID NOT EXPERIENCE
Preview
Tionna Carvalho (SBN 299010) 1 tcarvalho@slpattorney.com 2 James L. Carroll (SBN: 243684) jlcarroll@slpattorney.com 3 STRATEGIC LEGAL PRACTICES A PROFESSIONAL CORPORATION 4 1888 Century Park East, 19th Floor Los Angeles, CA 90067 5 Telephone: (310) 929-4933 6 Facsimile: (310) 943-3838 7 Attorneys for Plaintiff, TYLER POWELL 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA BARBARA 10 11 TYLER POWELL, Case No.: 23CV01453 12 Complaint Filed: April 6, 2023 Plaintiff, 13 Hon. Thomas P. Anderle v. Dept. 3 14 GENERAL MOTORS LLC; and DOES 1 PLAINTIFF’S OPPOSITION TO 15 DEFENDANT’S MOTION IN LIMINE through 10, inclusive, NO. 2 TO EXCLUDE EVIDENCE OF 16 ISSUES PLAINTIFF DID NOT Defendants. EXPERIENCE 17 18 Complaint Filed: April 6, 2023 Pre-Trial Conf.: April 24, 2024 19 Trial: April 25, 2024 20 21 22 MEMORANDUM OF POINTS & AUTHORITIES 23 24 I. INTRODUCTION 25 Plaintiff TYLER POWELL (“Plaintiff”) submits the following Opposition to 26 Defendant/warrantor GENERAL MOTORS LLC’s (“GM” and “Defendant”) Motion in Limine 27 No. 2 to exclude evidence of issues Plaintiff did not experience. This action was brought by the 28 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE OF ISSUES PLAINTIFF DID NOT EXPERIENCE 1 purchaser of an automobile against the automobile’s distributor for violations of its statutory 2 obligations. The underlying action involves various issues Plaintiff experienced with his 2019 3 Chevrolet Suburban, vehicle identification number 1GNSCJKJ4KR125701 (the “Subject 4 Vehicle”), reflected in various repair presentations made to Defendant GM’s authorized repair 5 facility. Plaintiff claims that the Subject Vehicle was defective, and that Defendant was unable to 6 repair the vehicle to match the written warranty within a reasonable number of repair 7 presentations. 8 GM’s Motion should be denied. It improperly seeks summary adjudication of Plaintiff’s 9 claim as a form of relief. In addition, case law supports the applicability of evidence of recalls, 10 campaigns, special service messages (SSMs), and technical service bulletins (TSBs) about 11 unrelated issues with the Subject Vehicle that Defendant alleges Plaintiff never experienced. 12 13 II. LEGAL ANALYSIS 14 A. Defendant’s Vague Motion Fails to Specify Evidence Excluded 15 GM’s Motion fails to specify exactly what evidence is being opposed; what evidence 16 should be deemed irrelevant; and why the probative value of such evidence is substantially 17 outweighed by a risk of undue prejudice—all pre-requisite showings in accordance with Evidence 18 Code sections 350 and 352. (See Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 19 669-70; See also Los Angeles Sup. Ct. Civil Local Rule 3.57 requiring both “specific 20 identification of the matter alleged to be inadmissible and prejudicial” and a “statement of the 21 specific prejudice that will be suffered by the moving party if the motion is not granted.”). 22 Defendant notably makes no reference to depositions, declarations, or to specific 23 irrelevant recalls or bulletins that Plaintiff purportedly seeks to bring into evidence. Instead, GM’s 24 Motion seeks to exclude an entire category of evidence (“evidence or arguments concerning 25 service bulletins or recall notices that relate to issues that do not relate to Plaintiff’s vehicle, or do 26 not relate to Plaintiff’s complaints about the Vehicle”) without identifying any specific evidence 27 they seek to exclude. 28 2 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE OF ISSUES PLAINTIFF DID NOT EXPERIENCE 1 Bulletins and recalls are frequently performed in response to complaints, malfunctions, 2 and defects. Warrantors distribute these to dealers precisely for diagnosis and repair. Trial 3 testimony from Plaintiff, Defendant’s PMQ, and parties’ experts will establish bulletins’ 4 relevance and provide the jury with information necessary to weigh the evidence and determine 5 whether Plaintiff’s car was repaired. These are intensely factual questions not suited to resolution 6 by a motion devoid of factual content. Defendant will have every opportunity at trial to object to 7 the relevance of specific evidence. 8 Consequently, GM’s motion seeks to force the Court to “rule in a vacuum.” (Kelly, 49 9 Cal.App.4th at 670). Without a clear identification of the evidence, Plaintiff is otherwise unable 10 to demonstrate the admissibility of the particular evidence and the Court is unable to engage in 11 the balancing of interests required under Evidence Code section 352. 12 B. Recalls Should Be Properly Assessed by Their Relevance to Plaintiff’s Claims Under the Evidence Code 13 Here, in order to prevail on his claims, Plaintiff must demonstrate: 14 (1) the vehicle had a nonconformity covered by the express warranty that substantially 15 impaired the use, value, or safety of the vehicle (the nonconformity element); 16 (2) the vehicle was presented to an authorized representative of the manufacturer of the 17 vehicle for repair (the presentation element); and 18 (3) the manufacturer or his representative did not repair the nonconformity after a 19 reasonable number of repair attempts (the failure to repair element). 20 (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101). 21 “Reasonable number” is assessed with respect to the entire vehicle, not a single defect. 22 (See CACI 3201 (“That the vehicle had [a] defect[s] that [was/were] covered by the warranty and 23 that substantially impaired its use, value, or safety to a reasonable person in [name of plaintiff]’s 24 situation” (emphasis added); Santana v. FCA US (2020) LLC, 56 Cal. App. 5th 334, 346, 25 successful repair of a vehicle under the SBA restores “full functionality, not a “MacGyver” half 26 measure that simply swaps defects.”; Silvio v. Ford Motor Company (2003) 109 Cal. App. 4th 27 1205, 1208, "The statute requires the manufacturer to afford the specified remedies of restitution 28 3 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE OF ISSUES PLAINTIFF DID NOT EXPERIENCE 1 or replacement if that manufacturer is unable to repair the vehicle after a reasonable number of 2 attempts.'" (emphasis added)). 3 Ultimately, only two repair opportunities are necessary to meet the "reasonable number of 4 repairs" standard. (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal. App. 5 4th 785, 799, 800-03). 6 Plaintiff does not need to prove a specific defect (or cause), but rather that his car did not 7 operate the way a person would ordinarily expect despite repairs (including bulletins) attempted 8 by Defendant. (See Lundy v. Ford Motor Co. (2001) 87 Cal. App. 4th 472, 478, 104, “what a 9 reasonable person would understand to be a defect....within the specific circumstances of the 10 buyer” (internal citations omitted); Schreidel v. American Honda Motor Co. (1995) 34 Cal. App. 11 4th 1242, 1253,“it was not necessary to pinpoint the exact mechanical detail within the slave 12 cylinder of the clutch system to prove Schreidel's case”; Oregel (2001) 90 Cal. App. 4th at 1102, 13 n. 8, “[The manufacturer] also argues it was incumbent on [the plaintiff] to prove not only that the 14 car leaked oil but also to show the cause of the leak, and that he failed to meet this burden because 15 he produced no expert testimony proving the cause of the leak. . . . [P]roof that there was a 16 persistent leak that [the dealer] could not locate or repair suffices. We do not interpret the statute 17 as depriving a consumer of a remedy if he cannot do what the manufacturer, with its presumably 18 greater expertise, was incapable of doing, i.e. identify the source of the leak.” (internal citations 19 and quotations omitted)). 20 In order to prove each of these elements Plaintiff must produce sufficient evidence. Under 21 Evidence Code section 350 “no evidence is admissible except relevant evidence.” (Evid. Code § 22 350). Evidence Code section 351 indicates that “except as otherwise provided by statute, all 23 relevant evidence is admissible.” (Evid. Code § 351). Evidence is relevant if it has any tendency 24 to prove or disprove any disputed fact that is of consequence to the determination of the action. 25 (Evid. Code § 210). Therefore, if the evidence of the recalls GM seeks to preclude are relevant 26 the evidence should be admitted. 27 28 4 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE OF ISSUES PLAINTIFF DID NOT EXPERIENCE 1 C. Applicable Recalls and TSBs Are Clearly Relevant to Song Beverly Claims 2 Case law is clear that recalls and bulletins performed count as attempted repairs under the 3 Song-Beverly Act cases. (See Donlen v. Ford Motor Co. (2013) 217 Cal. App. 4th 138, 141, “The 4 first warranty repair, in August of 2005 at 11,618 miles, occurred pursuant to a recall notice 5 Plaintiffs received from Ford. The recall concerned the truck's transmission.” (emphasis added)). 6 Adequacy of recalls is frequently at the center of disputes over both nonconformity and 7 willfulness. (See Santana at 347 (supra); Donlen at 141 (supra) and 153, “Ford had already issued 8 a special service message concerning the transmission before Plaintiffs purchased the truck. It had 9 warned of harsh shifting if the transmission's adaptive shift feature was temporarily lost. The 10 transmission was known as problematic among industry personnel he had contacted”; Jensen at 11 135, “BMW issued a technical bulletin in October 1990 which alerted dealerships about a brake 12 shimmy in the 528e model”). 13 Indeed, the performance of recalls and technical service bulletins —and what a defendant 14 knows about their efficacy —was precisely at issue in Santana, and supported Plaintiff’s request 15 for civil penalties: 16 Here, there was evidence to support a finding that Chrysler's “repair” of the faulty fuel pump relay was intentionally inadequate during the warranty period. 17 Specifically, the bridge operation solved one problem—stalling or failing to start—only to introduce a new defect: the inability of the fuel pump to shut off in 18 the event of an accident. Contemporaneous internal e-mails demonstrated that Chrysler was aware of the problem. And Santana's expert testified there was no 19 evidence that Chrysler's recall procedure ever accounted for the new risk, and that, in fact, Santana's vehicle was left with the new defect after the bridge 20 operation. Although Chrysler did not include the actual warranty in our record, presumably it requires a repair that restores full functionality, not a “MacGyver” 21 half measure that simply swaps defects. From this evidence, the jury could infer that Chrysler intentionally chose not fully to honor the express warranty, which is 22 sufficient to support a civil penalty under Civil Code section 1794, subdivision (c). 23 (Santana v. FCA US, LLC (2020) 56 Cal. App. 5th 334, 347 (emphasis added)). 24 Here, there is no question that the subject vehicle failed to conform to warranty. However, 25 GM contends that recalls and bulletins simply should not count as repair opportunities or relate 26 to the car’s nonconformity. Not only is this a question for experts and a jury, but bulletins also 27 frequently state their relevance to problems experienced by vehicles. Defendant’s attempt to hide 28 5 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE OF ISSUES PLAINTIFF DID NOT EXPERIENCE 1 these recalls is an effort to prevent the jury from knowing relevant information that indicates 2 liability. These are precisely the sort of continuing nonconformities at issue in the Santana case, 3 which would cause a jury and a Court to conclude that GM not only failed to conform a vehicle 4 to warranty but was aware of that failure. 5 As discussed above, GM’s motion provides too little information to allow evaluation. 6 Recalls and bulletins performed on Plaintiff’s vehicle are necessarily relevant to its repair history, 7 its state of repair, and Defendant’s awareness of the same. (See Donlen v. Ford Motor Co. (2013) 8 217 Cal. App. 4th 138, 141). As the evidence would be relevant to demonstrate the 9 nonconformities in the Subject Vehicle, this evidence should be allowed. Additionally, pursuant 10 to Evidence Code section 352 this evidence would not be unduly prejudicial as it has a high 11 probative value. Additionally, the prejudicial effect or likelihood of confusing the jury is very low. 12 Therefore, this evidence is admissible. 13 With no evidentiary basis to exclude the evidence, GM’s Motion comes before this Court 14 to request broad exclusion by motion in limine solely to prejudice Plaintiff’s case and prevent 15 relevant and admissible evidence from being presented to the jury. 16 D. Defendant’s Motion is an Improper Motion for Summary Adjudication 17 A motion in limine may not be used as a vehicle to bring a backdoor motion for summary 18 adjudication. Such motions may only be brought pursuant to the requirements set forth in Code of Civil Procedure sections 437(a-c). 19 Indeed, GM’s requested relief is tantamount to summary adjudication of Plaintiff’s lemon 20 law claims, particularly his claim under 1793.2(d)(2). Defendant requests summary ruling, 21 without the input of expert witnesses or jury deliberation, that certain unspecified evidence be 22 considered unrelated to the Vehicle’s nonconformity because GM considers them unrelated. 23 Leaving aside the vagueness of the request, and the fact that this is squarely within the province 24 of juries and experts, under 1793.2(d)(2) the number of presentations to Defendant’s facilities, 25 and whether it is a reasonable number, is an essential element of a claim. The vagueness and ambit 26 of Defendant’s proposed exclusion threatens to sweep in relevant evidence and may result in 27 28 6 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE OF ISSUES PLAINTIFF DID NOT EXPERIENCE 1 improper summary adjudication of Plaintiff’s claims. The Court should deny the Motion on this 2 ground too. 3 4 III. CONCLUSION 5 Accordingly, this Court should deny GM’s motion in limine No.2. 6 7 Dated: April 17, 2024 STRATEGIC LEGAL PRACTICES, APC 8 9 By: 10 TIONNA CARVALHO Attorneys for Plaintiff, 11 TYLER POWELL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE OF ISSUES PLAINTIFF DID NOT EXPERIENCE