Preview
1 Mary Arens McBride, Esq. (SBN 282459)
Claudia Gavrilescu, Esq. (SBN 333030)
2 Sandra Habib, Esq. (SBN 325316)
3 ERSKINE LAW GROUP, PC
1592 N. Batavia Street, Suite 1A
4 Orange, CA 92867
Tel: (949) 777-6032
5 Fax: (714) 844-9035
Email: eservice-ca@erskinelaw.com
6 Email: cgavrilescu@erskinelaw.com
7 Email: shabib@erskinelaw.com
8 Attorneys for Defendant
GENERAL MOTORS LLC
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 FOR THE COUNTY OF SANTA BARBARA
12
TYLER POWELL, ) CASE NO.: 23CV01453
13 )
Plaintiff, ) Case Initiated: April 6, 2023
14 )
vs. )
15 ) Hon. Thomas P. Anderle
) Dept.: 3
GENERAL MOTORS LLC; and DOES 1
16 )
through 10, inclusive, ) GENERAL MOTORS LLC’S
17 ) MEMORANDUM OF POINTS AND
Defendants. ) AUTHORITIES IN OPPOSITION TO
18 ) PLAINTIFF’S MOTION IN LIMINE NO. 2
) TO EXCLUDE EVIDENCE, TESTIMONY,
19 ) OR ARGUMENT THAT DEFENDANT
) PROPOSED ARBITRATION AS A
20 ) RESOLUTION TO THIS MATTER
)
21 ) Complaint Filed: April 6, 2023
) Pre-Trial Conf: April 24, 2024
22 ) Trial: April 25, 2024
23
24
25
26
27
28
1 With his Motion in Limine No. 2, Plaintiff Tyler Powell (“Plaintiff”) improperly seeks to bar
2 General Motors LLC (“GM”) from introducing into evidence any testimony that Plaintiff did not avail
3 himself of or participate in a third-party dispute resolution program. That evidence is properly admissible
4 and highly relevant because it negates Plaintiff’s claim for civil penalties under Civil Code Section 1794,
5 subdivision (e), paragraph (1). (See id., subd. (e), para. (2) [“If the manufacturer maintains a qualified
6 third-party dispute resolution process which substantially complies with Section 1793.22, the
7 manufacturer shall not be liable for any civil penalty pursuant to this subdivision”].) Plaintiff’s Motion
8 impermissibly seeks to eliminate GM’s affirmative defenses at trial – that GM maintains a qualified
9 dispute resolution process which offers consumers a free third-party arbitration program. Plaintiff’s
10 Motion should therefore be denied.
11 I. EVIDENCE OF GM’S THIRD-PARTY ARBITRATION PROGRAM AND PLAINTIFF’S
FAILURE TO PARTICIPATE IN THE PROGRAM IS RELEVANT.
12
13 GM’s maintenance of a third-party dispute resolution process negates Plaintiff’s claim for a civil
14 penalty under Civil Code Section 1794, subdivision (e). (See id., subd. (e), para. (2) [noting claim for a
15 civil penalty under Section 1794, subdivision (c), requires proof of willfulness].) Plaintiff argues that
16 evidence of GM’s third-party arbitration program should be excluded because there is no requirement
17 under Song-Beverly that a plaintiff first avail themselves to a third-party dispute program prior to filing
18 suit. This does not, however, negate the relevance of GM’s third-party arbitration program. GM should
19 be permitted to establish that (a) GM offers a third-party arbitration program to permit consumers to
20 present their complaints to a neutral third-party arbiter, and that (b) Plaintiff never contacted or
21 participated in the third-party arbitration program despite claiming GM failed to promptly repurchase or
22 replace nonconforming consumer goods. For example, during trial GM should be permitted to ask
23 Plaintiff why she did not participate in the third-party arbitration program if she claims GM failed to
24 gather available information and to “promptly offer a repurchase or replacement” after receiving notice
25 of problems with the subject vehicle. This is prime fodder for permissible cross-examination.
26 II. PLAINTIFF’S MOTION IMPERMISSIBLY SEEKS SUMMARY ADJUDICATION.
27
GM’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2
TO EXCLUDE EVIDENCE, TESTIMONY, OR ARGUMENT THAT DEFENDANT PROPOSED ARBITRATION AS A
28
RESOLUTION TO THIS MATTER
-1-
1 Plaintiff’s Motion must be denied because it seeks to summarily adjudicate one of GM’s potential
2 defenses at trial. Indeed, Plaintiff argues GM should be precluded from introducing evidence and
3 argument of its third-party arbitration programs across the board. (See generally Motion.) This is an
4 improper use of in limine motions. (See Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 377
5 [reversing judgment due to improper grant of in limine motion, noting: “If [Plaintiff] wished to obtain a
6 ruling prior to trial that [Defendant] was negligent as a matter of law, [Plaintiff] should have raised the
7 issue in a motion for summary judgment or summary adjudication where all relevant facts could be
8 assessed.”].)
9 Plaintiff had ample opportunity to bring a motion for summary adjudication regarding any of
10 GM’s defenses, including mitigation, waiver, estoppel, and qualified third-party dispute resolution
11 process. Plaintiff did not so move and should not now be permitted to preclude GM from presenting
12 evidence and testimony regarding a viable affirmative defense. Simply put, evidence of GM’s third-party
13 arbitration program and Plaintiff’s failure to submit her warranty dispute to this third-party dispute
14 resolution process is relevant to negate Plaintiff’s claim that GM was willful, and to negate Plaintiff’s
15 request for civil penalties under Civil Code section 1794, subdivision (e).
16 For all these reasons, Plaintiff’s motion should be denied.
17 DATED: April 18, 2024 ERSKINE LAW GROUP, APC
18
19
By: _______________________________
20 Claudia Gavrilescu, Esq.
Sandra Habib, Esq.
21 Attorney for General Motors LLC
22
23
24
25
26
27
GM’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2
TO EXCLUDE EVIDENCE, TESTIMONY, OR ARGUMENT THAT DEFENDANT PROPOSED ARBITRATION AS A
28
RESOLUTION TO THIS MATTER
-2-
1 PROOF OF SERVICE
2 I am employed in the County of Orange and my business address is 1592 N. Batavia Street, Suite
1A, Orange, CA 92867. I am over the age of 18 years and I am not a party to this action. I am readily
3 familiar with the practices of Erskine Law Group for the collection and processing of correspondence for
mailing with the United States Postal Service. Such correspondence is deposited with the United States
4 Postal Service the same day in the ordinary course of business.
5 On April 18, 2024, I served the foregoing document(s), bearing the title(s): GENERAL
MOTORS LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
6 PLAINTIFF’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE, TESTIMONY, OR
ARGUMENT THAT DEFENDANT PROPOSED ARBITRATION AS A RESOLUTION TO
7 THIS MATTER on the interested parties in the action as follows:
8 [X] by placing [ ] the original [X] a true copy thereof enclosed in a sealed envelope addressed as
follows:
9
10 Tionna G. Dolin
Sanam Vaziri
11 emailservices@slpattorney.com
STRATEGIC LEGAL PRACTICES, APC
12 1888 Century Park, East, 19th Floor,
Los Angeles, CA 90067
13 [] (BY MAIL SERVICE) I placed such envelopes for collection and to be mailed on this date
following ordinary business practices.
14
[] (BY PERSONAL SERVICE) I caused to be delivered such envelope by hand to the office of
15 the addressee.
16 [] (BY NEXT DAY DELIVERY) I caused to be delivered such envelope by hand to the office of
the addressee.
17
[X] (BY E-MAIL) I served the above mentioned document via electronic transmission per agreement
18 of the parties.
19 [X] (State) I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
20
[] (Federal) I declare under penalty of perjury that I am employed by a member of the Bar of this
21 Court, at whose direction this service is made.
22 Executed on April 18, 2024, at Orange, CA.
23
24 Signed: _______________________
Annai Morales, Paralegal
25
26
27
28
PROOF OF SERVICE
Preview
1 Mary Arens McBride, Esq. (SBN 282459) Claudia Gavrilescu, Esq. (SBN 333030) 2 Sandra Habib, Esq. (SBN 325316) 3 ERSKINE LAW GROUP, PC 1592 N. Batavia Street, Suite 1A 4 Orange, CA 92867 Tel: (949) 777-6032 5 Fax: (714) 844-9035 Email: eservice-ca@erskinelaw.com 6 Email: cgavrilescu@erskinelaw.com 7 Email: shabib@erskinelaw.com 8 Attorneys for Defendant GENERAL MOTORS LLC 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF SANTA BARBARA 12 TYLER POWELL, ) CASE NO.: 23CV01453 13 ) Plaintiff, ) Case Initiated: April 6, 2023 14 ) vs. ) 15 ) Hon. Thomas P. Anderle ) Dept.: 3 GENERAL MOTORS LLC; and DOES 1 16 ) through 10, inclusive, ) GENERAL MOTORS LLC’S 17 ) MEMORANDUM OF POINTS AND Defendants. ) AUTHORITIES IN OPPOSITION TO 18 ) PLAINTIFF’S MOTION IN LIMINE NO. 2 ) TO EXCLUDE EVIDENCE, TESTIMONY, 19 ) OR ARGUMENT THAT DEFENDANT ) PROPOSED ARBITRATION AS A 20 ) RESOLUTION TO THIS MATTER ) 21 ) Complaint Filed: April 6, 2023 ) Pre-Trial Conf: April 24, 2024 22 ) Trial: April 25, 2024 23 24 25 26 27 28 1 With his Motion in Limine No. 2, Plaintiff Tyler Powell (“Plaintiff”) improperly seeks to bar 2 General Motors LLC (“GM”) from introducing into evidence any testimony that Plaintiff did not avail 3 himself of or participate in a third-party dispute resolution program. That evidence is properly admissible 4 and highly relevant because it negates Plaintiff’s claim for civil penalties under Civil Code Section 1794, 5 subdivision (e), paragraph (1). (See id., subd. (e), para. (2) [“If the manufacturer maintains a qualified 6 third-party dispute resolution process which substantially complies with Section 1793.22, the 7 manufacturer shall not be liable for any civil penalty pursuant to this subdivision”].) Plaintiff’s Motion 8 impermissibly seeks to eliminate GM’s affirmative defenses at trial – that GM maintains a qualified 9 dispute resolution process which offers consumers a free third-party arbitration program. Plaintiff’s 10 Motion should therefore be denied. 11 I. EVIDENCE OF GM’S THIRD-PARTY ARBITRATION PROGRAM AND PLAINTIFF’S FAILURE TO PARTICIPATE IN THE PROGRAM IS RELEVANT. 12 13 GM’s maintenance of a third-party dispute resolution process negates Plaintiff’s claim for a civil 14 penalty under Civil Code Section 1794, subdivision (e). (See id., subd. (e), para. (2) [noting claim for a 15 civil penalty under Section 1794, subdivision (c), requires proof of willfulness].) Plaintiff argues that 16 evidence of GM’s third-party arbitration program should be excluded because there is no requirement 17 under Song-Beverly that a plaintiff first avail themselves to a third-party dispute program prior to filing 18 suit. This does not, however, negate the relevance of GM’s third-party arbitration program. GM should 19 be permitted to establish that (a) GM offers a third-party arbitration program to permit consumers to 20 present their complaints to a neutral third-party arbiter, and that (b) Plaintiff never contacted or 21 participated in the third-party arbitration program despite claiming GM failed to promptly repurchase or 22 replace nonconforming consumer goods. For example, during trial GM should be permitted to ask 23 Plaintiff why she did not participate in the third-party arbitration program if she claims GM failed to 24 gather available information and to “promptly offer a repurchase or replacement” after receiving notice 25 of problems with the subject vehicle. This is prime fodder for permissible cross-examination. 26 II. PLAINTIFF’S MOTION IMPERMISSIBLY SEEKS SUMMARY ADJUDICATION. 27 GM’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE, TESTIMONY, OR ARGUMENT THAT DEFENDANT PROPOSED ARBITRATION AS A 28 RESOLUTION TO THIS MATTER -1- 1 Plaintiff’s Motion must be denied because it seeks to summarily adjudicate one of GM’s potential 2 defenses at trial. Indeed, Plaintiff argues GM should be precluded from introducing evidence and 3 argument of its third-party arbitration programs across the board. (See generally Motion.) This is an 4 improper use of in limine motions. (See Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 377 5 [reversing judgment due to improper grant of in limine motion, noting: “If [Plaintiff] wished to obtain a 6 ruling prior to trial that [Defendant] was negligent as a matter of law, [Plaintiff] should have raised the 7 issue in a motion for summary judgment or summary adjudication where all relevant facts could be 8 assessed.”].) 9 Plaintiff had ample opportunity to bring a motion for summary adjudication regarding any of 10 GM’s defenses, including mitigation, waiver, estoppel, and qualified third-party dispute resolution 11 process. Plaintiff did not so move and should not now be permitted to preclude GM from presenting 12 evidence and testimony regarding a viable affirmative defense. Simply put, evidence of GM’s third-party 13 arbitration program and Plaintiff’s failure to submit her warranty dispute to this third-party dispute 14 resolution process is relevant to negate Plaintiff’s claim that GM was willful, and to negate Plaintiff’s 15 request for civil penalties under Civil Code section 1794, subdivision (e). 16 For all these reasons, Plaintiff’s motion should be denied. 17 DATED: April 18, 2024 ERSKINE LAW GROUP, APC 18 19 By: _______________________________ 20 Claudia Gavrilescu, Esq. Sandra Habib, Esq. 21 Attorney for General Motors LLC 22 23 24 25 26 27 GM’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE, TESTIMONY, OR ARGUMENT THAT DEFENDANT PROPOSED ARBITRATION AS A 28 RESOLUTION TO THIS MATTER -2- 1 PROOF OF SERVICE 2 I am employed in the County of Orange and my business address is 1592 N. Batavia Street, Suite 1A, Orange, CA 92867. I am over the age of 18 years and I am not a party to this action. I am readily 3 familiar with the practices of Erskine Law Group for the collection and processing of correspondence for mailing with the United States Postal Service. Such correspondence is deposited with the United States 4 Postal Service the same day in the ordinary course of business. 5 On April 18, 2024, I served the foregoing document(s), bearing the title(s): GENERAL MOTORS LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO 6 PLAINTIFF’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE, TESTIMONY, OR ARGUMENT THAT DEFENDANT PROPOSED ARBITRATION AS A RESOLUTION TO 7 THIS MATTER on the interested parties in the action as follows: 8 [X] by placing [ ] the original [X] a true copy thereof enclosed in a sealed envelope addressed as follows: 9 10 Tionna G. Dolin Sanam Vaziri 11 emailservices@slpattorney.com STRATEGIC LEGAL PRACTICES, APC 12 1888 Century Park, East, 19th Floor, Los Angeles, CA 90067 13 [] (BY MAIL SERVICE) I placed such envelopes for collection and to be mailed on this date following ordinary business practices. 14 [] (BY PERSONAL SERVICE) I caused to be delivered such envelope by hand to the office of 15 the addressee. 16 [] (BY NEXT DAY DELIVERY) I caused to be delivered such envelope by hand to the office of the addressee. 17 [X] (BY E-MAIL) I served the above mentioned document via electronic transmission per agreement 18 of the parties. 19 [X] (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 20 [] (Federal) I declare under penalty of perjury that I am employed by a member of the Bar of this 21 Court, at whose direction this service is made. 22 Executed on April 18, 2024, at Orange, CA. 23 24 Signed: _______________________ Annai Morales, Paralegal 25 26 27 28 PROOF OF SERVICE