1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RAUL SIQUEIROS, et al., Case No. 16-cv-07244-EMC
8 Plaintiffs, ORDER GRANTING PLAINTIFFS’ 9 v. MOTION FOR DETERMINATION OF GARET TARVIN’S ADEQUACY TO 10 GENERAL MOTORS LLC, SERVE AS CALIFORNIA CLASS REPRESENTATIVE, AND GRANTING 11 Defendant. IN PART AND DENYING IN PART GENERAL MOTORS’ MOTION FOR 12 SUMMARY JUDGMENT ON TARVIN’S CLAIMS 13 Docket Nos. 413, 428 14 15 16 I. INTRODUCTION 17 Plaintiffs allege that Defendant General Motors LLC (“GM” or “Defendant”) knowingly 18 manufactured and sold a car engine with inherent defects that caused excessive oil consumption 19 and engine damage. The alleged defects affect 2011 to 2014 model-year GM vehicles. Plaintiffs 20 assert claims under various state consumer-protection and fraud statutes on behalf of a nationwide 21 class as well as various statewide classes. Plaintiffs filed their class action complaint on 22 December 19, 2016. See Docket No. 2 (“Compl.”). They have since amended their pleadings 23 several times; the operative complaint is the Eighth Amended Complaint. 24 Before the Court are (1) Plaintiffs’ motion for determination of Garet Tarvin’s adequacy to 25 serve as the California class representative pursuant to Federal Rule of Civil Procedure 23(a)(4), 26 see Docket No. 413 (“Tarvin Adequacy Mot.”) and (2) GM’s motion for partial summary 27 judgment pursuant to Federal Rule of Civil Procedure 56 on Mr. Tarvin’s claims, see Docket No. 1 As discussed below, the Court finds that Mr. Tarvin is an adequate representative for the 2 California Class. The Court thus GRANTS Plaintiffs’ motion for a determination of Mr. Tarvin’s 3 adequacy and appoints Mr. Tarvin to serve as a representative for the California Class. The Court 4 GRANTS in part and DENIES in part GM’s motion for partial summary judgment on Mr. 5 Tarvin’s claims. The Court GRANTS summary judgment for GM as to Mr. Tarvin’s claims for 6 unjust enrichment and fraudulent omission, and denies it as to the remainder of Mr. Tarvin’s 7 claims. 8 II. BACKGROUND 9 A. Factual Background 10 Plaintiffs allege that GM’s Gen IV Vortec 5300 LC9 engine suffers from an “inherent” oil- 11 consumption defect (the “Oil Consumption Defect”). See Docket No. 412 (“8AC”) ¶ 7. The 12 “primary cause” of the alleged defect is the piston rings installed by GM. Id. ¶ 8. These piston 13 rings “do not maintain sufficient tension to keep oil in the crankcase,” and the oil migration that 14 occurs as a result allows oil to “burn[] or accumulate[] as carbon buildup on the combustion 15 chamber’s surfaces.” Id. ¶¶ 8–9. Plaintiffs allege that the oil-consumption defect causes safety 16 problems in three ways: (1) oil consumption can lead to a lack of adequate lubrication in the 17 engine and dropping oil pressure levels in vehicles, see id. ¶ 19; (2) the presence of excess oil in 18 the combustion chamber can cause spark plug fouling, which can cause engine problems, see id.; 19 and (3) when drivers experience these problems while driving, they may be forced to pull over and 20 stop alongside a road or highway (or they may be stranded in such a location with an inoperable 21 vehicle), which places them in danger, see id. ¶¶ 14, 127–28. 22 B. Procedural Background 23 At this point in the litigation, the claims of ten plaintiffs remain in the case, and are set for 24 trial on September 13, 2022. See Docket No. 411 (“Scheduling Order”). The Court certified three 25 of those claims for class action trials under Rule 23(b)(3): (1) breach of implied warranty under 26 California’s Song-Beverly Consumer Warranty Act; (2) breach of implied warranty under North 27 Carolina law; and (3) violation of the Idaho Consumer Protection Act. See Docket No. 354 1 of model year 2011-2014 Chevrolet Avalanche, Silverado, Suburban, Tahoe, and GMC Sierra, 2 Yukon, and Yukon XL vehicles equipped with aluminum block LC9 Gen IV engines that were 3 manufactured after February 10, 2011. Docket No. 451 (“Joint Pretrial Conference Statement”) at 4 1–2. The California class is further limited to current owners who purchased their vehicles in new 5 condition and the Idaho class is further limited to current owners who purchased their vehicles 6 from GM dealerships. Id. at 1. There remain numerous individual claims. See September 7, 2021 7 Order at 2-4. On January 7, 2022, the Court granted in part and denied in part the parties’ Daubert 8 motions. Docket No. 395. 9 C. California Class Representatives 10 The Court initially appointed Plaintiff Raul Siqueiros as the California class representative, 11 but Mr. Siqueiros was not a class member because his vehicle was manufactured before February 12 10, 2011. See Docket No. 320 (“May 25, 2021 Order”) at 44. On June 26, 2020, Manuel 13 Fernandez moved to intervene and to be appointed as class representative for the California class. 14 Docket No. 278. On May 25, 2021, the Court appointed Mr. Fernandez as a class representative 15 for the California class. Id. at 45. In April 2022, Mr. Fernandez sold his Class Vehicle and was 16 no longer a current owner or class member, leaving the California case without a named plaintiff 17 in this action that is a California resident and able to serve as a California Class representative at 18 trial. See Docket No. 401 (“Mot. to Intervene”) at 1–2. 19 On May 13, 2022, Garet Tarvin and Carlos Gamez moved to intervene and to be appointed 20 as substitute California class representatives. See Mot. to Intervene at 1. On July 7, 2022, the 21 Court conditionally allowed Mr. Tarvin and Mr. Gamez1 to intervene, subject to the Court’s 22 determination after discovery that they are adequate class representatives under Rule 23. See 23 Docket No. 410 (July 7, 2022 Minute Order). On July 14, 2022, Plaintiffs moved for a 24 determination of Mr. Tarvin’s and Mr. Gamez’s adequacy as California class representatives. 25 Docket No. 413 (“Tarvin Adequacy Mot.”). On August 3, 2022, GM filed its opposition. Docket 26
27 1 On July 25, 2022, Mr. Gamez voluntarily dismissed all of his claims. Docket No. 418 (Notice of 1 No. 425 (“Tarvin Opp.”). On August 10, 2022, Plaintiffs filed their reply. Docket No. 438 2 (“Tarvin Adequacy Reply”). 3 On August 3, 2022, in conjunction with its opposition to Tarvin’s motion to be appointed a 4 representative of the California Class, GM moved for summary judgment on Tarvin’s individual 5 claims. See Docket No. 428 (“Tarvin MSJ”) at 1. On August 10, 2022, Plaintiffs filed their 6 opposition to GM’s motion for summary judgment. See Docket No. 439 (“Tarvin MSJ Opp.”). 7 The Court heard oral argument on both motions on August 26, 2022 as part of the pretrial 8 conference. Docket No. 470. 9 III. LEGAL STANDARDS 10 A. Motion for Adequacy of Class Representative 11 Although expressly authorized by Rule 23, the “class action is ‘an exception to the usual 12 rule that litigation is conducted by and on behalf of the individual named parties only.’” Wal– 13 Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 14 682, 700–01 (1979)). “In order to justify departure from that rule, ‘a class representative must be 15 part of the class and possess the same interest and suffer the same injury as [her fellow] class 16 members.’” Id. (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)). 17 Rule 23(a) permits plaintiffs to sue as representatives of a class only if (1) “the class is so 18 numerous that joinder of all members is impracticable” (the “numerosity” requirement); (2) “there 19 are questions of law or fact common to the class” (the “commonality” requirement); (3) “the 20 claims or defenses of the representative parties are typical of the claims or defenses of the class” 21 (the “typicality” requirement); and (4) “the representative parties will fairly and adequately protect 22 the interests of the class” (the “adequacy” requirement). Fed. R. Civ. P. 23(a)(1)-(4). The purpose 23 of Rule 23(a)’s requirements is largely to “ensure[ ] that the named plaintiffs are appropriate 24 representatives of the class whose claims they wish to litigate,” and to “effectively limit the class 25 claims to those fairly encompassed by the named plaintiff’s claims.” Wal-Mart, 564 U.S. at 349 26 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982)). 27 Rule 23(a) requires that “the claims or defenses of the representative parties are typical of 1 requirement is to assure that the interest of the named representative aligns with the interests of the 2 class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citing Weinberger v. 3 Thornton, 114 F.R.D. 599, 603 (S.D. Cal. 1986)). “The test of typicality ‘is whether other 4 members have the same or similar injury, whether the action is based on conduct which is not 5 unique to the named plaintiffs, and whether other class members have been injured by the same 6 course of conduct.’” Id. (quoting Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985)). The 7 requirement is permissive, such that “representative claims are ‘typical’ if they are reasonably 8 coextensive with those of absent class members; they need not be substantially identical.” Just 9 Film, Inc. v. Buono, 847 F.3d 1108, 1116 (9th Cir. 2017) (quoting Parsons v. Ryan, 754 F.3d 657, 10 685 (9th Cir. 2014)). 11 B. Motion for Summary Judgment 12 Federal Rule of Civil Procedure 56 provides that a “court shall grant summary judgment 13 [to a moving party] if the movant shows that there is no genuine dispute as to any material fact and 14 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue of fact is 15 genuine only if there is sufficient evidence for a reasonable jury to find for the nonmoving party. 16 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). “The mere existence of a 17 scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could 18 reasonably find for the [nonmoving party].” Id. at 252. At the summary judgment stage, evidence 19 must be viewed in the light most favorable to the nonmoving party and all justifiable inferences 20 are to be drawn in the nonmovant’s favor. See id. at 255. 21 Where a defendant moves for summary judgment based on a claim for which the plaintiff 22 bears the burden of proof, the defendant need only point to the plaintiff’s failure “to make a 23 showing sufficient to establish the existence of an element essential to [the plaintiff's] case.” 24 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 25 IV. DISCUSSION 26 A. Mr. Tarvin’s Adequacy to Represent the California Class 27 Mr. Tarvin currently owns a 2012 GMC Sierra with an LC9 engine manufactured after 1 Mot.), Ex. A (“Tarvin Decl.”) ⁋⁋ 2–3. Mr. Tarvin alleges that he has “noticed ongoing excessive 2 oil consumption and related symptoms” in the 2012 GMC Sierra while under warranty. Id. ⁋ 8. In 3 2014, he “presented the oil consumption problem” to Pearson Buick GMC and “was told that the 4 consumption was ‘normal.’” Id. 5 As mentioned above, Rule 23(a)(4) requires that the putative class representative must 6 “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). A named 7 plaintiff satisfies the adequacy test if the individual has no conflicts of interest with other class 8 members and if the named plaintiff will prosecute the action vigorously on behalf of the class. See 9 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011). A named plaintiff satisfies 10 the typicality test if the individual’s claims are “reasonably coextensive with those of absent class 11 members” and there are no “unique defenses.” Just Film, 847 F.3d at 1116. 12 GM advances three reasons why Mr. Tarvin is allegedly not an adequate class 13 representative. Tarvin Adequacy Opp. at 5–7. First, GM argues that Tarvin is not an adequate 14 class representative because his vehicle purportedly does not suffer from the alleged Oil 15 Consumption Defect. Id. at 5. Second, GM argues that Tarvin’s claim is not typical of the class 16 because he “mechanically modified” his engine in an attempt to manipulate the oil consumption 17 rate. Id. at 7. Third, GM contends that Tarvin’s Song-Beverly claim is time-barred and not tolled. 18 Id. The Court addresses each argument in turn. 19 1. Tarvin’s Evidence of Excessive Oil Consumption 20 GM claims that Mr. Tarvin is not an adequate representative because “Tarvin’s own 21 evidence confirms that his vehicle does not have an oil consumption problem and he has suffered 22 no injury.” Tarvin Adequacy Opp. at 5. In GM’s view, Mr. Tarvin cannot satisfy the typicality 23 requirement because his vehicle is allegedly not defective. Id. 24 As a threshold matter, the Court notes that GM posed a similar argument when it opposed 25 appointing Mr. Fernandez as a class representative: GM argued then that “Mr. Fernandez’s vehicle 26 is merchantable because he has not experienced any engine trouble or other safety issue, and 27 because he drove the vehicle for 78,000 miles before experiencing the effects of the oil- 1 delayed onset of issues rendered Mr. Fernandez an inadequate class representative because 2 numerous courts within the Ninth Circuit have concluded that “safety-related defects which may 3 be slow to emerge may nonetheless furnish a basis for a breach of implied warranty claim” under 4 California law. Id. at 45 (quoting Sloan v. Gen. Motors LLC, No. 16-cv-07244-EMC, 2020 WL 5 1955643, at *28 (N.D. Cal. Apr. 23, 2020) (collecting cases)). To the extent that GM argues that a 6 delayed onset of issues precludes Mr. Tarvin from being an adequate class representative, this 7 argument is foreclosed by the Court’s prior rulings. 8 In this round of class adequacy briefing, though, GM makes a broader argument as to Mr. 9 Tarvin’s purported inadequacy. Tarvin Adequacy Opp. at 5. According to GM, Mr. Tarvin is an 10 inadequate class representative because he has “no evidence” of excessive oil consumption in his 11 vehicle. Id. In support of this theory, GM characterizes Mr. Tarvin’s deposition testimony as 12 showing that “his vehicle has never stalled, never failed to start, never lost power,2 never 13 experienced spark plug fouling, rough idling, or engine noise; in fact, his vehicle has never 14 required any repairs at all, much less repairs for piston ring or oil consumption-related issues.” Id. 15 at 5–6 (citing portions of Tarvin’s deposition transcript). 16 But these lack of issues do not tell the whole story. There is evidence to support Plaintiffs’ 17 theory that Mr. Tarvin’s 2012 GMC Sierra has experienced issues related to the oil consumption 18 defect since at least 2014. For instance, Mr. Tarvin routinely finds it necessary to add up to three 19 quarts of oil between regular oil changes. See Docket No. 438-2 (“Pl. Excerpts of Tarvin Depo. 20 Tr.”) at 55:13-22; 56:4-17. In addition to the low oil levels, Mr. Tarvin has experienced repeated 21 check engine light illumination since 2014. See Docket No. 429-3 (“Corrected Int. Resp.”) at 4. 22 Mr. Tarvin testified that since he first discovered low oil levels in 2014, he will generally only 23 drive the vehicle a few miles in any given day and will not take it on longer road trips because he 24 believes the car is “not reliable” and “he would have anxiety” to drive it on a road trip with his 25 2 Tarvin’s Corrected Interrogatory Responses (which GM submitted as an exhibit, see Docket No. 26 429-3) state that he experienced “loss of power and rough idling.” See Docket No. 429-3 (“Corrected Int. Resp.”) at 6 (“Excessive oil consumption is an inherent safety defect; thus, at all 27 times when his vehicle was in operation, Plaintiff faced a potential safety hazard. This is evidenced 1 family. See Pl. Excerpts of Tarvin Depo. Tr. at 79:3-12. 2 GM points to the dealership’s oil consumption test in 2021 as further evidencing that Mr. 3 Tarvin’s vehicle is not defective. Mot at 6. In January 2021, Mr. Tarvin sought an oil 4 consumption test at the recommendation of Taylor GMC Buick Cadillac in Redding, CA. See Pl. 5 Excerpts of Tarvin Depo. Tr. at 41:4-20; Corrected Int. Resp. at 4–5. Between February and 6 September 2021, the dealership regularly checked the oil levels in his vehicle at thousand mile 7 increments. Id. After the test, the dealership told Mr. Tarvin that his vehicle’s oil consumption 8 was within acceptable limits for an in-warranty 2012 GMC Sierra. Corrected Int. Resp at 5 9 (“After the test, the dealer told Plaintiff his oil consumption experience was normal and was 10 consuming 1.5 qt per 3000 miles which is right at the allowed limit of GM of .946 qt per 2000 11 miles.”). 12 The Court concludes that this evidence is mixed. On the one hand, from GM’s 13 perspective, the test showed that “after 10 years and over 92,000 miles,” Tarvin’s truck “meets the 14 normal oil consumption rate for brand new GM vehicles.” Tarvin Adequacy Opp. at 6. But on the 15 other hand, as Plaintiffs note, “GM relies solely on its self-serving guidelines for this figure. GM 16 does not present any evidence of an industry-wide standard setting this figure or any analysis that 17 oil consumption at that level is truly safe, and it is in GM’s self-interest to set that figure as low as 18 possible, since any oil consumption above that threshold would result in additional warranty 19 expenses.” Reply at 3. Plaintiffs also point out that GM’s figure is contradicted by GM’s owners’ 20 manuals, which purportedly recommend that, for vehicles with less than 130,000 miles, no more 21 than one quart of oil be consumed every 3,000 miles to ensure that the oil level remains high 22 enough to prevent engine damage. Id. at 3–4 (citing Docket No. 438-3, Dahm Report ¶¶ 71-75). 23 Moreover, even with Mr. Tarvin’s regular oil maintenance, there is evidence showing that 24 his vehicle still experiences oil-related issues. According to discovery responses, on April 11, 25 2022, the vehicle’s “oil pressure reading fell to zero and the check engine light illuminated.” 26 Corrected Int. Resp. at 6. Mr. Tarvin “checked the oil sump level and discovered it was one and 27 one-third quarts low after traveling just 2,461 miles after adding 1 quart of oil at 2000 miles.” Id. 1 filter service” and “had to replace the oil pressure sensor/filter.” Id. 2 To satisfy the typicality requirement, Mr. Tarvin must “possess the same interest and suffer 3 the same injury as the class members.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982) 4 (internal quotation marks and citation omitted); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 5 625–26 (1997) (explaining that an adequate representative plaintiff must “suffer the same injury as 6 the class members”) (internal quotation marks and citation omitted). While some class members 7 may have suffered more serious injuries relating to the alleged Oil Consumption Defect, that does 8 not render Mr. Tarvin an inadequate class representative. The evidence indicates that Mr. Tarvin 9 has experienced issues relating to the alleged Oil Consumption Defect, i.e. low oil levels and 10 check engine light illumination, since at least 2014, and his interests are undoubtedly aligned with 11 those of the class. That his vehicle has not lost power or experienced spark plug fouling does not 12 negate the injuries which Mr. Tarvin has experienced. 13 In sum, the fact that Mr. Tarvin has not experienced every possible consequence flowing 14 from the alleged Oil Consumption Defect does not render him an inadequate class representative. 15 His injuries are sufficiently typical to satisfy Rule 23(a)(3) and (4). 16 2. Tarvin’s Modifications to the GMC Sierra 17 GM next contends that Mr. Tarvin is not an adequate class representative because he used 18 a device to temporarily disable the active fuel management system in his vehicle for a few months 19 last year. Tarvin Adequacy Opp. at 7. In 2021, Mr. Tarvin purchased a Range Technology AFM 20 Disabler that disabled the active fuel management (“AFM”) system in his vehicle in hopes that it 21 would mitigate the oil consumption issues that he had been experiencing. See Docket No. 426-1 22 (“GM’s Excerpts of Tarvin Depo. Tr.”) at 49:10-16, 80:14-16. The Range device “modifies a 23 setting in the vehicle’s internal computer system to turn off the AFM system.” Reply at 4 n.4. To 24 install the device, Mr. Tarvin plugged it into a port (the on-board diagnostic board) underneath the 25 dash. See GM’s Excerpts of Tarvin Depo. Tr at 50:6-8, 80:7-13. Because the device did not make 26 a difference with respect to the oil consumption, Mr. Tarvin unplugged it after “just a couple 27 months.” Id. at 50:9-18, 51:19-21. 1 Mr. Tarvin “mechanically modified the engine in his GMC Sierra with an illegal aftermarket 2 engine control device, specifically intending to manipulate the oil consumption rate.” Tarvin 3 Adequacy Opp. at 7. Plaintiffs counter that the device is “aftermarket plug-in software” that 4 “makes no mechanical change to the engine at all.” Reply at 4 & 4 n.4. Plaintiffs further note that 5 “[o]nce [the device] is unplugged, the vehicle will revert to factory settings,” and the device’s 6 manufacturer anticipates that the product will soon be “updated to 50-state legal status.” Id. 7 Plaintiffs contend that the AFM system was not disabled when Mr. Tarvin purchased the vehicle, 8 and that the engine “is in the same condition that it would have been had Mr. Tarvin never 9 disabled the AFM.” Reply at 4. From Plaintiffs’ perspective, because Mr. Tarvin’s use of the 10 Range Technology device did not permanently affect the GM engine, it does not affect his ability 11 to prove his allegations or claim economic loss damages. Id. at 4–5. 12 For present purposes, the question for the Court is whether Mr. Tarvin’s use of the device 13 renders his claim “not typical of the class.” Tarvin Adequacy Opp. at 7. The Ninth Circuit has 14 held that a putative class representative does not satisfy typicality if the individual is “subject to 15 unique defenses which threaten to become the focus of the litigation.” Hanon, 976 F.2d at 508. 16 The Court is not convinced that Tarvin’s use of the device renders him vulnerable to such a 17 defense or renders him atypical. 18 GM cites two out-of-circuit cases in support of its theory that “[a] plaintiff who unilaterally 19 modifies the product at issue with aftermarket parts is not typical of those who did not.” Id. But 20 neither Afzal nor Kacmarek are analogous because those cases involved significant and permanent 21 changes to the products at issue. In Afzal, the proposed class representative was found to be not 22 typical of the class where he made “significant modifications to his Class Vehicle, including 23 software modifications, changes to his transmission timing, and adding a supercharger, each of 24 which imposes additional stress on the engine.” Afzal v. BMW of N. Am., LLC, No. 15-cv-8009, 25 2020 WL 2786926, at *5 (D.N.J. May 29, 2020). And in Kaczmarek, the proposed class 26 representatives were atypical based on significant changes to the computers at issue. Kaczmarek 27 v. Int’l Bus. Machines Corp., 186 F.R.D. 307, 313 (S.D.N.Y. 1999). In particular, one of the 1 the Mwave modem functions while continuing to use the Mwave sound functions,” “added other 2 modem cards,” and “installed third-party software applications that repartitioned his hard drive.” 3 Id. at 311. Another plaintiff “made hardware changes,” “overclocked his computer’s 4 motherboard,” and “improperly installed upgrades and admitted to line noise on his phone line, 5 both of which could have caused his alleged problems.” Id. 6 Afzal and Kaczmarek are inapposite because there is no showing here that the Range 7 device had any lasting effect on the Gen IV engine or Mr. Tarvin’s issues with his vehicle’s oil 8 consumption. GM presented no evidence suggesting that Mr. Tarvin’s problems with his vehicle 9 became worse or that the device exacerbated the oil consumption issues. To the contrary, Mr. 10 Tarvin allegedly experienced issues relating to the alleged Oil Consumption Defect from 2014 to 11 2022 and the device was only installed for a few months in late 2021. Additionally, according to 12 Plaintiffs, the vehicle reverts “to factory settings” once the Range Technology device is 13 unplugged. Reply at 4 n.4. Even if GM were to come up with some such evidence, it is unlikely 14 that Mr. Tarvin’s use of the Range device would be “a defense[] which threaten[s] to become the 15 focus of the litigation.” Hanon, 976 F.2d at 508. 16 The Court concludes that Mr. Tarvin’s use of the Range device does not render him an 17 inadequate class representative. 18 3. Tarvin’s Diligence and the Availability of Tolling 19 Lastly, GM argues that Mr. Tarvin is not an adequate class representative “because he 20 cannot present evidence on tolling of the statute of limitations.” Tarvin Adequacy Opp. at 7. GM 21 specifically contends that Mr. Tarvin’s Song-Beverly claim is time-barred and that he does not 22 qualify for fraudulent concealment tolling for lack of due diligence. Id. at 8. 23 The statute of limitations for an implied warranty of merchantability claim under 24 California’s Song-Beverly Consumer Warranty Act is four years and begins to run at the time of 25 purchase. See MacDonald v. Ford Motor Co., 37 F. Supp. 3d 1087, 1102 (N.D. Cal. 2014). Mr. 26 Tarvin purchased his vehicle on May 29, 2012, and the original complaint was not filed until 27 December 29, 2016. See GM’s Excerpts of Tarvin Depo. Tr. at 21:6-8; Docket No. 2. As a result, 1 In support of its theory that Mr. Tarvin failed to exercise due diligence, GM asserts that 2 Mr. Tarvin believed his vehicle was consuming excessive amounts of oil in May 2014 but waited 3 until January 2021 “to request any oil consumption-related inspection of his vehicle, or otherwise 4 take any steps to investigate his claim.” Tarvin Adequacy Opp. at 8–9. Because Tarvin’s claim 5 faces “a significant procedural hurdle” that—according to GM—“may not affect other class 6 members with untimely claims,” Tarvin is “not typical and cannot adequately represent the 7 interests of all class members.” Id. at 9 (quoting Taafua v. Quantum Glob. Techs., LLC, No. 18- 8 cv-06602-VKD, 2020 WL 95639, at *8 (N.D. Cal. Jan. 8, 2020)). 9 In response, Plaintiffs point out that GM’s challenge here “is indistinguishable from its 10 challenge to Plaintiff Siqueiros’s claim on the same grounds.” Reply at 5. Plaintiffs are correct. 11 In their first summary judgment motion, GM argued that “Mr. Siqueiros was on inquiry notice 12 with respect to the defects in his vehicle more than four years before the filing of his claims, and 13 therefore that he failed to exercise diligence.” Sloan, 2020 WL 1955643, at *19. At that time, the 14 Court squarely rejected the contention that Mr. Siqueiros was not on inquiry notice before 2016 as 15 a matter of law, reasoning that “[w]hile a reasonable jury might conclude that needing to add oil 16 on a monthly basis would have put Mr. Siqueiros on inquiry notice of an oil consumption 17 problem, a reasonable jury might also find he was not on inquiry notice of a defect that could 18 cause a serious or safety-related problem.” Id. Significantly, both Mr. Tarvin and Mr. Siqueiros 19 addressed the oil consumption issues by adding oil on a regular basis, and both were told by a 20 dealership that their vehicles’ oil consumption “was normal.” Id.; Corrected Int. Resp. at 5; 21 Tarvin Depo. Tr. at 42:21-43:2. Under the Court’s previous reasoning, then, a jury could find that 22 Mr. Tarvin, like Mr. Siqueiros, was not on inquiry notice prior to 2016.3 23 Additionally, it is not clear why GM contends that Tarvin’s purported lack of diligence is a 24 “significant procedural hurdle” that “may not affect other class members with untimely claims.” 25 Tarvin Adequacy Opp. at 9. GM acknowledges that the Court has already found that “questions 26
27 3 According to Plaintiffs, “GM does not dispute that, from December 2016 onward, Mr. Tarvin’s 1 about timeliness and tolling will impact ‘a substantial portion of the [California] class.’” Id. at 7 2 (quoting April 23, 2020 Order). If Mr. Siqueiros and Mr. Tarvin are any indication, a large 3 portion of the California class may seek the protection of the fraudulent concealment doctrine 4 despite having added extra oil to their vehicles. 5 Accordingly, the Court determines that Mr. Tarvin is an adequate representative for the 6 California class. 7 B. Summary Judgment 8 GM seeks summary judgment on all of Mr. Tarvin’s claims. MSJ at 1–2. For the reasons 9 discussed below, the Court concludes that there are material questions of fact for Mr. Tarvin’s 10 claims under the Song-Beverly Consumer Warranty Act, the Magnuson Moss Warranty Act, the 11 Consumer Legal Remedies Act (“CLRA”), and the Unfair Competition Law (“UCL”). As a 12 result, the Court DENIES summary judgment as to these claims. The Court GRANTS summary 13 judgment as to Mr. Tarvin’s unjust enrichment and fraudulent omission claims. 14 1. The Song-Beverly Implied Warranty Claim 15 GM contends that it is entitled to summary judgment on the implied warranty claim under 16 California’s Song-Beverly Consumer Warranty Act for two reasons: (1) there is no evidence that 17 Mr. Tarvin’s vehicle is unmerchantable, and (2) the claim is time-barred. MSJ at 14–15. The 18 Court addresses each argument in turn. 19 a. There Are Material Questions of Fact as to Whether Mr. Tarvin’s Vehicle Is 20 Merchantable 21 For the reasons described in Part A above, the Court disagrees with GM that there is “no 22 evidence” that Mr. Tarvin’s vehicle is unmerchantable. In California, “[t]he core test of 23 merchantability is fitness for the ordinary purpose for which such goods are used.” Isip v. 24 Mercedes-Benz USA, LLC, 155 Cal. App. 4th 19, 26 (2007). As this Court explained in In re 25 MyFord Touch Consumer Litig., “[t]he implied warranty of merchantability does not impose a 26 general requirement that goods precisely fulfill the expectation of the buyer. Instead, it provides 27 for a minimum level of quality.” 291 F. Supp. 3d 936, 945 (N.D. Cal. 2018) (quoting T & M Solar 1 quotation marks omitted)). To state a claim for a breach of the implied warranty of 2 merchantability, “a plaintiff must allege a fundamental defect that renders the product unfit for its 3 ordinary purpose.” Id. (quoting T & M Solar, 83 F. Supp. 3d at 878). 4 More specifically, the law in California is clear that to be fit for its ordinary purpose, a 5 vehicle must be “in safe condition and substantially free of defects.” Isip, 155 Cal. App. 4th at 27. 6 The vehicle must provide “reliable” transportation. Brand v. Hyundai Motor Am., 226 Cal. App. 7 4th 1538, 1547 (2014) (internal quotation marks omitted). Thus, three factors related to vehicle 8 merchantability are safety, reliability, and substantial freedom from defects. See In re MyFord 9 Touch, 291 F. Supp. 3d at 945–96. 10 GM asserts that there is no evidence that Mr. Tarvin’s vehicle is unmerchantable because 11 “Tarvin has driven his 2012 Sierra every day for more than ten years and 92,000 miles.” MSJ at 12 15. GM argues that “[d]uring all that time, his vehicle has not needed a single repair. It has never 13 stalled, shut down, failed to start, exhibited engine noise or damage, or otherwise proven unsafe or 14 unreliable. The undisputed evidence is that it consumes oil within normal limits.” Id. As a result, 15 according to GM, “Tarvin has no evidence from which a reasonable jury could find that this 16 vehicle was unmerchantable at the time of sale more than a decade ago, or that it is not reasonably 17 suited for providing transportation.” Id. There are two problems with GM’s reasoning. 18 First, as noted above, this Court has repeatedly rejected the premise that a vehicle is 19 necessarily merchantable because the plaintiff drove it for years and for tens of thousands of miles 20 before experiencing problems. In fact, in both of its previous summary judgment motions, GM 21 argued that the implied warranty claim failed because the plaintiff drove his car for years and tens 22 of thousands of miles before experiencing any problems related to the oil-consumption defect. See 23 Sloan, 2020 WL 1955643, at *28 (“GM makes much of the fact that the California Plaintiffs drove 24 their cars for years and for tens of thousands of miles before experiencing problems related to 25 safety or reliability . . . GM relies on these facts to argue that Plaintiffs’ vehicles ‘were fit for their 26 ordinary purpose.’”); Siqueiros v. Gen. Motors LLC, No. 16-cv-07244-EMC, 2021 WL 2115400, 27 at *13 (N.D. Cal. May 25, 2021) (“GM recycles its argument that Mr. Fernandez’s implied 1 experiencing any problems related to the oil-consumption defect.”). Both times, the Court rejected 2 this argument because “numerous courts within the Ninth Circuit have concluded that safety- 3 related defects which may be slow to emerge may nonetheless furnish a basis for a breach of 4 implied warranty claim.” Sloan, 2020 WL 1955643, at *28 (collecting authorities). To the extent 5 that GM contends that Mr. Tarvin’s claim fails as a matter of law because he did not experience 6 issues relating to the alleged Oil Consumption Defect within the first two years of purchase, as 7 noted above, this argument is untenable. 8 Second, as for GM’s theory that there is “no evidence” that Mr. Tarvin’s vehicle is 9 unmerchantable, the Court disagrees. Mr. Tarvin testified that he has experienced issues that are 10 plausibly related to the alleged Oil Consumption Defect (such as low oil levels and check engine 11 light illumination) since at least 2014. Pl. Excerpts of Tarvin Depo. Tr. at 54:3-14, 55:9-22; 12 Corrected Int. Resp. at 6. Mr. Tarvin routinely finds it necessary to add up to three quarts of oil 13 between regular oil changes. Id. at 56:4-8. And even with Mr. Tarvin’s regular oil maintenance, 14 he still experiences problems relating to his car’s oil use: in April of this year, the vehicle’s check 15 engine light illuminated and the oil pressure reading fell to zero. Corrected Int. Resp. at 6. Mr. 16 Tarvin had to add a total of 2.3 quarts of oil for 4,461 miles of travel since the last oil and filter 17 service and replace the oil pressure sensor/filter. Id. He has testified that he has limited the use of 18 the vehicle because of his concerns about the alleged defect. See Pl. Excerpts of Tarvin Depo. Tr. 19 at 79:3-12 (testifying that he will not take the car on road trips with his family because he believes 20 the car is “not reliable” and “would have anxiety” to drive it on a road trip). And as for GM’s 21 contention that his vehicle consumes oil “within normal limits,” MSJ at 15, GM’s owner manuals 22 allegedly suggest otherwise. SJ Opp. at 3 (citing Dahm Report ¶¶ 71–75). 23 In light of the other evidence in the case, and drawing all justifiable inferences in Mr. 24 Tarvin’s favor, Mr. Tarvin has presented sufficient evidence to demonstrate a material question of 25 fact as to whether Mr. Tarvin’s vehicle may suffer from the alleged Oil Consumption Defect. As 26 the Court has already found that a jury must decide the question of whether the alleged Oil 27 Consumption Defect is a safety defect within the context of an implied warranty claim, see Sloan 1 b. There Are Material Questions of Fact as to Whether Mr. Tarvin’s Claim is 2 Timely 3 Second, GM argues that summary judgment is warranted because Mr. Tarvin’s implied 4 warranty claim is time-barred and Mr. Tarvin has not shown that fraudulent concealment tolling 5 applies. MSJ at 15–16. 6 To toll the statute of limitations under the doctrine of fraudulent concealment, a plaintiff 7 must plead “(a) the substantive elements of the fraud, and (b) an excuse for late delivery of the 8 facts.” Sater v. Chrysler Grp., LLC, 2015 WL 736273, at *9 (C.D. Cal. Feb. 20, 2015) (fraudulent 9 concealment adequately pled where defendant “intentionally kept” plaintiff ignorant of 10 information, “continued to manufacture” product without disclosing defect, and delay in discovery 11 was reasonable at least until vehicle was recalled). With respect to the first prong, “[t]he required 12 elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a 13 defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the 14 plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the 15 fact and would not have acted as he or she did if he or she had known of the concealed or 16 suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of 17 the fact.” Hambrick v. Healthcare Partners Med. Grp., Inc., 238 Cal. App. 4th 124, 162 (2015) 18 (citing Graham v. Bank of Am., N.A., 226 Cal. App. 4th 594, 606 (2014)). Any act of concealment 19 must be affirmative. Herremans v. BMW of N. Am., LLC, No. 14-cv-02363, 2014 WL 5017843, at 20 *5 (C.D. Cal. Oct. 3, 2014) (“Absent a fiduciary relationship, nondisclosure is not fraudulent 21 concealment—affirmative deceptive conduct is required.”) (collecting cases). In addition, “if 22 there is fraudulent concealment, ‘the tolling ceases when those facts are, or should have been, 23 discovered by the plaintiff.’” Yetter v. Ford Motor Co., No. 19-cv-0877-LHK, 2019 WL 3254249, 24 at *5 (N.D. Cal. July 19, 2019) (citing Credit Suisse Secs. (USA) LLC v. Simmonds, 566 U.S. 221, 25 227 (2012)). 26 GM contends that fraudulent concealment tolling does not apply for two reasons. First, 27 Mr. Tarvin cannot show that GM engaged in an affirmative act of concealment. MSJ at 16. 1 claim despite his diligence. Id. 2 With respect to the first issue, the Court has already decided that “there is evidence to find, 3 for purposes of summary judgment, that GM engaged in an affirmative act to conceal the alleged 4 Oil Consumption Defect.” Sloan, 2020 WL 1955643, at *19. GM’s first argument is thus 5 foreclosed by the Court’s prior rulings. 6 As for whether Tarvin had inquiry notice of his claims, the Court has already concluded 7 that a jury could find that Mr. Tarvin was not on inquiry notice prior to 2016. See Section A.3 8 (explaining that “[u]nder the Court’s previous reasoning, then, a jury could find that Mr. Tarvin, 9 like Mr. Siqueiros, was not on inquiry notice prior to 2016”). Because Mr. Tarvin did not 10 experience any major vehicle issues and was told by the dealership that his vehicle’s oil 11 consumption was “normal,” the Court will not find as a matter of law that Mr. Tarvin had inquiry 12 notice of his claims prior to 2016. 13 2. Tarvin’s Magnuson Moss Warranty Act Claim 14 GM contends that Mr. Tarvin’s Magnuson Moss Warranty Act (“MMWA”) claim fails 15 because he purportedly lacks any viable state law warranty claims. MSJ at 16. To sustain claims 16 under the MMWA there must be sufficient warranty claims under state law. Clemens v. 17 DaimlerChrysler Corp., 534 F.3d 1017, 1027 (9th Cir. 2008). Because the Court has concluded 18 that Mr. Tarvin’s implied warranty claim survives summary judgment, so too does his MMWA 19 claim. The Court thus DENIES GM’s motion for summary judgment on this ground. 20 3. Mr. Tarvin’s Unjust Enrichment and Fraudulent Omission Claims 21 GM seeks summary judgment on Mr. Tarvin’s unjust enrichment and fraudulent omission 22 claims. MSJ at 17. As GM notes, the Court previously granted summary judgment for GM on the 23 unjust enrichment claims of other California plaintiffs because those claims are barred as a matter 24 of law by the existence of GM’s express new vehicle limited warranty. Sloan, 2020 WL 1955643, 25 at *27. The Court also granted summary judgment for GM on the California fraudulent omission 26 claims because they are precluded by the economic loss doctrine where a plaintiff does not allege 27 personal injury or property damage. Id. at *24. 1 fraudulent omission claims in the 8AC to “preserve them for appeal.” MSJ Opp. at 2 n.2. 2 Because Mr. Tarvin’s claims are barred as a matter of law, the Court GRANTS summary 3 judgment to GM on these claims. 4 4. Mr. Tarvin’s UCL and CLRA Claims 5 Lastly, GM argues that Mr. Tarvin’s consumer protection claims fail as a matter of law 6 because there is “no evidence on essential elements.” MSJ at 17 (capitalization altered for clarity). 7 In particular, GM contends that the CLRA and UCL claims fail because there is not sufficient 8 evidence of a piston ring defect or damages, and because Mr. Tarvin cannot prove that GM owed 9 him a duty to disclose. Id. As the Court has already denied the portions of GM’s motion that 10 relate to the evidence of a defect or damages, see Docket No. 432, the sole question here is 11 whether there are material questions of fact as to whether GM owed Mr. Tarvin a duty to disclose. 12 In response, Plaintiffs contend that the Court “has already denied summary judgment on 13 the same grounds that GM presses here.” MSJ Opp. at 5. Plaintiffs are correct. The Court has 14 previously found that Plaintiffs “presented sufficient evidence that the alleged Oil Consumption 15 Defect is a safety defect within the context of implied warranty, fraudulent omission, and 16 consumer protection claims.” Sloan, 2020 WL 1955643, at *13. Because a safety defect gives 17 rise to a duty to disclose, see Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1141 (9th Cir. 2012), 18 the Court denied summary judgment as to GM’s claim that it had no duty to disclose information 19 about the defect. Sloan, 2020 WL 1955643, at *32 (“[B]ecause whether the Oil Consumption 20 Defect constitutes a safety defect cannot be resolved on summary judgment, the Court denies 21 summary judgment on GM’s claim that it had no duty to disclose information about the defect.”). 22 Because Tarvin has presented sufficient evidence to demonstrate that the alleged Oil 23 Consumption Defect may be present in his vehicle, see Section B.1.(a), Tarvin has demonstrated 24 that GM may owe him a duty to disclose. As a result, the Court DENIES summary judgment on 25 this ground. 26 /// 27 /// 1 V. CONCLUSION 2 For the foregoing reasons, the Court finds that Mr. Tarvin is an adequate representative of 3 the California class and appoints him to serve as the California Class representative. The Court 4 DENIES GM’s motion for summary judgment for Mr. Tarvin’s claims under the Song-Beverly 5 Consumer Warranty Act, Magnuson Moss Warranty Act, CLRA, and UCL. The Court GRANTS 6 summary judgment to GM as to Mr. Tarvin’s claims for unjust enrichment and fraudulent 7 omission. 8 This order disposes of Docket Nos. 413 and 428. 9 10 IT IS SO ORDERED. 11 12 Dated: August 29, 2022 13 14 ______________________________________ EDWARD M. CHEN 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27