Opinion
No. B279897.
05-03-2018
EFIGENIA GARCIA, Plaintiff and Appellant, v. MERCEDES-BENZ USA, LLC, Defendant and Respondent.
[Modification of opinion (21 Cal.App.5th 1259; ___ Cal.Rptr.3d ___), upon denial of rehearing.]
THE COURT. — IT IS ORDERED that the opinion filed herein on April 5, 2018, be modified as follows:
1. On page 11, the sentence beginning on line 11 with "Lastly," and ending on line 14 with "an express warranty" [21 Cal.App.5th 1268, advance report, 2d par., line 15] is modified to read as follows:
Lastly, the Act affirmatively states that manufacturers are not required to refund buyers for the cost of "nonmanufacturer items installed by a dealer" (that is, dealer add-ons) when the buyer sues for breach of an express warranty.
2. On page 11, the sentence beginning on line 15 with "This statutory carve-out" and ending on line 19 with "implied warranty claim" [21 Cal.App.5th 1268, advance report, 2d par., lines 17 and 20] is modified to read as follows:
This statutory carve-out for dealer add-ons would be largely nullified if we were to conclude that buyers had a right to make manufacturers pay for dealer add-ons under an implied warranty theory; all a buyer would have to do is restate her breach of express warranty claim as a breach of implied warranty claim, something that could be done in every case in which the defect is one that renders the new car "[un]fit for the ordinary purposes for which [cars] are used" (thereby breaching the implied warranty) (§ 1791.1, subd. (a)(2)) because such a defect necessarily renders the car "nonconforming" (thereby breaching any express warranty) (§ 1793.2, subd. (c)).
[22 Cal.App.5th 662b]
3. On page 11, line 20 [21 Cal.App.5th 1268, advance report, 2d par., line 21], the words "in whole or in part" are to be inserted after the word "statutes" so the sentence reads as follows:
We must avoid rulings that nullify statutes in whole or in part.
4. In the first sentence on page 13 [21 Cal.App.5th 1269, advance report, 1st full par., line 14], the word "all" is changed to "many" so the sentence reads:
It does not speak to — or in any way undermine — our concern that many express warranty claims can be restated as implied warranty claims, thereby sidestepping and negating our Legislature's explicit limitation on express warranty claims.
There is no change in the judgment.
Appellant's petition for rehearing is denied.