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Because oral argument will not be of material assistance, 1

the Court orders this matter submitted on the briefs. E.D. Cal.

Local Rule 78-230(h). 

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

ROBERT BARABINO,

2:04-cv-2359-MCE-PAN

Plaintiff,

v. MEMORANDUM AND ORDER

DAN GAMEL, INC., FLEETWOOD

ENTERPRISES, INC., and

FLEETWOOD MOTOR HOMES OF

PENNSYLVANIA, INC.

Defendants.

----oo0oo----

Through the present action, Plaintiff Robert Barabino

(“Plaintiff”) alleges that Dan Gamel, Inc. (“Gamel”), Fleetwood

Enterprises, Inc., and Fleetwood Motor Homes of Pennsylvania,

Inc. (collectively “Defendants”) breached various state and

federal consumer protection laws during the course of selling him

a Fleetwood recreational vehicle.1

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2

Plaintiff specifically alleges that all Defendants violated

the California Song-Beverly Consumer Warranty Act (“Song-Beverly

Act”), Cal. Civ. Code §§ 1790 et seq.; the Magnuson-Moss Warranty

Act (“MMWA”), 15 U.S.C. §§ 2301 et seq.; the Consumer Legal

Remedies Act (“CLRA”), Cal. Civ. Code §§ et seq.; and

California’s Unfair Competition Law, Cal. Bus. and Prof. Code §§

17200 et seq. (“Five Claims”). Plaintiff further alleges against

Gamel only, claims of fraud in inducement, negligent

misrepresentation, and violations of Automobile Sales and Finance

Act, Cal. Civ. Code §§ 2981 et seq., the Federal Odometer Law,

and the Fair Debt Collection Practices Act, Cal. Civil Code §

1788.17. Fleetwood Enterprises, Inc. and Fleetwood Motor Homes

of Pennsylvania, Inc. (collectively, “Fleetwood”) have moved for

summary judgment or, in the alternative, summary adjudication of

the Five Claims against them. For the reasons set forth below,

Fleetwood’s Motion is granted in part and denied in part. 

BACKGROUND

During November and December of 2001, Plaintiff negotiated

with Gamel for the purchase of a new 2001 Fleetwood Bounder 39Z

(“Bounder”). On December 22, 2001, Plaintiff entered into an

agreement with Gamel to purchase the Bounder. Pl.’s Compl. at ¶¶

11, 14. Although the Bounder was purchased in December of 2001,

it was not delivered to Plaintiff until April 28, 2002. Gamel

informed Plaintiff that delivery was delayed because the Bounder

had various mechanical problems which needed to be repaired by

the dealer prior to delivery. Pl.’s Compl. at ¶ 25.

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3

Rather than taking delivery of the Bounder at the Gamel

dealership in California, Plaintiff elected to take delivery in

Reno, Nevada. Plaintiff’s sole purpose for taking delivery of

the Bounder outside of California was to avoid California sales

tax. After delivery, problems developed with the Bounder which

required it to be taken in for repairs approximately eleven times

between April of 2002 and November of 2004. Plaintiff now seeks

compensation pursuant to both state and federal consumer

protection statutes.

STANDARD

The Federal Rules of Civil Procedure provide for summary

judgment when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). One of the

principal purposes of Rule 56 is to dispose of factually

unsupported claims or defenses. Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986).

Rule 56 also allows a court to grant summary adjudication on

part of a claim or defense. See Fed. R. Civ. P. 56(a) (“A party

seeking to recover upon a claim ... may ... move ... for a

summary judgment in the party’s favor upon all or any part

thereof.”); see also Allstate Ins. Co. v. Madan, 889 F. Supp.

374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter

Township of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992).

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4

The standard that applies to a motion for summary

adjudication is the same as that which applies to a motion for

summary judgment. See Fed. R. Civ. P. 56(a), 56(c); Mora v.

ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998).

Under summary judgment practice, the moving party

always bears the initial responsibility of informing

the district court of the basis for its motion, and

identifying those portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions

on file together with the affidavits, if any,’ which it

believes demonstrate the absence of a genuine issue of

material fact.

Celotex Corp. v. Catrett, 477 U.S. at 323(quoting Rule 56(c)).

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist. 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

585-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S.

253, 288-89 (1968). 

In attempting to establish the existence of this factual

dispute, the opposing party must tender evidence of specific

facts in the form of affidavits, and/or admissible discovery

material, in support of its contention that the dispute exists. 

Fed. R. Civ. P. 56(e). The opposing party must demonstrate that

the fact in contention is material, i.e., a fact that might

affect the outcome of the suit under the governing law, and that

the dispute is genuine, i.e., the evidence is such that a

reasonable jury could return a verdict for the nonmoving party. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52

(1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper

Workers, 971 F.2d 347, 355 (9th Cir. 1987).

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Stated another way, “before the evidence is left to the jury,

there is a preliminary question for the judge, not whether there

is literally no evidence, but whether there is any upon which a

jury could properly proceed to find a verdict for the party

producing it, upon whom the onus of proof is imposed.” Anderson,

477 U.S. at 251 (quoting Improvement Co. v. Munson, 14 Wall. 442,

448, 20 L.Ed. 867 (1872)). As the Supreme Court explained,

“[w]hen the moving party has carried its burden under Rule 56(c),

its opponent must do more than simply show that there is some

metaphysical doubt as to the material facts .... Where the record

taken as a whole could not lead a rational trier of fact to find

for the nonmoving party, there is no ‘genuine issue for trial.’” 

Matsushita, 475 U.S. at 586-87.

In resolving a summary judgment motion, the evidence of the

opposing party is to be believed, and all reasonable inferences

that may be drawn from the facts placed before the court must be

drawn in favor of the opposing party. Anderson, 477 U.S. at 255. 

Nevertheless, inferences are not drawn out of the air, and it is

the opposing party’s obligation to produce a factual predicate

from which the inference may be drawn. Richards v. Nielsen

Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),

aff’d, 810 F.2d 898 (9th Cir. 1987).

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6

ANALYSIS

1. Express Warranty; Song-Beverly Act

Fleetwood first contends that because Plaintiff took

delivery of the Bounder out of state, California’s Song-Beverly

Act is inapplicable. California law is clear that where title

passes outside of California, the Song-Beverly Act does not

apply. Cummins, Inc. v. Superior Ct., 36 Cal. 4th 478 (2005). In

addition, a recent California appellate court held that, under

California law, title to a motor home passes upon and at the

place of delivery. Davis v. Newmar Corp., 136 Cal. App. 4th 275

(Cal. Ct. App. 2006). 

In response, Plaintiff argues that the Court should reject

the Davis holding. Specifically, Plaintiff avers that California

law applies to the case at bar based on the Restatement (Second)

of Conflict of Laws § 191 and that the Davis holding is

erroneous. The Court disagrees.

In order for Plaintiff to enjoy the protections of the SongBeverly Act, the sale must have consummated in California. See

Id. at 493. A sale is deemed completed and consummated when the

purchaser of a vehicle has paid the purchase price, or, in lieu

thereof, has signed a purchase contract or security agreement,

and has taken physical possession or delivery of the vehicle.

Cal. Veh. Code § 5901(d) (emphasis added). While Plaintiff may

have negotiated the sale and even paid part of the purchase price

in California, the sale was not consummated until he took

“physical possession or delivery of the vehicle” in Nevada. Id. 

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7

The foregoing dispositively resolves the issue. However, in an

abundance of caution, the Court further notes that the California

Uniform Commercial Code supports the Court’s finding that title

passed to Plaintiff in Nevada. Specifically, the Code provides

that:

“[u]nless otherwise explicitly agreed title passes to

the buyer at the time and place at which the seller

completes his performance with reference to the

physical delivery of the goods, despite any reservation

of a security interest and even though a document of

title is to be delivered at a different time or place.” 

Cal. U. Com. Code § 2401 (2006). 

 

Given that the sale consummated in Nevada and that the SongBeverly Act does not apply to sales made outside the state of

California, Fleetwood’s Motion for Summary Adjudication of

Plaintiff’s first and second causes of action based on the SongBeverly Act is granted. 

2. Magnuson-Moss Warranty Act - Express Warranty

The MMWA permits “a consumer who is damaged by the failure

of a supplier [or] warrantor ... to comply with any obligation

under this chapter [15 U.S.C. §§ 2301 et seq.], or under a

written warranty [or] implied warranty” to sue in United States

district court. 15 U.S.C. § 2310(d). In order for a warrantor

warranting a consumer product by means of a written warranty to

meet the federal minimum standards for warranty, such warrantor

must remedy such consumer product within a reasonable time and

without charge, in the case of a defect, malfunction, or failure

to conform with such written warranty. Id. at 2304(a)(1).

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8

The warrantor must remedy the defects or malfunctions within a

reasonable number of attempts by the warrantor. Id. at

2304(a)(4). In the event the warrantor fails to remedy the

identified issue within a reasonable number of attempts, the

warrantor must permit the consumer to elect either a refund for,

or replacement without charge of, such product or part. Id.

Fleetwood seeks summary adjudication of this claim on the

ground that Plaintiff has failed to establish that any nonconformities existed in the box portion of the Bounder. 

Plaintiff rebuts that there are myriad issues of material fact

regarding whether Fleetwood remedied identified issues within a

reasonable time or within a reasonable number of attempts. More

precisely, Plaintiff argues that during the first 467 days of

ownership, the Bounder was out of service for a total of 214 days

representing a significant breach of warranty.

The Court finds that issues of material fact exist with

respect to whether Fleetwood remedied the defects that Plaintiff

identified as required by the MMWA. The Court is not persuaded

that the Bounder was entirely conforming as Fleetwood contends. 

Instead, the Court finds that Plaintiff has satisfied his burden

of showing issues of material fact sufficient to preclude summary

adjudication of this claim. Consequently, Fleetwood’s Motion for

Summary Adjudication of Plaintiff’s third claim is denied.

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3. Magnuson-Moss Warranty Act - Implied Warranty

Fleetwood seeks summary adjudication of Plaintiff’s fourth

cause of action for breach of the implied warranty of

merchantability brought under the MMWA. Fleetwood contends that

this claim fails because there is no viable state law claim upon

which the MMWA claim can be based. The Court agrees.

As an initial matter, while the Plaintiff’s MMWA claim

constitutes a separate federal cause of action for breach of an

implied warranty, courts must look to the relevant state law to

determine the meaning and creation of any implied warranty. See

15 U.S.C. § 2301(7) (“The term ‘implied warranty’ means an

implied warranty arising under State law ... in connection with

the sale by a supplier of a consumer product.”) Significantly,

it has been uniformly held that Magnuson-Moss does nothing to

alter or modify state law requirements. See Gill v. Blue Bird

Body Co., 147 Fed. Appx. 807, 810 (11th Cir. 2005); see also

Carlson v. Gen. Motors Corp., 883 F.2d 287, 291 (4th Cir. 1989) ;

Walsh v. Ford Motor Co., 257 U.S. App. D.C. 85, 807 F.2d 1000,

1011 (D.C. Cir. 1986) (“Under the terms of Magnuson-Moss, state

law governs the existence and basic meaning of implied

warranties.”); Kanter v. Warner-Lambert Co., 99 Cal. App. 4th

780, 798 (Cal. Ct. App. 2002) (“State law applies in breach of

warranty actions as to both implied and written warranty claims

under Magnuson-Moss, except as expressly stated by that act.”) 

Accordingly, absent a viable claim arising under California law,

this cause of action must be summarily adjudicated in favor of

Fleetwood.

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10

Plaintiff maintains that his MMWA claim should proceed based

on implied warranty rights arising under both the Song-Beverly

Act and the California Uniform Commercial Code (“UCC Claim”). 

See Cal. U. Comm. Code § 2314. As explained above, the Court

finds that Plaintiff cannot proceed on a claim under the SongBeverly Act. Accordingly, his MMWA claim based solely on his

underlying Song-Beverly Act fails. The question remains,

however, whether the implied warranties existing under the

Commercial Code can provide the basis for Plaintiff’s MMWA claim.

In resolving this question, the Court must first examine the

relationship between the Song-Beverly Act and the Commercial Code

to determine the extent to which, if any, the Song-Beverly Act

has a preclusive effect on the earlier enacted Commercial Code. 

Pursuant to California Civil Code section 1790.3, the SongBeverly Act does not affect rights and obligations under the

Commercial Code, except that where provisions conflict, the SongBeverly Act prevails over the Commercial Code. The question thus

becomes whether there is a conflict between the Song-Beverly Act

and the Commercial Code.

As discussed in detail above, the Song-Beverly Act implied

warranties apply only to vehicles sold in California. Cal. Civ.

Code § 1792 (“every sale of consumer goods that are sold at

retail in this state shall be accompanied by the manufacturer’s

and the retail seller’s implied warranty that the goods are

merchantable”)(emphasis added). Conversely, the Commercial Code

contains no such limitation.

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It is a generally accepted rule of statutory construction

that a general statute must give way

 to a more specific statute addressing the same subject. De Anza

Santa Cruz Mobile Estates Homeowners Ass’n v. De Anza Santa Cruz

Mobile Estates, 94 Cal. App. 4th 890, 912 (Cal. Ct. App. 2001)

(citing Schmidt v. Superior Ct., 48 Cal. 3d 370, 383 (1989)

(under traditional principles of statutory interpretation, later

enacted and more specific provisions prevail over more general

provisions.)

Here, the Commercial Code must bow to the later enacted

Song-Beverly Act that limits implied warranties to those vehicles

sold in California. Because Plaintiff did not purchase the

Bounder in California, his MMWA cause of action based on

Fleetwood’s alleged violation of the Commercial Code fails. 

Accordingly, Fleetwood’s Summary Adjudication Motion as to

Plaintiff’s fourth cause of action is granted. 

4. Unfair Business Practices Act

Plaintiff concedes that Fleetwood is entitled to Summary

Adjudication on Plaintiff’s eleventh cause of action. 

Accordingly, summary adjudication as to Plaintiff’s eleventh

cause of action is proper and hereby granted.

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CONCLUSION

The Court grants Summary Adjudication in favor of Fleetwood

on Plaintiff’s first and second causes of action based on the

Song-Beverly Act; Plaintiff’s fourth cause of action based on the

MMWA; and Plaintiff’s eleventh cause of action based on

California’s Unfair Business Practices Act. However, the Court

denies Fleetwood’s Motion for Summary Adjudication on Plaintiff’s

third cause of action for breach of express warranties under the

MMWA.

IT IS SO ORDERED.

DATED: July 25, 2006

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

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