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Cabrera v. Auto Max Preowned, Inc.

Superior Court of Massachusetts, Suffolk

June 17, 2019

Carlos CABRERA, Individually and on Behalf of All Others Similarly Situated
v.
AUTO MAX PREOWNED, INC. et al.[1]

          Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Kaplan, Mitchell H., J.

          REVISED MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

          Mitchell H. Kaplan, Justice

         Plaintiff Carlos Cabrera filed this action against defendants Auto Max Preowned, Inc., New England Auto Max, Inc., and Auto Max, Inc. (collectively, "Auto Max"), on his own behalf as well as on behalf of all other allegedly similarly situated individuals. Cabrera alleges that Auto Max sold him and others used vehicles without disclosing that the vehicles had suffered structural/frame damage and all suffered loss as a result. The case is presently before the court on Cabrera’s motion for class certification. For the following reasons, the motion is DENIED.

         BACKGROUND

         On November 24, 2009, Auto Max, a used car dealer based in Massachusetts, purchased a 2008 Infiniti FX35 from the Manheim Auto Auction for $26, 005 (the Vehicle). Documentation concerning the Vehicle provided to Auto Max by the auction noted that the Vehicle had a damaged rocker panel.

         In late January 2010, Auto Max sold the Vehicle to Cabrera for $27, 995, plus taxes and fees. Prior to the sale, Cabrera requested a Carfax report from Auto Max and allegedly asked an Auto Max salesperson whether the Vehicle had structural damage.[2] The Carfax report did not include this damage and the salesperson allegedly told Cabrera that the car had not suffered any frame damage. Between 2010 and 2015, Cabrera drove the Vehicle without incident.

         In October 2015, Cabrera attempted to trade in the Vehicle to a Honda dealership. Cabrera thought the trade in value of the Vehicle was $18, 000-$19, 000. According to Cabrera, the dealership only offered $6, 000 because a Carfax report on the Vehicle now stated that it had previously sustained structural damage. The Carfax report stated that the structural damage had been "disclosed by seller at auction on November 24, 2009."

         Cabrera commenced this action on April 14, 2016 and filed a Second Amended Complaint in November 2016. That complaint asserts claims for breach of contract and the implied covenant of good faith and fair dealing (Count I), breach of express warranty (Count II), breach of the implied warranty of merchantability (Count III), revocation of acceptance (Count IV), unjust enrichment (Count V), false advertising (Count VI), and violation of G.L.c. 93A (Count VII). He alleges that Auto Max engaged in a deceptive practice by failing to disclose to consumers that the vehicles they purchased had structural damage.

         Through discovery, Cabrera obtained information (reflected in Exhibit 33) showing that, beginning in 2009, Auto Max purchased 192 vehicles that had structural damage reports associated with them from the Manheim Auto Auction and two other auctions. Cabrera next conducted a review of Auto Max’s sales files and found files for 88 of the 192 vehicles. These files did not contain written notice to the purchaser of the damage noted in the materials received from the auctions.

         In September 2018, Auto Max moved for summary judgment on Cabrera’s claims, arguing that the allegedly undisclosed damage to his vehicle was de minimis and immaterial and therefore could not support any of his claims. Cabrera opposed the motion. He produced an expert report in which his expert opined that the damage to the rocker panel rendered the Vehicle unsafe and not in merchantable condition at the time of purchase and that the Vehicle remains unsafe. Cabrera argued that this evidence created a genuine dispute as to whether the Vehicle suffered from a material, undisclosed defect at the time of sale. The Court (Davis, J.) denied the motion in November 2017, explaining:

The Court agrees with Plaintiff that a genuine dispute exists as to whether the Vehicle suffered from a material, undisclosed defect at the time Plaintiff purchased it in January 2010. The question is an extremely close one because the fact that Plaintiff subsequently drove the Vehicle for over 100, 000 miles seriously calls into question whether any alleged defect in the Vehicle was "material." ... Furthermore, photos of the purported structural damage to the Vehicle’s rocker panel show what appears to be a de minimus deflection in a small area of the panel that likely does not pose a safety hazard of any kind ... It is not this Court’s role in deciding a motion for summary judgment, however, to act as fact finder.

         Decision and Order Regarding Defendant’s Motion for Summary Judgment (Dkt No. 40), at 2 (internal citations omitted). Auto Max moved for reconsideration, but the Court denied the motion on December 26, 2018 with a margin endorsement that stated: "Plaintiff’s claims may be extremely weak, but they have enough support in the record to overcome the low summary judgment threshold."

         Soon thereafter, Cabrera filed the present motion in which he seeks to certify a class under G.L.c. 93A, § 9(2) and Mass.R.Civ.P. 23 of:

All Massachusetts residents who since November 1, 2009[, ] purchased from Automax one of the used vehicles identified by VIN on [Plaintiff’s] Exhibit 33; and as to such identified vehicle Automax does not possess a written disclosure that it provided to purchaser prior to consummation of the sale ...

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