Judge Curtis A. Kin, Case 21STCV32268 2023-05-04 Tentative Ruling

Judge: Curtis A. Kin, Case: 21STCV32268, Date: 2023-05-04 Tentative Ruling

Case Number: 21STCV32268 Hearing Date: May 4, 2023 Dept: 72

MOTION FOR SUMMARY ADJUDICATION

MOTION TO COMPEL COMPLIANCE WITH DISCOVERY ORDER

Date: 5/4/23 (9:30 AM)

Case: Jorge Pina Alonso et al. v. Kia Motors America (21STCV32268)

TENTATIVE RULING:

Defendant Kia America, Inc.’s Motion for Summary Adjudication is GRANTED IN PART.

Plaintiffs Jorge Pina Alonso and Ivonne Maltos’ Motion to Compel Compliance with the Court’s Order Dated August 23, 2022 is GRANTED.

I. DEFENDANT KIA AMERICA, INC.’S MOTION FOR SUMMARY ADJUDICATION

All evidentiary objections are OVERRULED.

Defendant Kia America, Inc. moves for summary adjudication with respect to the fourth cause of action for fraudulent inducement based on concealment, the fifth cause of action based on intentional misrepresentation, and the claim for punitive damages.

Defendant contends that the fourth and fifth causes of action are barred by the economic loss rule. As our Supreme Court held in Erlich v. Menezes (1999) 21 Cal.4th 543, 551, “[t]ort damages have been permitted in contract cases . . . where the contract was fraudulently induced.” The economic loss rule does not present a bar to plaintiffs Jorge Pina Alonso and Ivonne Maltos’ fraud-based claims.

With respect to the fourth cause of action based on concealment, defendant argues that, because it did not directly deal with plaintiffs, there was no duty to disclose. (See UMF 2; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336; see also Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 311.) Unlike the medical device manufacturer in Bigler-Engler, a car manufacturer may communicate at least indirectly with the consumers. (See Daniel v. Ford Motor Co. (9th Cir. 2015) 806 F.3d 1217, 1226-27.) Even though the dealer where plaintiffs purchased the subject vehicle was an independent third-party dealer, plaintiffs present evidence that, under the terms of the express warranty, consumers are required to return the vehicle to an authorized Kia dealer for repair. (UMF 2; Resp. to UMF 2; Daniel, 806 F.3d at 1227 [“Plaintiffs do have evidence that Ford communicates indirectly through its authorized dealerships…. Under the terms of Ford's express warranty, Plaintiffs needed to return to Ford dealerships to perform warranty repairs”]; cf. Bigler-Engler, 7 Cal.App.5th at 314 [“Under these circumstances, there was no relationship between Breg and Engler (or her parents) sufficient to give rise to a duty to disclose”].) Further, if an authorized Kia dealer refuses or fails to repair or replace a vehicle, the warranty requires the consumer to contact defendant’s Consumer Assistance Center so that defendant can determine whether the repair or replacement is covered under the warranty or obtain cooperation from an authorized Kia dealer to repair or replace the vehicle. (Samra Decl. ¶ 3 & Ex. A at 4.) Plaintiff’s presentation of the applicable warranty demonstrates a triable issue concerning whether defendant communicates indirectly through its dealers, thereby demonstrating a transactional relationship that may give rise to a duty to disclose.

With respect to the fourth causes of action based on fraudulent concealment, defendant argues that plaintiffs admitted during deposition that they were not aware that information was withheld from them during the sales process. (UMF 5.) That is not what the plaintiffs stated in the cited excerpts of their depositions. An actual review of the portions of the deposition transcripts cited by defendant indicates that plaintiffs never stated they were unaware of information that was withheld from them in connection with the purchase of the subject vehicle. (Resp. to UMF 5.) Rather, plaintiff Alonso stated he “went to a dealer and . . . assumed they sold good stuff.” (Pratty Decl. ¶ 4 & Ex. C at 24:6-8.) Alonso further testified that he went to the dealership because they had new cars and a warranty, leading him to “assume you’re not going to have a problem with a new car.” (Pratty Decl. ¶ 4 & Ex. C at 25:9-11.) Defendant presents no evidence that defendant provided information that would have allowed plaintiffs to fairly evaluate their assumptions. Defendant thus fails to meet its initial burden on summary adjudication to demonstrate the absence of a concealment. The motion as to Issue 1 is DENIED.

With respect to the fifth cause of action based on intentional misrepresentation, defendant argues that plaintiffs admitted during deposition that they were not aware of false statements made to them during the sales process. (UMF 10.) Plaintiff Alonso testified that he did not do any research about the vehicle, did not look at any marketing materials, did not see any advertising, and only spoke to the salesperson at the dealership, who did not make any specific statements about the car that plaintiff could remember. (Pratty Decl. ¶ 4 & Ex. C at 24:6-8; 24:20-25:3; 25:12-23.) Similarly, plaintiff Maltos testified that she did not do any research about Kia vehicles, did not speak to anyone at the dealership, did not see anything on a sales brochure or pamphlet that she understood, and did not hear anything precise about the car that was told to her. (Pratty Decl. ¶ 5 & Ex. D at 17:22-24; 18:13-14; 19:18-23; 21:25-22:5.) This is sufficient to shift the burden to plaintiffs to adduce evidence of any intentional misrepresentation made to them. On their shifted burden, plaintiff’s produce no evidence. Accordingly, the motion as to Issue 2(a) is GRANTED.

With respect to the claim for punitive damages, defendant contends that statements made by the dealer cannot form the basis for punitive damages, as dealers cannot be managing agents of defendant under Civil Code § 3294. (See Avalon Painting Co. v. Alert Lumber Co. (1965) 234 Cal.App.2d 178, 184 [“A Ford dealer or retailer may in a layman's view be an agent of the Ford Motor Co., but he is not an agent in the legal sense of that relationship”].) However, as stated above, plaintiffs demonstrate that defendant itself may have had a duty to disclose based on its relationship with its dealers in connection with the warranty. (Resp. to UMF 2.) Because plaintiff demonstrates that defendant may be liable for fraudulent concealment, plaintiffs demonstrate a triable issue concerning their claim of punitive damages. (Civ. Code § 3294(c)(3) [punitive damages recoverable in case of concealment].) The motion as to Issue 3 is DENIED.

For the foregoing reasons, defendant is entitled to a GRANT of summary adjudication in its favor as to the fifth cause of action for Fraudulent Inducement Intentional Misrepresentation but the motion is otherwise DENIED.

II. PLAINTIFFS JORGE PINA ALONSO AND IVONNE MALTOS’ MOTION TO COMPEL COMPLIANCE WITH THE COURT’S ORDER DATED AUGUST 23, 2022

Plaintiffs move for an order compelling compliance with the Court’s discovery order issued on August 23, 2022. On August 23, 2022, as pertinent to this motion, the Court granted plaintiffs’ motion to compel further responses to Requests for Production, Set One, Nos. 45 and 46. The requests at issue sought production of the following:

• REQUEST FOR PRODUCTION NO. 45: All DOCUMENTS evidencing complaints by owners of 2016 KIA SORENTO vehicles regarding any of the complaints that the SUBJECT VEHICLE was presented to YOUR or YOUR authorized repair facilities for repair during the warranty period.

• REQUEST FOR PRODUCTION NO. 46 (as modified by the Court): All DOCUMENTS evidencing warranty repairs to 2016 KIA SORENTO vehicles with respect to complaints that the SUBJECT VEHICLE was presented to YOU or YOUR authorized repair facilities while under warranty.

With forty-five (45) days of the hearing, or October 6, 2022, the Court ordered defendant Kia America, Inc. to serve further verified responses, without objection and serve responsive documents with identifying information of customers redacted. (Kamosko Decl. ¶ 7 & Ex. C at 4.) No responses have been served. (Id. ¶ 9.)

Defendant contends that it is working diligently to comply with the discovery order. (Pratty Decl. ¶ 3.) Defendant contends that the limitation of the requests based on plaintiff’s complaints concerning the subject vehicle to repair facilities is broad and that the review of the matches retrieved from search terms will be necessary to determine whether the matches are responsive to the requests. (Id. ¶ 4.) Defendant requests up to May 19, 2023 to comply with the discovery order. (Id. ¶ 5.)

Defendant has had approximately eight months to comply with order. Defendant does not indicate what efforts it has taken to comply with the order. Accordingly, defendant fails to justify its failure to comply with the order. Regardless of defendant’s reasons for failing to comply with the order, the fact remains that defendant still has not complied.

The motion is GRANTED. Defendant Kia America, Inc. is ordered to comply with the Court’s August 22, 2022 order with respect to plaintiffs’ Requests for Production, Set One, Nos. 45 and 46 by May 12, 2023. Failure to comply with the Court’s discovery order by May 12, 2023 may subject defendant to further escalating sanctions.

For failing to comply with the discovery order, thereby necessitating this motion, the Court imposes monetary sanctions against defendant Kia America, Inc. and counsel of record, jointly and severally, in the reasonably requested amount of $1,997.65. Monetary sanctions shall be paid to counsel for plaintiffs within thirty (30) days hereof.