Judge: Douglas W. Stern, Case: BC709916, Date: 2023-11-01 Tentative Ruling

Case Number: BC709916    Hearing Date: November 1, 2023    Dept: 68

Motion for Summary Judgment

Cho Yang vs Kia Motors America Inc., BC709916

Moving Party: Defendant Kia Motors America Inc.

I.                   Background

This is a lemon law case filed by Plaintiff Cho Yang (Plaintiff) that alleges various causes of action related to breaches of warranties by Defendant Kia Motors America Inc. (Defendant). Defendant’s motion for summary judgment, or in the alternative, summary adjudication, filed on August 18, 2023, addresses all five of Plaintiff’s causes of action.

Plaintiff bought the subject vehicle on August 13, 2012. (UMF No. 1.) Over the 10 years and 119,000 miles that the subject vehicle was driven, primarily by Plaintiff’s son, the vehicle was presented for warrantable concerns four times. On July 7, 2016, the first occasion, when the vehicle was at 43,517 miles, the transmission oil temperature sensor was replaced. (UMF Nos. 5, 45.) On December 19, 2016, the second occasion, when the vehicle was at 48,763 miles, the high pressure fuel pump was replaced. (UMF Nos. 6, 46.) On February 13, 2017, the third occasion, when the vehicle was at 50,188, the engine long block assembly was replaced. On November 14, 2017, the fourth and final occasion, when the vehicle was at 56,502 miles, the steering coupler was replaced. (UMF Nos. 8, 48.)

These visits all concerned different parts, and none were for the same concern. The longest repair visit was 17 days in February 2017. (UMF No. 7.) The other three visits lasted just one day. (UMF Nos. 5, 6, 8.) There were also a few instances of Plaintiff taking the vehicle in for recall repairs.

Plaintiff has alleged five causes of action for (1) violation of Civ. Code 1793.2(d); (2) violation of Civ. Code § 1793.2(b)(2); (3) Violation of Civ. Code § 1793.2(a)(3); (4) Breach of Express Warranty; and (5) Breach of Implied Warranty of Merchantability. All of these causes of action are related to the repairs that Plaintiff was required to have done to the vehicle.

Defendant argues in its motion for summary judgment that each of these causes of action fails as a matter of law. Plaintiff opposes Defendant’s motion.

II.                Analysis

a.      Standard for Summary Judgment and Adjudication

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)¿ 

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”¿ (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿ 

When interpreting § 437c, courts have held that a three-step analysis is required: (1) Identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading; (2) Determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor; and (3) Determine whether the opposition demonstrates the existence of a triable, material factual issue. (AARTS Production, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.)¿¿ 

Summary Judgment may be granted only where all the supporting and opposition papers show there is no triable issue as to any material fact and the moving party is entitled to judgment “as a matter of law.” (CCP § 437c(c).)¿¿ 

As a result, the Plaintiff “must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not—otherwise, he would not be entitled to judgment as a matter of law but would have to present his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851, fns. omitted; Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 562-563.)¿¿ 

The Defendant need only show the existence of a triable issue of material fact. (Union Bank v. Super Ct. (Demetry) (1995) 31 Cal.4th 573, 590; see Lopez v. Super Ct. (Friedman Bros. Invest. Co.) (1996) 45 Cal.4th 705, 713; Leslie G. v. Perfy & Assocs. (1996) 43 Cal.4th 472, 482.) Summary judgment would not be proper where the facts support a triable issue of fact.¿ 

b.      Issues for Summary Judgment

                                                              i.      Issue Nos. 1 and 4

Defendant moves for summary adjudication on Plaintiff’s First Cause of Action for violation of Civ. Code § 1793.2(d) on the basis that it fails as a matter of law because any warranted defects were successfully repaired within a reasonable number of attempts. Similarly, Defendant moves for summary adjudication on Plaintiff’s Fourth Cause of Action for Breach of Express Warranty on the basis that it fails as a matter of law in the absence of evidence that any warranted defect or nonconformity was not successfully repaired within a reasonable number of attempts.

A claim for breach of express warranty under Song-Beverly Consumer Warranty Act (“SBWA”) must be based on an issue that was either subject to more than one repair attempt or complained of on more than one occasion. (Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208, 1209.) To recover under the SBWA, a plaintiff has the burden to prove that: (1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value, or safety of the vehicle; (2) the vehicle was presented to an authorized KA representative for repair; and (3) KA or its representative did not repair the defect or nonconformity after a reasonable number of repair attempts. (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 798-799; Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101 [citing Civ. Code § 1793.2 and Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 886- 87].)

Only if a manufacturer fails to conform the goods after a reasonable number of repair attempts does the manufacturer, then become obligated to replace or repurchase the goods. (Civ. Code, § 1793.2(d)(1).) Failing to repair on the first attempt cannot, as a matter of law, violate Civ. Code § 1793.2(d)(1).) Failing to repair on the second attempt can constitute a violation depending on the circumstances. When a plaintiff alleges multiple defects, the manufacturer or its representative must fail to repair each defect or nonconformity after a reasonable number of repair attempts. In Mega RV Corporation v. HWH Corporation (2014) 225 Cal.App.4th 1318, 1333, the court stated that “[t]he Act ‘was enacted to address difficulties faced by consumers in enforcing express warranties. Consumers frequently were frustrated by the inconvenience of having to return goods to the manufacturer for repairs and by repeated unsuccessful attempts to remedy the problem.’” Further, “The reasonableness of the number of repair attempts is a question of fact to be determined in light of the circumstances.” (Robertson, supra, 144 Cal.App.4th at 799.)

In this case, Plaintiff argues in her opposition that because her son had to present the vehicle to an authorized repair facility multiple times for different defects, then this constitutes a breach of the warranty and a violation of the Song-Beverly Act. However, Courts have typically found that a breach and violation occurred if the vehicle is presented multiple times for the same defects.

In Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718, 721 fn. 1, citing Murillo v. Fleetwood Enterprises. Inc. (1998) 17 Cal.4th 985, 989-990, the court wrote:

The Song-Beverly Act “‘regulates warranty terms, imposes service and repair obligations on manufacturers, distributors, and retailers who make express warranties, requires disclosure of specified information in express warranties, and broadens a buyer’s remedies to include costs, attorney’s fees, and civil penalties’” and “‘gives recourse to the buyer of a new automobile that suffers from the same defect repeatedly, or is out of service for cumulative repairs for an extended period.’”

(Internal citations and brackets omitted.)

            Plaintiff’s son presented the vehicle four different times over 10 years for warrantable concerns, and each concern was for a different part. On the first occasion, when the vehicle was at 43,517 miles, the transmission oil temperature sensor was replaced. (UMF Nos. 5, 45.) On the second occasion, when the vehicle was at 48,763 miles, the high pressure fuel pump was replaced. (UMF Nos. 6, 46.) On the third occasion, when the vehicle was at 50,188, the engine long block assembly was replaced. On the fourth and final occasion, when the vehicle was at 56,502 miles, the steering coupler was replaced. (UMF Nos. 8, 48.) Most of the other visits were for safety recalls, which are not covered by the Song-Beverly Act.

            Based on the foregoing, Plaintiff has presented no evidence that there was a problem which could not be fixed after a reasonable number of attempts. All of the warrantable concerns listed by Plaintiff were solved at the first visit. The Song-Beverly Act, as indicated in Duale above, is to give a buyer recourse for a vehicle that suffers from the same defect repeatedly. In no instance has Plaintiff presented evidence that repeated visits were needed for the same problem.

            Therefore, there is no triable issue of fact for these causes of action. The Court grants Defendant’s summary adjudication on Plaintiff’s First and Fourth Causes of Action.

                                                            ii.      Issue No. 2

Defendant moves for summary adjudication on Plaintiff’s Second Cause of Action for Violation of Civ. Code § 1792.2(b)(2) on the basis that it fails as a matter of law because no repair took longer than 30 days to complete, and plaintiff had not provided evidence of any actual damages she suffered as a result of any KA-warranted repair that took longer than 30 days to complete.

Under the Song-Beverly Act, a manufacturer must commence repair of warranted defects within a reasonable time and “the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days.” (Civ. Code § 1793.2(b).)

In this case, the longest repair took 17 days. (UMF No. 20.) Plaintiff was provided with a loaner vehicle during this time period. (UMF No. 21.) Plaintiff has not presented any evidence that any single repair took more than 30 days, or that repairs failed to commence within 30 days. Instead, Plaintiff attempts to argue that the cumulative repairs over the 10 year period that Plaintiff owned the vehicle amounted to more than 30 days. However, there is no evidence presented by Plaintiff that after each successful repair, the vehicle failed to conform to the warranty within 30 days. Each repair fixed the particular concern that it was focused on. Plaintiff has also presented no evidence of any damages suffered.

Based on the foregoing, there is no triable issues of material fact concerning the repair time of the vehicle. This cause of action fails as a matter of law. The Court grants summary adjudication on Plaintiff’s Second Cause of Action.

                                                          iii.      Issue No. 3

Defendant moves for summary adjudication on Plaintiff’s Third Cause of Action for Violation of Civ. Code § 1793.2(a)(3) on the basis that it fails as a matter of law because Plaintiff has offered no evidence that KA provided insufficient literature or replacement parts necessary to perform any warranted repair.

Under Civ. Code § 1793.2(a)(3), a manufacturer must “[m]ake available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.”

In opposition to this cause of action, Plaintiff has presented documents that involve internal communication between Kia executives related to the engine in Plaintiff’s vehicle. Plaintiff appears to impute what was in those communications to whether service and repair facilities had sufficient literature and replacement parts. However, there is no evidence from these documents that the repair facilities that Plaintiff went to had insufficient parts and literature to repair Plaintiff’s vehicle. Nor has Plaintiff presented any other evidence indicating that the repair facilities had insufficient parts or literature to repair her vehicle.

Therefore, this cause of action fails as a matter of. The Court grants summary adjudication on Plaintiff’s Third Cause of Action.

                                                          iv.      Issue Nos. 5 and 6

Defendant moves for summary adjudication on Plaintiff’s Fifth Causes of Action for Breach of Implied Warranty on the basis that it fails as a matter of law because Plaintiff has no evidence to establish there was a nonconformity during the first year of ownership, and because it is barred by the statute of limitations.

The one-year statutory implied warranty of merchantability reads as follows:

The duration of the implied warranty of merchantability and where present the implied warranty of fitness shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer. Where no duration for an express warranty is stated with respect to consumer goods, or parts thereof, the duration of the implied warranty shall be the maximum period prescribed above.

(Civ. Code, § 1791.1(c).)

            Under California Uniform Commercial Code § 2725, an implied warranty cause of action accrues when tender of delivery is made regardless of whether the purchaser has knowledge of the breach:

(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued…

(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance that cause of action accrues when the breach is or should have been discovered.

(Com. Code § 2725.) There is no delayed discovery tolling for a breach of implied warranty claim. (Com. Code § 2725(2); Mexia v. Rinker Boat Co. (2009) 174 Cal.App.4th 1297, 1310-1311.)

            Defendant argues that Plaintiff’s Fifth Cause of Action for breach of the implied warranty of merchantability is barred by the four-year statute of limitations in Com. Code § 2725. Defendant argues that Plaintiff’s implied warranty cause of action accrued on August 13, 2012, the date of purchase, ran for one year, and would have expired four years later on August 13, 2017. Plaintiff did not file suit until June 13, 2018. Additionally, no defects were discovered during the first year that Plaintiff owned the vehicle.

            Plaintiff does not address the statute of limitations in her opposition. She instead argues that the implied warranty of merchantability applies to latent defects, so it did not have to be discovered within the first year. However, Plaintiff has not presented any evidence that a latent defect existed in the subject vehicle upon tender of delivery. Instead, Plaintiff once again points to the documents containing internal communications at Kia. However, these documents do not show that a defect existed with Plaintiff’s vehicle in particular at the time of delivery.

            Because this cause of action is barred by the statute of limitations and Plaintiff has presented no evidence that the defects existed at the time of delivery, this cause of action is barred as a matter of law.

            The Court grants summary adjudication for Plaintiff’s Fifth Cause of Action.

III.             Order

Defendant Kia Motors’ motion for summary judgment is GRANTED IN ITS ENTIRETY.