Judge: Gregory Keosian, Case: 20STCV38806, Date: 2023-06-22 Tentative Ruling
Case Number: 20STCV38806 Hearing Date: June 22, 2023 Dept: 61
Defendant Kia Motors America,
Inc.’s Motion for Summary Adjudication is GRANTED as to the second and sixth
causes of action, and the prayer for punitive damages, and is DENIED as to the
third cause of action.
I.
SUMMARY
JUDGMENT
A party may move for summary judgment “if it
is contended that the action has no merit or that there is no defense to the
action or proceeding.” (Code Civ. Proc.
§ 437c, subd. (a).) “[I]f 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,” the moving party will be
entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by
itself or as an alternative to a motion for summary judgment and shall proceed
in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)
The moving party bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable
issue of material fact, and if he does so, the burden shifts to the opposing party
to make a prima facie showing of the existence of a triable issue of material
fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850;
accord Code Civ. Proc. § 437c, subd. (p)(2).)
Once the defendant
has met that burden, the burden shifts to the plaintiff to show that a triable
issue of one or more material facts exists as to that cause of action or a
defense thereto. (Aguilar, supra, 25 Cal.4th at 850.)
The plaintiff may not rely upon the mere allegations or denials of its
pleadings to show that a triable issue of material fact exists but, instead,
shall set forth the specific facts showing that a triable issue of material
fact exists as to that cause of action or a defense thereto. (Ibid.)
To establish a triable issue of material fact, the party opposing the
motion must produce substantial responsive evidence. (Sangster
v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
Defendant
Kia Motors America, Inc. (Defendant) moves for summary adjudication of
Plaintiff Leticia Sandoval Sanchez’s (Plaintiff’s) second, third, and sixth
causes of action. These claims are respectively for violation of Civil Code §
1793.2, subd. (b), which requires broken goods to “be serviced or repaired so
as to conform to the applicable warranties within 30 days”; violation of Civil
Code § 1793.2, subd. (a)(3), which requires manufacturers to “[m]ake available to authorized service and repair
facilities sufficient service literature and replacement parts to effect
repairs during the express warranty period” (Civ. Code, §
1793.2, subd. (a)(3)); and for fraudulent concealment.
Defendant argues that no cause of action may lie for
violation of Civil Code § 1793.2, subd. (b), because no repair attempt on the
vehicle exceeded 30 days, and because even the total amount of time the vehicle
was out for repair in this action did not exceed 30 days. (Motion at pp. 2,
4–5.) Plaintiff in opposition argues that the vehicle, despite these many
repair attempts, was never brought in conformity to warranty. (Opposition at p.
5.)
Defendant’s argument is
persuasive. The provision at issue deals with the timing of repairs. As stated
in the directions applicable to the relevant jury instruction, this statute “requires
that repairs be commenced within a reasonable time and finished within 30 days
unless the buyer otherwise agrees in writing.” (CACI 3205, Directions for Use.)
Here, no repair visit required the vehicle to be out of Plaintiff’s possession
for more than 30 days, and the total days the vehicle was out is also less than
the statutory amount. Accordingly, the motion is GRANTED as to the second cause
of action.
Defendant’s argument is less
persuasive as to the third cause of action. This claim alleges that Defendant
failed to “[m]ake available to authorized service and repair facilities
sufficient service literature and replacement parts to effect repairs during
the express warranty period.” (Civ. Code, § 1793.2, subd. (a)(3).) Defendant’s
evidence, however, does not address the availability of literature or parts,
but merely cites the repeated repairs performed on the vehicle, without
addressing Plaintiff’s allegations that these repair attempts did not fix the
vehicle. (Motion at p. 5; Separate Statement No. 9–22.) Defendant has not carried
its burden to show the absence of triable issues on this claim, and the motion
is therefore DENIED as to the third cause of action.
This
leaves the sixth cause of action for fraudulent concealment and the
accompanying prayer for punitive damages. The elements of fraud are: (1) misrepresentation (false representation,
concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent
to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) .)
There are “four circumstances in which nondisclosure or concealment may
constitute actionable fraud: (1) when the defendant is in a fiduciary
relationship with the plaintiff; (2) when the defendant had exclusive knowledge
of material facts not known to the plaintiff; (3) when the defendant actively
conceals a material fact from the plaintiff; and (4) when the defendant makes
partial representations but also suppresses some material facts.” (Heliotis
v. Schuman (1986) 181 Cal.App.3d 646, 651.)
Defendant offers the following
arguments against Plaintiff’s fraud claim. Defendant argues that Plaintiff
cannot plead a fraudulent concealment claim without the existence of a direct
transaction between Plaintiff and Defendant. (Motion at pp. 6–8; Bigler-Ender v. Breg, Inc. (2017) 7 Cal.App.5th
276, 312 [medical device manufacturer had no duty to disclose to patient].)
Defendant also argues that Plaintiff has failed to present evidence
establishing the amount of damages she sustained because of the fraud, as she
declined to testify to the reduced value of the vehicle in deposition, and in
interrogatory responses asking for an itemization of damages, she responded
only by reference to all documents produced in this action, as well as in other
lemon law class actions. (Motion at pp. 8–10; Exhs. R, S.) Defendant finally
argues that Plaintiff’s fraud claim is barred by the economic loss rule, and
that no evidence exists to support Plaintiff’s claim for punitive damages.
(Motion at pp. 10–14.)
Defendant’s argument with respect to the failure to
establish damages is persuasive. Damages are an essential element for a fraud
claim. (Lazar, supra, 12 Cal.4th at p. 638.) In fraud
cases involving the purchase or sale of property, the measure of damages is the
plaintiff’s “out-of-pocket” damages, i.e. “the
difference in actual value between what the plaintiff gave and what he
received.” (Fragale v. Faulkner
(2003) 110 Cal.App.4th 229, 236.) In Fragale v. Faulkner, the failure of
the plaintiffs to produce “evidence at trial of the actual value of the
property they received” in their fraud claim meant, in the court’s holding,
that “they failed to establish an essential element of
their causes of action.” (Fragale v. Faulkner
(2003) 110 Cal.App.4th 229, 237.)
Here, Plaintiff testified in
deposition, and states in her declaration included with her opposition, that
the value of the vehicle is substantially less than what she paid for it,
because of the material defects which have rendered it effectively useless.
(Sanchez Decl. ¶¶ 22–24; Pardo Decl Exh. 5 at pp. 114–117.) However, Plaintiff
at deposition declined to offer an estimate as to the current value of the
vehicle (despite being asked for one), and does not include one in her
declaration. (Pardo Decl. Exh. 5 at p. 118.) When asked to itemize her fraud
damaeges in a special interrogatory, Plaintiff responded by reference to Code
of Civil Procedure § 2030.230, and referred to “documents produced in
connection with Plaintiff’s Responses to Defendant’s Reqeusts for Production of
Documents, Set One,” as well as “documents in the possession of Car Pros Kia of
Carson and/or Kia of Carson, and/or Defendant, including but not limited to
documents previously produced” in two named class action cases, as well as
“documents previously produced by Defendant in connection with various National
Highway Traffic Safety Administration investigations of the Engine Defect.”
(Motion Exh. S.) Defendant has thus asked Plaintiff for a measure of
Plaintiff’s out-of-pocket damages for fraud, and Plaintiff has provided no
answer, in discovery or in opposition to this motion. As in Fragale,
this amounts to a failure “to establish an essential element of their cause[]
of action.” (Fragale, supra, 110 Cal.App.4th at p.
237.)
Plaintiff in her responsive separate statement argues that
an interrogatory response cannot be deemed “factually devoid” for the purposes
of a summary adjudication motion simply because the responding party improperly
referenced Code of Civil Procedure § 2030.230, citing the case Bayramoglu v.
Nationstar Mortgage LLC (2020) 51 Cal.App.5th 726. (Plaintiff’s Separate
Statement No. 25, p. 7.) That case, however, was materially different from the
present. In that case, a defendant propounded interrogatories seeking facts
supporting the plaintiff’s causes of action, to which the plaintiff responded
that “the answer to the interrogatory could be found in certain documents they
identified, including, for example, a report from plaintiffs’ expert that
purported to summarize [the defendant’s] conduct and explain how it ‘accord[ed]
with standard industry practices.’” (Id. at p. 733.) The trial court
granted the defendant’s motion for summary judgment, based on the above
“deficient” response, reasoning that the interrogatory called for facts, not
documents. (Id. at p. 731.) But the appellate court reversed, reasoning
that the documents that Plaintiff identified were pertinent to the question,
and “no one contends the referenced documents were devoid of
facts to support plaintiffs’ claims.” (Id. at p. 735.)
But
when Plaintiff here was asked to itemize her fraud damages, she did not respond
by reference to “certain documents” from which the information could be derived.
She rather gestured to the entire corpus of documents produced in this and two
other actions, among other broad sources — none of which were even likely to
contain an itemization of Plaintiff’s own damages, which was what the
interrogatory sought. “If plaintiffs respond
to comprehensive interrogatories seeking all known facts with boilerplate
answers that restate their allegations, or simply provide laundry lists of
people and/or documents, the burden of production will almost certainly be
shifted to them once defendants move for summary judgment and properly present
plaintiffs' factually devoid discovery responses.” (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 107.) Defendant has accordingly
satisfied its burden on thi motion as against Plaintiff’s sixth cause of action
for fraud.
Plaintiff in opposition does not
establish the existence of triable issues of fact on this point. Plaintiff
contends only that she is qualified under Evidence Code § 813, subd. (a)(2), to
opine on the value of her property as the owner of the property. (Opposition at
p. 9.) But while Plaintiff may opine that the value of the vehicle is
substantially reduced, she offers no evidence of “the actual value of the
property they received.” (Fragale, supra, 110 Cal.App.4th
at p. 237.)
Accordingly, the motion is GRANTED
as to the sixth cause of action for fraudulent concealment.
This leaves, however, Plaintiff’s
prayer for punitive damages. Punitive damages are allowed in
non-contract cases when a defendant is guilty of “oppression, fraud, or malice
. . . .” (Civ. Code § 3294.) The terms are defined as:
“Malice” means conduct which is intended by the defendant to cause
injury to the plaintiff or despicable conduct which is carried on by the
defendant with a willful and conscious disregard of the rights or safety of
others.
“Oppression” means despicable conduct that subjects a person to
cruel and unjust hardship in conscious disregard of that person's rights.
“Fraud”
means an intentional misrepresentation, deceit, or concealment of a material
fact known to the defendant with the intention on the part of the defendant of
thereby depriving a person of property or legal rights or otherwise causing
injury.
Here, Plaintiff’s prayer for
punitive damages is alleged in association with her fraudulent concealment
claim. (FAC ¶¶ 42–57.) Thus Plaintiff’s prayer for punitive damages fails with
the fraud claim, and the motion is GRANTED as to the prayer for punitive
damages.