Judge Kerry Bensinger, Case Number: 21STCV39005, Date: 2025-01-16 Tentative Ruling

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

MOTION TO BIFURCATE TRIAL AND PROCEED BY BENCH TRIAL ON LEGALITY OF DEFENDANT’S PRE-LITIGATION RESPONSE

This is a Song-Beverly action brought by plaintiffs Ismael Rivera Ocampo and Martha Graciela Ocampo (collectively, Plaintiffs) against defendant Kia America, Inc. (Kia). Prior to the commencement of this lawsuit, Plaintiffs requested Kia to repurchase the allegedly defective vehicle. In response, Kia sent Plaintiffs a pre-litigation offer letter which extended three options: (1) replacement of the vehicle, minus a mileage deduction; (2) full repurchase of the vehicle, deducting only optional service contracts and the statutory mileage deduction; or (3) a goodwill payment of $10,000. Plaintiffs did not respond to Kia’s offer letter and instead filed this lawsuit.

In preparation for trial, the parties filed motions in limine. At issue here is Plaintiffs’ Motion in Limine (MIL) No. 13 which sought bifurcation on the legality of Kia’s pre-litigation response to Plaintiffs’ repurchase request. The court set a schedule for further briefing on this issue.

On December 10, 2024, Plaintiff filed a Motion to Bifurcate Trial and Proceed By Bench Trial on Legality of Defendant’s Pre-Litigation Response to Plaintiff’s Repurchase Request.[1] [2]

“The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby…make an order…that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case…The court, on its own motion, may make such an order at any time.”¿ (Code Civ. Proc., § 598.)¿

“The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.”¿ (Code Civ. Proc., § 1048(b).)¿

Plaintiffs argue Kia’s pre-litigation response to Plaintiff’s repurchase request did not comply with the Song-Beverly Act because the pre-litigation letter: (1) did not include all material terms and therefore was not an offer; (2) improperly required Plaintiffs to agree in advance to an undisclosed settlement agreement and release; (3) improperly conditioned repurchase on Plaintiffs waiving other legal rights; and (4) improperly conditioned repurchase on the current condition of the vehicle. In short, Plaintiffs argue the repurchase request is illegal as a matter of law and cannot constitute an “offer”. Plaintiffs seek an order to bifurcate this issue and have the court rule on the legality of Kia’s pre-litigation response.

Plaintiffs’ further briefing is procedurally and substantively deficient. First and foremost, Plaintiffs do not submit any evidence to support this motion. More specifically, Kia’s pre-litigation offer letter—the focus of Plaintiffs’ MIL No. 13—is glaringly absent. As Kia points out, Plaintiffs would have this court rule on the matter in a vacuum. The court denies the motion, in part, based upon this lack of evidence.

Second, Plaintiffs in limine motion is in actuality a motion for summary judgment or adjudication. Rather than seek to exclude evidence, which is the focus of a motion in limine, Plaintiffs seek to dispose of the case. Kia is correct that Plaintiffs’ motion is not properly brought as a motion in limine. A motion in limine is not a substitute for a motion for summary adjudication.

Third, and relatedly, Plaintiffs do not show how any aspect of the pre-litigation offer runs afoul of the law. Plaintiffs’ principal contention is that Kia conditioned its repurchase on Plaintiffs’ agreement to a release of all claims against Kia without providing Plaintiffs with the release agreement. Plaintiffs argue, the pre-litigation offer, was illegal and therefore did not constitute an offer at all as a matter of law. In support, Plaintiffs rely on inapposite authority. None of Plaintiffs’ case law concern pre-litigation offers. Rather, they either concern Section 998 offers (see, e.g., Motion, pp. 4, 6, citing Sanford v. Rasnick (2016) 246 Cal.App.4th 1121; McKenzie v. Ford Motor Company (2015) 238 Cal.App.4th 695; and MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036), or involve attorney fee awards after trial (see, e.g., Motion, p. 5, citing Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462; and Gezalyn v. BMW of North America, LLC (C.D. Cal. 2010) 697 F.Supp.2d 1168). Moreover, the Song-Beverly Act expressly contemplates separate settlement agreements and releases with the exception of confidentiality or gag clauses regarding “the problems with the vehicle, or the nonfinancial terms of the reacquisition of the vehicle by the manufacturer, importer, distributor, dealer, or lienholder.” (See Civ. Code, § 1793.26.) Kia’s pre-litigation offer does not contain any like offending clause. (See Laughlin Decl., Ex. 1.)[3]

Plaintiffs also argue Kia’s pre-litigation offer improperly conditioned repurchase on the current condition of the vehicle. Because Plaintiffs did not provide the court with the letter, the court cannot consider the language. As best the court can tell, Plaintiffs refer to a mileage deduction in Kia’s first and second options, (repurchase, replacement of the vehicle) and inspection of the vehicle for damage and/or excessive wear and tear in the third option (goodwill payment). (See Laughlin Decl., Ex. 1.) Plaintiffs rely upon inapposite authority. For instance, Plaintiffs cite Jiagbogu v. Mercedes-Benz USA (2004) 118 Cal.App.4th 1235 which concerned a post-recission offset jury instruction for the plaintiffs continued use of the vehicle after requesting repurchase. By contrast, Kia’s offer letter conditioned replacement or repurchase on pre-recission mileage deduction. This is an authorized practice under Song-Beverly. (Civ. Code, § 1793.2, subd. (d)(2)(C); see also CACI No. 3241.)

Further, Plaintiffs do not demonstrate bifurcation of trial would serve the convenience of witnesses, the ends of justice, or promote the economy and efficiency of handling the litigation. Bifurcation is not warranted.

Kerry Bensinger

Judge of the Superior Court

[1] The court notes that the motion was neither timely filed nor substantively different than MIL No. 13.

[2] Plaintiffs also filed a document entitled “Statement By Plaintiffs Re Documents Relating To The Transaction That Should Have Been Provided In Spanish” (the Statement). Kia objects to this document on the grounds the Statement does not concern the bifurcation issue presently before the court. The objection has merit. The Statement concerns a separate issue: whether Plaintiffs should have been provided a Spanish translation of the documents related to the purchase of the allegedly defective vehicle. The objection is SUSTAINED.

[3] In further support of Kia’s position, an offer letter which contemplates the execution of future contracts is appropriate. After all, one contract may may anticipate the execution of future contracts. (See, e.g., City of Galt v. Cohen (2017) 12 Cal.App.5th 367, 381.) Further, there is no basis provided to assume that the release Kia would propose would be unlawfully overbroad. (See Covert v. FCA USA, LLC (2022) 73 Cal.App.5th 821, 839 [rejecting notion an anticipated release would reach impermissibly broader than the claims at issue under the Act]).