Judge: Kevin C. Brazile, Case: 21STCV19741, Date: 2023-01-10 Tentative Ruling

Hearing Date: January 10, 2023

Case Name: Perez, et al. v. Kia Motors America, Inc., et al.

Case No.: 19STCV32276

Matter: Motion for Summary Judgment/Adjudication

Moving Party: Defendant Kia America, Inc.

Responding Party: Plaintiffs Jorge Perez and Francisco Perez 

Notice: OK

Ruling: The Motion for Summary Judgment/Adjudication is denied.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

This is a lemon law matter.  On January 30, 2020, Plaintiffs Francisco Perez and Jorge Perez filed the operative Second Amended Complaint (“SAC”) against Defendant Kia Motors America, Inc. for (1) violation of Civ. Code § 1793.2(d), (2) violation of Civ. Code § 1793.2(b), (3) violation of Civ. Code § 1793.2(a)(3), (4) violation of Civ. Code §§ 1791.2(a), 1794, and (5) concealment.  

The fifth cause of action was dismissed pursuant to demurrer.  

Defendant Kia America, Inc. moves for summary judgment or, alternatively, summary adjudication of all causes of action.  

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  In reviewing a motion for summary judgment or adjudication, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)  The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue, in which case the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue.  (Code Civ. Proc. § 437c(p)(2).)  To show a triable issue of material fact exists, the opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto.  (Aguilar, at p. 849.)  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.)

Defendant argues that the first and fourth causes of action fail because Defendant did not fail to repair any defect within a reasonable number of attempts; rather, the subject vehicle was presented only three times, with each of the reported problems (broken latch, peeling emblem, and engine failure) resolved in one attempt.  

Civ. Code § 1793.2(d)(2) provides, “If the manufacturer or its representative in this state is unable to service or repair a new motor vehicle, as that term is defined in paragraph (2) of subdivision (e) of Section 1793.22, to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle in accordance with subparagraph (A) or promptly make restitution to the buyer in accordance with subparagraph (B). However, the buyer shall be free to elect restitution in lieu of replacement, and in no event shall the buyer be required by the manufacturer to accept a replacement vehicle.”

There are triable issues as to the first and fourth causes of action because Plaintiff has come forth with evidence that there were other instances in which the vehicle was presented for acceleration problems and that the potential engine defect was never resolved, even after engine replacement.  (See, e.g., SSUF no. 5.)

In Reply, Defendant argues that Plaintiffs exclusively rely on the declaration of Jorge Perez to describe eight instances in which the subject vehicle was presented for repair, but this declaration cannot be relied upon because it conflicts with Jorge’s prior deposition testimony that he had only presented the vehicle during those instances for regular maintenance or prophylactic recall concerns.  

While Jorge’s deposition conflicts with parts of his declaration, he does ultimately conclude in his deposition that, “Before the explosion, couple months before, I would even dare to say way further than that, way longer than that, way before that, and maybe mentioned it. But as a sense of nothing has happened yet, they keep checking it and everything is fine. It's not even written on the notes. I am more than positive, in my mind probably just had a peace of mind that, okay, they checked it, everything was okay. There's no need to hassle about it.”  That is, Jorge clarifies that he had mentioned the acceleration concern to Defendant, but that such concern was never recorded as it was stated by Defendant that there was no irregularity.  Ultimately, Jorge’s credibility and the weight of his testimony are a factual matter.  

Defendant next argues that the second cause of action fails because the subject vehicle was not out of service for any warranty repair for more than 30 days either individually or cumulatively; rather, the vehicle was presented three times: once for one day, a second time for one day, and a third time for 25 days.

Civ. Code § 1793.2(b) provides, “Where those service and repair facilities are maintained in this state and service or repair of the goods is necessary because they do not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days. Delay caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.”

The Motion is denied as to the second cause of action because Defendant failed to carry its burden to establish that all of the repairs were also commenced within a reasonable time.

For the third cause of action, “Every manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall: . . . (3) Make 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(a)(3).)

The Motion is denied as to the third cause of action because there is evidence that Plaintiff’s vehicle suffers from an engine defect that Defendant's authorized facilities could not repair (see supra), leading to an inference that these facilities were not adequately equipped with literature to identify and address such a defect.  

In sum, the Motion for Summary Judgment/Adjudication is denied.  The objections are overruled.  

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.