Judge Kristin S. Escalante , Case 21STCV33375 2023-05-18 Tentative Ruling

Judge: Kristin S. Escalante , Case: 21STCV33375, Date: 2023-05-18 Tentative Ruling

DEPARTMENT 24 - LAW AND MOTION RULINGS

Submission Instructions.

1. Please notify the courtroom staff by email not later than 4:00 p.m. the day before the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SMCDEPT24@lacourt.org. Please do not use any other email address. You must cc all other parties on the email.

2. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, case name and number, date of hearing and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions

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4. If all parties submit, the tentative ruling will become the final ruling after the hearing date. The moving party shall give notice of the final ruling.

5.Tentative rulings are not invitations or opportunities to file further documents relative to the hearing before the Court. Said document(s) will not be considered by the Court.

Defendant Kia America, Inc.’s motion summary adjudication of the first cause of action in Plaintiff’s complaint for violation of Song-Beverly Act—breach of express warranty is DENIED.

Defendant Kia America, Inc.’s motion summary adjudication of the second cause of action in Plaintiff’s complaint for violation of Song-Beverly Act—breach of implied warranty is GRANTED.

Defendant Kia America, Inc.’s motion for summary adjudication of the third cause of action in Plaintiff’s complaint for violation of Song-Beverly Act section 1793.2 is GRANTED.

On September 9, 2021, Israel Contreras brought this action against Kia Motors, Inc., asserting causes of action for (1) violation of Song-Beverly Act—breach of express warranty; (2) violation of Song-Beverly Act—breach of implied warranty; and (3) violation of Song-Beverly Act section 1793.2. Plaintiff erroneously sued Kia Motors, Inc. and Kia America, Inc. has appeared as the Defendant in this action.

The complaint alleges Plaintiff purchased a 2015 Kia Forte on September 18, 2014, and entered into a warranty contract with Defendant that same day. However, defects to the engine manifested during the express warranty period, and Defendant failed to repurchase the Subject Vehicle after a reasonable number of repair attempts failed to conform the Subject Vehicle to the express warranty. The complaint also alleges that Defendant violated Civil Code, section 1793.2(b) by failing to conform the Subject Vehicle to the terms of the express warranty within 30 days of Plaintiff presenting the Vehicle to Defendant’s authorized repair facility in downtown Los Angeles.

On December 23, 2022, Defendant filed this motion for summary judgment, or in the alternative, summary adjudication of the three causes of action in Plaintiff’s complaint.

“A party may move for summary judgment in any action or proceeding 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(a).) The motion shall be granted if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Id. § 437c(c).)

Similarly, “[a] party may move for summary adjudication as to one or more causes of action within an action…if the party contends…that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action…” (Code Civ. Proc. § 437c(f)(1).) “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.” (Id. §437c(f)(2).)

A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action...cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “[T]he initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)

“The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Ibid.)

“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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c(p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at 467; see also Code Civ. Proc., § 437c(c).)

Plaintiff asserts causes of action for (1) violation of Song-Beverly Act—breach of express warranty; (2) violation of Song-Beverly Act—breach of implied warranty; and (3) violation of Song-Beverly Act section 1793.2. Defendant has moved for summary judgment, or in the alternative, summary adjudication as to each cause of action.

Defendant moves for summary adjudication of the first cause of action on grounds there was no breach of the express warranty because the engine in the Subject Vehicle only had to be replaced once. Thus, according to Defendant, there was no failure to repair after a reasonable number of attempts, and therefore no breach of the express warranty under the Song-Beverly Act. In opposition, Plaintiff contends he presented the Vehicle to an authorized repair facility for engine-related issues on more than one occasion.

“If the manufacturer or its representative in this state is unable to service or repair a new motor vehicle…to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle…or promptly make restitution to the buyer…” (Civ. Code § 1793.2(d)((2).) The Song-Beverly Act (SBA) allows a buyer to bring an action “for the recovery of damages and other legal and equitable relief” if a manufacturer fails to comply with its obligations. (Civ. Code § 1794(a).)

“The duty to promptly provide restitution arises only after the manufacturer is unable to repair the vehicle after being afforded the opportunity to make a reasonable number of repair attempts.” (Kirzhner v. Mercedes-Benz USA, LLC (2020) 9 Cal.5th 966, 986.) “‘[A]ttempts,’ as used in Civil Code section 1793.2, subdivision (d)(2), requires more than one attempt. A trier of fact might determine that two or three or more attempts were reasonable under the circumstances of a case or were unreasonable under those circumstances. A single attempt does not meet the statutory threshold, so that there is no need for a trier of fact to determine its reasonableness.” (Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1209.)

Here, Defendant meets its initial burden by offering evidence that Plaintiff only presented the Subject Vehicle for engine service on one occasion. Defendant offers the declaration of Frank Gonzales, Director of Fixed Operations for Kia of Downtown Los Angeles. Gonzales states Plaintiff presented the Vehicle for service on November 28, 2020, the engine was replaced under warranty, and this was the only time the Vehicle was presented for engine repair. (Gonzales Decl., ¶ 3.) Gonzales supports his statements with an invoice indicating that Plaintiff brought a 2015 Kia Forte with 51,762 miles in for repairs on November 28, 2020, and on January 12, 2021, the vehicle was returned to Plaintiff with a new engine. (Gonzales Decl., Ex. A.)

The burden shifts to Plaintiff to show a triable issue of fact. Plaintiff meets his burden by testifying that on September 30, 2019, when the Subject Vehicle had 39,575 miles, he brought the Vehicle to Kia of Downtown Los Angeles complaining that the check engine and transmission lights were on. (Samra Decl., Ex. A. [Contreras Depo., 53:24-54-17].) Plaintiff further testified that this was the reason he presented the Vehicle to Kia on September 30, 2019. (Id., at 55:11-13.) According to Plaintiff’s testimony, he picked the Vehicle up the next day, but the check engine lights turned back on shortly after he drove away from the repair facility. (Id., at 57:24-58:13.) When Plaintiff called to inform the repair facility that the check engine light was back on, the repair facility told him that nothing was wrong with the Vehicle. (Id., at 58:17-24.) Plaintiff has therefore offered evidence that the Subject Vehicle was presented for engine repairs more than once.

In reply, Defendant argues the repair order from September 30, 2019 shows that Plaintiff did not make any complaints about warning lights, the operation of the Vehicle, or anything else related to the engine. Instead, Defendant argues, the repair facility performed two service actions and a service campaign and returned the Vehicle to Plaintiff the same day. Indeed, the September 30, 2019 repair order offered by Defendant does not indicate that Plaintiff complained about the check engine light. (Ourkhan Decl., Ex. A.) However, just because the repair order does not indicate Plaintiff complained does not mean Plaintiff did not complain. There is a conflict between the parties’ version of events.

Defendant has presented an invoice and repair order indicating that Plaintiff only presented the Subject Vehicle to an authorized Kia repair facility for engine repair once. In response, Plaintiff testifies he brought the Vehicle in for engine repairs twice. The Court does not weigh evidence at summary judgment—it looks for whether there are triable issues of fact. Whether Plaintiff actually presented the Vehicle for engine trouble during his first visit to the Kia repair facility on September 30, 2019—and ultimately whether this constitutes a failure to conform the Vehicle to the express warranty after a reasonable number of attempts—is a triable issue of fact. (See Silvio, supra, 109 Cal.App.4th at 1209.)

Accordingly, summary adjudication of the first cause of action in Plaintiff’s complaint for violation of Song-Beverly Act—breach of express warranty is denied.

The second cause of action in Plaintiff’s complaint alleges: Defendant’s sale of the Subject Vehicle came with an implied warranty that the Vehicle was merchantable; the Vehicle was delivered to Plaintiff with latent engine defects; and before filing his complaint, Plaintiff revoked acceptance of the Vehicle by contacting Defendant’s customer service. (Compl., ¶¶ 27, 29, 33.)

Defendant moves for summary adjudication of the second cause of action on grounds the implied warranty claim is time barred. Defendant argues the Subject Vehicle’s implied warranty had a duration of one year, the statute of limitations on breach of implied warranty claims is four years, and thus the latest Plaintiff could have brought this cause of action was five years after he purchased the Vehicle—i.e., September 18, 2019. In opposition, Plaintiff argues that the statute of limitations does not begin to run until breach is discovered, and Defendant offers no evidence that Plaintiff should have discovered the Vehicle’s engine defects more than four years prior to the initiation of this action.

“[E]very sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer’s and the retail seller’s implied warranty that the goods are merchantable.” (Civ. Code § 1792.) “[I]n 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.” (Civ. Code 1791.1(c).)

“An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.” (Comm. Code § 2725(1).) “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 the cause of action accrues when the breach is or should have been discovered.” (Id., § 2725(2).)

“Courts have consistently held [that an implied warranty] is not a warranty that explicitly extends to future performance of the goods.” MacDonald v. Ford Motor Company (N.D. Cal. 2014) 37 F.Supp.3d 1087, 1100, original brackets.) In other words, the statute of limitations for breach of implied warranty claims under the SBA “is limited to four years from the breach of implied warranty.” (Id. at 1101.) “Thus, the latest each Plaintiff could have brought a claim was four years after the car was purchased.” (Id. at 1102.)

In opposition, Plaintiff insists California courts have recognized that an implied warranty under the SBA is a warranty that extends to future performance. (See, e.g., Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1309 [“Thus, by giving the implied warranty a limited prospective existence beyond the time of delivery, the Legislature created the possibility that the implied warranty could be breached after delivery.”].) Therefore, according to Plaintiff, the future performance exception of Commercial Code section 2725(2) applies and the statute of limitations on a breach of implied warranty claim under the SBA does not accrue until the breach is discovered. However, the Mexia Court merely held that a breach of an implied warranty under the SBA can occur after delivery. (Ibid.) It did not hold that the statute of limitations runs after the breach is discovered. Plaintiff makes this leap, but it is not directly supported by any case law.

It stands to reason that the latest an implied warranty can be breached is the date of its expiration. In this case, the parties agree that Plaintiff purchased the Subject Vehicle on September 18, 2014, and that pursuant to Civil Code section 1191.1(c), the implied warranty on the Vehicle expired on September 18, 2015. Even though Plaintiff may not have discovered Plaintiff’s alleged breach of the implied warranty—i.e., the Vehicle’s engine defects—until later, the latest the breach itself could have occurred is September 18, 2015. Pursuant to Commercial Code section 2725(2), Plaintiff had until September 18, 2019 to bring his breach of implied warranty claim. Plaintiff, however, did not bring his claim until September 9, 2021—almost seven years after he purchased the Vehicle and six years after the Vehicle’s implied warranty of merchantability expired. Plaintiff’s implied warranty claim is therefore time barred.

Accordingly, summary adjudication of the second cause of action in Plaintiff’s complaint for violation of Song-Beverly Act—breach of implied warranty is granted.

The third cause of action in Plaintiff’s complaint alleges that Plaintiff delivered the Subject Vehicle to Defendant’s authorized repair facility, at which point Defendant’s authorized repair facility was not able to conform the Subject Vehicle to the terms of the express warranty within 30 days. (Compl., ¶ 44.)

Defendant moves for summary adjudication of the third cause of action on grounds Plaintiff did not sustain any damages due to Defendant's failure to complete repairs within 30 days. In opposition, Plaintiff maintains he is entitled to recission of the purchase contract because of Defendant’s 30-day violation.

When “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.” (Civ Code § 1793.2(b).)

Here, the parties agree that Plaintiff presented the Subject Vehicle for repairs on November 28, 2020, and that Defendant replaced the engine free of charge and returned the Vehicle to Plaintiff on January 12, 2021. The repair order referenced in Plaintiff’s deposition and offered by Defendant confirms these facts and dates. (Gonzales Decl., Ex. A.) Furthermore, the repair order indicates Plaintiff was provided with a loaner car for the duration of repairs. (Ibid.) Thus, Defendant meets its initial burden by showing that Plaintiff was not damaged by Defendant’s failure to conform the Vehicle to the applicable warranties within 30 days.

Similar to his second cause of action, as discussed above, Plaintiff does not offer evidence refuting Defendant’s version of events. Instead, Plaintiff emphasizes that Defendant has conceded that the replacement of engine in the Subject Vehicle took more than 30 days. Plaintiff then argues Defendant’s violation of Section 1793.2(b) entitles Plaintiff to bring an action for the recovery of damages and other legal and equitable relief, which under Section 1794(b) includes “the rights of replacement or reimbursement” when “the buyer has rightfully rejected or justifiably revoked acceptance of the goods.” Plaintiff further argues he is entitled under Section 1794(c) to a civil penalty of twice the amount of actual damages due to Defendant’s willful violation of the SBA.

Under Plaintiff’s interpretation of the law, if a car manufacturer fails to conform a vehicle to its warranty within 30 days, a buyer is entitled to rescind their purchase of the vehicle and sue for civil damages of twice the purchase price—even if the buyer does not show they were damaged by the delay. Unsurprisingly, Plaintiff does not cite any case law supporting his interpretation. Nor can the Court find any. Plaintiff cites Ramos v. Mercedes-Benz USA LLC (2020) 55 Cal.App.5th 220, but Ramos simply does not support this proposition.

The SBA allows a “buyer of consumer goods who is damaged by a failure to comply with any obligation under [the SBA]” to “bring an action for the recovery of damages and other legal and equitable relief.” (Civ. Code § 1794(a), emphasis added.) Furthermore, the SBA states that delay “caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement” and when a failure to repair within 30 days occurs, “conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.” (Civ Code § 1793.2(b).) Section 1793.2(b) does not say that when a failure to repair within 30 days occurs—regardless of the circumstances and absent any damage to the buyer—a buyer may nonetheless rescind the sale of the vehicle.

Here, Defendant offers evidence that Plaintiff was not damaged by the delay—specifically, the engine in Subject Vehicle was replaced free of charge and Plaintiff was given a loaner car for the duration of the repairs. Plaintiff does not offer any evidence of damage due to the extra days it took Defendant to replace the engine in the Subject Vehicle. Thus, there is no triable fact as to whether Plaintiff was damaged due to Defendant’s violation of Section 1793.2(b).

Accordingly, summary adjudication of the third cause of action in Plaintiff’s complaint for violation of Song-Beverly Act section 1793.2 is granted.

Defendant Kia America, Inc.’s motion summary adjudication of the first cause of action in Plaintiff’s complaint for violation of Song-Beverly Act—breach of express warranty is DENIED.

Defendant Kia America, Inc.’s motion summary adjudication of the second cause of action in Plaintiff’s complaint for violation of Song-Beverly Act—breach of implied warranty is GRANTED.

Defendant Kia America, Inc.’s motion for summary adjudication of the third cause of action in Plaintiff’s complaint for violation of Song-Beverly Act section 1793.2 is GRANTED.