Judge Michael Small, Case Number: 22STCV12917, Date: 2024-06-04 Tentative Ruling

In pertinent part, the Song-Beverly Act provides that if an authorized repair facility of a motor vehicle manufacturer "is unable to service or repair a . . . motor vehicle . . . to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the . . . motor vehicle . . . or promptly make restitution to the buyer . . . . ." (Civil Code Section 1793(d)(2).) Under Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208, the manufacturer is not required to replace a vehicle or make restitution "if it has had only one opportunity to repair the vehicle." That is so, the Court said in Silvio, because the key word in the statute is "attempts," and that word is "plural." (Ibid.) The relevant jury instruction, CACI 3202, is based on Silvio. It states that in determining whether the manufacturer's repair facility had a reasonable number of opportunities to make repairs, the facility "must have been given at least two opportunities" to do the repairs. Issue 1 on which Kia moves for summary adjudication is that Kia's authorized repair facility was given only one attempt to make repairs to Salinas's Kia vehicle that is the subject of this litigation ("the Subject Vehicle"), and therefore, under Silvio, Salinas is not entitled to replacement of the Subject Vehicle or restitution as a matter of law.

In support of this argument, Kia furnished evidence of the service history of the Subject Vehicle. That evidence shows that Salinas presented the Subject Vehicle to an authorized Kia repair facility, Kia of Carson, one time, on August 14, 2021. Salinas's argument that Kia's evidence does not show that Salinas never presented the Subject Vehicle to any other repair facility is misplaced. It was incumbent on Salinas in response to Kia's evidence to come forward with service history evidence of her own showing that she presented the Subject Vehicle to some other repair facility.

Kia's service history evidence does not, however, entitle Kia to summary adjudication on issue 1. That is because that evidence shows that Salinas presented the Subject Vehicle to Kia of Carson on August 14, 2021 to repair two separate defects, and that Kia of Carson kept the Subject Vehicle for nearly three months. Silvio's more than one opportunity rule does not as a matter of law control the outcome here. On these facts, it is for the jury at trial, not the Court on summary adjudication, to determine whether the extended period of time that the Subject Vehicle was left at Kia of Carson for repairs to two separate defects reflects more than one opportunity to make the repair.

Salinas's second cause of action alleges that Kia violated the Song-Beverly Act, Civil Code section 1793.2, subdivision (b), by failing to complete repairs to the Subject Vehicle within 30 days. A violation of that provision entitles a consumer to damages pursuant to Civil Code section 1794, which says, in relevant part: “(a) Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter... may bring an action for the recovery of damages and other legal and equitable relief.” (emphasis added). In turn, Civil Code section 1794 sets forth a comprehensive remedial scheme for claims brought under the Song-Beverly Act, including revocation of acceptance of the vehicle and damages for amounts paid towards the vehicle.

Because the evidence is that repairs on the Subject Vehicle were not completed within the prescribed 30 days period, Salinas is entitled to seek damages arising from that violation of the statute. Further, there is a disputed issue of material fact as to whether Salinas incurred expenses for a rental car while the Subject Vehicle was Kia of Carson for nearly three months.