Judge: Robert B. Broadbelt, Case: 18STCV06837, Date: 2023-10-30 Tentative Ruling

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Case Number: 18STCV06837    Hearing Date: October 30, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant Hyundai Motor America  

RESPONDING PARTIES:     Plaintiffs Andres Manzo and Eva Mora          

(1)   Motion for Offset of Damages

MOVING PARTIES:             Plaintiffs Andres Manzo and Eva Mora

RESPONDING PARTY:       Defendant Hyundai Motor America

(2)   Motion for New Trial

The court considered the moving, opposition, and reply papers filed in connection with each motion.

EVIDENTIARY OBJECTIONS

The court sustains defendant Hyundai Motor America’s evidentiary objection, filed on October 24, 2023.

BACKGROUND

Plaintiffs Andres Manzo and Eva Mora (“Plaintiffs”) filed this lemon law action against defendant Hyundai Motor America (“Defendant”), alleging three causes of action pursuant to the Song-Beverly Act.

At trial in this action, the jury found that Plaintiffs were entitled to an award of damages in the amount of $23,276.13.  The court entered judgment in favor of Plaintiffs and against Defendant in the amount of $23,276.13 on August 14, 2023.

Now pending before the court are the following two motions filed by the parties: (1) the motion to offset damages, filed by Defendant on August 25, 2023, and (2) the motion for new trial, filed by Plaintiffs on September 18, 2023.

DEFENDANT’S MOTION FOR OFFSET OF DAMAGES

Defendant moves the court for an order (1) offsetting the jury award of $23,276.13 by $11,544.46, which represents the insurance proceeds received by Plaintiffs, and (2) entering judgment in the modified amount of $11,732.67.

First, it appears that the court does not have jurisdiction to rule on Defendant’s motion as filed. 

“Once judgment has been entered, the trial court does retain jurisdiction for a limited period of time to entertain and grant a motion for a new trial ([Code Civ. Proc.,] § 655 et seq.) or a motion for judgment notwithstanding the verdict.  ([Code Civ. Proc.,] § 629.)  The court also retains jurisdiction to consider and grant a motion to vacate a judgment and enter a judgment for either of two reasons: an incorrect or erroneous legal basis for the decision, not consistent with or supported by the facts, or a judgment not consistent with or not supported by the special verdict.  ([Code Civ. Proc.,] §§ 663, 663a.)  The court also retains jurisdiction to entertain and grant a motion for relief from a judgment taken against a party through mistake, inadvertence, surprise, or excusable neglect.  ([Code Civ. Proc.,] § 473.)”  (Craven v. Crout (1985) 163 Cal.App.3d 779, 782-783.)

Defendant did not move pursuant to any of the statutory authorities set forth above.  Defendant did not, for example, file a motion for a new trial based on excessive damages.  (Code Civ. Proc., § 657, subd. (5).)  Instead, Defendant has merely requested that the court offset the award of damages by $11,544.46.  Thus, it appears that Defendant’s motion for offset is the improper procedural vehicle to seek such relief.

Second, even if Defendant had filed the correct procedural motion, the court would find that Defendant has not met its burden to show that the court should offset the award of damages by $11,544.46.  The court finds persuasive the reasoning set forth in Figueroa v. FCA US, LLC (2022) 84 Cal.App.5th 708, review granted February 1, 2023, S277547, and Williams v. FCA US LLC (2023) 88 Cal.App.5th 765, review granted May 3, 2023, S279051, concluding that manufacturer-defendants are not entitled to an offset or reduction of an award of restitution when consumer-plaintiffs have received money for their vehicle.  (Figueroa, supra, 84 Cal.App.5th at pp. 714, [Song-Beverly Act’s “definition [of restitution] does not include a set-off for the cash received by the vehicle owner on sale of the vehicle or the vehicle’s trade-in value”], 712 [“Nowhere in section 1793.2, subdivision (d)(2)(B), or elsewhere in the Song-Beverly Act, is there a provision allowing cash back to the manufacturer”], rev. granted; Williams, supra, 88 Cal.App.5th at p. 785 [“Crediting the manufacturer with the trade-in value or sale proceeds received for the defective vehicle to reduce the buyer’s remedy under the restitution provision would create a disincentive to reacquire or promptly replace or provide restitution for a defective vehicle . . . .  We decline to interpret the Act in that manner”], rev. granted.)

The court therefore denies Defendant’s motion.

PLAINTIFFS’ MOTION FOR NEW TRIAL

Plaintiffs move the court for an order vacating and setting aside the judgment entered by the court on August 14, 2023, on the ground that the damages awarded were inadequate because they were not awarded prejudgment interest pursuant to Civil Code section 3287.  (Code Civ. Proc., § 657, subd. (5) [party may move for new trial or to modify a decision on the ground of “[e]xcessive or inadequate damages”].)

As a threshold matter, the court notes that Defendant contends that Plaintiffs’ motion is procedurally defective on the ground that the notice of motion was not timely filed.

“The party intending to move for a new trial shall file with the clerk and serve upon each adverse party a notice of his or her intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court, or both, either: [¶] (1) After the decision is rendered and before the entry of judgment[, or] [¶] (2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after entry of judgment, whichever is            earliest. . . .”  (Code Civ. Proc., § 659, subd. (a).)  “These time limits are jurisdictional.”  (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.)

On August 15, 2023, the court issued a minute order stating the following:  “Parties are noticed that Judgment (by Court after jury trial) was signed, filed, and entered on 8/14/23.”  The Certificate of Mailing states that the August 15, 2023 minute order was served on the parties on that date.  Defendant appears to argue that service of the minute order constitutes notice pursuant to Code of Civil Procedure section 664.5.  The court disagrees.

“‘[T]o qualify as a notice of entry of judgment under Code of Civil Procedure section 664.5, the clerk’s mailed notice must affirmatively state that it was given “upon order by the court” or “under section 664.5,” and a certificate of mailing the notice must be executed and placed in the file.’”  (Simgel Co., Inc. v. Jaguar Land Rover North America, LLC (2020) 55 Cal.App.5th 305, 314.)  Because the August 15, 2023 order did not state that (1) it was entered upon order by the court, or (2) it was issued under section 664.5, the court finds that it did not constitute notice of entry of judgment pursuant to Code of Civil Procedure section 664.5 and, as a result, did not begin the 15-day limit by which Plaintiffs were required to file the pending motion for a new trial.   The court therefore considers the merits of Plaintiffs’ motion.

Plaintiffs request that the court modify the judgment to include, pursuant to Civil Code section 3287, subdivision (a), prejudgment interest in the amount of $17,519.48.

“A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt.”  (Civ. Code, § 3287, subd. (a).)  “The Song-Beverly Act does not preclude an award of prejudgment interest under section 3287, subdivision (a).”  (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 43; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1010 [“Nothing in the Song-Beverly Consumer Warranty Act bars recovery of prejudgment interest”].)  “‘ “Damages are deemed certain or capable of being made certain within the provisions of subdivision (a) of section 3287 where there is essentially no dispute between the parties concerning the basis of computation of damages if any are recoverable but where their dispute centers on the issue of liability giving rise to damage.” ’”  (Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718, 729.)  The test is therefore whether the defendant actually knows the amount owed or could have computed that amount from reasonably available information.  (Ibid.)  However, “‘[t]he statute . . . does not authorize prejudgment interest where the amount of damages, as opposed to the determination of liability, “depends upon a judicial determination based upon conflicting evidence and it is not ascertainable from truthful data supplied by the claimant to his debtor.” ’”  (Ibid.)

Plaintiffs contend that Defendant “was always aware of the purchase price of the defective vehicle since it is written on the sales contract” and was “always aware of what the restitutionary figure Plaintiffs were owed here to repurchase the vehicle because they made the exact same deductions (including the mileage offset) that the jury made in this case prior to the lawsuit.”  (Mot., p. 5:3-9.)  In opposition, Defendant asserts that the amount of damages in this case could not have been calculated before trial, in part because Plaintiffs requested damages beyond what was awarded.

The court finds that Plaintiffs are not entitled to an award of prejudgment interest pursuant to Civil Code section 3287, subdivision (a), and therefore denies their request for prejudgment interest pursuant to that statute.  Specifically, the court finds that Plaintiffs have not shown that their damages were “certain, or capable of being made certain by calculation” within the meaning of section 3287. 

To calculate a damages award in many lemon law cases, a jury must first determine      (1) whether any of the defects alleged in a complaint represents a noncomformity, (2) whether any such noncomformity substantially impaired the use, value, or safety of the vehicle, and (3) if so, the mileage at which the plaintiffs first presented the car for repair.  (Warren, supra, 30 Cal.App.5th at p. 44; Duale, supra, 148 Cal.App.4th at p. 729.)  Here, Plaintiffs have not presented evidence showing that (1) these issues were not required to be resolved before calculating damages, or (2) these issues were not in dispute at trial.  (Ibid.; Tiul Ortega v. BMW of North America, LLC (2019) 2019 WL 6123774 at *2 [“Although the [sales contract] gave the parties and the jury a starting point from which to calculate damages, it could not be used to determine when [the defendant’s] obligation to repurchase/replace the Subject Vehicle arose or what damages [the plaintiff] might be able to recover beyond the amount paid toward the Subject Vehicle.  Under Duale, these are not pure issues of liability but rather issues affecting the calculation of damages which could not be resolved ‘except by verdict or judgment’”]; Gray v. Quicken Loans, Inc. (2021) 61 Cal.App.5th 524, 528, n. 2 [“‘Although not binding, unpublished federal district court cases are citable as persuasive authority’”].) 

Thus, the court finds that Plaintiffs have not shown that damages could have been calculated before the jury made findings as to the issues set forth above, irrespective of the fact that the sales contract might have provided a “starting point” for those calculations.

Moreover, Plaintiffs requested, but the jury did not award, $10,843 in incidental and consequential damages.  The amount of those damages, as part of the entire request for an award of damages, were not certain or capable of being made certain before trial based on any information available to Defendant.  (Warren, supra, 30 Cal.App.5th at p. 45 [incidental and consequential damages – “a key component of” the jury award – were not certain].)

The court therefore finds that Plaintiffs have not shown that their damages were certain or capable of being made certain.  (Civ. Code, § 3287, subd. (a).)

Alternatively, Plaintiffs request that the court modify the judgment to include, pursuant to Civil Code section 3287, subdivision (b), prejudgment interest in the amount of $10,941.70.

“Subdivision (b) of section 3287 applies to unliquidated claims and it is discretionary.”  (Glassman v. Safeco Ins. Co. of America (2023) 90 Cal.App.5h 1281, 1302, n. 10.)  “There is no authoritative list of criteria for courts to consider, and ‘[f]ew cases have discussed the standards by which a trial court’s exercise of discretion under section 3287, subdivision (b) are to be judged.’”  (Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 577.)

The court, upon considering the evidence and arguments presented by the parties and in balancing “concerns of fairness and just compensation[,]” denies Plaintiffs’ request that the court exercise its discretion to award prejudgment interest pursuant to Civil Code section 3287, subdivision (b), based on, among other factors, the facts that (1) awarding prejudgment interest, under the circumstances, would penalize Defendant for litigating a bona fide dispute, and          (2) Plaintiffs have not submitted evidence showing that they made reasonable, good faith offers to settle this action that were rejected by Defendant.  (Civ. Code, § 3287, subd. (b); Hewlett-Packard Co., supra, 65 Cal.App.5th at p. 577; A&M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 496-497.)

The court therefore denies Plaintiffs’ motion for new trial or modification of a decision based on inadequate damages.  (Code Civ. Proc., § 657, subd. (5).)

ORDER

            The court denies defendant Hyundai Motor America’s motion for offset of damages.

            The court denies plaintiffs Andres Manzo and Eva Mora’s motion for new trial.

            The court orders defendant Hyundai Motor America to give notice of this ruling.

IT IS SO ORDERED.

DATED:  October 30, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court