Judge: Teresa A. Beaudet, Case: 18STCV10254, Date: 2024-05-21 Tentative Ruling

Case Number: 18STCV10254    Hearing Date: May 21, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Lizbeth Padilla aka Lizbeth Padilla-Bustos (“Plaintiff”) filed this action on December 28, 2018 against Defendant Hyundai Motor America (“Defendant”). The Complaint alleges causes of action for (1) violation of the Song-Beverly Act – breach of express warranty, (2) violation of the Song-Beverly Act – breach of implied warranty, and (3) violation of “the Song-Beverly Act Section 1793.2.”

In the Complaint, Plaintiff alleges that on February 24, 2013, she leased and subsequently purchased a new 2013 Hyundai Tucson, VIN: KM8JU3AC9DU631617 (the “Subject Vehicle”). (Compl., ¶ 8.) Plaintiff alleges that the Subject Vehicle “was delivered to Plaintiff with serious defects and nonconformities to warranty and developed other serious defects and nonconformities to warranty including, but not limited to, engine and transmission defects.” (Compl., ¶ 9.)

On March 10, 2020, the Court issued a minute order in this action providing, inter alia, that “[t]he Motion for Summary Adjudication filed by HYUNDAI MOTOR AMERICA, a California Corporation on 11/27/2019 is Granted. The Court grants Hyundai Motor America's motion for summary adjudication as to the second cause of action for violation of the Song-Beverly Act - breach of implied warranty.”

Defendant now moves “for summary judgment/summary adjudication as to all of Plaintiff’s causes of action in this case, which consist of Plaintiff’s first cause of action for breach of express warranty and third cause of action for violation of Civil Code section 1793.2(b).” Plaintiff opposes.

Request for Judicial Notice

The Court grants Defendant’s request for judicial notice in support of the motion. The Court denies Defendant’s request for judicial notice filed in support of the reply. The Court notes that “¿¿[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.¿¿” (Jay v. Mahaffey¿(2013) 218 Cal.App.4th 1522, 1537¿.) 

Legal Standard

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c, subd. (c).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, 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, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” ((Id., § 437c, subd. (f).)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid.) 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.)¿ 

When a defendant seeks summary judgment or summary adjudication, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c, subd. (p)(2).)  

Discussion

A.    First and Third Causes of Action

Defendant indicates that on September 13, 2022, an Amended Consolidated Class Action Complaint was filed in the matter In re: Hyundai and Kia Engine Litigation II, Case No. 8:18-cv-02223-JLS-JDE (herein, the “E2 Class Action”). (Gramata Decl., ¶ 3, Ex. 9.) The E2 Class Action was filed in the United States District Court, Central District of California. (Gramata Decl., ¶ 3, Ex. 9.) Defendant indicates that “[o]n or about August 29, 2022, the parties to the E2 Class Action reached a settlement…” (Gramata Decl., ¶ 4.)

Defendant indicates that the settlement agreement in the E2 Class Action provides, inter alia, as follows:

“Upon entry of a Court order granting final approval of the Settlement and entering judgment pursuant to section VII.C below, Releasors irrevocably release, waive, and discharge any and all past, present, and future liabilities, claims, causes of action, legal claims, damages, costs, attorneys’ fees, losses, or demands that have been brought or could have been brought, whether known or unknown, existing or potential, or suspected or unsuspected relating to Class Vehicles against Releasees, whether or not specifically named herein, asserted or unasserted, under or pursuant to any statute, regulation, common law, or equitable principle, based on (i) the facts alleged in any complaint filed in the Action and all legal claims of whatever type or description arising out of, that may have arisen as a result of, or which could have been brought based on, any of the facts, acts, events, transactions, occurrences, courses of conduct, representations, omissions, circumstances or other matters pleaded in complaints filed in the Action, and (ii) claims covered by and remedied under the 15-Year/150,000-Mile Extended Warranty and other benefits described in sections II.A through II.I (including the 15- Year/150,000-Mile Extended Warranty, Repair Reimbursements, Repair-Related Transportation and Towing Reimbursements, Inconvenience Due to Repair Delays, Incidentals for Qualifying Fire or Qualifying Failure, Loss of Value for Certain Sold or Traded-In Vehicles, Loss of Vehicle By Qualifying Fire, and Qualifying Failure or Qualifying Fire Rebate), including those related to issues of oil consumption (that are the causal result of connecting rod bearing failure), oil maintenance (that are the causal result of connecting rod bearing failure), and vehicle fires originating in the engine compartment.” (Gramata Decl., ¶ 4, Ex. 7, § VI.)

Defendant asserts that “[i]t cannot be disputed that Plaintiff and the subject vehicle are covered by the E2 Class Action Settlement and that notice was provided to Plaintiff…Plaintiff’s vehicle is a 2013 Hyundai Tucson with a 2.4L Theta II MPI engine, which is among the ‘Class Vehicles’ as defined by the Settlement Agreement for the E2 Class Action settlement, and Plaintiff, as the original owner and lessee of the subject vehicle, is a class member.” (Mot. at p. 13:6-10.)

In his supporting declaration, Mr. Gramata states that “Plaintiff Lizbeth Padilla aka Lizbeth Padilla-Bustos’…leased the subject vehicle, the 2013 Hyundai Tucson 2.4L Theta II MPI vehicle bearing VIN KM8JU3AC9DU631617…on or about February 24, 2013 from South Bay Hyundai.” (Gramata Decl., ¶ 13.) Mr. Gramata also indicates that Plaintiff purchased the vehicle. (Gramata Decl., ¶ 13.)

The subject settlement agreement in the E2 Class Action contains a definition of “Class Vehicles” which provides, inter alia, that “‘Class Vehicles’ refer to the below-listed ‘Hyundai Class Vehicles’ and ‘Kia Class Vehicles’ that were purchased or leased in the United States, excluding the territories, and including those that may have been purchased while the owner was abroad on active U.S. military duty. The ‘Hyundai Class Vehicles’ are the following vehicle models that were originally equipped with or replaced with the respective corresponding genuine engine type within Original Equipment Manufacturer (‘OEM’) specifications:…2010, 2011, 2012, and 2013 model year Hyundai Tucson vehicles with a Theta II 2.4- liter MPI engine…”

(Gramata Decl., ¶ 4, Ex. 7, § I(G).)

Defendant states that it sent notice of the class action settlement to Plaintiff. (Gramata Decl., ¶ 8.) Defendant states that “[p]er the long form notice of the settlement, Plaintiff had until August 7, 2023 to opt out of the class action settlement. Plaintiff did not opt out.” (Gramata Decl., ¶ 11.)

Defendant argues that “[b]ecause Plaintiff’s claims are based upon the engine seizure that resulted in a replacement of the subject vehicle’s engine, and the engine seizure is alleged in the E2 Class Action and encompassed by the broad scope of the release set forth in the E2 Class Action settlement, Plaintiff’s claims are barred.” (Mot. at p. 13:21-24.) Defendant cites to Louie v. BFS Retail & Commercial Operations, LLC (2009) 178 Cal.App.4th 1544, 1555, where the Court of Appeal noted that “[u]nder both California and federal law, res judicata bars a subsequent suit if the same cause of action has been previously adjudicated in a suit between the same parties. It is also settled…that a court-approved settlement pursuant to a final consent decree in a class action will operate to bar subsequent suits by class members.” (Internal quotations and citation omitted.)

The Court notes that in Defendant’s Undisputed Material Fact (“UMF”) No. 28, Defendant asserts that “the class action complaint describes the engine defect as ‘[a] design and/or manufacturing defect…that causes the engine’s moving parts, such as connecting rod bearings, to prematurely wear to the point that the engine parts seize, which stops engine operation while running…’” However, Defendant does not appear to cite a specific paragraph of the Amended Consolidated Class Action Complaint in the E2 Class Action, and it is unclear what specific allegation Defendant is referring to. Rather, Defendant refers to Exhibits 7-10 to the Gramata Declaration. (Defendant’s UMF No. 28.) The Amended Consolidated Class Action Complaint contains 605 paragraphs and does not appear to be searchable. (Gramata Decl., ¶ 3, Ex. 9.)

In addition, in the opposition, Plaintiff argues, inter alia, that “the E2 Class Action does not bar Plaintiff from prosecuting this matter with respect to the liftgate, shifter, and transmission defects.” (Opp’n at p. 3:10-12) As discussed, Plaintiff alleges in the Complaint that “[t]he vehicle was delivered to Plaintiff with serious defects and nonconformities to warranty and developed other serious defects and nonconformities to warranty including, but not limited to, engine and transmission defects.” (Compl., ¶ 9, emphasis added.) Here, Defendant does not appear to argue that the E2 Class Action concerns alleged transmission defect issues. Rather, Defendant argues that “[t]he subject matter of the E2 Class Action concerned an alleged defect with the engines in class vehicles that could result in engine failure, and claims under the California Consumer Legal Remedies Act (‘CLRA’), California Unfair Competition Law (‘UCL’) and California Song-Beverly Act (‘Song-Beverly’), among others, were alleged in the class action complaint.” (Mot. at pp. 8:27-9:3.)

As set forth above, “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., section 437c, subd. (f)(1).)[1] The Court does not find that Defendant has met its initial burden of demonstrating that the E2 Class Action bars all of Plaintiff’s claims in the instant action, such that the remaining first and third causes of action of Plaintiff’s Complaint may be completely disposed of.

B.    First Cause of Action for Violation of Song-Beverly Act – Breach of Express Warranty

Defendant also argues that “Plaintiff’s breach of express warranty claim fails.” (Mot. at p. 14:15.) In the first cause of action, Plaintiff alleges, inter alia, that “Plaintiff delivered the vehicle to an authorized HYUNDAI repair facility for repair of the nonconformities…Defendant was unable to conform Plaintiffs vehicle to the applicable express [sic] after a reasonable number of repair attempts.” (Compl., ¶¶ 22-23.)

Pursuant to Civil Code section 1793.2, subdivision (d)(2), “[i]f 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.”

Defendant cites to Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1206-1207, where the Court of Appeal noted that “[t]his case raises a single question concerning Civil Code section 1793.2, subdivision (d), part of the Song-Beverly Consumer Warranty Act. The statute sets forth the remedies to be afforded to consumers by any automobile manufacturer which ‘is unable to service or repair a new motor vehicle . . . to conform to the applicable express warranties after a reasonable number of attempts, . . .’ (Civ. Code, § 1793.2, subd. (d)(2).) In this case, appellants Frank M. and Charlotte Silvio gave respondents Ford Motor Company and Board Ford one chance to repair their allegedly defective Ford Explorer. Respondents moved for nonsuit on the ground that ‘reasonable number of attempts,’ being in the plural, required that they be given at least two opportunities to repair. The trial court agreed with respondents’ reading of the statute. (1) After the exercise of independent review on this question of statutory interpretation…we find that the trial court correctly interpreted the statute and affirm.” (Internal emphasis omitted.)

Defendant asserts that here, “[t]he only warrantable concerns other than the engine seizure [were] each repaired in a single attempt during the warranty…” (Mot. at p. 15:14-15.) Defendant contends that accordingly, under Silvio, Plaintiff cannot maintain a cause of action for breach of express warranty.

Defendant points to the Declaration of Calvin Jeong, the Service Director for South Bay Hyundai (“SBH”). (Jeong Decl., ¶ 3.) Exhibit 3 to Mr. Jeong’s declaration is “true and correct copies of service records stored and maintained by SBH that are associated with the customer Lizbeth Padilla aka Lizbeth Padilla-Bustos, (‘Customer’) and the 2013 Hyundai Tucson, VIN KM8JU3AC9DU631617 (‘vehicle’) for all visits to SBH by Customer and for the vehicle.” (Jeong Decl., ¶ 4, Ex. 3.) Defendant appears to point to an April 10, 2017 service record providing, inter alia, that “customer states the brakes are making noise…front brake metal to metal and damage the rotor replaced front brake pads and two front rotors…” (Ibid.)

The April 10, 2017 service record also states, “customer states rear trunk [won’t] stay up when is open [sic]…” (Ibid.)

Defendant also appears to note that Exhibit 3 to Mr. Jeong’s declaration includes a June 5, 2017 service record stating, inter alia, “Customer states rear tail gage door wont stay up. Insp [sic] both lifter leaking oil and cause wont stay up… replaced both lifters assembly.” (Jeong Decl., ¶ 4, Ex. 3.) Exhibit 3 also includes a May 23, 2018 service record providing, inter alia, that “[customer] states there is a weezing [sic] noise present when opening up the hood that was not there before check and advise…” (Ibid.) The May 23, 2018 service record further provides that “customer states when putting the vehicle out of park and to reverse or to other gear the vehicle jerks…upon inspection found that temperature sensor for transmission harness was not making the correct contact with main harness causing for the vehicle to jerk and would not communicate with ‘GDS’ as well temperature sensor in transmission needs to be replaced…” (Ibid.) The May 23, 2018 service record further indicates “transmission temperature sensor has been replaced and adaptive values resetting process was completed.” (Ibid.)

In the instant motion, Defendant asserts that “both of [the] issues were repaired within a single attempt. The tailgate issue was reported on April 10, 2017 at which point the parts were ordered, and then installed on a subsequent visit on June 5, 2017…With respect to the intermittent jerk when shifting to drive or reverse, Plaintiff presented the subject vehicle for repair on May 23, 2018 and the transmission temperature sensor was replaced which fixed the issue.” (Mot. at p. 14:22-27.)

As noted by Plaintiff, Defendant appears to be arguing that “Plaintiff must have had the same component repaired at least twice in order to maintain a viable claim.” (Opp’n at p. 4:26-27.) But as noted by Plaintiff, Civil Code section 1793.2, subdivision (d) does not state that the manufacturer or its representative must attempt to service or repair the same defect in new motor vehicle to conform to the applicable express warranties. Rather, as discussed, this provision provides in pertinent part that “[i]f 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 in accordance with subparagraph (A) or promptly make restitution to the buyer in accordance with subparagraph (B).”

Moreover, Silvio does not state that the “reasonable number of attempts” must pertain to the same defect. The Silvio Court noted that “[t]he evidence is thus that respondents were given one opportunity to repair the Explorer, and the issue on appeal is whether that single failed… attempt triggered the obligations set out in Civil Code section 1793.2, subdivision (d).” (Id. at p. 1207.)

In the reply, Defendant cites to Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718, 721, footnote 1, but the Court of Appeal in that case noted that “[t]he Song-Beverly Act regulates warranty terms, imposes service and repair obligations on manufacturers, distributors, and retailers who make express warranties, requires disclosure of specified information in express warranties, and broadens a buyer’s remedies to include costs, attorney’s fees, and civil penalties and give[s] recourse to the buyer of a new automobile that suffers from the same defect repeatedly, or is out of service for cumulative repairs for an extended period.”  (Internal quotations omitted, emphasis added.) Defendant does not appear to cite any legal authority demonstrating that the “reasonable number of attempts” referenced in Civil Code section 1793.2, subdivision (d) must pertain to the same defect.

Based on the foregoing, the Court does not find that Defendant has met its initial burden of demonstrating that Plaintiff’s first cause of action is without merit.

C.    Third Cause of Action for Violation of “Song Beverly Act Section 1793.2”

Pursuant to Civil Code section 1793.2, subdivision (b), “[w]here 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.”

In the third cause of action of the Complaint, Plaintiff alleges, inter alia, that “Plaintiff delivered the subject vehicle to HYUNDAI’s authorized service representative(s), South Bay Hyundai, on multiple occasions. The subject vehicle was delivered for repairs of the engine and transmission, which amount to nonconformities to the express warranties that accompanied the sale of the subject vehicle.” (Compl., ¶ 47.) Plaintiff alleges that “[s]ince delivery of the subject vehicle to South Bay Hyundai, over thirty days have past and HYUNDAI and South Bay Hyundai have failed to tender the subject vehicle back to Plaintiff in conformance with its warranties.” (Compl., ¶ 48.)

Defendant argues that “but for the engine seizure and replacement associated with the February 26, 2018 visit, Plaintiff’s vehicle has not been out of service for warrantable repairs for more than 30 cumulative days…Indeed, the only other warrantable issues, the tailgate lift and shift jerk, respectively, were down for a total of 13 days combined…As such, Plaintiff cannot maintain a claim for violation of Civil Code section 1793.2(b) and the third cause of action must fail.” (Mot. at p. 16:9-15.)

In his supporting declaration, Mr. Jeong states that “[b]ased on my review of SBH’s records, and based on my knowledge, experience, and training, the visit to SBH on February 26, 2018 was the only visit by [Plaintiff] and the vehicle that lasted at least 30 days at the SBH.” (Jeong Decl., ¶ 7.) As set forth above, Exhibit 3 to Mr. Jeong’s declaration is “true and correct copies of service records stored and maintained by SBH that are associated with the customer Lizbeth Padilla aka Lizbeth Padilla-Bustos, (‘Customer’) and the 2013 Hyundai Tucson, VIN KM8JU3AC9DU631617 (‘vehicle’)...” (Jeong Decl., ¶ 4, Ex. 3.) Exhibit 3 includes a February 26, 2018 service record providing, inter alia, that “Customer states while driving the vehicle the vehicle cut off and stopped in the middle of the road…upon inspection found that vehicle [wouldn’t] start or turn over. Found that engine had seized. Removed oil pan and found metal shavings in pan. Engine need to be replaced…replaced engine and has been built and has been installed in the vehicle… (Jeong Decl., ¶ 4, Ex. 3.)

In the opposition, Plaintiff asserts that “Defendant has not provided any evidence, nor does it set forth in its separate statement that the E2 Class Action defect was the culprit for the April 26, 2018[2] presentation when the vehicle’s engine had seized which lead to the repair visit that lasted over 30 days.” (Opp’n at p. 3:5-8.) Indeed, Defendant appears to argue that Plaintiff’s February 26, 2018 visit is the only visit lasting over thirty days. However, Defendant does not explain why this purportedly means that Plaintiff’s third cause of action fails. (See Mot. at pp. 15:17-16:15.) As noted by Plaintiff, Defendant does not appear to provide evidence demonstrating that defect(s) at issue in the E2 Class Action is the same defect as the defect discussed in Plaintiff’s February 26, 2018 service record.

 In addition, in the reply, Defendant asserts that “in the Second Amended Class Action Complaint that was filed May 1, 2019 in the E2 Class Action case, the ‘Engine Defect’ is described as a defect ‘that causes the engine’s moving parts, such as connecting rod bearings, to prematurely wear to the point that the engine parts seize, which stops engine operation while running.’ (Ex. A to Second Request for Judicial Notice.) Notably, the defect is described as relating to any of the engine’s moving parts, not just connecting rod bearings as asserted by Plaintiff.” (Reply at p. 3:15-20.) But the Second Amended Class Action Complaint does not appear to be discussed in the moving papers. As set forth above, Defendant references the Amended Consolidated Class Action Complaint in the motion. The Court notes that “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)

Based on the foregoing, the Court does not find that Defendant has met its initial burden of demonstrating that Plaintiff’s third cause of action is without merit.

            Conclusion

Based on the foregoing, Defendant’s “motion for summary judgment/summary adjudication” is denied.

Plaintiff is ordered to provide notice of this ruling. 

DATED:  May 21, 2024                                 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court