Judge Theodore R. Howard, Case 19-1046700 2022-11-03 Tentative Ruling

Judge: Theodore R. Howard, Case: 19-1046700, Date: 2022-11-03 Tentative Ruling

This is a Motion for Summary Judgment, or in the alternative, Summary Adjudication, by KIA America (“KA”) in this “Lemon Law” case concerning a 2012 Kia Sportage. The operative pleading is a second amended complaint with 6 causes of action (“COA”) alleging various statutory violations, along with claims for fraudulent concealment.

Preliminary Rulings

Plaintiff’s Request for Judicial Notice, filed as ROA 256, is DENIED. (See C.R.C. 8.1115(a).). The document noticed was offered as authority rather than to show some fact that would be properly subject to judicial notice.

Plaintiff’s Evidentiary Objections are SUSTAINED as to Obj. Nos. 1, 2 [as to “warranted”] and 4 [foundation, legal conclusions] but OVERRULED on Obj. No. 3.

The Reply Objections, as to the La Torre Decl. are SUSTAINED on Obj. Nos. 3 -7 as to the characterization of the records [foundation; best evidence] but otherwise OVERRULED. The Reply Objections, as to the Pardo Decl., are SUSTAINED on Obj. 16 as to what the document reflects [best evidence; legal conclusion], but otherwise OVERRULED.

Motion for Summary Judgment.

As will be seen below, KA has failed to show that it is entitled to judgment on every one of the 6 COA. Therefore, the Court DENIES summary judgment.

Motion for Summary Adjudication

COAs 1 and 4 assert claims for breach of express warranty. KA asserts that both fail as she has not shown that a warranted defect was not repaired within a reasonable number of attempts to do so. But Plaintiff has shown that she brought the vehicle in on multiple occasions, to address issues including vehicle deceleration or stalling. (UF 9-16; AF 13 -15, 18, 21.) Work was done on her vehicle, and she was told, until December 2018, that it was repaired. (Id.) But in December 2018, she was told the defect was caused by a non-warranted defect. (UF 12-16; AF 21 and La Torre Decl., Ex. 9.) She has presented evidence here to suggest that the defect was actually a warranted one, which the repeated service visits had failed to cure. (AF 11, 16-17, 19, 27-40.) In this context, the opposing party’s papers are to be liberally construed. (Comm. to Save Beverly Highland Homes Ass’n v. Beverly Highland (2001) 92 Cal.App.4th 1247, 1260.) As there appear to be triable issues of fact as to whether that was so, the Motion as to COAs 1 and 4 (Issue 1) is DENIED. (See Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 347 [evidence that repairs which did not restore full functionality could suffice for jury to infer that Chrysler intentionally chose not fully to honor the express warranty].)

COA 2 asserts a claim under Civil Code § 1793.2(b)(2), for failure to perform services or repairs so as to conform to the applicable warranties within 30 days. KA asserts that this claim fails as there is no evidence of service efforts taking, either individually or in the aggregate, more than 30 days. (UF 9-11, 52-54.) Plaintiff has not meaningfully attempted to dispute that this is so, and instead argues that service efforts were ineffective overall. But as this provision is temporal, and she has not shown that efforts at service or repair exceeded 30 days, the Motion as to COA 2 (Issue 2) is GRANTED.

COA 3 asserts a claim under Civil Code §1793.2(a)(3), for failing to make available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period. But while KA has offered evidence to show that this standard was met, Plaintiff has responded only with vague assertions as to whether the content of specific materials that KA provided were adequate. (UF 62-65.) As that is insufficient to show a violation, the Motion as to COA 3 (Issue 3) is GRANTED

COA 5 asserts a claim for breach of implied warranty. KA argues that the claim is barred because Plaintiff has no evidence of a nonconformity materializing during the first year of ownership. But Plaintiff here asserts the claim based on a latent defect. KA has not shown that the purchaser must discover and report to the seller a latent defect within that first year to state the claim. (See Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1310; Ehrlich v. BMW of North America, LLC (C.D. Cal. 2010) 801 F.Supp.2d 908, 924.)

KA also asserts that Plaintiff did not timely bring a claim thereafter, so her claim is time-barred under Com. Code § 2725. But where an express warranty “explicitly extends to future performance of the goods,” that limitations period is tolled until the defect is discovered and the seller fails to repair or replace it. (Ehrlich v. BMW of North America, LLC, supra, 801 F.Supp.2d at 925.) The doctrine of fraudulent concealment also tolls the limitations period where a defendant, through deceptive conduct, has caused a claim to grow stale. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192.)

Plaintiff here has presented some evidence to support her claim that this occurred here, both before and after her purchase date. (See ROA 268 at Exs. 1 -6; AF 28, 33.) KA argues that those documents do not apply to Plaintiff’s vehicle but has failed to present evidence to show why that is not so. As it thus appears that there are triable issues of material fact on this claim, the Motion as to COA 5 (Issue 4) is DENIED.

COA 6 asserts a claim for fraud by omission. KA asserts that the claim is barred by the Economic Loss Rule (the “ELR”). But under the recent decision in Dhital v. Nissan North America, Inc. 2022 WL 14772909, the ELR does not bar a fraudulent inducement by concealment claim. KA also argues that it had no duty to make any disclosures to Plaintiff. But where one party to a transaction has sole knowledge or access to material facts and knows that such facts are not known or reasonably discoverable by the other party, then a duty to disclose exists. (Shapiro v. Sutherland (1998) 64 Cal.App.4th 1534, 1544, citing Goodman v. Kennedy (1976) 18 Cal.3d 335, 347.) Plaintiff has presented evidence to suggest that KA had exclusive knowledge about safety defects in vehicles such as the one at issue. (AF 27-40.) There appear to be triable issues of fact here as to whether that was so. KA also argues that there is no evidence of concealment here, but that claim fails for the same reason, for purposes of this motion.

Finally, while KA argues that COA 6 is time-barred, the doctrine of fraudulent concealment tolls the statute of limitations where a defendant, through deceptive conduct, has caused a claim to grow stale. (Aryeh v. Canon Business Solutions, Inc., supra, 55 Cal.4th at 1192.) Plaintiff has presented some evidence here to show that a triable issue exists as to whether that occurred here, both when she purchased her vehicle and thereafter. (AF 5, 7, 18-21.) KA has also failed to address whether tolling occurred here, as Plaintiff alleges, under American Pipe & Construction Co. v. Utah (1974) 414 U.S. 538 and Falk v. Children's Hospital Los Angeles (2015) 237 Cal.App.4th 1454, 1457.) The Motion on COA 6 (Issues 5 and 6) is therefore DENIED, along with Issue 7 in light of these rulings.