Judge Theresa M. Traber, Case Number: 18STCV00797, Date: 2023-06-29 Tentative Ruling

Judge: Theresa M. Traber, Case: 18STCV00797, Date: 2023-06-29 Tentative Ruling

Case Number: 18STCV00797 Hearing Date: July 20, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: July 20, 2023 TRIAL DATE: August 8, 2023

CASE: Sayra Asrar et al. v. Kia Motors America, Inc.

CASE NO.: 18STCV00797

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY: Defendant Kia Motors America, Inc.

RESPONDING PARTY(S): Plaintiffs Sayra Asrar and Shahzad Khan

CASE HISTORY:

· 10/10/18: Complaint filed.

· 01/25/19: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a lemon law action filed on October 10, 2018. Plaintiffs purchased a new 2013 Kia Optima which had serious engine defects. Plaintiff alleges multiple violations of the Song-Beverly Consumer Warranty Act and fraudulent omission by Defendant in concealing the engine defects.

Defendant now moves for summary judgment, or, in the alternative, summary adjudication as to each cause of action.

TENTATIVE RULING:

Defendant’s Motion for Summary Judgment is DENIED.

Defendant’s alternative Motion for Summary Adjudication is DENIED.//

DISCUSSION:

Motion for Summary Judgment

Defendant moves for summary judgment. As discussed in connection with Defendant’s motion for summary adjudication below, Defendants have failed to demonstrate that they are entitled to prevail as to each cause of action asserted against them. Accordingly, the motion for summary judgment is DENIED.

Motion for Summary Adjudication

Defendant moves in the alternative for summary adjudication of each cause of action asserted against it.

Plaintiffs’ Evidentiary Objections to Declaration of Dany Chittamany

Plaintiffs offer several evidentiary objections to the Declaration of Dany Chittamany in support of the Motion. The Court rules on these objections as follows:

Objection No. 1: OVERRULED. The witness’s March 2023 deposition testimony does not establish a lack of personal knowledge at the time the declaration was made. The objections thus go to weight and not admissibility.

Objections Nos. 2-4: OVERRULED. Objections go to weight, not admissibility.

Late Reply Brief

Defendant served its reply brief on Plaintiffs on June 23, 2023, six days before the date this matter was originally set to be heard. However, Defendant did not file its reply brief or accompanying papers with the Court until June 26, 2023, only three days before the hearing. Code of Civil Procedure section 437c subdivision (b)(4) states that “[a] reply to the opposition shall be served and filed by the moving party not less than five days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.” (Code Civ. Proc. § 437c(b)(4) [emphasis added].) Since five days before a June 29, 2023 hearing was Saturday, June 24, the last date to file and serve the reply papers was Friday, June 23, 2023. (See Code Civ. Proc. § 12.) Defendant offers no explanation or justification for its failure to timely file their reply brief.

However, as Plaintiffs have not objected to the late filing of these papers, and it appears that they were properly served on Plaintiffs notwithstanding the untimely filing, the Court will exercise its discretion to overlook this defect and consider these materials on their merits. This is particularly appropriate given the Court’s continuation of the hearing date for other reasons.

Supplemental Declaration of Mohammad Usman Asrar

On June 28, 2023, one day before the previous hearing date for this motion, Plaintiffs filed a Declaration by Mohammad Usman Asrar which appears to provide direct testimony as to the continued existence of defects in the subject vehicle. At the June 29, 2023 hearing, the Court ordered that Defendant serve and file any objections to this supplemental evidence and a supplemental reply addressing only this evidence not to exceed five pages. (June 29, 2023 Minute Order.) Although Defendant provided supplemental objections per the Court’s order, no supplemental reply was provided. Defendant has therefore waived the opportunity to assert any relevant arguments against this evidence for the purposes of this motion, and Defendant’s motion will either succeed or fail based on the arguments already presented, accounting for this new evidence.

Defendant’s Evidentiary Objections to the Declaration of Matthew Pardo

Defendant objects to the Declaration of Matthew Pardo in Opposition to the Motion for Summary Judgment.

Objection Nos. 1-14: OVERRULED. Relevance and lack of personal knowledge objections go to weight, not admissibility. Hearsay is not a valid objection in this context, given that nonhearsay evidence supporting this statement could be offered at trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-948.) As to lack of foundation and authentication, Plaintiff has authenticated these documents by way of a cross-noticed deposition attached as Exhibit 33, in which Defendant’s counsel states that the parties have stipulated as to the authenticity of the proffered documents with respect to all actions involving Kia’s Theta II engine. (Exh. 33 pp. 18:21-19:11.)

Objection No. 15: OVERRULED. Hearsay is not a valid objection in this context, given that nonhearsay evidence supporting this statement could be offered at trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-948.) As to relevance, the language of the stipulation is silent as to the effect of the stipulation beyond Maria Torres v. Kia Motors America, Inc. (Case No. 18STCV00967). A stipulation has preclusive effect only when the parties manifest an intent for it to do so. (Tennison v. California Victim Compensation and Government Claims Bd. (2007) 152 Cal.App.4th 1164, 1176.) However, as stated above, Plaintiff has shown that the parties agreed that the stipulation addresses the authenticity of Exhibits 1-14 with respect to all actions involving Kia’s Theta II engine. (Exh. 33 pp. 18:21-19:11.) Plaintiff has therefore established the relevance of this document.

Objection No. 17: OVERRULED. Authentication established by way of stipulation. Subject to hearsay exception as statement by agent of party-opponent.

Objection No. 18: OVERRULED. Relevant on its face.

Objection No. 23: OVERRULED. Party admission. Remaining objections go to weight, not admissibility.

Objection No. 25: OVERRULED. Hearsay is not a valid objection in this context, given that nonhearsay evidence supporting this statement could be offered at trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-948.) The remaining objections go to weight, not admissibility.

As the remainder of the statements to which Defendant objects is not relevant to the Court’s ruling, the Court declines to rule on the remaining objections. (Code Civ. Proc. § 437c(q).)

Defendant’s Evidentiary Objections to Declaration of Sarya Asrar

Objection No. 2: OVERRULED. The statement quoted by Defendant in its lack of foundation and relevance objection is not present in the excerpt to which Defendant objects. Defendant’s duty to disclose argument is without merit for the reasons stated below and, in any event, goes to weight, not admissibility.

Objections Nos. 3-5: SUSTAINED for lack of foundation and hearsay. Plaintiff Asrar’s declaration is inadmissible to prove the contents of the documents. However, the documents themselves are admissible insofar as they are relevant to the Court’s ruling.

Objection No. 8: SUSTAINED for lack of foundation and hearsay. (See Pardo Decl. Exh. 36 p. 28:14-17, 29:2-12.)

As the remainder of the statements to which Defendant objects is not relevant to the Court’s ruling, the Court declines to rule on the remaining objections. (Code Civ. Proc. § 437c(q).)

Defendant’s Evidentiary Objections to Declaration of Mohammad Usman Asrar

Objection No. 3: OVERRULED. These objections go to weight, not admissibility, and, in any event, the declarant does not lack personal knowledge nor foundation, nor is this speculative or opinion testimony. This testimony is facially relevant.

As the remainder of the statements to which Defendant objects is not relevant to the Court’s ruling, the Court declines to rule on the remaining objections. (Code Civ. Proc. § 437c(q).)

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and, if not, to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.) The lack of opposition by a plaintiff is not grounds to grant a motion for summary judgment if a defendant cannot meet their initial burden of proof. (See Thatcher v. Lucy Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087.)

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 that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

First Cause of Action: Violation of Civil Code Section 1793.2(d)

Defendant contends that Plaintiffs cannot prevail on the claim for violation of Civil Code Section 1793.2(d).

Civil Code Section 1793.2(d)(2) states, in relevant part:

If 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.

(Civ. Code § 1793.2(d)(2).) What constitutes a “reasonable number of attempts” is a question of fact, but the number of attempts must be more than one as a matter of law. (Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208-1209.) Assessment of conformity is also a question of fact for the jury. (See Lundy v. Ford Motor Co. (2001) 87 Cal.App.4th 472, 478.)

Defendant contends that Plaintiffs cannot prevail on this claim because all existing issues that were covered under the warranty were repaired every time the vehicle was brought in for service. In support of this contention, Defendant offers extensive evidence of each of the three service attempts between 2016 and 2018. (See Defendant’s Separate Statement of Undisputed Material Fact Nos. 50-53.) Defendant characterizes each of these attempts as conclusively repairing each issue presented, including a faulty exhaust waste gate actuator, a burned-out headlamp, and a hole in the engine which had caused complete engine failure. (Id.) This production by Defendant is sufficient to meet its burden under the summary adjudication standard. The burden therefore shifts to Plaintiffs to establish a triable issue of fact as to whether the defect existed during this period despite Defendant’s multiple service attempts.

In opposition, Plaintiffs argue that Defendants ignore a fourth presentation of the vehicle in November 2017 for leaking engine oil, at which time Defendants did not perform the necessary repairs. (See, e.g., SSDF No. 55.) However, this evidence, by itself, is insufficient to demonstrate a triable issue of fact because Defendant has offered evidence showing that even if the defects were not repaired in 2017, they were eventually repaired during the warranty period in 2018. To bridge this gap, Plaintiffs initially rely upon the declaration of Plaintiff Sarya Asrar and her associated deposition testimony. (Statement of Additional Fact No. 21, see Declaration of Sarya Asrar ¶ 13; Pardo Decl. Exh. 36 pp 27-38, 44:13-45:7.) However, in her deposition, Plaintiff Asrar admitted that her knowledge of the defects originates entirely from the statements of her husband, now deceased, and her brother, neither of whom provided declarations or deposition testimony. (Pardo Decl. Exh. 36 p. 28:14-17, 29:2-12.) As addressed above in connection with Defendant’s objections, the Court cannot consider testimony by a witness or party who lacks personal knowledge of the matters on which she is testifying.

Plaintiffs have also provided the supplemental Declaration of Mohammad Usman Asrar, in which Mr. Asrar states that, whenever he drove the vehicle after August 2018 (after the complete engine replacement), the vehicle “shook, made abnormal noise from the engine compartment, and did not accelerate properly.” (Declaration of Mohammad Usman Asrar ISO Opp. ¶ 9.) Construing this evidence in the light most favorable to Plaintiffs, the Court finds that this testimony is sufficient to establish a triable issue of fact as to whether the defects in the subject vehicle persisted beyond Defendant’s attempts to repair the vehicle. Defendant is therefore not entitled to summary adjudication on this issue.

Accordingly, Defendant’s Motion for Summary Adjudication is DENIED with respect to the First Cause of Action.

Second Cause of Action: Violation of Civil Code Section 1793.2(b)

Defendant moves for summary adjudication on Plaintiff’s second cause of action for Violation of Civil Code section 1793.2(b).

Civil Code section 1793.2(b) states, in relevant part:

Where . . . 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.

Defendant argues that Plaintiffs cannot prevail on this cause of action as a matter of law because Plaintiffs cannot show either that they sustained any damage as a result of the nonconformity, or that Plaintiffs ever revoked acceptance of the subject vehicle. Defendant cites no evidence in its moving papers that supports this position, and there are no facts identified in Defendant’s Separate Statement that support this argument. The golden rule of summary adjudication is “if it is not set forth in the separate statement, it does not exist.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 [italics in original].) Defendant has failed to carry its burden to demonstrate that Plaintiffs cannot prevail on this cause of action on this basis.

Accordingly, Defendant’s Motion for Summary Adjudication as to the Second Cause of Action is DENIED.

Third Cause of Action: Violation of Civil Code section 1793.2(a)(3)

Defendant moves for summary adjudication on the third cause of action on the basis that plaintiff cannot establish that Defendant provided insufficient literature or replacement parts necessary to perform warranted repairs. Civil Code section 1793.2(a)(3) states that every manufacturer of consumer goods for which the manufacturer has made an express warranty shall “[m]ake available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.”

Defendant bases its position on Plaintiffs’ responses to Defendant’s discovery requests, in the form of interrogatories, requests for admission, and requests for production regarding any damages sustained by the Plaintiff arising from Defendant’s alleged failure. (Defendant’s SSUMF No. 88.) As Plaintiff provided responsive documents in connection with Defendant’s Requests for Production, Defendant may properly assert that the responses are factually devoid so as to meet its burden under the summary adjudication standard. Defendant also relies on the repair orders for the vehicle as evidence that sufficient literature and replacement parts were provided. (Id.) Defendant has offered evidence that shows that Plaintiff cannot establish that Defendant did not provide sufficient literature or replacement parts. The burden now shifts to Plaintiff to establish a triable issue of fact.

In opposition, Plaintiffs offer voluminous evidence that Defendant was aware of defects in the Theta II engine, including in Plaintiff’s unit, for several years. For example, Plaintiff’s Exhibit 2 is an internal email from Defendant concerning initial reports of serious failures in Theta II units from December 2011. (Plaintiff’s Exh. 2.) Plaintiffs have also produced several internal reports from 2012 concerning these defects. (Plaintiff’s Exhs. 3-5.) Plaintiffs contend that Defendant did not issue a recall for this issue until June of 2017, four years after Plaintiff purchased the vehicle. (SAF No. 11.) Plaintiffs have offered evidence that the literature provided was inadequate insofar as it was not distributed until four years after purchase of the vehicle, despite Defendant arguably having awareness of the issue before Plaintiffs ever purchased the vehicle. Plaintiffs have met his burden to establish that a triable issue of fact exists as to the sufficiency of the literature provided.

Accordingly, Defendant’s Motion for Summary Adjudication of the third cause of action is DENIED.

Fifth Cause of Action for Fraudulent Omission

Defendant moves for summary adjudication of the fifth cause of action for fraudulent omission.

To succeed on a claim for fraudulent omission, a plaintiff must establish (1) concealment or failure by the defendant to disclose a material fact; (2) that the defendant had a duty to disclose that fact to the plaintiff; (3) that the defendant intentionally concealed, omitted, or suppressed that fact with the intent to defraud the plaintiff; (4) that the plaintiff was unaware of the fact and would not have acted as they did had they known of the concealed fact; and (5) as a result of the concealment or suppression of the fact, the plaintiff sustained damage. (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.)

Defendant argues that summary adjudication in its favor is warranted on the grounds that (1) Plaintiff cannot establish a special or transactional relationship with Defendant; (2) Plaintiff cannot establish active concealment; (3) Plaintiff cannot establish fraud damages; (4) the cause of action is barred by the economic loss doctrine, and (5) the cause of action is barred by the three-year statute of limitations.

1. Special or Transactional Relationship

Defendant contends that, for a duty to disclose to arise absent a fiduciary duty, the defendant must either have exclusive knowledge of a material fact, actively conceal that material fact, or make partial representations regarding the material fact. Defendant contends that there must also be some other non-fiduciary relationship between the parties to create a duty to disclose. Defendant contends that Plaintiff has offered no evidence of this non-fiduciary relationship under which a duty to disclose arises.

In this Court’s April 3, 2019 order on Defendant’s demurrer to the First Amended Complaint, the Court held that a duty to disclose arises when the defendant has exclusive knowledge of material facts not known to the plaintiff, or when the defendant actively conceals a material fact from the plaintiff. The Court rejected Defendant’s argument that some additional transactional relationship must be shown to create a duty to disclose a material fact, notwithstanding a defendant’s exclusive knowledge or active concealment of a material fact. Defendant is not entitled to relitigate this issue on summary adjudication. Defendant has therefore failed to show that Plaintiff cannot prevail on this cause of action on this basis.

2. Active Concealment

Defendant contends that Plaintiff cannot prevail on this cause of action because Plaintiff has not provided any evidence of active concealment by Defendant as to Plaintiff’s vehicle. Defendant argues that, in order to prevail on this claim, a plaintiff must prove that, prior to the purchase of the vehicle, the manufacturer was aware of a defect that it was either unwilling or unable to fix. (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 344-45.) Defendant again bases its position on Plaintiffs’ responses to Defendant’s discovery requests, in the form of interrogatories, requests for admission, and requests for production regarding any damages sustained by the Plaintiff arising from Defendant’s alleged failure. (Defendant’s SSUMF No. 114.) As Plaintiff provided responsive documents in connection with Defendant’s Requests for Production, Defendant may properly assert that the responses are factually devoid so as to meet its burden under the summary adjudication standard. As Plaintiffs provided responsive documents in connection with Defendant’s Requests for Production, Defendant may properly assert that the responses are factually devoid so as to meet its burden under the summary adjudication standard. The burden therefore shifts to Plaintiffs to establish a triable issue of fact as to whether the defect existed during this period.

In opposition, Plaintiffs offer voluminous evidence that Defendant was aware of defects in the Theta II engine, including in Plaintiff’s unit, for several years. For example, Plaintiff’s Exhibit 2 is an internal email from Defendant concerning initial reports of serious failures in Theta II units from December of 2011. (Plaintiff’s Exh. 2.) Plaintiffs have also produced several internal reports from 2012 concerning these defects. (Plaintiff’s Exhs. 3-5.) Plaintiffs have thus offered evidence that Defendant knew about the defects before Plaintiffs purchased the vehicle. Plaintiff has therefore met her burden to establish that a triable issue of fact exists with respect to the issue of active concealment.

3. Damages

Defendant contends that Plaintiff cannot prevail on this cause of action because Plaintiff has not provided evidence of actual damages incurred.

The standard measure of fraud damages is the difference between the actual value of that with which the defrauded person has parted and the actual value of that which he received. (Civ. Code § 3343.) Costs of repair is not the proper measure of damages, but has some probative worth on the issue. (See, e.g., Central Mut. Ins. Co. v. Schmidt (1957) 152 Cal.App.2d 671, 676-77.)

Defendant again bases its position on Plaintiff’s responses to Defendant’s discovery requests, in the form of interrogatories, requests for admission, and requests for production regarding any damages sustained by the Plaintiff arising from Defendant’s alleged failure. (Defendant’s SSUMF No. 114.) As Plaintiff provided responsive documents in connection with Defendant’s Requests for Production, Defendant may properly assert that the responses are factually devoid so as to meet its burden under the summary adjudication standard. Defendant has offered evidence that shows that Plaintiff cannot establish damages for fraudulent concealment. The burden now shifts to Plaintiff to establish a triable issue of fact.

In opposition, Plaintiffs offer evidence of repairs for which Plaintiffs were required to pay because of the persistent engine problems with the vehicle. (SAF Nos. 22-26; Asrar Decl. Exh. 4.) As this evidence of costs of repair has probative worth as to the issue of value, no matter how small the cost, this evidence is sufficient to establish a triable issue of fact as to whether Plaintiff incurred any damages as a result of the defect in the vehicle.

4. Economic Loss

Defendant contends that this cause of action is barred under the economic loss doctrine.

In this Court’s April 3, 2019 order on Defendant’s demurrer to the First Amended Complaint, the Court expressly rejected Defendant’s argument that Plaintiff’s cause of action for fraudulent concealment is barred by the economic loss doctrine. Defendant is not entitled to relitigate this issue on summary adjudication. Defendant has therefore failed to show that Plaintiff cannot prevail on this cause of action on this basis.

5. Statute of Limitations

Defendant contends that this cause of action is barred by the statute of limitations.

A cause of action for relief on the ground of fraud or mistake is subject to a three-year statute of limitations. (Code Civ. Proc. § 338(d).) “The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake. (Id.)

In this Court’s April 3, 2019 order on Defendant’s demurrer to the First Amended Complaint, the Court expressly rejected Defendant’s argument that Plaintiff’s cause of action for fraudulent concealment is barred by the statute of limitations. The Court, in ruling on that demurrer, stated that it was a “question of fact whether Plaintiffs should have reasonably discovered that Defendant knowingly concealed the existence of an engine defect” on the basis that only the May 26, 2018 repair visit was “obviously” related to the engine defect. (April 3, 2019 Ruling, p. 6.) The remaining two visits pertained to defects “arguably, but not obviously, related to the alleged Engine Defect.” (Id.) ” Defendant’s own evidence thus creates a question of material fact as to whether Plaintiff could have or did discover the engine defects before October 15, 2015, such that this cause of action is outside the statute of limitations. Put differently, construing all inferences in the light most favorable to Plaintiffs, Defendant has not demonstrated that Plaintiffs cannot prevail on this cause of action on this basis.

Accordingly, Defendant’s motion for summary adjudication of the fifth cause of action is DENIED.

Sixth Cause of Action: Intentional Misrepresentation

Defendant moves for summary adjudication of the sixth cause of action for intentional misrepresentation.

“The elements of fraud that will lead to a tort action are: (a) misrepresentation; (b) knowledge of falsity; (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant[s] to understand fully the nature of the charge made. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Ibid.) “[G]eneral and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Defendant contends that Plaintiffs cannot prevail on this cause of action because their claims, as alleged in the First Amended Complaint, are predicated on Defendant’s marketing materials. (FAC ¶¶ 16, 34, 45.) According to Defendant, these materials constitute “mere puffery” or non-actionable opinion, and are insufficient to constitute a basis for a fraud claim. As the Court stated in its April 3, 2019 ruling, representations in marketing materials may be actionable if Defendant did not in fact entertain such opinions of the engine’s quality given its knowledge of the engine defects. (See Pacesetter Homes Inc. v. Brodkin (1970) 5 Cal.App.3d 206, 211.)

Defendant also contends that Plaintiffs cannot demonstrate reliance on any of Defendant’s marketing materials before purchasing the subject vehicle. Defendant again bases its position on Plaintiff’s responses to Defendant’s discovery requests, in the form of interrogatories, requests for admission, and requests for production regarding any damages sustained by the Plaintiff arising from Defendant’s alleged failure. (Defendant’s SSUMF Nos. 155-56.) As Plaintiff provided responsive documents in connection with Defendant’s Requests for Production, Defendant may properly assert that the responses are factually devoid so as to meet its burden under the summary adjudication standard. The burden now shifts to Plaintiff to establish a triable issue of fact. In opposition, although Plaintiffs offer evidence that they did, in fact, encounter Defendant’s marketing materials and rely on those materials, as well as the statements of dealer salespeople, before purchasing the subject vehicle. (SSMF No. 144.) Plaintiffs have therefore demonstrated that a triable issue of fact exists as to whether Plaintiffs relied on Defendant’s marketing materials in purchasing the subject vehicle.

Defendant also argues that this cause of action is barred by the statute of limitations and the economic loss rule. For the reasons stated above with respect to the fifth cause of action, the Court rejects these arguments.

Accordingly, Defendant’s Motion for Summary Adjudication of the sixth cause of action is DENIED.

Punitive Damages

Defendant contends that Plaintiffs cannot prevail on their claims for punitive damages.

To maintain a claim for punitive damages, a plaintiff must establish by clear and convincing evidence that a defendant acted with fraud, malice, or oppression. (Code Civ. Proc. § 3294.) Punitive damages may arise against an employer for the conduct of an employee when it is established that an officer, director, or managing agent either commit the act themselves, or ratify the act. (White v. Ultramar, Inc. (199) 21 Cal.4th 563, 572; College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 726.)

As the Court has found that there are triable issues of fact with respect to Plaintiffs’ fraud claims, the Court rejects Defendant’s argument that Plaintiffs cannot prevail on their claim for punitive damages.

Accordingly, Defendant’s Motion for Summary Adjudication of Plaintiffs’ punitive damages claim is DENIED.

CONCLUSION:

Accordingly, Defendant’s Motion for Summary Judgment is DENIED.

Defendant’s alternative Motion for Summary Adjudication is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: July 20, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.