Tentative Ruling 

 

Judge Theresa M. Traber, Department 47 

 

 

HEARING DATE: December 6, 2022 TRIAL DATE: February 21, 2023 

 

CASE:  Mark A. Cazares, et al. v. Kia Motors America, Inc. 

 

CASE NO.:  20STCV21018  

 

MOTION FOR SUMMARY ADJUDICATION 

 

 

MOVING PARTY: Defendant Kia Motors America, Inc. 

 

RESPONDING PARTY(S): Plaintiffs Mark A. Cazares and Brenda Lopez 

 

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: 

 

This is a lemon law action filed on June 4, 2020. Plaintiffs purchased a new 2016 Kia Sorrento which had serious engine and powertrain 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 the first, fourth, fifth, sixth, and seventh causes of action. 

 

TENTATIVE RULING: 

 

Defendant’s Motion for Summary Adjudication is DENIED in its entirety. 

 

DISCUSSION: 

 

Defendant moves for summary judgment, or, in the alternative, summary adjudication as to the first, fourth, fifth, sixth, and seventh causes of action. 

 

Defendant’s Request for Judicial Notice 

 

Defendant requests that the Court take judicial notice of the Complaint in this Action. Defendant’s request is GRANTED pursuant to Evidence Code section 452(d) (court records). 

 

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Plaintiffs’ Request for Judicial Notice 

 

Plaintiffs request that the Court take judicial notice of (1) a May 17, 2021 Minute Order denying Defendant’s motion for Summary adjudication of the plaintiff’s sixth cause of action for fraud by omission in the matter of Maria I. Torres v. Kia Motors America, Inc. LASC Case No. 18STCV00967; and (2) the Court’s October 14, 2020 Ruling on Defendant’s demurrer to the Complaint.  

 

As to Plaintiffs’ Request No. 1, the documents identified are immaterial to the disposition of the motion. Accordingly, Plaintiff’s request for judicial notice is DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)¿ As to Request No. 2, Plaintiffs’ request for judicial notice is GRANTED pursuant to Evidence Code section 452(d) (court records). 

 

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 offered evidence to which Defendant has not objected based on the parties’ agreement via the stipulation addressing 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. 

 

As the remaining statements to which Defendant objects are 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 the Declaration of Mark A. Cazares 

 

Defendant objects to the Declaration of Mark A. Cazares in Opposition to the Motion for Summary Judgment. 

 

Objections Nos. 1-10: 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.) Remaining objections go to weight, not admissibility.  

 

As the remaining statements to which Defendant objects are 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 the Declaration of Brenda Lopez 

 

Defendant objects to the Declaration of Brenda Lopez in Opposition to the Motion for Summary Judgment. 

 

Objections Nos. 1-10: 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.) Remaining objections go to weight, not admissibility.  

 

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

 

Plaintiffs’ Evidentiary Objections 

 

Plaintiffs object to the Declaration of Mandyjay Lewis in support of the Motion for Summary Judgment.  

 

Objection No. 2: OVERRULED. Objections go to weight, not admissibility.  

 

As the remaining statements to which Plaintiffs object are not relevant to the Court’s ruling, the Court declines to rule on the remaining objections. (Code Civ. Proc. § 437c(q).)  

 

Plaintiffs also assert numerous evidentiary objections in their Separate Statement in support of the Opposition. Evidentiary objections are not properly raised in a Separate Statement. (See Cal. Rules of Court Rule 3.1350(d).) The Court therefore refuses to consider these objections. 

 

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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 eight service attempts between 2016 and 2020. (See Defendant’s Separate Statement of Undisputed Material Fact Nos. Issue 1 10-16.) Defendant also contends that Plaintiffs have not shown the existence of any covered defect that was not repaired, relying on responses to Defendant’s discovery defects which Defendant contends are factually devoid. (SSUMF Issue 1 No. 31.) Factually devoid discovery responses can be an evidentiary basis in support of a motion for summary judgment or adjudication, (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590) 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 evidence that the vehicle was repeatedly brought in for engine and powertrain issues, and, despite Defendant’s contentions and efforts, the issues were not remedied. As one example, Plaintiffs offer evidence that the vehicle was experiencing powertrain issues, including jolting and hesitation, after purchase. (See Separate Statement of Disputed Facts No. 9; Declaration of Mark Cazares ISO Mot. ¶ 10, Declaration of Brenda Lopez ISO Mot. ¶ 10.) Plaintiffs offer evidence that, although the vehicle was presented to Defendant multiple times, including on June 23, 2016, December 1, 2016, February 7, 2018, and August 24, 2018, the vehicle continued to experience powertrain issues, despite multiple repairs to the vehicle including a complete engine replacement. (SSDF Nos. 9-13.) It is undisputed that the powertrain was still under warranty. (See SSDF No. 5.)  

 

In Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, the Court of Appeal for the Fifth District held that an incomplete repair of a covered product is not sufficient for a manufacturer to meet its obligations under Song-Beverly. (144 Cal.App.4th at 801.) Specifically, the Court of Appeal found that a manufacturer’s repair of a leak in an RV’s plumbing apparatus did not satisfy the manufacturer’s Song-Beverly obligations, because the repair effort did not remedy the water damage caused by the leak itself. (Id.) Thus, the product was not brought into conformity until all aspects of the “nonconformity” had been cured. (Id.) Further, the Third District stated in Donlen v. Ford Motor Co. (2013) that evidence that a problem with a vehicle was fixed for a period of time but reappeared at a later date is relevant to a determination of whether the fundamental problem in the vehicle was ever resolved. (217 Cal.App.4th 138, 149.) Taken together, these rulings suggest that a defective vehicle remains nonconforming with the warranty, despite multiple attempts to repair the vehicle, until the defect is conclusively repaired. 

 

Here, Plaintiffs have offered evidence demonstrating that the vehicle remained defective despite eight attempts to repair the vehicle over four years, including a complete replacement of the engine. Applying this construction to these facts, the Court finds that Plaintiffs have established that a triable issue of fact exists as to whether Defendant was able to repair the vehicle to conform to the warranty after a reasonable number of attempts. 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. 

 

Fourth Cause of Action for Breach of Express Written Warranty 

 

Defendant contends that Plaintiffs cannot prevail on their claim for breach of express written warranty. The parties agree that this cause of action survives or fails along with the first cause of action. Therefore, as the Court has found that Defendant is not entitled to summary adjudication of the first cause of action, Defendant is likewise not entitled to summary adjudication of the fourth cause of action for the same reasons. 

 

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

 

Fifth Cause of Action for Breach of Implied Warranty 

 

Defendant contends that Plaintiffs cannot prevail on their claim for breach of the implied warranty of merchantability on the ground that no defect existed during the one-year implied warranty period, and because the claim is time-barred under Civil Code section 1791.1(c). 

 

With respect to Defendant’s statute of limitations argument, the Court rejected this contention in its October 14, 2020 ruling on Defendant’s Demurrer to the Complaint. Defendant is not entitled to relitigate this argument on a motion for summary adjudication. The Court will therefore only address Defendant’s contention that no defect existed during the one-year implied warranty period. 

 

As Defendant concedes, the “earliest” date on which a cause of action may accrue – the date of purchase – does not determine whether it was time-barred. However, the date of purchase – that is, the date on which the express warranty was received – is relevant to the existence of the implied warranty and therefore the time period in which it accrues, because of the “duration” provision in the statute:¿¿ 

¿ 

The duration of the implied warranty of merchantability . . . shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer. Where no duration for an express warranty is stated with respect to consumer goods, or parts thereof, the duration of the implied warranty shall be the maximum period prescribed above.¿ 

¿ 

(Civ. Code § 1791.1(c), bold emphasis added.) As Defendant correctly states, a breach of the implied warranty of merchantability could occur anytime within its duration.¿ 

¿ 

Defendant contends that the defect must not only occur, but be discovered within a year of the purchase in order to maintain a claim for breach of the implied warranty of merchantability. Defendant bases this contention on a statement by the Court of Appeal in Jones v. Credit Auto Center, Inc. that, since a latent defect came to light within three months of purchase, it was unquestionably within the time period set forth by Civil Code section 1795.5. (237 Cal.App.4th Supp. 1, 10.) Setting aside for the moment that Jones was concerned with a different statute than the one at issue here, nothing in the Jones opinion directly states that a defect must be discovered within a year of purchase to maintain a claim for breach of implied warranty of merchantability. The Jones court only stated that, since the defect was discovered within the statutory time period, the claim was not time-barred. These statements are not identical.  

¿ 

Further, Defendant’s construction, if adopted, would create a conflict with Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, on which Plaintiffs rely. In that case, the court held that the duration provision of Civil Code § 1791.1(c) did not limit when a defect must be discovered for purposes of the implied warranty, but instead, limited the period during which the implied warranty existed:¿ 

¿ 

[T]he plain language of the statute, particularly in light of the consumer protection policies supporting the Song-Beverly Act, make clear that the statute merely creates a limited, prospective duration for the implied warranty of merchantability; it does not create a deadline for discovering latent defects or for giving notice to the seller. ¿ 
¿ 

(Id. at 1301, bold emphasis added.)¿ 
¿ 

The duration provision provides, in essence, that the duration of the implied warranty of merchantability shall be the same as the duration of any reasonable express warranty that accompanies the product, but in no event shorter than 60 days or longer than one year. (Civ. Code, § 1791.1, subd. (c).) There is nothing that suggests a requirement that the purchaser discover and report to the seller a latent defect within that time period.¿ 
¿ 

(Mexia, supra, 174 Cal.App.4th at 1310, bold emphasis added.)¿ 

¿ 

The implied warranty of merchantability may be breached by a latent defect undiscoverable at the time of sale. . . . Indeed, “[u]ndisclosed latent defects … are the very evil that the implied warranty of merchantability was designed to remedy.” . . . In the case of a latent defect, a product is rendered unmerchantable, and the warranty of merchantability is breached, by the existence of the unseen defect, not by its subsequent discovery. ¿ 
¿ 

(Id. at 1304-1305, bold emphasis and underlining added.)¿ 

¿ 

“Thus, although a defect may not be discovered for months or years after a sale, merchantability is evaluated as if the defect were known.” (Id. at 1305, bold emphasis added.)¿ 

¿ 

The Song-Beverly Act does not include its own statute of limitations. . . . California courts have held that the statute of limitations for an action for breach of warranty under the Song-Beverly Act is governed by the same statute that governs the statute of limitations for warranties arising under the California Uniform Commercial Code: section 2725 of the California Uniform Commercial Code. . . . Under this statute, “(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. … [¶] (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” (Cal. U. Com. Code, § 2725, subds. (1), (2).)¿ 
¿ 

(Mexia, supra, 174 Cal.App.4th at 1305-1306, bold emphasis and underlining added).¿ 

¿ 

The foregoing principles lead to the conclusion that if a latent defect exists at any point during that 60-day to one-year period of Civil Code § 1791.1(c), as long as a lawsuit is filed within the four-year statute of limitations period (unless a valid reason exists to toll the limitations period)– which accrues when the defect comes into existence—then the action for breach of implied warranty is timely, even if the latent defect was no discovered until after the 60-day to one-year implied warranty period.¿¿¿ 

¿ 

This is consistent with Mexia, because in that case, the defect was deemed to have existed at the time of sale, i.e, within the 60-day to one-year period, and the plaintiff filed the lawsuit within the four-year statute of limitations. (Mexia, supra, 174 Cal.App.4th at 1300-1301.) Mexia did not articulate or purport to apply a delayed discovery rule, because resort to such a rule was unnecessary—the action was filed within four years of the date of purchase.¿ 

¿ 

[T]he statute of limitations for an action for breach of warranty under the Song-Beverly Act is four years pursuant to section 2725 of the California Uniform Commercial Code. . . . Under that statute, a cause of action for breach of warranty accrues, at the earliest, upon tender of delivery. (Cal. U. Com. Code, § 2725, subd. (2).) Thus, the earliest date the implied warranty of merchantability regarding Mexia's boat could have accrued was the date Mexia purchased it—April 12, 2003. n7 Because he filed this action three years seven months after that date, he did so within the four-year limitations period. Therefore, Mexia's action is not barred by a statute of limitations.¿ 
¿ 

(Mexia, supra, 174 Cal.App.4th at 1306.)¿ 

¿ 

On the other hand, if the defect does not come into existence until after the 60-day to one-year period expires, a cause of action does not accrue, because the implied warranty has already ceased to exist. The date of discovery of the defect would be irrelevant under those circumstances.¿ 

¿ 

The word “duration” has a clear and readily understood meaning, viz., the period of time during which something exists or lasts. . . . In the duration provision, the “something” that has a period of existence is the implied warranty of merchantability. (Civ. Code, § 1791.1, subd. (c).) According to its plain language, the implied warranty exists for at least 60 days and at most for one year after delivery of the product; after that time, the warranty ceases to exist.¿ 
¿ 
To say that a warranty exists is to say that a cause of action can arise for its breach. Defining the time period during which the implied warranty exists, therefore, also defines the time period during which the warranty can be breached. Thus, by giving the implied warranty a limited prospective existence beyond the time of delivery, the Legislature created the possibility that the implied warranty could be breached after delivery. ¿ 
¿ 

(Mexia, supra, 174 Cal.App.4th at 1309, bold emphasis and underlining added.)¿ 

¿ 

This also means, however, that the period in which a defendant can be liable for breach of an implied warranty under Song-Beverly is not open-ended. Rather, a claim based on the discovery of a latent defect more than four years after the last day of the implied warranty is time-barred, unless valid reasons exist to toll the limitations period.¿¿ 

  

In support of its position that no defect existed during the one-year period, Defendant relies on excerpts from Plaintiffs’ responses to Defendant’s discovery requests. (See SSUMF Issue 2 No. 31.) Factually devoid discovery responses can be an evidentiary basis in support of a motion for summary judgment or adjudication, (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590) 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 the entire Theta II series of engines, including the one in Plaintiffs’ unit, were dangerously defective, and had been so for several years prior to Plaintiff’s purchase of her vehicle. (Declaration of Matthew Pardo ISO Opposition Exhs. 1-14, 26-28, 30-31, 33-34; Cazares Decl. ¶¶ 13-16, Exh. 5; Lopez Decl. ¶¶ 13-16, Exh. 5.) In the Court’s view, this production is more than sufficient to establish a triable issue of fact as to whether Plaintiffs’ vehicle was defective during the statutory period. Defendant is therefore not entitled to summary adjudication on this issue. 

 

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

 

Sixth Cause of Action for Fraudulent Omission 

 

Defendant moves for summary adjudication of the sixth 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) Plaintiffs cannot establish a special or transactional relationship with Defendant; (2) Plaintiffs cannot establish active concealment; (3) Plaintiffs cannot establish fraud damages; and (4) the cause of action is barred by the economic loss doctrine.  

Defendant relies primarily on Bigler-Engler v. Breg, Inc. (2017) 7 Cal. App. 5th 276, as the basis for its argument that Plaintiffs cannot establish the requisite transaction or relationship with Defendant to support a claim for a failure to disclose claim.  Drawing from the Supreme Court’s holding in Warner Constrution Corp. v. City of Los Angeles (1970) 2 Cal. 3d 285, the Bigler-Engler Court explained that, in the absence of a fiduciary relationship, a fraudulent omission case may be grounded on one party’s exclusive knowledge of material facts, active concealment of material facts or suppression of material facts in the context of a partial disclosure, but only where the parties share some sort of relationship in which a duty to disclose may arise.  (Id., at p. 311.)  “A duty to disclose facts arises only when the parties are in a relationship that gives rise to the duty, such as ‘“seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual arrangement.”’” (Shin v. Kong (2000) 80 Cal.App.4th 498, 509.)  “Such a transaction must necessarily arise from direct dealings between the plaintiff and the defendant; it cannot arise between the defendant and the public at large.”  (Bigler-Engler v. Breg, Inc., supra,  at p. 312.)  

 

There is conflicting authority on the need for a direct relationship between the plaintiff and a party who is accused of failure to disclose material information.  (See, e.g., Jones v. ConocoPhillips Co. (2011) 198 Cal. App. 4th 1187, 1199; OCM Principal Opportunities Fund, L.P. v. CIB World Markets Corp. (2007 157 Cal. App. 4th 835, 859 [holding a vender “has a duty to disclose material facts not only to the immediate purchasers, but also to subsequent purchaser when the vendor has reason to expect that the item will be resold”].)  Even so, the facts here support a conclusion that the parties had the necessary direct relationship. 

 

In this case, the relationship between Plaintiffs and Defendant arises from a specific contractual connection – the 2016 Warranty and Consumer Manual, which “details the warranties provided by Kia,” which pledged its commitment to Plaintiffs “to making sure [they] enjoy [their] Kia for years to come.”  (Defendant’s Exh. 3, p. 2.)  More specifically, “Kia Motors America, Inc. (‘Kia’) warrant[ed] that it will arrange for an Authorized Kia dealer at locations of its choice to provide for the repair of [Plaintiffs’] vehicle if it fails to function property during normal use” and “will remedy such failures to function properly at Kia’s expense,” noting that its obligations to Plaintiffs are “subject to the terms, conditions and limitations of this manual.”  (Id., p. 4.)  The relationship arising from the warranty provided by Defendant specifically to Plaintiffs, and not merely to the general public, constitutes a sufficient transactional connection to support a claim for failure to disclose.  (Scherer v. FCA US, LLC (S.D. Cal. 2021) 565 F. Supp. 3d 1184, 1194 [failure to disclose claim is properly grounded on contractual relationship reflected in the warranty agreement].)  

 

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

 

In this Court’s October 14, 2020 order on Defendant’s demurrer to the Complaint, the Court expressly rejected Defendant’s argument that Plaintiffs’ cause of action for fraudulent concealment is barred by the economic loss doctrine. Further, the Court has explicitly held above that Defendant is not entitled to summary adjudication of Plaintiff’s fraud claims.  As a result, Defendant has failed to show that Plaintiffs cannot prevail on this cause of action based on the economic loss doctrine.  

 

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

 

Seventh Cause of Action: Violation of Consumer Legal Remedies Act 

 

Defendant moves for summary adjudication of the seventh cause of action for violation of the Consumer Legal Remedies Act. 

 

The parties agree that this cause of action survives or fails along with the sixth cause of action. Therefore, as the Court has found that Defendant is not entitled to summary adjudication of the sixth cause of action, Defendant is likewise not entitled to summary adjudication of the seventh cause of action for the same reasons. 

 

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

 

Punitive Damages 

 

Defendant, in the body of the moving papers, requests summary adjudication of the issue of whether Plaintiffs can claim punitive damages. This issue is not raised in the Notice of Motion, nor is there any reference to it in the separate statement. The Court therefore refuses to rule on this issue.  

 

CONCLUSION:  

 

Accordingly, Defendant’s Motion for Summary Adjudication is DENIED in its entirety. 

 

Moving Party to give notice. 

 

IT IS SO ORDERED. 

 

Dated:  December 6, 2022 ___________________________________ 

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.