Judge: Theresa M. Traber, Case: 21STCV25917, Date: 2024-02-27 Tentative Ruling
Case Number: 21STCV25917 Hearing Date: February 28, 2024 Dept: 47
21STCV25917 ERIKA DOMINGUEZ V. AMERICAN HONDA MOTOR
CO., INC.
TENTATIVE RULINGS ON CERTAIN MOTIONS IN LIMINE AND
OBJECTIONS TO SUBPOENAS
DEFENDANT’S
MIL # 4:
seeking an order precluding evidence of or reference to any concerns
with the vehicle that were never presented to an authorized Honda dealership or
those which were presented only once or twice.
TENTATIVE
RULING: DENIED.
Defendant
seeks to exclude three kinds of evidence, including evidence of vehicle
problems never presented for repairs, evidence of problems that were repaired
after one repair effort, and problems that were repaired after two repair
opportunities.
With respect
to the first type of evidence – as to concerns never presented for repairs –
Defendant identifies no evidence that it seeks to exclude, so the Court cannot
make a reasonable evaluation of admissibility or issue any exclusion order. Further, as Plaintiffs advise, a consumer may
rescind a purchase or seek other remedies for breach of the implied warranty
without giving the manufacturer an opportunity to repair the defect. (Mocek v. Alfa Leisure, Inc. (2003) 114
Cal. App. 4th 402, 406.) Breach of the
implied warranty is one of the claims Plaintiffs are prosecuting at trial.
With respect
to the second type of evidence – as to concerns that were repaired after one
repair opportunity, the Court finds first that there could be no exclusion of such
evidence under Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, on
which Defendant relies, for Plaintiffs’ claim under Civil Code §1793.2(b),
because liability under that provision is not dictated by the number of repair
attempts but by the failure to repair a vehicle within 30 days of its
presentation for repair. Because the
parties do not highlight precisely what evidence would be offered to support
this claim and, thus, could not be excluded based on Defendant’s argument, the
Court cannot make a wholesale exclusion order as requested by Defendant.
Moreover, the
Court concludes that Defendant’s reliance on Silvio is misplaced even
with respect to Plaintiff’s claim under Civil Code § 1793.2(d)(2). In Silvio, the consumer presented his
car for repair only once and, when the problem persisted, demanded a
repurchase. Based on this factual
scenario, the Court of Appeal held that the consumer had not stated a claim
under Civil Code § 1793.2(d), because that statute offers remedies where the
car manufacturer 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(d)(2).) Construing the statutory
language referring to “a reasonable number of attempts,” the Court noted that
“attempts” is plural, thus requiring that more than one repair opportunity was
necessary to state a claim. (Silvio,
at pp. 1208-1209.) Contrary to
Defendant’s suggestion, the Silvio court did not rule that there must be
multiple repair opportunities for the same vehicle problem. Given the single repair visit in Silvio,
the situation posed by Plaintiffs’ experience, where they presented their
vehicle for repair of number of problems on multiple occasions, was not even
considered in that case.
What is more,
the Court agrees with Plaintiffs that the question of whether the underlying
defects confronted by Plaintiffs were related to one another or stemmed from a
single systemic failing is a factual question to be determined by the jury
based on the entire repair record for Plaintiffs’ vehicle, their testimony
about the nature of the defects they experienced and reported, expert testimony
by both sides’ designated experts, and other materials that might inform the
jury’s deliberations. It would be improper,
if not impossible, for the Court to exclude certain repair visits as unrelated
to others based solely on a review of the language included in the repair
orders. Such a ruling would assume the
truth of all statements in those orders and necessarily negate any contrary
evidence Plaintiffs might offer about what complaints they had and reported to
the Honda mechanics. Moreover, as
Plaintiffs’ Amended Opposition amply demonstrates, the jury could conclude from
the evidence at trial that Plaintiffs’ vehicle was plagued with two or more
constellations of related nonconformities, including those resident in the
vehicle’s electrical and transmission systems, and that Defendant failed to
repair these defects even after four or five repair opportunities.
Nor does the Court
accept Defendant’s contention that certain evidence should be excluded based on
Defendant’s assessment that all existing problems that were covered under the
warranty were repaired every time the vehicle was brought in for service. Plaintiffs are entitled to contest the
conclusions of Honda mechanics during an individual repair visit that the
underlying problem had been remedied by proving the defects continued or
resurfaced after each repair visit. In Robertson v. Fleetwood Travel Trailers
of California, Inc. (2006) 144 Cal.App.4th 785, 801, the Court of Appeal
held that an incomplete repair of a covered product is not sufficient for a
manufacturer to meet its obligations under Song-Beverly. 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) 217 Cal.App.4th
138, 149, 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. Taken together, these
rulings suggest that a defective vehicle remains nonconforming under the
warranty, despite multiple attempts to repair the vehicle, until the defect is
conclusively repaired. Plaintiffs are
entitled to offer evidence to demonstrate that their vehicle manifested this
kind of recurring nonconformity.
The Court
also rejects Defendant’s argument that Plaintiffs must demonstrate more than
two repair attempts to succeed under § 1793.2(d)(2). The current standard established in the case
law is that there must be more than one opportunity to repair the vehicle (so
two is enough to press a claim), and that the jury must make the decision
whether the number of repair opportunities given to the manufacturer under the
circumstances was reasonable. (Robertson
v. Fleetwood Travel, supra, at p. 799.)
Finally, the Court
notes that a duty to repurchase or reimburse under section 1793.2(d)(2) is
triggered by the manufacturer’s inability “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.” (Emphasis added.) While Song-Beverly refers to the need to
correct a “non-conformity” in other parts of the statute, the key provision
defining a claim under §1793.2(d)(2) does not state that here must be a
reasonable number of attempts to remedy each nonconformity, as Defendant
interprets the statute, but rather that the entire vehicle must be mad to
conform to warranties after a reasonable number of attempts. While the issue is no specifically addressed
in the appellate cases cited by the parties, many courts describe the question
as one involving the repair of the entire vehicle, not remedying a particular
nonconformity, within a reasonable number of repair opportunities. (E.g., Oregel v. American Isuzu Motors,
Inc. (2001) 90 Cal. App. 4th 1094, 1103-1104; Silvio, supra,
at p. 1208.)
DEFENDANT’S
MIL # 7:
seeking an order precluding evidence of irrelevant and inapplicable
Recalls, Technical Service Bulletins, and Service News Articles.
TENTATIVE
RULING: DENIED. Defendant
asks for exclusion of various technical documents “not specifically applicable”
to Plaintiffs’ vehicle but fails to submit any specific evidence it seeks to bar
from admission at trial. Accordingly,
the Court cannot evaluate whether these unidentified documents are in fact
inapplicable to Plaintiffs’ vehicle and, thus, cannot issue any meaningful
exclusion order. Further, as noted by Plaintiffs, recalls and technical service
bulletins may form the basis for repair visits under the Song-Beverly Act (Donlen,
supra, at 141), or provide a basis for a finding of willfulness under the
statute (Santana v. FCA US, LLC (2020) 56 Cal. App. 5th 334, 347.)
DEFENDANT’S
MIL # 8:
seeking an order excluding consumer complaints, etc.
TENTATIVE
RULING: DENIED.
Again,
Defendant seeks a broad exclusion order that would bar admission of several
categories of documents without submitting or even identifying any documents
for the Court’s consideration. No
meaningful order can be issued based on such a motion. Moreover, as Plaintiffs’ opposition
demonstrates, courts have properly admitted and considered documents falling
within the categories Defendant targets for exclusion where the matters
addressed in those documents are substantially similar to the issues presented
in the action at bar. (E.g., Donlen
v. Ford, supra, at p. 153 (manufacturer’s special service message as
evidence of its knowledge of transmission problem in the truck model bought by
plaintiff); Jensen v. BMW of N. America, Inc. (1995) 35 Cal. App. 4th
112, 135 (manufacturer’s technical bulletin alerted dealerships to brake
problem); Santana v. FCA, supra, at pp. 345-347 (internal emails about
manufacturer’s awareness of the problem is probative of willfulness sufficient
to support civil penalty). While there
may be hearsay problems with some evidence offered, it may have a non-hearsay
purpose that would allow it to be offered to prove notice, knowledge, or
intentional refusal to repair. While
there may be undue prejudice that might arise from admission of a particular
document, that prejudice may be outweighed by the highly relevant nature of the
document’s contents. The Court cannot evaluate
these evidentiary issues without reviewing the proffered evidence and hearing
arguments about whether it should be admitted.
Accordingly, the Court denies the motion for failure to identify any
evidence to be excluded.
DEFENDANT’S
MIL # 9:
seeking an order excluding evidence of an alleged design defect
TENTATIVE
RULING: DENIED.
Defendant
identifies no evidence or testimony to be excluded by the Court. Further, its motion in limine appears to be focused
on the scope of admissible evidence for a cause of action for breach of the
express warranty – which claim was dismissed by Plaintiff on February 27, 2024.
DEFENDANT’S
MIL # 10: seeking an order excluding testimony by
Plaintiffs’ duplicative expert witnesses and limiting expert testimony to
deposition opinions.
TENTATIVE RULING: DENIED, without
prejudice to raising specific objections at trial in that the motion fails to
identify any specific opinions that will be offered at trial or to have proved
that those opinions were withheld during depositions.
Plaintiff has
chosen a single expert, Randall Bounds, to present at trial, thus mooting the
objection about multiple experts and cumulative evidence. The
Court now turns to Defendant’s alternative request for exclusion of expert
opinions not presented in deposition.
The legal standards applicable
to the proper scope of expert testimony are as follows. Under Code of
Civil Procedure (CCP) section 2034.210, subdivision (a), any party may demand
the exchange of expert witness information. In this exchange, a party may
provide either “[a] list setting forth the name and address of any person whose
expert opinion that party expects to offer in evidence at the trial” or “[a]
statement that the party does not presently intend to offer the testimony of
any expert witness.” (CCP § 2034.260, subds. (b)(1 & 2).) The statute
and the case law interpreting this statute “require that ‘the general substance
of the testimony which the witness is expected to give’ must be disclosed upon
proper request. As interpreted by the California courts, this requires a party
to ‘disclose the substance of the facts and the opinions to which the
expert will testify, either in his witness exchange list, or in his deposition,
or both.’” (Easterby v. Clark (2009) 1717 Cal. App. 4th
772, 778 [citations omitted, emphasis in original]; see also Kennemur v.
State of California (1982) 133 Cal. App. 3d 907, 919 [if an appropriate
statutory demand is made, the party is required to disclose the “general
substance” of the expected expert testimony, “either in his witness exchange
list or at his expert’s deposition, if the expert is asked,” including the
substance of the facts and the opinions to be offered at trial].)
In the context of expert
deposition, a party is entitled to rely on a disclaimer from the opposing
party’s expert about testifying to any other opinions than those stated “until
such time” as there is a further disclosure about the expert having reached
additional opinions. (Kennemur, supra, at p. 920.) When an
expert states that he or she has no additional opinions to offer at deposition,
but then attempts to opine on new matters at trial, these new opinions should
be excluded because to do otherwise would be “grossly unfair and prejudicial”
to the other party who was deprived of the opportunity to test the opinions in
a deposition. (Jones v. Moore (2000) 80 Cal. App. 4th
557, 564-565; see also Bonds v. Roy (1999) 20 Cal. 4th
140, 147 (expert prohibited from opining on a “wholly undisclosed subject area”
when disclosure occurred in the middle of trial].) Our Court of Appeal
has summarized the rule by stating that “a party’s expert may not offer
testimony at trial that exceeds the scope of his deposition testimony if the
opposing party has no notice or expectation that the expert will offer the new
testimony, or if notice of the new testimony comes at a time when
deposing the expert is unreasonably difficult.” (Easterby v. Clark,
supra, at p. 780 [emphasis in original].)
Given these standards, the
Court cannot issue a ruling that would have any force without knowing the
specifics of the situation. Such a ruling depends on the nature and
timing of the disclosure about the challenged expert testimony, whether the opposing
party made sufficient deposition inquiries to elicit any additional opinions,
including the challenged opinion(s), whether the “new” testimony goes beyond
the “general substance” of the opinions disclosed, and, if so, whether there is
sufficient time to conduct further deposition questioning before trial.
What is more, “[l]ike any other witness, the fact that an expert’s testimony at
trial differs from his deposition testimony goes to the expert’s credibility;
it does not, without some further evidence of prejudice to the opposing party,
serve as ground for exclusion.” (Id., at p. 781 [citations
omitted].) Lacking any of the necessary information, the Court denies the
motion for an overarching order, because it would serve no purpose as to any
specific testimony that might be offered at trial.
DEFENDANT’S
MIL # 11: seeking an order precluding any Golden Rule
theory or Reptile strategy arguments.
TENTATIVE RULING: GRANTED IN PART AND DENIED IN PART.
The Court
admonishes the parties to avoid any arguments that ask jurors to put themselves
in the “shoes” of Plaintiff or to act based on some ill-defined community
interests like ensuring public safety on the highways or containing the price
of new automobiles. Such arguments are
improper because they invite jurors to abandon the neutrality they should
harbor and instead to decide cases based on their own personal or community
interests. To this extent, the motion is
granted. In the context of final
arguments, it is proper for Plaintiffs to argue that to urge the jurors to rely
on their own common sense and experience in reaching a verdict. (CACI 5009.)
This is especially true in evaluating questions of reasonableness, such
as whether there were defects that substantially impaired the vehicle’s use,
value or safety to a reasonable person in Plaintiff’s position. Further, the
California Supreme Court has recognized the propriety of describing the jury as
the conscience of the community and rejected the suggestion that such a phrase
is unduly prejudicial. (People v.
Gamache (2010) 48 Cal. 4th 347, 389.
Because the purpose of a Song-Beverly civil penalty is to punish the defendant
or deter it from future violations, it is plainly proper to invoke the jury’s
role as the “conscience of the community” and ask them to send a punitive or
deterrence message to a defendant who has willfully violated its statutory
duties.
DEFENDANT’S
MIL # 12:
seeking an order precluding any use of the terms, “lemon law” or
“lemons” in referring to the Song-Beverly Act or vehicles have substantial
nonconformities within the meaning of that Act.
TENTATIVE
RULING: GRANTED
The Court
sees no reason why counsel or witness should employ these terms in that their
use does not advance clarity of the facts or law, is not probative of any
issues in the case, and can be seen as pejorative or dismissive in a way that
may prejudice the jury or distract it from the seriousness of the case before
it.
DEFENDANT’S
MIL # 13:
seeking an order precluding any argument about the alleged failure of
Defendant or its dealers to communicate with Plaintiffs in a language other
than English.
TENTATIVE
RULING: GRANTED.
The evidence
is not relevant to any issue in the case.
Moreover, any marginal relevance is outweighed by the prejudicial impact
such evidence may have on Defendant.