Judge Upinder S. Kalra, Case Number: BC710391, Date: 2023-12-08 Tentative Ruling

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1. Set aside judgment entered on October 4, 2023 and enter judgment in favor of Defendant;

Plaintiff Diana Parros (Plaintiff) filed a Complaint against Defendant Kia Motors America, Inc. (Defendant) on June 15, 2018. On October 18, 2018, Plaintiff filed a First Amended Complaint. On February 19, 2019, Plaintiff filed a Second Amended Complaint. On July 1, 2019, Plaintiff filed a Third Amended Complaint (TAC) with six causes of action for: (1) Violation of Subdivision (D) of Civil Code Sec. 1793.2; (2) Violation of Subdivision (B) of Civil Code Sec. 1793.2; (3) Violation of Subdivision (A)(3) of Civil Code Sec. 1793.2; (4) Breach of Express Written Warranty; (5) Breach of the Implied Warranty of Merchantability; and (6) Fraud by Omission.

According to the TAC, Plaintiff purchased a 2013 Kia Optima hybrid (the Subject Vehicle) on June 19, 2013 from Defendant’s authorized dealership in Valencia, California. Plaintiff alleges that the Subject Vehicle contained or developed various defects during the warranty period that could not be fixed despite multiple repair attempts.

On October 6, 2021, Plaintiff filed a request for dismissal of her Sixth Cause of Action for Fraud by Omission.

On October 20, 2021, the court heard Defendant’s motion for summary judgment, or alternatively summary adjudication, where it GRANTED as to Plaintiff’s Fifth Cause of Action and DENIED as to Plaintiff’s First, Second, Third, and Fourth Causes of Action.

On August 10, 2023, the court dismissed Plaintiff’s Second Cause of Action pursuant to Plaintiff’s oral request.

On August 14, 2023, the court dismissed Plaintiff’s Third and Fourth Causes of Action pursuant to Plaintiff’s oral request.

On October 19, 2023, Defendant timely filed a Notice of Intent to Move for and Motion for Judgment Notwithstanding the Verdict and a Notice of Intent to Move for New Trial.

On October 20, 2023, the court filed a Notice of Hearing on Motion for New Trial for December 8, 2023.

On October 30, 2023, Defendant filed a Memorandum of Points and Authorities in Support of its Motion for Judgment Notwithstanding the Verdict and Memorandum of Points and Authorities in Support of its Motion for New Trial.

On November 13, 2023, Plaintiff filed an ex parte application for an Order Extending Plaintiff’s Time to Respond to Defendant’s Motion for New Trial and Motion for Judgment Notwithstanding the Verdict, which the court GRANTED. Plaintiff’s response was now due no later than November 27, 2023 and any reply would be due no later than December 4, 2023.

On November 27, 2023, Plaintiff filed an Opposition to Defendant’s Motion for Judgment Notwithstanding the Verdict and Motion for New Trial.

A motion for judgment notwithstanding the verdict (JNOV) shall be made within the period specified by Code of Civil Procedure (CCP) § 659, in respect of the filing and serving of notice of intention to move for a new trial. (CCP § 629.) That is, motions for judgment notwithstanding the verdict must be written and properly served on the trial court and parties, within the fifteen (15) days prescribed by CCP § 659. (Younesi v. Lane (1991) 228 Cal. App. 3d 967, 975, overruled on different grounds by Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal. 4th 51, 63; see also Sturgeon v. Leavitt (1979) 94 Cal. App. 3d 957, 962 (When a motion for judgment notwithstanding the verdict is filed after the fifteen (15) day period denoted in CCP § 659, the motion is ineffectual and the trial judge has no power to act on it.)) Yet, the court shall not rule upon the motion for judgment notwithstanding the verdict until the expiration of the time within which a motion for a new trial must be served and filed, and if a motion for a new trial has been filed with the court by the aggrieved party, the court shall rule upon both motions at the same time. (CCP § 629.)¿

The trial court has limited discretion to grant a motion for judgment notwithstanding the verdict; it may grant it only when there is no substantial evidence to support the verdict. (Teitel v. First Los Angeles Bank (1991) 231 Cal. App. 3d 1593, 1603 (Teitel); Campbell v. Cal-Gard Surety Services, Inc. (1998) 62 Cal. App. 4th 563, 570.) A judgment notwithstanding the verdict can be sustained only when it can be said as a matter of law that no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that the reviewing court would be compelled to reverse it, or the trial court would be compelled to set it aside as a matter of law. (Moore v. City and County of San Francisco (1970) 5 Cal. App. 3d 728, 733 – 734.) The trial court renders judgment notwithstanding the verdict when a motion for directed verdict should have been granted if made. (Code Civ. Proc. § 629; Hansen v. Sunnyside Products, Inc. (1997) 55 Cal. App. 4th 1497, 1510 [Rev. Den. 9/17/97]; Walton v. Magno (1994) 25 Cal. App .4th 1237, 1239–40.) The trial judge cannot, therefore, reweigh the evidence, or judge the credibility of witnesses; if the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. (Teitel, supra, at p. 1603.)¿

A verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:¿

(1)¿Irregularity in the proceedings of the court, jury¿or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial;¿

(2)¿Misconduct of the jury;¿and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by are sort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors;¿

(3) Accident or surprise, which ordinary prudence could not have guarded against;¿

(4) Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial;¿

(6) Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law;¿

(7) Error in¿law, occurring at the trial and¿excepted to by the party making the application.¿

When ruling on an application for a new trial, the court sits as an independent trier of fact.¿(Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th¿405, 412.)¿The court, therefore, has broad discretion to order new trials, limited only by the obligation to state its reasons for granting a new trial and the existence of substantial evidence in the record to support those reasons.¿(Ibid.)¿¿In assessing¿the need for a new trial,¿the court must rely on its¿view of the overall record,¿taking into account such factors, among others, as the nature and seriousness of the¿alleged¿misconduct, the general¿atmosphere, including the judge’s control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances.¿(Dominguez v. Pantalone¿(1989) 212 Cal.App.3d¿201, 211.)¿

Defendant advances two main arguments supporting their request for JNOV: (1) Plaintiff’s express warranty claim is barred by the four-year statute of limitations, or (2) to strike the jury’s improper award of “cover” damages and to reduce the civil penalty to the maximum permitted by law.

“A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support. [citation omitted.] If there is any substantial evidence, contradicted or uncontradicted, to support the verdict, we affirm the verdict. [citation omitted.] Substantial evidence is that of a “ponderable legal significance, reasonable, credible, and of solid value…We resolve all evidentiary conflicts and indulge all reasonable inferences in support of the judgment.” (Burch v. CertainTeed Corporation (2019) 34 Cal.App.5th 341, 348.)

Defendant contends that the evidence shows that Plaintiff had reason to suspect she had been wronged and to investigate the factual basis for her breach of warranty claim by at least February 2014. Plaintiff argues there is substantial evidence supporting the jury’s finding that her claims accrued on May 23, 2017 because she believed that the vehicle could be repaired until that time.[1] Plaintiff additionally argues that Defendant bore the burden of proof at trial concerning their statute of limitations defense.

There was substantial evidence at trial supporting the jury’s finding that Plaintiff’s claim was timely.

Accordingly, the court DENIES Defendant’s motion for JNOV on statute of limitations grounds.

Defendant contends Plaintiff was not entitled to “cover car” damages because they put her in a better position than had she never purchased the Subject Vehicle and “cover” damages are not available in the context of commercial transactions, not for Song-Beverly violations. Plaintiff argues the court already rejected this argument when ruling on Defendant’s Motion in Limine No. 8. Additionally, Plaintiff argues that under the California Uniform Commercial Code (CUCC) Sec. 27115(1) allows these damages as incidental damages and, alternatively, that CUCC Sec. 2712 separately allows recovery as a covered car.[2] Plaintiff further argues that Defendant waived their argument that Plaintiff failed to justifiably revoke acceptance because they did not request a jury instruction on the issue.

There was substantial evidence at trial supporting the jury’s finding for Plaintiff’s damages.

According, the court DENIES Defendant’s motion for partial JNOV as to “cover” damages.

Defendant contends that the civil penalty should be reduced to no more than $65,968.24 reflecting double the amount of the revised total damages amount after the appropriate “incidental” damages reduction as discussed above.

Not only was there substantial evidence at trial to support the jury’s findings, the Court, sitting as a “thirteenth juror” independently reviewing the evidence, concurs with the jury’s verdict. In sum, Defendant has not met the standard under CCP § 657 demonstrating legal error, excessive damages or insufficiency of the evidence.

[1] Plaintiff also references the stipulated jury instructions that state Plaintiff’s lawsuit would still be deemed timely “if she proves that before that date [June 15, 2014], she did not discover, and did not know facts that would have caused a reasonable person to suspect that she had suffered harm.”

[2] Plaintiff contends that the Lexus was a reasonable substitute for the Subject Vehicle since the amount awarded is less than the cost for a rental car.