Judge: Walter P. Schwarm, Case: 30-2019-01109397, Date: 2023-08-22 Tentative Ruling
Defendant’s (Kia America, Inc.) Motion for Summary Judgment, or in the Alternative, Summary Adjudication (Motion), filed on 3-23-23 under ROA No. 419, is GRANTED in part and DENIED in part as set forth below.
The court DECLINES TO RULE on Plaintiffs’ (Tiffany Petersen and Robert Petersen) Evidentiary Objections, filed on 8-8-23 under ROA No. 447, as immaterial to the court’s ruling as set forth below. (Code Civ. Proc., § 437c, subd. (q).)
Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. 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.”
Code of Civil Procedure section 437c, subdivision (f)(1), provides, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has not merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim of damages, or an issue of duty.”
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, (Aguilar), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Although not expressly, the 1992 and 1993 amendments impliedly provide in this regard for a burden of production as opposed to a burden of persuasion. A burden of production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting of a burden of persuasion. For if the moving party carries a burden of persuasion, the opposing party can do nothing other than concede. Further, although not expressly, the 1992 and 1993 amendments impliedly provide for a burden of production to make a prima facie showing. A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Italics in Aguilar; Footnotes 13 and 14 omitted.)
Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838 (Binder) states, “Although summary judgment might no longer be considered a ‘disfavored’ procedure, [citation], the rule continues that the moving party's evidence must be strictly construed, while the opposing party's evidence must be liberally construed.” “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Id., at p. 839.)
Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756-757, provides, “The plaintiff can defeat a defense motion for summary judgment by showing either that the defense evidence itself permits conflicting inferences as to the existence of the specified fact, or by presenting additional evidence of its existence. [Citation.] The dispositive question in all cases is whether the evidence before the court, viewed as a whole, permits only a finding favorable to the defendant with respect to one or more necessary elements of the plaintiff's claims—that is, whether it negates an element of the claim ‘as a matter of law.’ [Citation.]”
Hufft v. Horowitz (1992) 4 Cal.App.4th 8, 12-13 (Hufft) states, “The determination whether triable facts exist must be made in light of the issues defined by the pleadings. [Citation.] If a plaintiff pleads several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. ‘The moving defendant whose declarations omit facts as to any such theory . . . permits that portion of the complaint to be unchallenged.’ [Citation.] Where, as in this case, no opposition is presented, the moving party still has the burden of eliminating all triable issues of fact. [Citation.]” (See also, Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468 (Consumer Cause).)
The Motion seeks summary adjudication of the first, second, third, and fourth causes of action contained in Plaintiffs’ Second Amended Complaint (SAC) filed on 4-28-21 under ROA No. 202. (Motion; i:15-23.)
California Rules of Court, rule 3.1350:
Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment or the Alternative, Summary Adjudication (Opposition), filed on 8-8-23 under ROA No. 445, states, “Defendant seeks summary judgment or adjudication as to the First, Second, Third and Fourth Cause of Action, however, its Separate Statement does not include the requisite ‘verbatim’ restatement of the Notice of Motion. This alone is enough to justify denial of the Motion for Summary Adjudication as to each claim.” (Opposition; 1:25-2:2.)
California Rules of Court, rule 3.1350, subdivision (b) states, “If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”
Defendant’s Separate Statement (DSS), filed on 3-23-23 under ROA No. 409, does not comply with California Rules of Court, rule 3.1350, subdivision (b), because it does not repeat the issues as stated in the Notice of the Motion. The DSS, however, states the issues that upon which Defendant seeks summary adjudication. Although the DSS does not comply with California Rules of Court, rule 3.1350, subdivision (b), the DSS sufficiently provides Plaintiffs with notice of the issues upon which Defendant seeks summary adjudication. Therefore, the court will rule on the merits of the Motion.
Issue No. 1—KMA is entitled to summary adjudication of Plaintiff’s First Cause of Action and Fourth Cause of Action for violation of Civil Code section 1793.2(d) (Breach of Express Warranty) because there is no triable issue of material fact KA violated the express warranty provisions of the Song-Beverly Consumer Warranty Act.
The Motion states, “Plaintiff cannot sustain an express warranty claim because the only issue Plaintiff’s vehicle experienced that could form the basis for their claim in this action was repaired within one attempt, and it is fixed. KA is entitled to summary adjudication in its favor on Plaintiff’s First Cause of Action and Fourth Cause of Action for Violation of Song-Beverly Breach of Express Warranty.” (Motion; 6:12-16.)
The Opposition responds, “She presented her concerns to Kia’s authorized repair facilities per service, repair and complaints on no fewer than 2 visits during the warranty . . . .” (Opposition; 4:4-5.)
Code of Civil Procedure section 1793.2, subdivision (d), states, “(1) Except as provided in paragraph (2), if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that amount directly attributable to use by the buyer prior to the discovery of the nonconformity. [¶] (2) 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.”
Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101 (Oregel), states, “A plaintiff pursuing an action under the Act has the burden to prove that (1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element). [Citations.]” (See also, CACI No. 3200.)
Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208 (Silvio), explains, “The statute requires the manufacturer to afford the specified remedies of restitution or replacement if that manufacturer is unable to repair the vehicle ‘after a reasonable number of attempts.’ ‘Attempts’ is plural. The statute does not require the manufacturer to make restitution or replace a vehicle if it has had only one opportunity to repair that vehicle.” (Italics in Silvio.) “Nor are appellants assisted by their citation to Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878 [263 Cal.Rptr. 64]. As appellants argue, the case holds that the reasonableness of the number of attempts is a question of fact for the trier of fact. We do not quarrel with that holding, but do not believe that it addresses the issue here, whether ‘attempts,’ as used in Civil Code section 1793.2, subdivision (d)(2), requires more than one attempt. A trier of fact might determine that two or three or more attempts were reasonable under the circumstances of a case or were unreasonable under those circumstances. A single attempt does not meet the statutory threshold, so that there is no need for a trier of fact to determine its reasonableness.” (Id., at pp. 1208-1209.)
Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 799 (Robertson), provides, “The reasonableness of the number of repair attempts is a question of fact to be determined in light of the circumstances, but at a minimum there must be more than one opportunity to fix the nonconformity. [Citation.]”
The SAC alleges that Plaintiffs’ vehicle experienced an engine defect, and that Plaintiffs presented the vehicle for repair on 5-22-17. (SAC, ¶¶ 65 and 66.) Defendant provides evidence that the dealership repaired the engine defect after one repair attempt. (Plaintiffs’ Separate Statement (PSS) filed on 8-8-23 under ROA No. 443; PSS Nos. 5, 6, 7, and 9 (Mullen Decl., ¶ 2 and Exhibit A (Tiffany Petersen Depo; 38:24-45:5, 69:21-70:7, and 81:15-82:2.).) At the deposition of Tiffany Petersen, Tiffany Petersen was asked, “And then just want to confirm one more time the repair, the single repair visit for the engine replacement with mileage of 80,479 miles, correct?”, and Tiffany Petersen responded, “Correct.” (Mullen Decl., ¶ 2 and Exhibit A (Tiffany Petersen Depo; 79:21-24.).)
PSS Nos. 5, 6, 7, and 9 are sufficient to demonstrate that Defendant has met its initial burden that the dealership repaired Plaintiffs’ vehicle after just one repair attempt.
Plaintiff presents evidence that Defendant had more than one opportunity to repair Plaintiffs’ vehicle. The declaration from Tiffany Petersen states in part: (1) “On or about May 12, 2016, with 66,399 miles on the odometer, the Vehicle was presented to Defendant's authorized dealership regarding various concerns, including an abnormal noise ( e.g. a whistling sound) and an illuminated check engine light warning. It is unclear to me whether Kia attempted repairs during this visit but the visit was covered under my warranty. Attached as Exhibit 3 is a true and correct copy of a repair order for this visit.” (Tiffany Petersen Decl., ¶ 8.); and (2) “Following the engine replacement, the Vehicle appeared repaired; however, I continue to experience intermittent engine light warnings and electrical issues, including faulty door locks and inoperable blinker and brake lights. The issues continue to this date.” (Tiffany Petersen Decl., ¶ 14.) This evidence shows that there were two visits under the warranty period (5-12-16 and 5-22-17) regarding the engine. Thus, there is a triable issue of material fact as to whether the engine was repaired after one attempt. Further, the there is a triable issue of material fact as to whether Defendant repaired Plaintiffs’ vehicle to conform to the warrant after the repair based on the 5-22-17 visit.
Next, relying on Mexia v. Rinker Boat Co. (2009) 174 Cal.App.4th 1297, 1305-1306), the Motion states, “Plaintiff’s first cause of action and fourth cause of action for breach of express warranty are untimely as a matter of law and cannot be maintained. The Song–Beverly Act does not include its own statute of limitation.” (Motion; 9:5-7.)
Commercial Code section 2725 provides in pertinent part, “(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. [¶] (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. . . . [¶] (4) This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of action which have accrued before this code becomes effective.”
Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 130 (Cardinal Health), explains, “The scope of the ‘future performance’ exception has been the subject of numerous, and sometimes conflicting, decisions throughout the country. [Citations.] But the majority view is that the exception must be narrowly construed, and that it applies only when the seller has expressly agreed to warrant its product for a specific and defined period of time. [Citations.]” (Italics in Cardinal Health.) (Id., at p. 130.)
The parties do not appear to dispute that Plaintiffs vehicle came with a 5-year/60,000-mile express new vehicle limited warranty and a 10-year/100,000-mile powertrain warranty, which, inter alia, covers the engine and transmission. (PSS No. 2 at p. 19.) Since Defendant has expressly agreed to warrant Plaintiffs’ vehicle for a specific and defined time period, the express warranties apply to future performance. Therefore, the first and fourth causes of accrued when the breach of the express warranties were or should have been discovered. (Comm. Code, ¶ 2725, subdivision (2).)
The parties do not dispute that Plaintiffs purchased their vehicle on 7-4-22, and filed this action on 11-4-19 (PSS No. 1; Complaint filed on 11-4-19 under ROA No. 2) Defendant’s evidence (PSS Nos. 1-19) does not show when Plaintiffs discovered or should have discovered the breach of the express warranties. PSS No. 15 shows that Plaintiffs visited “. . . Imperio Kia of San Juan Capistrano for a ‘whistling’ noise and indicator light being on an off complaint on or around May 12, 2016 . . . .” Based on the 5-12-16 visit, Plaintiffs discovered or should have discovered the defect by 5-12-16. Plaintiffs’ filed suit on 11-4-19 which is within four years of discovery of such facts on 5-12-16. Since Plaintiffs filed this action within four years of 5-12-16, the court finds that Defendant has not carried its burden of demonstrating that the first cause of action is untimely.
Defendant’s reliance on the court’s ruling sustaining Defendant’s Demurrer Plaintiff’s Second Amended Complaint without leave to amend as to the fifth cause of action for breach of implied warranty (Motion; 9:25-10:10; 11-16-21 Minute Order filed under ROA No. 290) does not apply. The court’s ruling applies to the fifth cause of action for breach of the implied warranty of merchantability. (11-16-21 Minute Order.) The demurrer to the implied warranty claim was based on the court’s finding that, unlike the express warranty at issue here, the implied warranty of merchantability is not a warranty that explicitly extends to future performance of the goods. (11-16-21 Minute Order.)
Based on the above, the court DENIES Defendant’s Motion for Summary Adjudication as to the first and fourth causes of action.
Issue No. 2—KMA is entitled to summary adjudication of Plaintiff’s Second Cause of Action for violation of Civil Code section 1793.2(b) Failure to Commence or Repair Within 30 Days because a triable issue of material fact does not exist and Plaintiff has no out-of-pocket damages which is fatal to this claim.
The Motion states, “Here, it is undisputed the repair took only 28 days to complete. (SMUF No. 26.) Therefore, it is factually impossible for the repair to have exceeded the 30-day timeline or for it to have failed to begin within a reasonable time. . . . Moreover, the dealership gave Plaintiff a rental car during her engine replacement repair, and Plaintiff testified she was not out of pocket for any costs during the repair. (SUMF Nos. 24, 25.) Indeed, Plaintiff’s concern was repaired under warranty at no cost to Plaintiff. . . .” (Motion; 11:3-8.)
Civil Code section 1793.2, subdivision (b), states, “ Where those 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.”
Kirzhner v. Mercedes-Benz USA, LLC (2020) 9 Cal.5th 966, 984 (Kirzhner), explains, “Mercedes is correct that a manufacturer's willful failure to promptly provide restitution or a replacement vehicle may result in an award of civil penalties pursuant to section 1794. [Citations.] But section 1794 also allows buyers to recover damages for nonwillful violations of the Act. [Citation.] Subdivision (a) of section 1794 allows a buyer ‘who is damaged by a failure to comply with any obligation under [the Act] or under an implied or express warranty or service contract’ to ‘bring an action for the recovery of damages.’ (Italics added.) The Act imposes several affirmative obligations on manufacturers in addition to the requirement that they comply with their own warranties. These obligations include maintaining ‘sufficient service and repair facilities’ (§ 1793.2, subd. (a)(1)(A)); commencing repairs ‘within a reasonable time’ (§ 1793.2, subd. (b)); completing repairs ‘within 30 days’ (ibid.); and ‘promptly’ replacing or providing restitution for those vehicles the manufacturer cannot repair after a reasonable number of attempts (§ 1793.2, subd. (d)(2); accord, Jiagbogu, supra, 118 Cal.App.4th at p. 1244, 13 Cal.Rptr.3d 679). The Act does not indicate that a buyer may recover only civil penalties—and not damages—for certain violations of the Act's obligations, as Mercedes contends. In fact, the civil penalty provision set forth in section 1794, subdivision (c) indicates the opposite, providing that ‘[i]f the buyer establishes that the failure to comply was willful, the judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty . . . .’ (Italics added.) Thus, the plain language of this section makes clear that the Act creates a ‘two-tier system of damages’ for willful and negligent violations of any of the Act's affirmative obligations. [Citation.]”
Paragraph 91 of the SAC states, “Although Plaintiff presented the Vehicle to Defendant’s representative in this state, Defendant and its representative failed to commence the service or repairs within a reasonable time and failed to service or repair the Vehicle so as to conform to the applicable warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b). Plaintiff did not extend the time for completion of repairs beyond the 30-day requirement.”
Based on paragraph 91 of the SAC, the second cause of action consists of two violations arising under Civil Code section 1793.2, subdivision (b). The first is that Defendant failed to repair the Plaintiffs’ vehicle within 30 days, and the second is that Defendant failed to commence repairs within a reasonable time. As to the failure to repair Plaintiffs’ vehicle within 30 days, Defendant’s evidence shows that the dealership completed the repair as to the engine defect within 30 days. (PSS No. 26.) Therefore, Defendant has met its initial burden of demonstrating that Civil Code section 1793.2, subdivision (b), does not apply as to the failure to repair Plaintiffs’ vehicle within 30 days.
Defendant’s Motion, however, does not address the SAC’s allegations that Defendant failed to commence repairs within a reasonable amount of time. Thus, the court finds that Defendant did not meets its burden of demonstrating that Defendant commenced the repairs of Plaintiffs’ vehicle within a reasonable amount of time.
Next, the Motion asserts, But, even in arguendo, without any damages, a violation of the 30-day limit of § 1793.2(b) claim cannot be maintained.” (Motion; 11:10-11 (Italics in Motion.) Based on Kirzhner, the court finds that Defendant has not met its initial burden to show that Plaintiff’s are not entitled to civil penalties.
Based on the above, the court DENIES the Motion for Summary Adjudication as to the second cause of action.
Issue No. 3-- KMA is entitled to summary adjudication of Plaintiff’s Third Cause of Action for violation of Civil Code section 1793(a)(3) Failure to Provide Adequate Service Literature and Parts because a triable issue of material fact does not exist and Plaintiff has no out-of-pocket damages which is fatal to this claim.
Civil Code Section 1793.2, subdivision (a)(3) provides, “Every manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall: . . . (3) Make available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.”
The SAC alleges, “In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant failed to make available to its authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period. Plaintiff has been damaged by Defendant’s failure to comply with its obligations pursuant to Civil Code section 1793.2(a)(3), and therefore brings this Cause of Action pursuant to Civil Code section 1794.” (SAC, ¶ 96.)
Defendant has shown that it made sufficient service literature and parts available to the dealer to effectuate repair during the term of the warranty for the subject vehicle. (DSS No. 31; Richards Decl., ¶ 8.) Therefore, the court finds that Defendant met its initial burden of demonstrating that it provided sufficient service literature and parts to its authorized service and repair facilities.
Plaintiffs contend that there is a triable issue of material fact as to a violation of Civil Code section 1793.2, subdivision (a)(3), but the Motion and PSS do not address DSS No. 31. (Opposition; 12:14-13:22.) Since the Motion and the PSS do not address Defendant’s contention, the court finds that Plaintiffs have not raised a triable issue of material fact as to whether Defendant failed to make available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs.
Therefore, the court GRANTS the Motion for Summary Adjudication as to the third cause of action.
Based on the above, the court GRANTS Defendant’s (Kia America, Inc.) Motion for Summary Judgment, or in the Alternative, Summary Adjudication, filed on 3-23-23 under ROA No. 419, to the extent it requests summary adjudication of the third issue as to the third cause of action. The court DENIES the Motion for Summary Adjudication as to Issue Nos. 1 and 2. Since the court has DENIED the Motion for Summary Adjudication as to Issue Nos. 1 and 2, the court DENIES Defendant’s Motion for Summary Judgment.
Plaintiffs are to give notice.