Robinson et al v. KIA Motors America, Inc.

Filing 24

MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr on 4/14/11 ORDERING 7 Motion for Summary Adjudication is DENIED. (Carlos, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LISA ROBINSON and KEVIN
ROBINSON,

No. 2:10-cv-03187-MCE-GGH

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Plaintiffs,
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MEMORANDUM & ORDER
v.

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KIA MOTORS AMERICA, INC., a
California corporation,

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Defendant.

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----oo0oo----

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Through this action, Plaintiffs, Lisa Robinson and Kevin

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Robinson (“Plaintiffs”) allege violations of the Song-Beverly Act

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and Magnuson-Moss Warranty Act.

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Inc. (“Defendant”) now moves for summary adjudication, pursuant

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to Federal Rule of Civil Procedure 56,1 on Plaintiffs’ claim for

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punitive civil penalties arising from Defendant’s alleged

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violation of the Song-Beverly Act, California Civil Code § 1793

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et seq.

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denied.

Defendant, Kia Motors America,

For the reasons set forth below, Defendant’s motion is

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Unless otherwise noted, all further references to Rule or
Rules are to the Federal Rules of Civil Procedure.
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BACKGROUND

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On February 24, 2007, Plaintiffs purchased from Defendant’s

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dealership, Folsom Lake Kia, a new 2007 Kia Sportage.

Included

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in the sale were express warranties on the vehicle pursuant to

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which Defendant undertook to maintain the vehicle’s utility or

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performance, or provide compensation if Plaintiffs’ vehicle

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failed in such utility or performance.

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Plaintiffs began having difficulties with the vehicle.

In August 2010,
Over the

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next month, the vehicle was subjected to five repair attempts at

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the Folsom Lake Kia dealership to fix the defect.

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attempts at repair were successful, and the final invoice dated

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September 14, 2010 stated in the notes section that Folsom Lake

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Kia was unable to fix the vehicle in this most recent attempt and

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that the dealership still did not know what the problem was.

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(Decl. Mark Romano Ex. 2 at 7.)

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None of these

On September 17, 2010, Plaintiff Lisa Robinson called

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Defendant’s Customer Assistance Center for the first time to

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explain her problem with the vehicle.

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she did not want to keep taking the vehicle in for repairs and

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requested a buyback under the so-called automobile “Lemon Law”

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codified by California’s Song-Beverly Act.

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agent responded by informing Plaintiff Lisa Robinson that if she

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wanted to pursue a Lemon Law claim, then she would need to follow

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the arbitration procedure.

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She further explained that

The customer service

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Shortly thereafter, Plaintiffs received a call from Chris

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Valenti, another representative for Defendant.

Plaintiff Lisa

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Robinson again explained to him that she believed the vehicle was

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a “lemon” and wanted a buyback or replacement vehicle.

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Mr. Valenti replied that he wanted to schedule a vehicle

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inspection for October 11, 2010, to which Plaintiffs agreed.

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or about September 30, 2010, Plaintiff Lisa Robinson left a

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voicemail for Mr. Valenti cancelling the inspection.

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message, she again reiterated that she did not want to take the

On

In that

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vehicle in for another repair, and only wanted a buyback or

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replacement.

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Plaintiffs, he informed her that her vehicle was not a “lemon”

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and that Defendant would not buyback or replace it.

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stated that Defendant would take no further action towards

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honoring Plaintiffs’ request for a buyback or replacement.

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Mr. Valenti did, however, offer compensation for Plaintiffs’

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inconvenience if they brought the vehicle in for inspection.

Mr. Valenti returned her call, and, according to

He further

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Defendant left Plaintiff Lisa Robinson a voicemail message

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on October 7, 2010 requesting she call him back, but no further

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communications between Plaintiffs and any agent of Defendant took

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place.

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Plaintiffs then filed the instant suit.

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STANDARD

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The Federal Rules of Civil Procedure provide for summary

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judgment when “the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with

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affidavits, if any, show that there is no genuine issue as to any

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material fact and that the moving party is entitled to a judgment

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as a matter of law.”

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of Rule 56 is to dispose of factually unsupported claims or

Rule 56(c).

One of the principal purposes

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defenses.

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Under summary judgment practice, the moving party

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Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

“always bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions
on file together with the affidavits, if any,’ which it
believes demonstrate the absence of a genuine issue of
material fact.”

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting

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Rule 56(c)).

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Rule 56 also allows a court to grant summary adjudication on

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part of a claim or defense.

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recover upon a claim...may...move...for a summary judgment in the

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party’s favor upon all or any part thereof.”); see also Allstate

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Ins. Co. v. Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995);

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France Stone Co., Inc. v. Charter Township of Monroe, 790 F.

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Supp. 707, 710 (E.D. Mich. 1992).

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See Rule 56(a) (“A party seeking to

The standard that applies to a motion for summary

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adjudication is the same as that which applies to a motion for

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summary judgment.

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16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).

See Rule 56(a), 56(c); Mora v. ChemTronics,

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If the moving party meets its initial responsibility, the

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burden then shifts to the opposing party to establish that a

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genuine issue as to any material fact actually does exist.

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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585-587 (1986); First Nat’l Bank v. Cities Ser. Co., 391 U.S.

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253, 288-289 (1968).

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In attempting to establish the existence of this factual

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dispute, the opposing party must tender evidence of specific

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facts in the form of affidavits, and/or admissible discovery

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material, in support of its contention that the dispute exists.

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Rule 56(e).

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contention is material, i.e., a fact that might affect the

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outcome of the suit under the governing law, and that the dispute

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is genuine, i.e., the evidence is such that a reasonable jury

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could return a verdict for the nonmoving party.

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Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v.

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Local No. 169, Assoc. of Western Pulp and Paper Workers, 971 F.2d

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347, 355 (9th Cir. 1987).

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evidence is left to the jury, there is a preliminary question for

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the judge, not whether there is literally no evidence, but

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whether there is any upon which a jury could properly proceed to

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find a verdict for the party producing it, upon whom the onus of

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proof is imposed.”

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Improvement Co. v. Munson, 14 Wall. 442, 448 (1872)).

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The opposing party must demonstrate that the fact in

Anderson v.

Stated another way, “before the

Anderson, 477 U.S. at 251 (quoting

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As the Supreme Court explained, “[w]hen the moving party has

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carried its burden under Rule 56(c), its opponent must do more

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than simply show that there is some metaphysical doubt as to the

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material facts ... Where the record taken as a whole could not

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lead a rational trier of fact to find for the nonmoving party,

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there is no ‘genuine issue for trial.’”

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586-87.

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court does not make credibility determinations or weigh

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conflicting evidence.

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Matsushita, 475 U.S. at

In judging evidence at the summary judgment stage, the

Anderson, 477 U.S. at 255, see also

Matsushita, 475 U.S. 587.

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ANALYSIS

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As indicated above, Defendant moves to dismiss Plaintiffs’

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claims under the Song-Beverly Act, known as California’s

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automobile “Lemon Law.”

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consumer goods containing express warranties to maintain

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sufficient service and repair facilities to carry out the terms

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of the warranty.

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The Act requires manufacturers of

Cal. Civ. Code, § 1793.2(a)(1).

A plaintiff pursuing an action under the Song-Beverly Act

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must prove the following: (1) the vehicle had a nonconformity

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covered by the express warranty that substantially impaired the

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use, value or safety of the vehicle; (2) the vehicle was presented

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to an authorized representative of the vehicle’s manufacturer for

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repair; and (3) the manufacturer did not repair the nonconformity

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after a reasonable number of repair attempts.

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§ 1793.2(d); Oregel v. American Isuzu Motors, Inc., 90 Cal. App.

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4th 1094, 1101 (2001) (internal citations omitted).
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Cal. Civ. Code.

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There are two means by which a plaintiff in a Cal. Civ. Code

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§ 1794 action may recover punitive civil penalties against a

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defendant who has violated the Song-Beverly Act.

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Ford Motor Co., 24 Cal. App. 4th 488, 491-92 (1994).

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Section 1794(c) grants civil penalties to buyers of any type of

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consumer goods, but only where the defendant willfully violated

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the Act.

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specifically for buyers of new motor vehicles without requiring a

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showing of willfulness, unless the manufacturer of the motor

Id.

See Jernigan v.

Section 1794(e) permits civil penalties

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vehicle maintains a qualified dispute resolution process.

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493.

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Id. at

Defendant argues that it is entitled to summary adjudication

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of Plaintiffs’ claims for civil penalties arising out of alleged

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violations of the Song-Beverly Act because Plaintiffs cannot

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establish that Defendant knew of any liability under the Act.

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Defendant argues that Plaintiffs have therefore failed to

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demonstrate that it willfully failed to comply with the Song-

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Beverly Act, and so it is not liable for any civil penalty under

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Cal. Civ. Code § 1794(c).

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not liable for civil penalties under Cal. Civ. Code § 1794(e)(1)

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because it maintains a qualified third-party dispute resolution

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process pursuant to Cal. Civ. Code, § 1794(e)(2).

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Defendant further argues that it is

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A.

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Cal. Civ. Code § 1794(c) - Civil Penalties For Buyers
Of All Consumer Goods

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Subsection (c) of 1794 provides civil penalties for

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consumers of goods who were damaged by the manufacturer’s failure

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to comply with any obligation under the Song-Beverly Act, or

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under an implied or express warranty.

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In order to collect civil penalties under subsection (c), the

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buyer must establish that the defendant’s failure to comply with

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the Act was willful.

Cal. Civ. Code § 1794(a).

The violation Plaintiffs allege is that

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Defendant was unable to service or repair the vehicle to conform

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to the applicable express warranties after a reasonable number of

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attempts pursuant to Cal. Civ. Code § 1793.2(d), and that it

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declined to replace or buyback the vehicle.

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Defendant maintains that it did not willfully violate the

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Act because it did not know of its obligation to replace or

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buyback Plaintiffs’ vehicle.

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violation cannot be willful where it has requested that the

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customer bring in the vehicle for evaluation or repair.

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Defendant does not contest at this point Plaintiffs’ allegation

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that a violation of the Act did in fact occur, but only argues

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that Plaintiffs cannot prove that Defendant actually knew of its

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obligation and failed to comply in willful disregard of the Act.

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In support of its contention that it did not act willfully,

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Defendant relies on Hatami v. Kia Motors Am., Inc., No. 08-0226,

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2009 WL 1396358 (C.D. Cal. Apr. 20, 2009) and Dominguez v. Am.

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Suzuki Motor Corp., 160 Cal. App. 4th 53, 60 (2008).

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and Dominguez, however, are distinguishable.

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Defendant further argues that a

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Both Hatami

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Hatami involved many of the same facts as the instant case;

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the plaintiff allegedly made five attempts to have his vehicle

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repaired before requesting his car be repurchased, and instead,

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defendant Kia Motors offered to inspect and repair the vehicle,

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at which point the plaintiff filed suit.

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1396358, at *1.

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adjudication was appropriate for plaintiff’s civil penalties

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claim under subsection (c).

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willful conduct was absent due to both defendant’s initial

Hatami, 2009 WL

The court in Hatami found that summary

Id. at *5.

The court explained that

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response to inspect the vehicle, and its subsequent offers to buy

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back the vehicle.

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made any offers to repurchase Plaintiffs’ vehicle, this Court

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does not find Hatami to be sufficiently analogous to support

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summary adjudication.

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Id.

Because Defendant in this case has not

Dominguez, which Defendant also relies upon in support of

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its contention that a request for an evaluation of the vehicle is

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not willful conduct, is similarly distinguishable.

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the plaintiff allegedly made five repair attempts and then

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submitted a written request to the defendant for a buyback.

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160 Cal. App. 4th at 55-56.

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that the plaintiff bring in his vehicle for an inspection.

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Significantly, in Dominguez, the defendant noted the reasons for

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its request to inspect as follows: 1) the repair mechanics were

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unable to duplicate the reported problem, 2) the excessive

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mileage on the motorcycle did not indicate that there was a

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“recurrent problem,” and 3) plaintiff brought the motorcycle in

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for issues unrelated to the alleged problem.

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In Dominguez,

In response, the defendant requested

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Id. at 56.

Id.

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Approximately six weeks after plaintiff’s demand, the defendant

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offered to repurchase the vehicle.

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that there was no evidence that defendant willfully failed to

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comply with the Act.

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both because of that defendant’s offer to repurchase plaintiff’s

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vehicle, and because that particular request for inspection was

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predicated on a good faith belief that the Song-Beverly Act did

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not apply to the alleged problem.

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present in the instant case.

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Id. at 59.

Id. at 59.

The court held

Dominguez is distinguishable

Neither of these facts are

Accordingly, this Court does not

find Dominguez persuasive.

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A violation of § 1793.2(d)(2) is not willful if the

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defendant’s failure to replace or refund was the result of a good

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faith and reasonable belief that the facts imposing the statutory

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obligation were not present.

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Inc., 23 Cal. App. 4th 174, 185 (1994).

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require the plaintiff to prove the defendant actually knew of its

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obligation to refund or replace because that requirement would

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allow manufacturers to escape the penalty by remaining ignorant

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of the facts.

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reasonably available information germane to that decision is not

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a reasonable, good faith decision.”

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Beverly Act requires a manufacturer to maintain service and

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repair facilities in the state, and so the manufacturer is

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capable of knowing every failed repair attempt by reading its

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dealers’ service records.

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38 Cal. App. 4th 294, 303 (1995).

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Id.

Kwan v. Mercedes-Benz of N. Am.,
This standard does not

“A decision made without the use of

Id. at 186.

The Song-

Krotin v. Porsche Cars N. Am., Inc.,

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Cal. Civ. Code § 1793.2(d) obligates a manufacturer to offer a

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replacement or reimbursement when it is unable to repair the

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vehicle in conformity with the express warranty after a

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reasonable number of attempts.

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The question addressed at this stage is not whether

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Defendant was in fact willful and subject to § 1794(c) civil

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penalties, but instead, whether a reasonable jury could find that

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it acted willfully.

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Defendant contends that Plaintiffs only contacted it once to

Anderson, 477 U.S. at 251-52.

Though

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report the vehicle’s defect, Mr. Valenti admitted in his

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deposition that he received and reviewed the repair orders, which

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noted that the defect had not been fixed.

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Ex. 4 at 223:1-11.)

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expected to review its dealers’ service records, and so should

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have known of the failed attempts to repair the defect.

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App. 4th at 303.

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of Plaintiffs’ multiple attempts to repair the vehicle.

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(Decl. of Mark Romano,

Further, in light of Krotin, Defendant is

38 Cal.

Both Defendant and Mr. Valenti were on notice

Defendant has provided no authority establishing that its

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actions demonstrated the conclusive non-willfulness necessary to

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evade liability under Cal. Civ. Code § 1794(c).

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case law in this area is highly fact-specific, and one or two

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slight differences between cases can change the outcome.

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Plaintiffs’ claim for civil penalties under § 1794(c) therefore

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raises triable issues of fact for the jury to decide.

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the claim is consequently not amenable to summary adjudication,

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Defendant’s motion as to civil penalties under subsection (c) is

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DENIED.

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To the contrary,

Because

B.

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Cal. Civ. Code § 1794(e)(1) - Civil Penalties For
Buyers Of Motor Vehicles

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The Song-Beverly Act requires a manufacturer of motor

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vehicles who is unable to service or repair a new vehicle in

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conformity with applicable express warranties to either promptly

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replace the vehicle or make restitution after a reasonable number

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of repair attempts.

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establishes a violation of § 1793.2(d)(2), he or she may recover

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damages, reasonable attorneys fees and costs, and a civil penalty

Cal. Civ. Code § 1793.2(d)(2).

If the buyer

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of up to two times the amount of damages.

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§ 1794(e)(1).

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subsection(e)(1) where the defendant’s violation of the Act was

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not willful.

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Cal. Civ. Code

A plaintiff may recover civil penalties under

Jernigan, 24 Cal. App. 4th at 492.

Subsection (e)(1) calls for the same standard as

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subsection (c) for an award of civil penalties, except that a

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finding of willfulness is not required.

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§ 1794(c) and (e)(1).

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purchases of new motor vehicles only, whereas subsection (c)

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covers any type of consumer goods as defined in the Act.

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Suman v. BMW of N. Am., Inc., 23 Cal. App. 4th 1, 6-7 (1994).

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The only distinction between the analysis contained in

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subsections (c) and (e)(1), then, is with respect to a finding of

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willfulness and a more particularized showing that the purchase

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of a motor vehicle is involved.

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See Cal. Civ. Code

Subsection (e) was intended to apply to

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See

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If Plaintiffs’ claim under the more rigorous requirements of

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subdivision (c) survives for purposes of summary adjudication, as

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the Court has already concluded, a reasonable jury could likewise

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find that Plaintiffs have also demonstrated the elements

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necessary to collect civil penalties under subsection (e), which

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relaxes any requirement that Defendant’s refusal be willful.

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C.

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Cal. Civ. Code § 1794(e)(2) - Qualified Dispute
Resolution Process

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A buyer of a motor vehicle that cannot be repaired after a

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reasonable number of attempts may recover a civil penalty

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pursuant to Cal. Civ. Code

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maintains a qualified third-party dispute resolution process.

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Cal. Civ. Code § 1794(e)(2).

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civil penalties, the manufacturer’s qualified dispute resolution

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process must substantially comply with Cal. Civ. Code § 1793.22.

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Id.

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third-party dispute resolution process must satisfy in order to

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be considered “qualified” for the purposes of § 1794(e)(2)

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exemption.

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§ 1794(e)(1) unless the manufacturer

To be exempted from subsection (e)

Cal. Civ. Code § 1793.22(d) provides nine conditions that a

Defendant participates in the Better Business Bureau

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Autoline program (“BBB”).

Defendant maintains that BBB is

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certified by the State of California as an Arbitration Program

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for any Song-Beverly claims against certain automotive

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manufacturers.

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program “...is so certified, it meets the requirements of the

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statute.”

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Defendant, therefore, argues that since the

(Def.’s Mot. for Summary Adj. at 6.)

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Certification of a dispute resolution program, however, fulfills

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just one of nine conditions required to be considered “qualified”

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in satisfaction of § 1794(e)(2).

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not necessarily lead to the conclusion that BBB complies with the

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requirements of the § 1794(e)(2) exemption.

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to address the remaining eight conditions for qualification in

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its Motion for Summary Adjudication.

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on Mr. Valenti’s conclusion that BBB complies with the

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requirements of the Song-Beverly Act.

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Thus, certification of BBB does

Defendant has failed

Instead, Defendant relies

A declaration used to support or oppose a motion must be

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made on personal knowledge.

Rule 56(c)(4).

In sole support of

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its stated contention that participation in the BBB process

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exempts it from subsection (e) civil penalties, Defendant points

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to Christopher Valenti’s declaration at ¶ 13.

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declaration attests that BBB is certified by the State of

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California, and “complies with the requirements of the Song-

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Beverly Act.”

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dispute this declaration arguing, based on statements made in his

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deposition on March 8, 2011, that Mr. Valenti does not have

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personal knowledge of those facts.

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Mr. Valenti was asked “Is anything contained in paragraph 13

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actually stated from your personal knowledge,” to which he

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responded, “No.”

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Because declarations used in support of a motion for summary

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adjudication must be made on personal knowledge, Mr. Valenti’s

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statement in paragraph 13 is an insufficient basis on which to

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grant such a motion.

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Mr. Valenti’s

(Decl. Christopher Valenti ¶ 13.)

Plaintiffs

In this deposition,

(Decl. of Mark Romano, Ex. 4 at 226:1-4.)

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Defendant has offered no other evidence or case law to support

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its contention that Plaintiffs cannot prevail on a claim for

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subsection (e) civil penalties.

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Beyond mere conclusory statements, Defendant has not

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established that its participation in the BBB dispute resolution

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process exempts it from civil penalties pursuant to

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subsection (e).

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to civil penalties under Cal. Civ. Code § 1794(e) is DENIED.

Defendant’s Motion for Summary Adjudication as

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CONCLUSION

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For the reasons stated above, Defendant’s Motion for Summary
Adjudication (ECF No. 7) is DENIED.2
IT IS SO ORDERED.
Dated: April 14, 2011

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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Because oral argument will not be of material assistance,
the Court ordered this matter submitted on the briefing. E.D.
Cal. Local Rule 230(g).
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