On 03/26/2018 a Contract - Other Contract case was filed by GUADALUPE MATA HUANTE against GENERAL MOTORS LLC in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
HUANTE GUADALUPE MATA
GENERAL MOTORS LLC
6/5/2018: CIVIL DEPOSIT
6/25/2018: Minute Order
1/18/2019: Motion to Compel Further Discovery Responses
1/31/2019: Notice Re: Continuance of Hearing and Order
3/18/2019: Memorandum of Points & Authorities
3/25/2019: Minute Order
3/25/2019: Notice of Ruling
4/3/2019: Notice of Ruling
4/4/2019: Motion to Compel
5/6/2019: Notice of Ruling
4/26/2018: ANSWER OF DEFENDANT GENERAL MOTORS LLC TO UNVERIFIED COMPLAINT OF PLAINTIFF GUADALUPE MATA HUANTE
4/19/2018: NOTICE OF CASE MANAGEMENT CONFERENCE
3/26/2018: DEMAND FOR JURY TRIAL
at 09:00 AM in Department 61; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Not Held - Rescheduled by CourtRead MoreRead Less
Notice (of Hearing on Demurrer with Motion to Strike); Filed by Guadalupe Mata Huante (Plaintiff)Read MoreRead Less
Memorandum (OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S DEMURRER TO PLAINTIFF?S SECOND AMENDED COMPLAINT); Filed by Guadalupe Mata Huante (Plaintiff)Read MoreRead Less
Memorandum (OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT GENERAL MOTORS LLC?S MOTION TO STRIKE); Filed by Guadalupe Mata Huante (Plaintiff)Read MoreRead Less
Notice Re: Continuance of Hearing and Order; Filed by ClerkRead MoreRead Less
Memorandum of Points & Authorities; Filed by General Motors LLC (Defendant)Read MoreRead Less
Declaration (of Joseph Dankert In Support of Defendant General Motors LLC's Demurrer and Motion to Strike); Filed by General Motors LLC (Defendant)Read MoreRead Less
Demurrer - with Motion to Strike (CCP 430.10); Filed by General Motors LLC (Defendant)Read MoreRead Less
at 09:00 AM in Department 61; Hearing on Motion to Compel (Motion to Compel Deposition Attendance and Production of Documents by Defendant General Motors) - HeldRead MoreRead Less
Notice of Ruling (Ruling Re Plaintiff Guadalupe Mata Huante's Motion to Compel Deposition); Filed by ClerkRead MoreRead Less
Notice of Case Management Conference; Filed by Plaintiff/PetitionerRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Guadalupe Mata Huante (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
DEMAND FOR JURY TRIALRead MoreRead Less
COMPLAINT 1. VIOLATION OF SONG-BEVERLY ACT - BREACH OF EXPRESS WARRANTY ;ETCRead MoreRead Less
Complaint; Filed by Guadalupe Mata Huante (Plaintiff)Read MoreRead Less
Case Number: BC699430 Hearing Date: January 06, 2020 Dept: 61
Plaintiff Guadalupe Mata Huante’s Motion to Compel Deposition of Attendance of Defendant Genral Motors LLC’s Person Most Knowledgeable is DENIED. Sanctions are DENIED.
MOTION TO COMPEL DEPOSITION
A party may make a motion compelling a witness’s deposition “after service of a deposition notice” if that witness “fails to appear for examination, or to proceed with it.” (Code Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer declaration. (Code Civ. Proc. § 2025.450, subd. (b)(2).)
Huante moves to compel GM to produce a PMK for deposition with respect to various deposition topics concerning GM’s policies and procedures for lemon-law buyback claims, with accompanying requests for production.
GM argues that Huante failed to adequately meet-and-confer before filing this motion. (Opposition at p. 4.) GM also argues that the scope of the deposition notice is overbroad and concerns matters beyond the scope of this ordinary lemon law action. (Opposition at pp. 5–8.) GM additionally argues that the deposition concerns trade secret material. (Opposition at pp. 8–9.)
This court has already denied a motion to compel deposition brought by Huante against GM in this case, and on the grounds that Huante failed to meet and confer regarding GM’s objections. In that decision, the court stated:
The court agrees with GM that Huante failed to meet and confer in any meaningful respect before filing this motion. The record shows that the only communications that might be construed as meet-and-confer efforts concerning the deposition were a series of emails preceding the amended notice of deposition that merely asked GM when its PMK was available. (Morse Decl. Exh. D.) No attempt to meet and confer regarding the substance of GM’s objections was made either before or after Huante took GM’s notice of non-appearance on February 6, 2019. (Morse Decl. ¶ 14.) Indeed, there is no evidence of any communications occurring after the non-appearance. The law is clear that a party may not seek an order compelling attendance at a deposition without a meet and confer declaration or a declaration to the effect that the moving party, after a deponent’s non-appearance, inquired as to the reasons for the nonappearance. (Code Civ. Proc. § 2025.450, subd. (b)(2).) No conference or inquiry occurred here before Huante sought court intervention.
(See 5/6/2019 Ruling.)
Despite the foregoing language, Huante’s present motion remarkably suffers from the very same defect as her first. The moving papers here overwhelmingly concern whether good cause supports the deposition categories that Huante here seeks, with Huante forcefully arguing that the categories are relevant to her claims and GM responding that the categories are overbroad and irrelevant. GM in fact raised these arguments in its objections to the requests. But as with the previous motion, there is no indication that the parties discussed the merits of these objections among themselves at any time before bringing them before the court. As with the previous motion, the only record of meet-and-confer efforts here consists of emails from Huante’s counsel repeatedly asking for dates of availability. These emails are worth little, considering the parties’ relative availability for deposition is not even an issue of dispute in the moving papers presented to the court. Given this evidence, the court has little choice but to conclude once again that Huante has failed to meet and confer before filing the motion to compel deposition.
Huante argues, as she did in the previous motion, that no conference is necessary where the deponent fails to appear. (Reply at pp. 3–4.) But the statute does not support Huante. A party seeking to compel deposition must at least submit “a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc. § 2025.450, subd. (b)(2).) Again, there is no evidence that Huante conducted any inquiry into why GM failed to appear.
The Motion is DENIED.
“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2025.450, subd. (g)(1).)
Huante will not be awarded sanctions because her motion is without merit. GM in opposition objects to sanctions and states, “If anything, Plaintiff should have to pay GM’s fees and costs for having to oppose their procedurally defective, substantively bereft motion.” (Opposition at p. 9.) However, GM provides no declaration concerning the amount of fees incurred in responding to the motion. Sanction are likewise denied to GM.
Case Number: BC699430 Hearing Date: December 12, 2019 Dept: 61
Defendant General Motors, LLC’s Motion for Summary Judgment or Adjudication is GRANTED as to the claim for violation of Civil Code § 1793.2, subd. (b) in the Third Cause of Action, and GRANTED as to the prayer for punitive damages. The motion is otherwise DENIED.
Huante’s objections to the declarations of Joseph Dankert and Steve Franklin are OVERRULED. Franklin’s testimony concerning Huante’s purchase of GAP insurance and the rolling over of the negative equity of her prior vehicle are taken from the sales contract that Huante herself attached to her Complaint and incorporated by reference. (Complaint ¶ 7.) Likewise, Dankert is competent to testify concerning the letters received and sent by his firm, which is the subject of his declaration.
II. \SUMMARY JUDGMENT
A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)
The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)
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. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
A. CIVIL PENALTIES
GM moves for summary adjudication of Huante’s claim for civil penalties under Civil Code § 1794, subd. (c), which allows a plaintiff to collect “two times the amount of actual damages” for a “willful” violation of the Song-Beverly Act. (Motion at p. 7.) GM reasons that before this litigation commenced, it served a pre-litigation offer to repurchase Huante’s vehicle for $33,728.52. (Motion at p. 5.) Although Huante complains that GM impermissibly deducted her trade-in vehicle’s negative equity and a GAP insurance policy from the repurchase offer, GM contends that both deductions were permissible because neither is included in “the actual price paid or payable by the buyer” for which the Song-Beverly mandates restitution. (Motion at pp. 7–9; Civ. Code § 1793.2, subd. (d)(2)(B).)
As Huante points out in Opposition, this court cannot adjudicate Huante’s claim for a special form of relief by motion for summary adjudication. (Opposition at pp. 7–8.) Summary adjudication is allowable for “causes of action” or “a claim for damages,” but for the latter only “as specified in Section 3294 of the Civil Code.” (Code Civ. Proc. § 437c, subd. (f)(1).) Civil penalties are available under the Song-Beverly Act in Civil Code § 1794, subd. (c), not as punitive damages under Civil Code § 3294.
GM in reply contends that civil penalties are like punitive damages. (Reply at pp. 2–3.) So they are. (See Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 176 [civil penalties are “akin to punitive damages”].) But they are not identical: Civil penalties are available for “willful” violations of the Song-Beverly Act, while punitive damages are only available in cases of malice, oppression, or fraud, as specially defined in Civil Code § 3294, subd. (c)(1)–(3). The latter statute has been selected for unique availability in summary proceedings, and the former has not. The court will not substitute its judgment for the legislature’s by making a substantive addition to Code of Civil Procedure § 437c.
GM also argues that a claim for civil penalties is in itself a “cause of action.” (Reply at pp. 1–2.) It is not. A cause of action consists of “primary right and duty and the delict or wrong” in violation of that right and duty. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.) But the civil penalties in the Song-Beverly Act are not a primary right, but a form of relief that is available when a defendant “fail[s] to comply” with other parts of the Song-Beverly Act. (Civ. Code § 1794, subd. (a), (c).) It is those substantive obligations that form the primary right, not the civil penalties.
The authority that GM presents to contradict this point does not support it. The case, Gomez v. Volkswagen of America, Inc. (1985) 169 Cal.App.3d 921, held that an ill-phrased auto-warranty complaint stating a claim for “bad faith” against a manufacturer actually stated a claim under the Song-Beverly Act, not merely for civil penalties. (Id. at p. 925.) The court did not hold that civil penalties were available apart from a substantive Song-Beverly violation, or formed a cause of action all their own.
Accordingly, this court may grant no separate relief as to Huante’s claim for civil penalties, but must analyze the arguments as they relate to Huante’s actual causes of action.
A. BREACH OF EXPRESS AND IMPLIED WARRANTIES, CIVIL CODE § 1793.2, CLRA, AND UCL — FIRST, SECOND, THIRD, FOURTH, AND FIFTH CAUSES OF ACTION
GM argues that Huante’s First, Second, Fourth, and Fifth Causes of Action for Breach of Express Warranty, Breach of Implied Warranty, Consumer Legal Remedies Act (“CLRA”) Violation, and Unfair Competition Law (“UCL”) Violation all fail because GM made a timely pre-litigation offer to Huante to repurchase the vehicle in compliance with the Song Beverly Act. (Motion at pp. 7–13.)
The Song-Beverly Act allows a manufacturer to make restitution to a consumer for a defective vehicle as follows:
In the case of restitution, the manufacturer shall make restitution in an amount equal to the actual price paid or payable by the buyer, including any charges for transportation and manufacturer-installed options, but excluding nonmanufacturer items installed by a dealer or the buyer, and including any collateral charges such as sales or use tax, license fees, registration fees, and other official fees, plus any incidental damages to which the buyer is entitled under Section 1794, including, but not limited to, reasonable repair, towing, and rental car costs actually incurred by the buyer.
(Civ. Code § 1793.2, subd. (d)(2)(B).)
Huante alleges that GM failed to repair the subject vehicle and failed “to issue a refund or replacement vehicle” in violation of the Song-Beverly Act (SAC ¶ 25), and that the buyback offer that GM actually provided illegitimately deducted the “negative equity” from Huante’s trade-in vehicle from the amount offered, and also deducted the amount that Huante had paid for GAP insurance from the previous vehicle. (Complaint ¶ 49.) GM argues that these deductions were legitimate. (Motion at pp. 7–8.)
Some explanation is appropriate. “Negative equity” refers to the situation where a car-purchaser trades in an older vehicle to assist in the purchase of a new one, and the older vehicle’s agreed value is less than the amount remaining on the debt balance for the vehicle. In that situation, “in addition to financing the purchase of a new product, a creditor agrees to finance the remaining credit or lease balance owing on the property being traded in.” (Thompson v. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950, 969.) Which is to say that the total amount of financing obtained for the purchase of the new vehicle increases by the amount of the “negative equity” in the trade-in vehicle. Here, because Huante traded in a Silverado to purchase the subject vehicle, and the remaining loan balance on the Silverado exceeded its agreed value by $8,683.00, the “negative equity” of the vehicle was $8,683.00, and the amount financed for Huante’s purchase of the new vehicle increased by that amount. (Complaint Exh. 1.)
The sales contract for the vehicle also included an $899 payment for a “Debt Cancellation Agreement.” (Complaint Exh. 1.) Steve Franklin, GM’s Business Resource Support Manager, identifies this as a “GAP insurance contract,” which is “a contract between the GAP provider and the customer that covers the difference between the actual cash value of the vehicle, and the value still owed on that vehicle’s financing. In the event a vehicle is involved in a collision, GAP insurance may cover any difference between what is paid by the insurance company pursuant to an insurance claim, and what remains to be paid on the vehicle’s loan balance.” (Franklin Decl. ¶ 11.)
Thus both the $8,683.00 in negative equity and the $899 for the GAP contract were financed as part of Huante’s purchase of the subject vehicle. But GM deducted these items from its offer to re-purchase the subject vehicle here. GM objects that re-financed negative equity cannot form part of the restitution offered under Song-Beverly because it is not part of the “actual price paid or payable by the buyer” for which restitution is offered. And the GAP contract cannot form part of the restitution because such a contract is a “nonmanufacturer item installed by a dealer or the buyer,” which is specifically excluded from restitution. (Civ. Code § 1793.2, subd. (d).)
Both arguments are unpersuasive. GM emphasizes that the GAP contract was not between Huante and GM and was not provided by GM, making it a “non-manufacturer item.” (Motion at p. 8.) But the non-manufacturer items exempt from restitution are plainly those capable of being “installed” by a dealer or purchaser. (Civ. Code § 1793.2, subd. (d).) And a contract is not an item capable of “installation” upon the vehicle in the ordinary sense of that word. This conclusion finds support in the case Mitchell v. Blue Bird Body Co. (2000) 80 Cal.App.4th 32, in which the court found that finance charges paid to a lender on a vehicle-purchase transaction were held to form part of the “actual priced paid or payable” by the purchaser, and thus subject to restitution. (Id. at p. 35.) Much as a finance charge paid to a third party can form part of the actual price paid, so too can the payment for a GAP insurance contract.
GM’s argument as to the negative equity deduction is likewise unpersuasive. It relies on an interpretation of the case Thompson v. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950, which held that it is illegal under California and federal truth-in-lending laws for a dealer to artificially increase the value of a trade-in vehicle, and of the vehicle it is being traded in to purchase, in order to conceal negative equity remaining on the trade-in vehicle. (Id. at p. 978.) GM relies on the following statements of the court: “The state's official policy relating to negative equity reflects that adding either disclosed or undisclosed negative equity to the cash price of the vehicle is illegal under the ASFA, CLRA and UCL because the cash price cannot be influenced by a trade-in value.” (Id. at p. 972.) Because negative equity cannot be added to “cash price,” GM infers that negative equity cannot form part of the “actual price paid” under the Song-Beverly Act.
GM misunderstands the decision. As the Thompson court acknowledged, negative equity must be separately itemized from the cash price of the vehicle “in a purchase that is being financed.” (Id. at p. 971.) But the very same statutes that the Thompson court relied upon includes “prior credit or lease balance on property being traded in” as part of the “cash price” for cash vehicle purchases (Civ. Code § 2981, subd. (e)), and as part of the “total cash price” for credit transactions. (Civ. Code § 2982, subd. (a)(1)(J), (M).) The Thompson court’s statement that negative equity cannot be added to “the cash price of the vehicle” is a statement of the particular disclosure requirements for credit transactions, in which negative equity must be listed separately from “cash price.” (Thompson, supra, 130 Cal.App.4th at p. 972.) It does not mean negative equity cannot be considered part of the price paid for the vehicle. Indeed, by referring to statutes that expressly list negative equity as part of the “cash price” or “total cash price” of a vehicle for the purposes of truth-in-lending laws, the case actually supports a conclusion that negative equity can form part of the “actual price paid or payable by the buyer” under the Song-Beverly Act.
Accordingly, the Motion for Summary Adjudication is DENIED as to the First, Second, Third, Fourth, and Fifth Causes of Action.
B. CIVIL CODE § 1793.2, subd. (b) — THIRD CAUSE OF ACTION
GM argues that the Third Cause of Action for Violation of Civil Code § 1793.2 fails because, in addition to the arguments described above, that statute requires that a plaintiff’s vehicle be out of service for repairs for more than 30 days. (Motion at p. 11.) The statute says:
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.
(Civ. Code § 1793.2, subd. (b).) GM argues that because the subject vehicle was only out of service for repairs for 12 days, no liability can arise under this statute. (Motion at p. 11.) Huante counters that the vehicle has been out of service for 18 days for repairs, and that in any event GM has failed to comply with the statute because it has repeatedly failed to service or repair the vehicle to conform to the applicable warranties from when the vehicle was first delivered to GM for repairs. (Opposition at pp. 19–20.)
The court agrees with GM on this point. The directions accompanying the CACI jury instructions applicable to claims under Civil Code § 1793.2, subd. (b), are instructive as to what sort of timeline the statute envisions:
Give this instruction for the defendant’s alleged breach of Civil Code section 1793.2(b), which requires that repairs be commenced within a reasonable time and finished within 30 days unless the buyer otherwise agrees in writing. This instruction assumes that the statute contains two separate requirements, one for starting repairs and one for finishing them, either of which would be a violation.
The damages recoverable for unreasonable delay in repairs are uncertain. A violation of Civil Code section 1793.2(b) would not entitle the consumer to the remedies of restitution or replacement for a consumer good or new motor vehicle as provided in section 1793.2(d). Before those remedies are available, the manufacturer is entitled to a reasonable number of repair opportunitiesCalifornia Uniform Commercial Code remedies that are generally available under Song-Beverly permit the buyer to cancel the sale and recover the price paid, or to accept the goods and recover diminution in value. It seems questionable, however, that a buyer could cancel the sale and get the purchase price back solely for delay in completing repairs, particularly if the repairs were ultimately successful.
Delay caused by conditions beyond the control of the defendant extends the 30-day requirement. (Civ. Code, § 1793.2(b).) It would most likely be the defendant's burden to prove that conditions beyond its control caused the delay.
(CACI 3205, citations omitted.)“Direction for Use.”) The wrong envisioned by Civil Code § 1793.2 subdivision (b) is the retention of the defective vehicle for repairs for a period exceeding 30 days, not for a failure to repair the vehicle after several attempts. Huante has experienced no actionable delay under the statute.
Accordingly, GM’s Motion for Sumary Adjudication is GRANTED as to Huante’s claim in the Third Cause of Action under Civil Code § 1793.2, subd. (b).
C. PUNITIVE DAMAGES
GM argues that Huante’s claim for punitive damages — which are only available under Huante’s CLRA claim — fails because after Huante sent a CLRA demand letter to GM in February 2019, GM responded within 30 days offering a full refund. (Motion at p. 13.)
A consumer launching a CLRA action must notify the person alleged to have committed the CLRA violation in writing of the particular violations complained of and demand rectification. (Civ. Code § 1782, subd. (a).) “[N]o action for damages may be maintained under Section 1780 if an appropriate correction, repair, replacement, or other remedy is given, or agreed to be given within a reasonable time, to the consumer within 30 days after receipt of the notice.” (Civ. Code § 1782, subd. (b).)
In response to Huante’s CLRA letter of January 30, 2019, received on February 4 (Dankert Decl. Exh. A), GM sent a letter on March 6 offering to rescind the purchase contract, restore all payments made by Huante, payment of all incidental or consequential costs actually incurred by Huante, and the full balance owed on the vehicle. (Dankert Decl. Exh. B.) Huante offers no argument in opposition to this point.
Accordingly, the court finds that GM offered appropriate remedy under the CLRA on March 6, 2019, meaning that Huante cannot obtain punitive damages under that statute.
The Motion for Summary Adjudication is GRANTED as to Huante’s prayer for punitive damages.
 The purpose of the practice was to allow the buyer to obtain credit more easily for the new purchase. (Thompson, supra, 130 Cal.App.4th at p. 959.)
 Although framed as an argument directed against Huante’s claims under Civil Code § 1793.2 as a whole, which would include claims for the failure of the manufacturer to repair or replace the goods after a reasonable number of attempts (Civ. Code § 1793.2, subd. (d)), this argument properly addresses only Huante’s claim for delayed repairs under section 1793.2, subd. (b).