On 05/22/2018 a Contract - Other Contract case was filed by SUSAN URIBE 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
URIBE SALVADOR F.
GENERAL MOTORS LLC
7/25/2018: NOTICE OF ORDER TO SHOW CAUSE HEARING RE PROOF OF SERVICE
7/30/2018: Minute Order
8/6/2018: ANSWER OF DEFENDANT GENERAL MOTORS LLC., TO UNVERIFIED COMPLAINT OF PLAINTIFFS SUSAN URIBE AND SALVADOR URIBE
8/9/2018: NOTICE OF CASE MANAGERVEENT CONFERENCE
8/14/2018: CASE MANAGEMENT STATEMENT
8/14/2018: CIVIL DEPOSIT
8/17/2018: CASE MANAGEMENT STATEMENT
8/29/2018: Minute Order
6/12/2019: Case Management Statement
6/26/2019: Minute Order
6/29/2018: NOTICE OF CHANGE OF ADDRESS
6/8/2018: PROOF OF SERVICE OF SUMMONS
6/13/2018: ORDER TO SHOW CAUSE HEARING
6/13/2018: NOTICE OF CASE MANAGEMENT CONFERENCE
5/22/2018: COMPLAINT 1. VIOLATION OF SONG-BEVERLY ACT - BREACH OF EXPRESS WARRANTY ;ETC
5/22/2018: DEMAND FOR JURY TRIAL
at 08:30 AM in Department 40; Status Conference - HeldRead MoreRead Less
Minute Order ( (Status Conference)); Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 40; Hearing on Motion to Continue TrialRead MoreRead Less
Case Management Statement; Filed by Susan Uribe (Plaintiff); Salvador F. Uribe (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 40; Hearing on Motion to Compel Further Discovery Responses - Not Held - Rescheduled by PartyRead MoreRead Less
at 08:31 AM in Department 40; Case Management Conference (Conference-Case Management; Trial Date Set) -Read MoreRead Less
Minute OrderRead MoreRead Less
Minute order entered: 2018-08-29 00:00:00; Filed by ClerkRead MoreRead Less
CASE MANAGEMENT STATEMENTRead MoreRead Less
Case Management Statement; Filed by General Motors LLC (Defendant)Read MoreRead Less
OSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
ORDER TO SHOW CAUSE HEARINGRead MoreRead Less
Proof of Service (not Summons and Complaint); Filed by Susan Uribe (Plaintiff); Salvador F. Uribe (Plaintiff)Read MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Susan Uribe (Plaintiff); Salvador F. Uribe (Plaintiff)Read MoreRead Less
COMPLAINT 1. VIOLATION OF SONG-BEVERLY ACT - BREACH OF EXPRESS WARRANTY ;ETCRead MoreRead Less
DEMAND FOR JURY TRIALRead MoreRead Less
Case Number: BC707205 Hearing Date: October 28, 2019 Dept: 40
MOVING PARTY: Plaintiffs Susan Uribe and Salvador F. Uribe
In this is a lemon law action, plaintiffs Susan Uribe and Salvador F. Uribe (collectively, “Plaintiffs”) purchased a 2015 Chevrolet Silverado sometime in March 2014. Defendant General Motors LLC manufactured and provided several warranties for the vehicle. The vehicle contained engine, electrical, brakes, exterior and HVAC (air conditioning) defects. The vehicle was sent to a repair facility on numerous occasions. Non-party Antelope Valley Chevrolet was an authorized service representative of Defendant.
On August 12, 2019, Plaintiffs filed the instant motion seeking an order compelling Antelope Valley Chevrolet to produce its Person Most Qualified and Technician# 617 (David Arredondo) and to respond to their demand for production of documents. Plaintiffs also request sanctions in the amount of $2860.
The Court considered the moving papers and rules as follows.
Analysis: The Court notes that Plaintiffs’ deposition notice and request for production of documents was untimely. Pursuant to CCP 2025.270(a), a notice of deposition must be served at least 10 days before the date set for deposition. Plaintiffs served Antelope Valley Chevrolet on July 12, 2019 for a deposition on July 16, 2019.
However, CCP § 2025.410, states that: “a party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.” Antelope Valley Chevrolet never responded to Plaintiffs and therefore waived the issue of timeliness. Therefore, Plaintiffs’ Motion to Compel is granted.
Sanctions: “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).)
Plaintiffs’ hourly rate is $350, and they request 4 hours of credit for drafting the motion. Plaintiffs request 2 hours of credit to respond to any opposition. Finally, Plaintiffs’ request 2 hours of credit to attend the hearing.
The Court finds that the imposition of sanctions would be unjust considering Plaintiffs’ untimely notice. Therefore, the request for sanctions is DENIED.
Conclusion: Plaintiffs’ motion to compel is GRANTED. Antelope Valley Chevrolet is ordered to produce its Person Most Qualified and Technician# 617 (David Arredondo) and to produce all documents requested in the notice.
Plaintiffs’ request for sanctions is DENIED.
Case Number: BC707205 Hearing Date: October 24, 2019 Dept: 40
MOVING PARTY: Defendant General Motors LLC
OPPOSITION: Plaintiffs Susan Uribe and Salvador F. Uribe
In March 2014, plaintiffs Susan Uribe and Salvador F. Uribe (collectively, “Plaintiffs”) purchased a 2015 Chevrolet Silverado from defendant General Motors LLC, who provided several warranties for the vehicle. Plaintiffs claim the vehicle contained engine, electrical, brakes, exterior and HVAC (air conditioning) defects, so they presented to a repair facility on numerous occasions. Then, on December 5, 2017, plaintiffs requested that defendant repurchase the vehicle.
Defendant states that on January 17, 2018, it agreed over the phone to repurchase the vehicle and sent a letter to plaintiffs a letter the following day memorializing their telephonic offer.
On May 22, 2018, Plaintiffs filed the operative Complaint against Defendant alleging causes of action for:
1) Violation of the Song-Beverly Act-Breach of Express Warranty
2) Violation of the Song-Beverly Act-Breach of Implied Warranty
3) Violation of the Song-Beverly Act Section 1793.2
On July 31, 2019, Defendant filed the instant motion for summary adjudication. Defendant request to summary adjudication of Plaintiffs’ claims for civil penalties, breach of express warranty, and breach of implied warranty.
The Court considered the moving papers, the opposition, and the reply, and rules as follows.
Judicial Notice: Defendant requests that the Court take judicial notice of Plaintiff Susan Uribe’s January 2018 complaint and Request for Dismissal. Defendant’s request for judicial notice is granted because a court may take judicial notice of court records. (Code Civ. Proc. § 452(d).)
Objections: Defendant’s objections to the request for judicial notice are OVERRULED.
Defendant’s objections to the declaration of Steve Franklin, 1, 3, 4, and 5 are also OVERRULED.
Defendant’s objection no. 2 to the declaration of Steve Franklin is SUSTAINED as to the contents of the January 17, 2018, telephonic conversation.
Civil Penalties Claim:
“If 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 which shall not exceed two times the amount of actual damages. This subdivision shall not apply in any class action under Section 382 of the Code of Civil Procedure or under Section 1781, or with respect to a claim based solely on a breach of an implied warranty.” (Civil Code § 1794(c).)
“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 no 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.” (CCP § 437c(f)(1).)
“Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision….Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following: (i) A joint stipulation stating the issue or issues to be adjudicated. (ii) A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.” (CCP § 437c(t).)
A claim for civil penalties damages is a claim for damages and not a cause of action and therefore a stipulation of the parties is required for summary adjudication. Defendant’s attempt to compare civil penalties to punitive damages is unavailing. Punitive damages are specifically excluded from CCC § 437c(t). Regardless, as discussed below, the Court finds that there is a triable issue of material fact as to whether Defendant’s failure to comply with the Act was willful.
Breach of Express Warranty and Breach of Implied Warranties Claims:
Defendant moves for summary adjudication as to the warranties claims on the ground that its offers to repurchase Plaintiffs' vehicle comply with Section 1793.2(d)(2). Defendant states that on December 5, 2017, they received Plaintiff’s request for repurchase of the vehicle. Defendants state that on January 18, 2018 and April 1, 2019, they sent a letter to Plaintiffs offering to either repurchase or replace the vehicle.
Defendant states that their January 2018 offer was promptly made. Defendant cites to the case of Dominguez v. American Suzuki (2008) 160 Cal.App.4th 53. In that case, plaintiff purchased a motorcycle, which over the following six months they submitted for repairs on five occasions. On June 13, 2005, plaintiff requested that defendant repurchase or replace the motorcycle. On July 28, 2005, defendant offered to repurchase the motorcycle. The Court held that this offer complied with the Song–Beverly Act.” (Ibid. at 60.)
Plaintiffs argue that Defendant’s January 2018 offer was not promptly made, and that Dominguez does not apply because it deals with a motorcycle, and not a "new motor vehicle", and therefore the court in that case applied Civil Code § 1793.2(d)(1), rather than Section 1793(d)(2). Section 1793(d)(2) in relevant part states:
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. (emphasis added.)
Section 1793.2(d)(1) does not contain the “promptly make restitution” language that Section 1793(d)(2) does. Plaintiffs cite to Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041, which applied section 1793.2. In Lukather, plaintiff purchased a defective vehicle and had it repaired multiple times over a two-year period. On March 8, 2007, plaintiff requested that defendant repurchase the vehicle and on April 12, 2007, filed a lawsuit. (at 1049.) The Court held that defendant had “ample time in the period between March 8 and April 12, 2007, in order to comply with the Act.” (Ibid.)
Alternatively, Plaintiffs argue that Defendant’s offer was not prompt because Defendant had notice of the vehicle’s defects long before they made their offer. Plaintiffs cite to Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294, 303, which states that:
“In reality, as indicated by the facts alleged at trial by the Krotins, the manufacturer seldom on its own initiative offers the consumer the options available under the Act: a replacement vehicle or restitution. Therefore, as a practical matter, the consumer will likely request replacement or restitution. But the consumer's request is not mandated by any provision in the Act…. [a] manufacturer has an affirmative duty to replace a vehicle or make restitution to the buyer if the manufacturer is unable to repair the new vehicle after a reasonable number of repair attempts…The buyer need only provide the manufacturer with a reasonable opportunity to fix the vehicle.”
Additionally, Plaintiffs argue that Defendant’s offers were vague. For example, the offers failed to include an exact amount of compensation. Defendant contends that they needed certain
information from Plaintiffs, which was requested in the January 18, 2019 letter, before being able to state the precise sum of compensation. The Court notes that in Dominguez, the defendant’s offer was for a fixed sum of “$8,780.41, the total purchase price.” (Dominguez, supra, 160 Cal.App.4th at p. 56.)
The Court finds that there is a triable issue as to whether Defendant’s January 18, 2018 offer was
promptly made. Defendant had an affirmative duty to replace or provide restitution to Plaintiffs after a reasonable number of repair attempts. Plaintiffs were not obligated to request relief from
Defendant. Before Plaintiffs’ December 5, 2017 request, the vehicle was presented to repair
facilities fourteen times. (Plaintiffs UMF Nos. 1-14.) Case law states that a manufacturer can consult its records to become aware of failed repair attempts (Krotin, supra, 38 Cal.App.4th at p. 303.) Defendant did not make an offer until Plaintiffs requested relief in December 5, 2017. Therefore, there is a triable issue of material fact as to whether Defendant, with its presumed knowledge of the failed repair attempts, delayed in offering replacement or restitution of the vehicle.
Considering the above, the Court finds that there is a triable issue as to whether Defendant’s willfully failed to comply with the Act. There is evidence of multiple repairs occurring before December 5, 2017. Therefore, there is a triable issue as to whether Defendant's delay in offering replacement or restitution until Plaintiffs made the request, after repeated repair attempts on the vehicle, was willful.
Conclusion: Defendant’s motion for summary adjudication is DENIED.