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~ ORIGINAL
KNIGHT LAW GROUP LLP
Steve Mikhov (SBN 224676)
10250
HR
Constellation Blvd., Suite 2500
Los Angeles, CA 90067 Supertor Cour
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Telephone: (310) 552-2250 Ounty of Place omnia
Facsimile: (310) 552-7973 JUN 2.0
FR
2019
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HACKLER DAGHIGHIAN dake Chatters
MARTINO & NOVAK, P.C. \ghitoutive
Ofticer & Clerk
Sepehr Daghighian (SBN 239349) y: O.Lucatuorto,
DD
Deputy
Kevin Y. Jacobson (SBN 320532)
10250 Constellation Blvd., Suite 2500
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Los Angeles, CA 90067
Telephone: (310) 887-1333
Facsimile: (310) 887-1334
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Attorneys for Plaintiff,
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ANNA P. KING
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF PLACER Ww
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SEaA2aE
ANNA P. KING,
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Case No.: SCV0038637 (Dept. 40)
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Plaintiff, PLAINTIFF’S TRIAL BRIEF
VS. Complaint
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Filed: October 26, 2016
CSR
Trial Date: July 1, 2019
HYUNDAI MOTOR AMERICA, a California
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Corporation, and DOES 1 through 10, inclusive,
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Defendant.
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PLAINTIFF’S TRIAL BRIEF
I. INTRODUCTION
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Plaintiff ANNA P. KING (“Plaintiff’) hereby respectfully
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submits his Trial Brief in
advance of the above referenced trial. Plaintiff and her counsel thank the Court and its staff for
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allowing this important matter to be adjudicated
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in this Department.
A. Case Summary
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This lemon law matter arises out of Plaintiffs purchase of a defective 2010 Hyundai
Tucson that was plagued with issues relating to electrical system and backup camera functionality.
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Plaintiff's operative complaint alleges causes of action for violations of the Song-Beverly
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Consumer Warranty Act (the “Act’).
1. Background Facts
GS
On February 19, 2010. Plaintiff purchased a new 2010 Hyundai Tucson (“Subject
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Vehicle”) from Roseville Hyundai of Roseville, CA. The vehicle was manufactured and warranted
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by Defendant Hyundai Motor America (“HMA” or “Defendant’”)
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and the total sale price of the
Subject Vehicle was approximately $32,347.84.
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When Plaintiff looked for a reliable vehicle, she
relied on HMA’s brochures, advertisements, and representations and then purchased the 2010
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Hyundai Tucson. However, Plaintiff's vehicle experienced significant problems that HMA was
unable to correct after being given more than a reasonable number of opportunities to do so.
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From September of 2011 to August of 2015, Plaintiff brought in her vehicle on
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four (4) or more separate
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occasions for issues with her backup camera and the HVAC operation.
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Plaintiff was left without the use of the vehicle while repairs were attempted. After each repair
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attempt, HMA’s authorized repair agents assured Plaintiff that the vehicle was fixed. Despite
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these numerous repair attempts to the subject vehicle, Defendant was unable to conform
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Plaintiff's vehicle to the applicable express and implied warranties, and the vehicle continues to
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underperform and/or exhibit these defects and nonconformities. In fact, on many of the repair
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visits, Defendant’s authorized dealerships did very little to diagnose the problems or fix the
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plagued vehicle. Eventually after taking the vehicle in for issues that could not be detected and
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being constantly promised that the vehicle would now work properly, Plaintiff lost faith in
Defendant and itsdealership’s ability to fix the vehicle.
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PLAINTIFF’S TRIAL BRIEF
NO The following is a summary of the Subject Vehicle’s complete repair history:
Date Mileage | Problem (service)
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9/26/11 | 12,459 Electrical— Customer states the backup camera in operable.
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Electrical — customer state when the iPhone is plugged into the
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DOD
adaptor to listen to iTunes, it shits off when the vehicle is put into
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reverse.
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8/10/12 | 19,560 Electrical— Customer states backup camera is stillinoperable.
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3/25/14 | 38,030 Electrical—- Customer states backup camera is still inoperable and
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em
will continue to have a fuzzy screen at times.
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8/3/18 57,973 Electrical— Customer states that the backup camera continues to
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intermittently black with line in the screen.
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HVAC- customer states that air conditioning is shut off, when vehicle
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is tuned back on, the air conditioning isoff.
2. Plaintiff's Pre-Litigation Efforts to Resolve This Case
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Plaintiff attempted to contact HMA for resolution of her problems. In February 2016,
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Plaintiff contacted HMA via telephone and expressed her safety concerns with the vehicle.
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Although Plaintiff requested a remedy under the lemon law, and despite HMA’s legal obligation to
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promptly replace the new motor vehicle or promptly make restitution in accordance with the Act,
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HMA denied Plaintiff's request for repurchase. Accordingly, Plaintiff was forced to file this
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Lemon Law action against Defendant to compel them to comply with the its obligation under the
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Act by repurchasing Plaintiff's defective vehicle inthe proper amount in which Plaintiff is owed.
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As discussed herein, Defendant has an affirmative duty under the consumer protective
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principles of the Song-Beverly Act to offer a repurchase or replacement to a consumer with
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9.
PLAINTIFF’S TRIAL BRIEF
unrepaired defects in his or her vehicle. Defendant’s failure to offer such remedies under these
circumstances constituted a clear violation of the Act. If a manufacturer cannot repair a vehicle
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within a reasonable number of attempts, it must promptly offer a repurchase or replacement of the
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vehicle. (Cal. Civ. Code, § 1793.2(d) (2).) Pursuant to California case law, a consumer is not
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required to request a repurchase or replacement of the vehicle to trigger the manufacturer’s legal
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obligation to offer a buyback or replacement of the vehicle. Rather, the statute places an
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affirmative duty and burden on the manufacturer to monitor itswarranty repair attempts through its
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service dealerships and to promptly offer the consumer a repurchase or replacement of the vehicle
when the manufacturer has failed to conform the vehicle to its warranty after a reasonable number
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of repair attempts. (See Krotin v. Porsche Cars (1995) 38 Cal.App.4th 294, 303; Lukather v.
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SR
General Motors (2010) 181 Cal.App.4th 1041; 1050.) Accordingly, even in the absence of a
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repurchase or replacement request by Plaintiff prior to the filing this action, Defendant had an
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affirmative legal duty to acknowledge that ithad failed to conform Plaintiff's vehicle to itsexpress
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ROOF
and implied warranties.
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Il. ARGUMENT: DEFENDANT VIOLATED THE SONG-BEVERLY ACT
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A. Defendant Was Required to Offer Plaintiff aBuyback After It Failed to Fix
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the Subject Vehicle Within a Reasonable Number of Repair Attempts
Required by the Song-Beverly Act
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If amanufacturer fails to repair a vehicle within a reasonable number of attempts, itmust
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promptly offer a repurchase or a replacement vehicle. (Civ. Code, § 1793.2(d) (2) (emphasis
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added).) The Song-Beverly Act requires manufacturers to repair a defective vehicle within a
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reasonable number of attempts. The phrase “a reasonable number of attempts” means that a vehicle
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was subject to more than one repair attempt. (Silvio v. Ford Motor Co. (2003) 109 Cal. App. 4"
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NY
1205.) Hence, liability may be established by showing that a vehicle has been subject to repair two
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or more times for a “nonconformity.”!
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!“Nonconformity” means adefect thatsubstantially impairs theuse, value, orsafety of avehicle to thebuyer. (Civ.
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Code, § 1793.22(e).) Here, the foregoing defectssubstantially impair the use, value, and safety of the vehicle.
(Lundy v. FMC Motor Co. (2001) 87 Cal. App. 4" 472.) In addition, “[t]he issue of whether the problems
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constituted substantialimpairment is one forthe trierof fact.” (Schreidel vy.
American Honda Motor Co. (1995) 34
Cal. App. 4th 1242, 1250.) 3
PLAINTIFF’S TRIAL BRIEF
eR Manufacturers tend to adopt the argument that the Silvio case stands for the notion that a
vehicle must be subject to more than one repair for the same exact complaint. Silvio does not
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support such a rule. Instead, that case holds that a vehicle must be presented for repair on more
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than one occasion; no mention is made, however, that the same component must be presented for
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repair more than once. Each presentation for repair counts toward the number of repair attempts a
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manufacturer is given to repair a vehicle for purposes of determining whether a “reasonable
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number of repair attempts” were performed regardless of whether or not a problem was confirmed
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and repaired upon presentation. “Whether or not the manufacturer’s agents choose to take
advantage of the opportunity, or are unable despite that opportunity to isolate and make an effort to
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repair the problem, are matters for which the consumer is not responsible.” (Oregel v. American
CO
Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1103-1104.)
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If a manufacturer fails to repair a vehicle within a reasonable number of attempts, it must
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promptly offer a repurchase or a replacement vehicle. The act reads in pertinent part:
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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
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Section 1793.22, to conform to the applicable express warranties after a
replace
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reasonable number of attempts, the manufacturer shall either promptly
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the new motor vehicle in accordance with subparagraph (A) or promptly make
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restitution to the buyer in accordance with subparagraph (B). However, the buyer
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shall be free to elect restitution in lieu of replacement, and in no event shall the
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buyer be required by the manufacturer to accept a replacement vehicle.
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(Civ. Code, § 1793.2(d) (2) (emphasis added).)
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As the quoted language indicates, aconsumer does not have to serve notice of continuing
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problems on the manufacturer or demand relief to trigger liability. Instead, as California appellate
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NY
courts have made clear, the statute unambiguously places the burden on the manufacturer to
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it
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monitor its warranty repair attempts and to promptly offer the Song-Beverly Act remedies when
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4th 294;
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fails to conform a vehicle to itswarranty. (Krotin v. Porsche Cars (1995) 38 Cal. App.
NY
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Lukather v. General Motors, LLC (2010) 181 Cal. App. 4" 1041, 1050.) Likewise, a manufacturer
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cannot attempt to shift the burden to the consumer by, e.g., requesting further information from the
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consumer.
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PLAINTIFF’S TRIAL BRIEF
Fe In Krotin, the manufacturer and the amici curiae argued that a consumer must demand a
vehicle repurchase or replacement in order for amanufacturer to be obligated to promptly offer the
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remedy requested. (Krotin v. Porsche Cars, supra, (1995) 38 Cal.App.4"" 294 at p. 302.) They
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contended that “the manufacturer would have to become ‘clairvoyant’ with respect to
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acknowledging and responding to otherwise unknown claims by consumers.” (Ibid.) The court,
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however, ruled that “the Act does not require consumers to take any affirmative steps to secure
relief’ under the Act. (Id. at pp. 302-303.) The court observed that consumer requests are
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sometimes necessary only because manufacturers fail to fulfill their obligations to repurchase
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nonconforming vehicles:
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In reality, as indicated by the facts alleged at trialby the Krotins, the manufacturer
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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
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consumer will likely request replacement or restitution. But the consumer's
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request isnot mandated by the Act. Rather the consumer's request is prompted by
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the manufacturer's unforthright approach and stonewalling of fundamental
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warranty problems.
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Id. (emphasis added).
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The court also disposed of the defendant’s argument that itwould have to read minds if the
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Act was interpreted to not require notification. The court noted that “[a]n automobile
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manufacturer need not read minds to determine which vehicles are defective; itneed only read
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dealers’ services records.” (Jd. at 303.) The Lukather court subsequently affirmed Krotin
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providing further support for the fact that Defendant was required to offer plaintiff a buyback in
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the instant case. Here, by refusing to honor Plaintiff's request for a vehicle repurchase or
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replacement under the terms of the lemon law by offering Plaintiff the proper amount as dictated
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by the Act, Defendant clearly failed to fulfillits statutory obligations.
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B. Defendant isAlso Liable Under a Theory of Breach of Implied Warranty
BRB
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Civil Code, section 1792 provides that “every sale of consumer goods that are sold atretail
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in this state shall be accompanied by the manufacturer’s and the retail seller’s implied warranty
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that the goods are merchantable.” (Hicks v. Superior Court (2004) 115 Cal.App.4" 77, 84-85; Civ.
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Code, § 1792; 15 U.S.C. § 2308.)
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PLAINTIFF’S TRIAL BRIEF
The plain language of Civil Code, section 1793 dictates that a manufacturer (such as
Defendant) cannot disclaim the implied warranties which arise as a matter of law. Civil Code,
NY
section 1793 provides:
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Except as provided in Section 1793.02, nothing in this chapter shall affect the
right of the manufacturer, distributor, or retailer to make express warranties with
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respect to consumer goods. However, a manufacturer, distributor, or retailer, in
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transacting a sale in which express warranties are given, may not limit, modify,
or disclaim the implied warranties guaranteed by this chapter to the sale of
consumer goods.
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In the context of the Song-Beverly Act, “fitness for the ordinary purpose of a vehicle
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means that the vehicle should be in a safe condition and substantially free of defects.” (Isip v.
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Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 23.) A manufacturer breaches the implied
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watranty of fitness for an ordinary purpose if the vehicle is not in a “safe condition and
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substantially free from defects.” An “attempt to define a vehicle as unfit only if itdoes not provide
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transportation is an unjustified dilution of the implied warranty of merchantability.” (Id. at 27.)
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“A vehicle that smells, lurches, clanks, and emits smoke over an extended period of time is not fit
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for its intended purpose.” (Ibid.) The persistent problems with Plaintiff's vehicle amount to a
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breach of the implied warranty.
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C. Plaintiff Is Entitled to aBuyback and Civil Penalties
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Under the Song-Beverly Act, Plaintiff is entitled to general, special, and actual damages,
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rescission of the sales contract and restitution of the purchase price, diminution in value,
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prejudgment interest, incidental and consequential damages, attorney fees, and civil penalties
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associated with the purchase of the subject vehicle. (Civ. Code, § 1793.2(d).) With regard to the
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remedy of restitution, the Act provides as follows:
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In the case of restitution, the manufacturer shall make restitution in an amount
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equal to the actual price paid or payable by the buyer, including any charges
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for transportation and manufacturer-installed options, but excluding
nonmanufacturer items installed by a dealer or the buyer, and including any
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collateral charges such as sales tax, license fees, registration fees, and other
official fees, plus any incidental damages to which the buyer is entitled under
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Section 1794, including, but not limited to, reasonable repair, towing, and
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rental car costs actually incurred by the buyer.
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PLAINTIFF’S TRIAL BRIEF
The Song-Beverly Act also allows a prevailing consumer to recover “a sum equal to the
aggregate amount of costs and expenses, including attorney’s fees based on actual time expended.”
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(Civ. Code, § 1794(d).)
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Moreover, the Song-Beverly Act allows for the imposition of a civil penalty when
manufacturers willfully fail to comply with the act. The act reads as follows:
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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
ON
civil penalty which shall not exceed two times the amount of actual damages.
(Civ. Code, § 1794, subd. (c).)
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California appellate courts have held that a willful violation occurs if a jury finds that a
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manufacturer knew of its obligations and intentionally refused to fulfill them. (See Schreidel v.
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American Honda Motor Co., Inc. (1995) 34 Cal. App. 4th 1242, 1249-1250.) A consumer need
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not prove malice or moral turpitude to recover a civil penalty. (Jd.) The purpose of the civil
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penalty isto deter manufacturers from refusing to comply with the act or implementing policies to
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circumvent the act’s protections and remedies. (See Jensen v. BMW of North America, Inc. (1995)
35 Cal. App. 4th 112, 134.) Some of the considerations include: (1) whether the manufacturer
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knew that a vehicle had not been repaired after a reasonable number of repair attempts or (2)
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DON
whether the manufacturer had a policy not to comply with the act. (Id.)
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In the present case, Defendant failed to conform Plaintiff's vehicle to the warranty after a
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reasonable number of repair attempts during the warranty period. Plaintiff istherefore entitled to a
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repurchase of the subject vehicle under the terms and amounts provided by the Song-Beverly Act,
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as well as to receive all incidental and consequential damages incurred as a result of the purchase
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and ownership of the vehicle.
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Defendant is also subject to civil penalties for its willful violation of the Act in refusing to
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buyback Plaintiff vehicle at the correct, statutorily mandated amount when itwas clear under the
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Act, both before and after the filing of this action, that a repurchase of the vehicle was required.
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(See Civ. Code, § 1794(c) (“If the buyer establishes that the failure to comply was willful, the
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judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty
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NM
which shall not exceed two times the amount of actual damages”); Jensen v. BMW of North
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PLAINTIFF’S TRIAL BRIEF
America, Inc. (1995) 35 Cal. App. 4th 112, 134; Kwan v. Mercedes-Benz of North America, Inc.
(1994) 23 Cal.App.4th 174, 187.) Defendant also must pay Plaintiff's legal fees and litigation
NY
expenses as provided by the Song-Beverly Act.
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D. Plaintiff Is Entitled to Prejudgment Interest
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Interest from damages that are certain or capable of being made certain accrues at the time
the right to those damages vests. (Cal. Civ. Code §3287, subd. (a).) The Song-Beverly Act
DD
provides for explicit instructions for calculating a buyer’s restitution damages. The damages could
ON
be made certain by looking to the Plaintiffs retail installment sales contract for paid or payable
amount or loan documents that establish payment history and payoff amount, as well as looking to
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the repair history to determine the firsttime in to calculate the mileage offset.
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Because the amount of damages is capable of being made certain, interest should accrue
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from the date when Plaintiff purchased the subject vehicle. To the extent this Court believes that
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the Plaintiff's damages are not certain or capable of being made certain, then prejudgment interest
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should accrue from the time the Plaintiff filed this lawsuit in October of 2016. Any person
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“entitled under any judgment to receive damages upon a cause of action in contract, where the
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claim in unliquidated, may also recover interest from a date prior to the entry of judgment as the
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court may, in itsdiscretion fix, but in no event earlier than the date the action was filed.” (Cal. Civ.
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DON
Code §3287, subd. (b).) In A&M Produce Co. V. FMC Corp., 135 Cal.App.3d 473, 496-97 (1982),
FF
the Court of Appeal listed the factors that a trialcourt should analyze when considering whether to
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award exercise its discretion to award prejudgment interest, including the amount of time that
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passed between the filing of the lawsuit and the judgment. Plaintiff has been without a proper
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remedy for well over one year now. Given the amount of time that has passed, accrual at the filing
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of the action isproper.
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The legal rate of interest for a contract is 10% per annum ifentered into after January 1,
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1986 and if no legal rate of interest is expressed in the contract, unless the action is based on a
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breach of a retail installment sales contract, then the legal rate of interest is the rate of the
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contracted finance chart. (Civil. Code § 3289, subds. (a)-(b); § 3289.5.) Here, the action is based
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on the warranty contract, which does not express an interest rate. Thus, interest accrues at 10%.
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-8-
PLAINTIFF’S TRIAL BRIEF
Ill. CONCLUSION
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In conclusion, Plaintiff will demonstrate at trial
we
that her vehicle was dangerous and
defective, that Defendant
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was offered numerous opportunities to fix the vehicle and was unable to
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do so, and that Defendant must pay penalties to the Plaintiff including FULL restitution of the
vehicle’s purchase price (as opposed to Defendant’s legally insufficient offer), prejudgment
DH
interest, incidental and consequential damages, attorney fees, and civil penalties associated with
the purchase of the subject vehicle.
ON
Plaintiff and her counsel again thank the Court and its staff for the courtesy and the
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opportunity to have this important case heard in this department.
Ss
Dated: June 12, 2019
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Respectfully submitted,
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CKLER DAGHIGHIAN MARTINO & NOVAK, P.C.
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, Esq.
,Esq.
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Attorney for’Plaintiff,
ANNA P. KING
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PLAINTIFF’S TRIAL BRIEF
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NO PROOF OF SERVICE
I am employed in the County of Los Angeles, State of California. Iam over the age of 18
and not a party to the within action. My business address is 10250 Constellation Blvd., Suite
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2500, Los Angeles, CA 90067.
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On June 12, 2019, I served the foregoing document described as:
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PLAINTIFF’S TRIAL BRIEF
That document was served on parties herein in this proceeding by placing true copies of the
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original in enclosed, sealed envelope(s) addressed as follows:
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SEE ATTACHED SERVICE LIST
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[](BY MAIL) I am “readily familiar” with the practices of HACKLER DAGHIGHIAN
MARTINO & NOVAK, P.C., in collecting and processing correspondence and documents for
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mailing. Under that practice, documents for mailing would be deposited with the US Postal
Service on that same day this affidavit is signed with postage fully prepaid at Los Angeles,
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California in the ordinary course of business. Iam aware that on motion of the party served,
WH
service is presumed invalid ifthe postal cancellation date ismore than 1-day after the day of
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deposit for mailing the affidavit. [CCP § 1013]
BP
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[] (BY OVERNIGHT
Preview
~ ORIGINAL KNIGHT LAW GROUP LLP Steve Mikhov (SBN 224676) 10250 HR Constellation Blvd., Suite 2500 Los Angeles, CA 90067 Supertor Cour LFW tofc Telephone: (310) 552-2250 Ounty of Place omnia Facsimile: (310) 552-7973 JUN 2.0 FR 2019 YH HACKLER DAGHIGHIAN dake Chatters MARTINO & NOVAK, P.C. \ghitoutive Ofticer & Clerk Sepehr Daghighian (SBN 239349) y: O.Lucatuorto, DD Deputy Kevin Y. Jacobson (SBN 320532) 10250 Constellation Blvd., Suite 2500 ON Los Angeles, CA 90067 Telephone: (310) 887-1333 Facsimile: (310) 887-1334 o Attorneys for Plaintiff, SB ANNA P. KING ep BEE SUPERIOR COURT OF CALIFORNIA ee COUNTY OF PLACER Ww ~< ey SEaA2aE ANNA P. KING, -a RB Case No.: SCV0038637 (Dept. 40) Be Plaintiff, PLAINTIFF’S TRIAL BRIEF VS. Complaint BRR Filed: October 26, 2016 CSR Trial Date: July 1, 2019 HYUNDAI MOTOR AMERICA, a California Re Corporation, and DOES 1 through 10, inclusive, NO SF Defendant. NY BSS N NHN NHN ’amwrR No N 2 -1- PLAINTIFF’S TRIAL BRIEF I. INTRODUCTION Be Plaintiff ANNA P. KING (“Plaintiff’) hereby respectfully wpe submits his Trial Brief in advance of the above referenced trial. Plaintiff and her counsel thank the Court and its staff for Ww allowing this important matter to be adjudicated BP in this Department. A. Case Summary DY This lemon law matter arises out of Plaintiffs purchase of a defective 2010 Hyundai Tucson that was plagued with issues relating to electrical system and backup camera functionality. ON Plaintiff's operative complaint alleges causes of action for violations of the Song-Beverly Oo Consumer Warranty Act (the “Act’). 1. Background Facts GS On February 19, 2010. Plaintiff purchased a new 2010 Hyundai Tucson (“Subject Ye BB Vehicle”) from Roseville Hyundai of Roseville, CA. The vehicle was manufactured and warranted eB WON by Defendant Hyundai Motor America (“HMA” or “Defendant’”) Be and the total sale price of the Subject Vehicle was approximately $32,347.84. BRB ewe When Plaintiff looked for a reliable vehicle, she relied on HMA’s brochures, advertisements, and representations and then purchased the 2010 DH ee Hyundai Tucson. However, Plaintiff's vehicle experienced significant problems that HMA was unable to correct after being given more than a reasonable number of opportunities to do so. eB ODN From September of 2011 to August of 2015, Plaintiff brought in her vehicle on BB four (4) or more separate Bb occasions for issues with her backup camera and the HVAC operation. GCG Plaintiff was left without the use of the vehicle while repairs were attempted. After each repair NY attempt, HMA’s authorized repair agents assured Plaintiff that the vehicle was fixed. Despite FB NY these numerous repair attempts to the subject vehicle, Defendant was unable to conform NY NH Plaintiff's vehicle to the applicable express and implied warranties, and the vehicle continues to NY BW underperform and/or exhibit these defects and nonconformities. In fact, on many of the repair N visits, Defendant’s authorized dealerships did very little to diagnose the problems or fix the UM NY plagued vehicle. Eventually after taking the vehicle in for issues that could not be detected and NDA NNN being constantly promised that the vehicle would now work properly, Plaintiff lost faith in Defendant and itsdealership’s ability to fix the vehicle. ea -1- PLAINTIFF’S TRIAL BRIEF NO The following is a summary of the Subject Vehicle’s complete repair history: Date Mileage | Problem (service) W 9/26/11 | 12,459 Electrical— Customer states the backup camera in operable. Fe Electrical — customer state when the iPhone is plugged into the YF DOD adaptor to listen to iTunes, it shits off when the vehicle is put into NY reverse. Oo Oo 8/10/12 | 19,560 Electrical— Customer states backup camera is stillinoperable. CO 3/25/14 | 38,030 Electrical—- Customer states backup camera is still inoperable and FP em will continue to have a fuzzy screen at times. WN ee BRB 8/3/18 57,973 Electrical— Customer states that the backup camera continues to ee intermittently black with line in the screen. UH TD Be HVAC- customer states that air conditioning is shut off, when vehicle DN BBR is tuned back on, the air conditioning isoff. 2. Plaintiff's Pre-Litigation Efforts to Resolve This Case CoO Plaintiff attempted to contact HMA for resolution of her problems. In February 2016, NO FPF Plaintiff contacted HMA via telephone and expressed her safety concerns with the vehicle. NY Although Plaintiff requested a remedy under the lemon law, and despite HMA’s legal obligation to NY WN promptly replace the new motor vehicle or promptly make restitution in accordance with the Act, NY BB HMA denied Plaintiff's request for repurchase. Accordingly, Plaintiff was forced to file this NY Lemon Law action against Defendant to compel them to comply with the its obligation under the nT NY Act by repurchasing Plaintiff's defective vehicle inthe proper amount in which Plaintiff is owed. NY onNA As discussed herein, Defendant has an affirmative duty under the consumer protective NM principles of the Song-Beverly Act to offer a repurchase or replacement to a consumer with NM 9. PLAINTIFF’S TRIAL BRIEF unrepaired defects in his or her vehicle. Defendant’s failure to offer such remedies under these circumstances constituted a clear violation of the Act. If a manufacturer cannot repair a vehicle NO within a reasonable number of attempts, it must promptly offer a repurchase or replacement of the WD vehicle. (Cal. Civ. Code, § 1793.2(d) (2).) Pursuant to California case law, a consumer is not FB required to request a repurchase or replacement of the vehicle to trigger the manufacturer’s legal Yo obligation to offer a buyback or replacement of the vehicle. Rather, the statute places an DW affirmative duty and burden on the manufacturer to monitor itswarranty repair attempts through its ON service dealerships and to promptly offer the consumer a repurchase or replacement of the vehicle when the manufacturer has failed to conform the vehicle to its warranty after a reasonable number Oo of repair attempts. (See Krotin v. Porsche Cars (1995) 38 Cal.App.4th 294, 303; Lukather v. OC SR General Motors (2010) 181 Cal.App.4th 1041; 1050.) Accordingly, even in the absence of a KF repurchase or replacement request by Plaintiff prior to the filing this action, Defendant had an Se NH affirmative legal duty to acknowledge that ithad failed to conform Plaintiff's vehicle to itsexpress WO ROOF and implied warranties. BP Il. ARGUMENT: DEFENDANT VIOLATED THE SONG-BEVERLY ACT RF DH A. Defendant Was Required to Offer Plaintiff aBuyback After It Failed to Fix Fe the Subject Vehicle Within a Reasonable Number of Repair Attempts Required by the Song-Beverly Act NY KF DW If amanufacturer fails to repair a vehicle within a reasonable number of attempts, itmust FF promptly offer a repurchase or a replacement vehicle. (Civ. Code, § 1793.2(d) (2) (emphasis WO added).) The Song-Beverly Act requires manufacturers to repair a defective vehicle within a OO NO reasonable number of attempts. The phrase “a reasonable number of attempts” means that a vehicle F&F NN was subject to more than one repair attempt. (Silvio v. Ford Motor Co. (2003) 109 Cal. App. 4" NO NY 1205.) Hence, liability may be established by showing that a vehicle has been subject to repair two NO W or more times for a “nonconformity.”! F&F NY NYO DUH NO !“Nonconformity” means adefect thatsubstantially impairs theuse, value, orsafety of avehicle to thebuyer. (Civ. NO oN Code, § 1793.22(e).) Here, the foregoing defectssubstantially impair the use, value, and safety of the vehicle. (Lundy v. FMC Motor Co. (2001) 87 Cal. App. 4" 472.) In addition, “[t]he issue of whether the problems Nm constituted substantialimpairment is one forthe trierof fact.” (Schreidel vy. American Honda Motor Co. (1995) 34 Cal. App. 4th 1242, 1250.) 3 PLAINTIFF’S TRIAL BRIEF eR Manufacturers tend to adopt the argument that the Silvio case stands for the notion that a vehicle must be subject to more than one repair for the same exact complaint. Silvio does not NYO support such a rule. Instead, that case holds that a vehicle must be presented for repair on more WO than one occasion; no mention is made, however, that the same component must be presented for F&F repair more than once. Each presentation for repair counts toward the number of repair attempts a OH manufacturer is given to repair a vehicle for purposes of determining whether a “reasonable DD number of repair attempts” were performed regardless of whether or not a problem was confirmed ON and repaired upon presentation. “Whether or not the manufacturer’s agents choose to take advantage of the opportunity, or are unable despite that opportunity to isolate and make an effort to HU repair the problem, are matters for which the consumer is not responsible.” (Oregel v. American CO Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1103-1104.) FP FF If a manufacturer fails to repair a vehicle within a reasonable number of attempts, it must NY FF promptly offer a repurchase or a replacement vehicle. The act reads in pertinent part: Ww FF FBP FP 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 HN FP Section 1793.22, to conform to the applicable express warranties after a replace DTD reasonable number of attempts, the manufacturer shall either promptly FP the new motor vehicle in accordance with subparagraph (A) or promptly make FP restitution to the buyer in accordance with subparagraph (B). However, the buyer DAN shall be free to elect restitution in lieu of replacement, and in no event shall the BF buyer be required by the manufacturer to accept a replacement vehicle. KU KF (Civ. Code, § 1793.2(d) (2) (emphasis added).) CO NO As the quoted language indicates, aconsumer does not have to serve notice of continuing FP NY problems on the manufacturer or demand relief to trigger liability. Instead, as California appellate NY NY courts have made clear, the statute unambiguously places the burden on the manufacturer to NY it W monitor its warranty repair attempts and to promptly offer the Song-Beverly Act remedies when B&F 4th 294; N fails to conform a vehicle to itswarranty. (Krotin v. Porsche Cars (1995) 38 Cal. App. NY uM Lukather v. General Motors, LLC (2010) 181 Cal. App. 4" 1041, 1050.) Likewise, a manufacturer OO NYO cannot attempt to shift the burden to the consumer by, e.g., requesting further information from the NO consumer. oN NN -4- PLAINTIFF’S TRIAL BRIEF Fe In Krotin, the manufacturer and the amici curiae argued that a consumer must demand a vehicle repurchase or replacement in order for amanufacturer to be obligated to promptly offer the DY remedy requested. (Krotin v. Porsche Cars, supra, (1995) 38 Cal.App.4"" 294 at p. 302.) They WO contended that “the manufacturer would have to become ‘clairvoyant’ with respect to BP acknowledging and responding to otherwise unknown claims by consumers.” (Ibid.) The court, DU however, ruled that “the Act does not require consumers to take any affirmative steps to secure relief’ under the Act. (Id. at pp. 302-303.) The court observed that consumer requests are NN sometimes necessary only because manufacturers fail to fulfill their obligations to repurchase OA nonconforming vehicles: Oo In reality, as indicated by the facts alleged at trialby the Krotins, the manufacturer OC 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 ep fF consumer will likely request replacement or restitution. But the consumer's NYH request isnot mandated by the Act. Rather the consumer's request is prompted by ee the manufacturer's unforthright approach and stonewalling of fundamental Bw warranty problems. ee Id. (emphasis added). DH The court also disposed of the defendant’s argument that itwould have to read minds if the Be Act was interpreted to not require notification. The court noted that “[a]n automobile Be ON manufacturer need not read minds to determine which vehicles are defective; itneed only read BB dealers’ services records.” (Jd. at 303.) The Lukather court subsequently affirmed Krotin oOo providing further support for the fact that Defendant was required to offer plaintiff a buyback in OC NO the instant case. Here, by refusing to honor Plaintiff's request for a vehicle repurchase or FEF KN replacement under the terms of the lemon law by offering Plaintiff the proper amount as dictated wWwNHN NY by the Act, Defendant clearly failed to fulfillits statutory obligations. NY B. Defendant isAlso Liable Under a Theory of Breach of Implied Warranty BRB NY Civil Code, section 1792 provides that “every sale of consumer goods that are sold atretail NY AW in this state shall be accompanied by the manufacturer’s and the retail seller’s implied warranty NY that the goods are merchantable.” (Hicks v. Superior Court (2004) 115 Cal.App.4" 77, 84-85; Civ. NO oN Code, § 1792; 15 U.S.C. § 2308.) NM -5- PLAINTIFF’S TRIAL BRIEF The plain language of Civil Code, section 1793 dictates that a manufacturer (such as Defendant) cannot disclaim the implied warranties which arise as a matter of law. Civil Code, NY section 1793 provides: W FF Except as provided in Section 1793.02, nothing in this chapter shall affect the right of the manufacturer, distributor, or retailer to make express warranties with YH respect to consumer goods. However, a manufacturer, distributor, or retailer, in DD transacting a sale in which express warranties are given, may not limit, modify, or disclaim the implied warranties guaranteed by this chapter to the sale of consumer goods. ON In the context of the Song-Beverly Act, “fitness for the ordinary purpose of a vehicle oO means that the vehicle should be in a safe condition and substantially free of defects.” (Isip v. OS Ke Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 23.) A manufacturer breaches the implied YF PF watranty of fitness for an ordinary purpose if the vehicle is not in a “safe condition and NY PF substantially free from defects.” An “attempt to define a vehicle as unfit only if itdoes not provide WOW FF transportation is an unjustified dilution of the implied warranty of merchantability.” (Id. at 27.) Fk “A vehicle that smells, lurches, clanks, and emits smoke over an extended period of time is not fit FP DUN for its intended purpose.” (Ibid.) The persistent problems with Plaintiff's vehicle amount to a FF breach of the implied warranty. KF DON C. Plaintiff Is Entitled to aBuyback and Civil Penalties FF Under the Song-Beverly Act, Plaintiff is entitled to general, special, and actual damages, HO KF rescission of the sales contract and restitution of the purchase price, diminution in value, Oo NO prejudgment interest, incidental and consequential damages, attorney fees, and civil penalties FP NY associated with the purchase of the subject vehicle. (Civ. Code, § 1793.2(d).) With regard to the NYO NO WOW remedy of restitution, the Act provides as follows: NY Fk In the case of restitution, the manufacturer shall make restitution in an amount NY equal to the actual price paid or payable by the buyer, including any charges ND U for transportation and manufacturer-installed options, but excluding nonmanufacturer items installed by a dealer or the buyer, and including any OO NO collateral charges such as sales tax, license fees, registration fees, and other official fees, plus any incidental damages to which the buyer is entitled under PhO oN Section 1794, including, but not limited to, reasonable repair, towing, and NM rental car costs actually incurred by the buyer. -6- PLAINTIFF’S TRIAL BRIEF The Song-Beverly Act also allows a prevailing consumer to recover “a sum equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended.” NYO (Civ. Code, § 1794(d).) WO F&F Moreover, the Song-Beverly Act allows for the imposition of a civil penalty when manufacturers willfully fail to comply with the act. The act reads as follows: YU DOD 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 ON civil penalty which shall not exceed two times the amount of actual damages. (Civ. Code, § 1794, subd. (c).) NU California appellate courts have held that a willful violation occurs if a jury finds that a OC manufacturer knew of its obligations and intentionally refused to fulfill them. (See Schreidel v. Fe KF American Honda Motor Co., Inc. (1995) 34 Cal. App. 4th 1242, 1249-1250.) A consumer need NY FF not prove malice or moral turpitude to recover a civil penalty. (Jd.) The purpose of the civil WO KF penalty isto deter manufacturers from refusing to comply with the act or implementing policies to F&F PF circumvent the act’s protections and remedies. (See Jensen v. BMW of North America, Inc. (1995) 35 Cal. App. 4th 112, 134.) Some of the considerations include: (1) whether the manufacturer Do FF knew that a vehicle had not been repaired after a reasonable number of repair attempts or (2) FP DON whether the manufacturer had a policy not to comply with the act. (Id.) FF In the present case, Defendant failed to conform Plaintiff's vehicle to the warranty after a DUO KF reasonable number of repair attempts during the warranty period. Plaintiff istherefore entitled to a 8CO NO repurchase of the subject vehicle under the terms and amounts provided by the Song-Beverly Act, F& NN as well as to receive all incidental and consequential damages incurred as a result of the purchase NYO NY and ownership of the vehicle. WHO NM Defendant is also subject to civil penalties for its willful violation of the Act in refusing to fF NY buyback Plaintiff vehicle at the correct, statutorily mandated amount when itwas clear under the NO WwW Act, both before and after the filing of this action, that a repurchase of the vehicle was required. OO ND (See Civ. Code, § 1794(c) (“If the buyer establishes that the failure to comply was willful, the NO judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty oN NM which shall not exceed two times the amount of actual damages”); Jensen v. BMW of North “Fm PLAINTIFF’S TRIAL BRIEF America, Inc. (1995) 35 Cal. App. 4th 112, 134; Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 187.) Defendant also must pay Plaintiff's legal fees and litigation NY expenses as provided by the Song-Beverly Act. WY D. Plaintiff Is Entitled to Prejudgment Interest & Oo Interest from damages that are certain or capable of being made certain accrues at the time the right to those damages vests. (Cal. Civ. Code §3287, subd. (a).) The Song-Beverly Act DD provides for explicit instructions for calculating a buyer’s restitution damages. The damages could ON be made certain by looking to the Plaintiffs retail installment sales contract for paid or payable amount or loan documents that establish payment history and payoff amount, as well as looking to Oo the repair history to determine the firsttime in to calculate the mileage offset. OC Fe Because the amount of damages is capable of being made certain, interest should accrue KF from the date when Plaintiff purchased the subject vehicle. To the extent this Court believes that NY the Plaintiff's damages are not certain or capable of being made certain, then prejudgment interest WOW FPF should accrue from the time the Plaintiff filed this lawsuit in October of 2016. Any person BP FP “entitled under any judgment to receive damages upon a cause of action in contract, where the RFP DUH claim in unliquidated, may also recover interest from a date prior to the entry of judgment as the Fe court may, in itsdiscretion fix, but in no event earlier than the date the action was filed.” (Cal. Civ. KF DON Code §3287, subd. (b).) In A&M Produce Co. V. FMC Corp., 135 Cal.App.3d 473, 496-97 (1982), FF the Court of Appeal listed the factors that a trialcourt should analyze when considering whether to HO KF award exercise its discretion to award prejudgment interest, including the amount of time that NO TO passed between the filing of the lawsuit and the judgment. Plaintiff has been without a proper FP NO remedy for well over one year now. Given the amount of time that has passed, accrual at the filing NY NY of the action isproper. WD ND The legal rate of interest for a contract is 10% per annum ifentered into after January 1, BP NO 1986 and if no legal rate of interest is expressed in the contract, unless the action is based on a wo ND breach of a retail installment sales contract, then the legal rate of interest is the rate of the AD NO contracted finance chart. (Civil. Code § 3289, subds. (a)-(b); § 3289.5.) Here, the action is based NO oN on the warranty contract, which does not express an interest rate. Thus, interest accrues at 10%. Nm -8- PLAINTIFF’S TRIAL BRIEF Ill. CONCLUSION Be In conclusion, Plaintiff will demonstrate at trial we that her vehicle was dangerous and defective, that Defendant W/CW was offered numerous opportunities to fix the vehicle and was unable to BP do so, and that Defendant must pay penalties to the Plaintiff including FULL restitution of the vehicle’s purchase price (as opposed to Defendant’s legally insufficient offer), prejudgment DH interest, incidental and consequential damages, attorney fees, and civil penalties associated with the purchase of the subject vehicle. ON Plaintiff and her counsel again thank the Court and its staff for the courtesy and the oO opportunity to have this important case heard in this department. Ss Dated: June 12, 2019 &HRhREBRE OS Respectfully submitted, Pe CKLER DAGHIGHIAN MARTINO & NOVAK, P.C. Pee , Esq. ,Esq. Fe Attorney for’Plaintiff, ANNA P. KING FF Fe Fe & NO & NY & NO oeoekts NBO NY NO NO uae NO > -9- PLAINTIFF’S TRIAL BRIEF e NO PROOF OF SERVICE I am employed in the County of Los Angeles, State of California. Iam over the age of 18 and not a party to the within action. My business address is 10250 Constellation Blvd., Suite WO 2500, Los Angeles, CA 90067. FB On June 12, 2019, I served the foregoing document described as: DU PLAINTIFF’S TRIAL BRIEF That document was served on parties herein in this proceeding by placing true copies of the ON original in enclosed, sealed envelope(s) addressed as follows: HU SEE ATTACHED SERVICE LIST OO Be [](BY MAIL) I am “readily familiar” with the practices of HACKLER DAGHIGHIAN MARTINO & NOVAK, P.C., in collecting and processing correspondence and documents for Be KF mailing. Under that practice, documents for mailing would be deposited with the US Postal Service on that same day this affidavit is signed with postage fully prepaid at Los Angeles, Be California in the ordinary course of business. Iam aware that on motion of the party served, WH service is presumed invalid ifthe postal cancellation date ismore than 1-day after the day of Be deposit for mailing the affidavit. [CCP § 1013] BP Be [] (BY OVERNIGHT