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Soheyl Tahsildoost (Bar No. 271294)
THETA LAW FIRM, LLP
15901 Hawthorne Blvd., Suite 270
Lawndale, CA 90260
Telephone: (424) 297-3103
Facsimile: (424) 286-2244
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Attorneys for defendant Hyundai Motor America Executly Ne
By: ML VTayiar, Mey
sD
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF PLACER
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10 ANNA P. KING, ) Case No.: S-CV-0038637
1] )
Plaintiff, ) DEFENDANT HYUNDAI MOTOR
) AMERICA’S TRIAL BRIEF
12 VS. )
) Complaint Filed: October 28, 2016
13 HYUNDAI MOTOR AMERICA, a ) Trial Date: July 1,2019
California Corporation, and DOES 1 )
14 through 10, inclusive, )
15 )
Defendants. )
16 )
)
17 )
)
18 1. INTRODUCTION
19 This is a Lemon Law case brought by Plaintiff Anna King owner of a 2010 Hyundai
20 Tucson purchased from Roseville Hyundai on or about February 19, 2010. Plaintiff filed the
21 instant lemon law claim seeking restitution and civil penalties even though she had never had
22 any substantial problems with the car. Starting in 2011, Plaintiff complained about the car’s
23 backup camera being inoperative at times (problem never verified), the music stops when
24 backing up (normal condition of vehicle and only reported once), and in 2015 that the A/C did
25 not work (this issue was reported after the 5 year/60,000 mile warranty expired).
26 These lemon law cases are allabout plaintiff's counsel running up fees and rolling the
27 dice for a big pay day at trial. In order to protect itself from runaway attorney’s fees and to stop
28 unnecessary and prolonged litigation HMA offered via CCP 998 to Plaintiff atotal of $37,106.38
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plus attorney’s fees and costs — this, for a vehicle that cost $26,428. Plaintiff declined.
Iii. STATEMENT OF FACTS
A. Subject Vehicle
The 2010 Hyundai Tucson was purchased for $26,428, plus tax, license, and fees. Ithad
a 5 year/60,000-mile New Vehicle Limited Warranty and 10 year/100,000-mile Powertrain
Warranty. Hyundai’s Digital Navigation System (also referred to as the vehicle’s “head unit”,
“infotainment system”, or “AVN”, which includes a screen that will display, among other things,
the back-up camera) is under a 3 year/36,000 mile warranty.
Plaintiff drove their car about 72,000 miles until 2016, when they received a letter in the
10 mail from the ubiquitous Knight Law Group. Plaintiff then called Hyundai Motor America
11 suddenly, following Knight’s script, and demanding the car be bought back. To date the vehicle
12 has over 98,000 miles.
13 B. Relevant Warranty History
14 Over the course of this vehicle’s now near-100,000-mile history, the only warrantable
15 concerns that Plaintiff presented for repair to Hyundai dealers during the warranty period are (1)
16 Backup Camera Inoperable (problem never verified), (2) Music stops when backing up (normal
17 condition of vehicle) (3) A/C control unit isfaulty (outside of warranty). The only concern
18 presented more than one time was for the backup camera. Below is a summary of service visits
19 for each of the above issues:
20 Plaintiff first reported that the backup camera is inoperative on September 23, 2011
21 (12,459 miles). The dealership ran several diagnostic tests,scanned for trouble codes in all
22 modules. After performing allof these tests,the dealership never found a problem. On August
23 10, 2012 (19,560 miles), nearly a year afterthe firstcomplaint, Plaintiff complained that the
24 back-up camera was inoperative at times. Technicians at the dealership escalated the matter to
25 Hyundai’s Tech Line. Tech Line advised that the AVN unit has to re-boot when the vehicle is
26 started, if vehicle isput into reverse before the re-boot has completed, the backup camera will be
27 inoperable, Plaintiff was advised of this. On March 3,2014 (38,030 miles) and on August 1,
28 2015 (57,973 miles), while the AVN was already out of warranty, Plaintiff complained that the
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backup camera would not work again. Despite the AVN already being out of warranty,
technicians atthe dealership took a look and could not duplicate plaintiff's concern on both
occasions. There was also a complaint that the music stops when backing up, however this was a
normal safety condition of the vehicle.
C. Calls to Hyundai
On January 11, 2016, Plaintiff called HMA. She stated she thought her vehicle was a
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lemon and wanted her money back. HMA made several attempts to contact the Plaintiff.
Eventually, after speaking with the Plaintiff and gathering records from the dealerships, HMA
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evaluated the claim and determined that the vehicle did not qualify for a buyback.
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On February 18, 2016, HMA’s Western Region department contacted the Plaintiff to
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11 inform her that HMA had denied the buyback request, but referred Plaintiff to the qualified third-
12 party dispute resolution program offered by HMA through the Better Business Bureau. Plaintiff,
13 likely on the advice of counsel, declined to pursue this free dispute resolution process, despite
14 the fact that it would cost Plaintiff nothing and that itwas not binding on Plaintiff, but binding on
15 HMA.
16 D. Subject Lawsuit
17 On October 28, 2016, Plaintiff filed this action asserting causes of action for violations of
18 the Song-Beverly Consumer Warranty Act against HMA. On January 15, 2019, HMA’s Motion
19 for Summary Adjudication as to the implied warranty claim made by Plaintiff in Plaintiff's First
20 Amended Complaint was granted. Itshould be noted that before filing this lawsuit, Plaintiff
21 never undertook arbitration with HMA's state certified BBB Auto Line Arbitration program. At
22 the outset of the instant litigation, HMA’s counsel requested that Knight Law Group provide a
23 settlement demand. Plaintiffs’ counsel did not respond.
24 i.Buyback Calculation
25 In order to evaluate the maximum worth of the case, it ishelpful to look at the buyback
26 calculation for the subject vehicle. Here, a statutory buyback would be at most the following:
27 +$4,000 down
28 +$28,347.84 (72 x $393.72 payments)
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-$2,741.46 (based on the following formula 12,459 miles — 11 miles at purchase +
120,000 miles x $26,428 purchase price—this assumes the jury will find the first
substantially impairing defect was the “backup camera” concern reported for the first
time at 12,459 miles)
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=$32,347.84 total to Plaintiff
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+Reasonably incurred attorney’s fees, costs, and expenses.
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ii.Settlement Discussions To Date
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On March 1,2017, HMA served a Code of Civil Procedure Section 998 offer for
$5,000.00, and for each side to bear their own respective costs and attorney’s fees. Plaintiff did
10 not accept this offer and did not provide a counter demand.
11 On May 26, 2017, HMA served a second Code of Civil Procedure Section 998 offer for a
12 statutory buyback, or alternatively $37,106.38, plus fees by motion (nearly five thousand dollars
13 more than the statutory buyback figures outlined above). Plaintiff did not accept this offer and
14 did not provide a counter demand until two years later.
15 On February 28, 2019, Plaintiff served a Code of Civil Procedure Section 998 offer for
16 $91,454.66 in exchange for a surrender of the vehicle, plus fees and costs by agreement or
17 motion. This offer amounts to more than the maximum this Plaintiff can recover ifthis case were
18 to proceed to trial.
19 On May 6, 2019, Plaintiff served the same Code of Civil Procedure Section 998 offer as
20 on February 28, 2019. Again, Plaintiffs offer amounts to more than the maximum this Plaintiff
21 can recover if this case were to proceed to trial.
22 The parties attended a mandatory settlement conference on June 14, 2019. At the
23 conference, Plaintiff again demanded more than the maximum allowable by law even ifPlaintiff
24 was to recover a statutory buyback and a double civil penalty. The matter did not settle.
25 Tl. ANALYSIS
26 A. Applicable Law
27 The California Song-Beverly Consumer Warranty Act atCiv. Code § 1793.2(d)(2)
28 provides, inpertinent part: “if the manufacturer or itsrepresentative in this state is unable to
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service or repair a new motor vehicle .. . toconform to the applicable express warranties after a
reasonable number of attempts, the manufacturer shall either promptly replace the new motor
vehicle .. .or promptly make restitution to the buyer. . .”
Under the Act, Plaintiffs have to prove allof the following:
1. The vehicle had a non-conformity covered by the express warranty that substantially
impaired the use, value or safety of the vehicle (applying an objective test to determine
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whether a reasonable person would understand there to be a defect).
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2. The vehicle was presented to an authorized representative of the manufacturer of the
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vehicle for repair.
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3. The manufacturer or his representative did not repair the non-conformity after a
1 reasonable number of repair attempts.
12 (Civ. Code § 1793.2; Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 886 887.)
13 A complaint is not a defect. A technical service bulletin is not an admission of a defect,
14 because technical service bulletins are routinely issued to dealers to help diagnose and repair
15 typical complaints. (American Honda Motor Co. v. Superior Court (2011) 199 Cal.App.4th
16 1367, 1378.) As our Supreme Court has pointed out: "Even a vehicle with a defect is not
17 necessarily a lemon. A 'nonconformity' requiring the vehicle's refund or replacement under our
18 law must "substantially impair[] the use, value, or safety of the new motor vehicle." (Civ. Code,
19 § 1793.22, subd. (e)(1).) Not every customer complaint about a new car, or even every valid
20 customer complaint, rises to that level. And customers and manufacturers frequently disagree
21 about whether a defect has been repaired or a reasonable number of attempts have been made."
22 (Johnson v. Ford Motor Co. (2005) 35 Cal.4th 1191, 1211.)
23 A prevailing plaintiff can be awarded restitution or a replacement vehicle, plus collateral
24 charges and incidental damages, which includes reasonable repair, towing and rental car costs
25 actually incurred by the consumer, and attorney’s fees. However, the award isreduced by the
26 amount attributable to the plaintiff's use of the vehicle prior to the first visitwhere the vehicle
27 was presented to the manufacturer for repair of the non-conformity.
28 In addition, in the case of a “willful” violation, a plaintiff may also be able to recover a
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statutory penalty in the amount of no more than two times the actual damages. A willful
violation might be demonstrated where a manufacturer fails to buy a vehicle back after Plaintiff
demands a repurchase from the manufacturer, and the manufacturer either (1) fails to respond,
(2) denies the request when the vehicle qualifies for abuyback. In rare instances, aconsumer
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may be able to pursue a civil penalty which is akin to punitive damages. In order for a jury to
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even consider a civilpenalty, the plaintiff must first show that they were entitled to a repurchase.
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Then, plaintiff must establish that HMA knew plaintiff was entitled to that repurchase, knew it
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had an obligation to repurchase the vehicle and purposefully and willfully failed to repurchase
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the car. Just failing to offer a repurchase is not enough; there needs to be knowledge of the
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obligation in this specific case and a willful failure to follow those obligations in this case.
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B. Application of Law to Instant Action
12 Plaintiff's only warrantable repeat concerns was a never verified complaint of the backup
13 camera being inoperable. The concern was never verified, letalone not repaired within a
14 reasonable number of repair attempts. The camera was repeatedly found to be operating as
15 designed. At the litigation inspection performed in this matter, the camera was put through
16 multiple repeat tests and functioned exactly as designed each time. Moreover, even ifthis issue
17 wasn’t resolved, an extremely infrequent (or non-existent) issue with a backup camera does not
18 substantially impair use, value, or safety. A year or more passed between each time that the
19 Plaintiff had any complaints at all. All of Plaintiff's other concerns were resolved in one repair
20 attempt or were not warrantable concerns atall. For the problems complained of by the Plaintiff,
21 the dealership, followed the appropriate diagnostic procedure, and then identified and resolved
22 the concerns promptly when warrantable.
23 C. Specific CACI And Other Jury Instruction Issues
24 1. Misuse Of CACI 3202’s “Two Opportunities” Instruction
25 HMA objects to CACI 3202's last sentence which reads "[Name of defendant] must have
26 been given at least two opportunities to fix the [consumer good/new motor vehicle]..." That
27 sentence ismeant to provide Defendant with the protection of Silvio v. Ford Motor Co. (2003)
28 109 Cal.App.4"" 1205, 1208, which holds that a vehicle which has an alleged nonconformity
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presented just once can never qualify for repurchase under Civil Code Section 1793.2(d).
Unfortunately, this instruction has often been cited out of context in closing argument as the
litmus test after which a vehicle qualifies for repurchase. In other words, Plaintiffs through their
counsel may argue that after just the second repair in August of 2012, the subject vehicle
qualified for repurchase. But there is no such absolute threshold. To allow this instruction and
misleading argument about it would be wrong. In a case where the statutory presumption does
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not apply, this instruction is the only one that provides a number for the reasonable number of
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opportunities and in combination with plaintiff's counsel misleading arguments that two visits is
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the only requirement to receive a buyback, itunfairly and incorrectly leads the jury to believe
10 that two visits is enough. Even the statutory rebuttable presumption, contained in Civil Code
HW Section 1793.22(e), if read, provides greater protection to Defendant than this instruction as it
12 requires a consumer to have undergone arbitration and/or contacted the manufacturer in writing
13 before itcould apply. Assuming CACI 3202 isgiven, the lastsentence should be stricken.
14 2. CACTI 3241 Misstates The Mileage Offset
15 HMA objects to the portion of CACI 3241 which states the statutory mileage offset
16 should be set at the "time when [name of plaintiff] firstdelivered it to [name of defendant] or its
17 authorized repair facility to fix the defect." That is not the law.
18 Civil Code Section 1793.2(d)(2)(C) says the offset should be set at the first visit"for
19 correction of the problem that gave rise to the nonconformity." Civil Code Section
20 1793.22(e)(1) defines "nonconformity" as "a nonconformity which substantially impairs use,
21 value or safety of the new motor vehicle to the buyer or lessee."
22 So, our statutory scheme makes it clear that it'sthe first visitfor a substantially impairing
23 nonconformity that establishes the mileage offset, not the firstvisit or any problem or defect.
24 The language of CACI 3241 must be changed to reflect the statute. So, too, should any special
25 verdict form discussing the mileage offset. Otherwise, any complaint, no matter how minor,
26 could be used to minimize the statutory offset, in contravention of the Legislature’s intent.
27 /Il
28 /It
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IV. CONCLUSION
HMA contends that this isa case for a vehicle where no issues were found and there is
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not a condition which substantially impairs the use, value or safety of the subject vehicle and that
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Plaintiff isnot entitled to any relief in this action. HMA appreciates this Court’s review of this
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brief and looks forward to trying this case before this Court.
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Dated: June 21, 2019 THETA LAW FIRM, LLP
HD
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SOHEYL TAHSILDOOST
Attomeys for defendant Hyundai Motor America
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PROOF OF SERVICE
(Code Civ. Proc., § 1013a(3) Revised 5-1-88)
I am over the age of 18, not a party to this action, and employed in the county where this mailing
occurred. My business address is 15901 Hawthorne Blvd., Suite 270, Lawndale, CA 90260. On
June 21, 2019, I served the following documents described as DEFENDANT HYUNDAI
MOTOR AMERICA’S TRIAL BRIEF on interested parties in this action by placing
original/true copies thereof in sealed envelopes addressed as follows:
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Steve Mikhov Sepehr Daghighian
Amy Morse Hackler Daghighian Martino & Novak
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Knight Law Group LLP 10250 Constellation Blvd Ste. 2500
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10250 Constellation Blvd Ste. 2500 Los Angeles, CA 90067
Los Angeles, CA 90067 (310) 552-2250 Phone
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(310) 552-2250 Phone (310) 552-7973 Fax
(310) 552-7973 Fax
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Xx BY MAIL: I deposited such envelope in the mail at Lawndale, California. The envelope
was mailed with proper postage thereon fully prepaid. Iam "readily familiar" with the firm's
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practice of collection and processing correspondence for mailing. Said mailing is deposited with
the United States Postal Service on that same day in the ordinary course of business and there is
delivery service by United States mail at the place so addressed. Iam aware that on motion of
1] the party served, service is presumed invalid if postal cancellation date or postage meter date is
more than one day after date of deposit for mailing in affidavit.
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x] BY PERSONAL SERVICE: I delivered such envelope by hand to the individual(s) listed
13 on the above service list.
14 LC] BY ELECTRONIC TRANSMISSION: I caused to be electronically transmitted such
document referenced above to the individual(s) listed on the above service list.
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CI BY FACSIMILE TRANSMISSION: I transmitted the facsimile to the individual(s)
16 listed on the above service listat the facsimile number listed thereon. The telephone number on
the facsimile machine I used is (424) 286-2244. The facsimile machine I used complied with
17 Rule 2.306 and no error was reported by the machine. Pursuant to Rule 2.306, I caused the
machine to print a transmission record of the transmission, a copy of which is attached to this
18 declaration.
19 CJ BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package
provided by an overnight delivery carrier and addressed to the person at the above-address. I
20 placed the envelope or package for collection and overnight delivery at an office or a regularly
utilized drop box of the overnight delivery carrier.
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I declare under penalty of perjury under the laws of the State of California that the above
22 is true and correct. Executed on June 21, 2019 at Lawndale, California.
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Steven Correa
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Preview
Soheyl Tahsildoost (Bar No. 271294) THETA LAW FIRM, LLP 15901 Hawthorne Blvd., Suite 270 Lawndale, CA 90260 Telephone: (424) 297-3103 Facsimile: (424) 286-2244 Ww Attorneys for defendant Hyundai Motor America Executly Ne By: ML VTayiar, Mey sD SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF PLACER oe 10 ANNA P. KING, ) Case No.: S-CV-0038637 1] ) Plaintiff, ) DEFENDANT HYUNDAI MOTOR ) AMERICA’S TRIAL BRIEF 12 VS. ) ) Complaint Filed: October 28, 2016 13 HYUNDAI MOTOR AMERICA, a ) Trial Date: July 1,2019 California Corporation, and DOES 1 ) 14 through 10, inclusive, ) 15 ) Defendants. ) 16 ) ) 17 ) ) 18 1. INTRODUCTION 19 This is a Lemon Law case brought by Plaintiff Anna King owner of a 2010 Hyundai 20 Tucson purchased from Roseville Hyundai on or about February 19, 2010. Plaintiff filed the 21 instant lemon law claim seeking restitution and civil penalties even though she had never had 22 any substantial problems with the car. Starting in 2011, Plaintiff complained about the car’s 23 backup camera being inoperative at times (problem never verified), the music stops when 24 backing up (normal condition of vehicle and only reported once), and in 2015 that the A/C did 25 not work (this issue was reported after the 5 year/60,000 mile warranty expired). 26 These lemon law cases are allabout plaintiff's counsel running up fees and rolling the 27 dice for a big pay day at trial. In order to protect itself from runaway attorney’s fees and to stop 28 unnecessary and prolonged litigation HMA offered via CCP 998 to Plaintiff atotal of $37,106.38 M:AAKING, ANNA\TRIAL\TRIAL DOCUMENTS\TRIBRFO1.DOCX 1 DEFENDANT HYUNDAI MOTOR AMERICA’S TRIAL BRIEF plus attorney’s fees and costs — this, for a vehicle that cost $26,428. Plaintiff declined. Iii. STATEMENT OF FACTS A. Subject Vehicle The 2010 Hyundai Tucson was purchased for $26,428, plus tax, license, and fees. Ithad a 5 year/60,000-mile New Vehicle Limited Warranty and 10 year/100,000-mile Powertrain Warranty. Hyundai’s Digital Navigation System (also referred to as the vehicle’s “head unit”, “infotainment system”, or “AVN”, which includes a screen that will display, among other things, the back-up camera) is under a 3 year/36,000 mile warranty. Plaintiff drove their car about 72,000 miles until 2016, when they received a letter in the 10 mail from the ubiquitous Knight Law Group. Plaintiff then called Hyundai Motor America 11 suddenly, following Knight’s script, and demanding the car be bought back. To date the vehicle 12 has over 98,000 miles. 13 B. Relevant Warranty History 14 Over the course of this vehicle’s now near-100,000-mile history, the only warrantable 15 concerns that Plaintiff presented for repair to Hyundai dealers during the warranty period are (1) 16 Backup Camera Inoperable (problem never verified), (2) Music stops when backing up (normal 17 condition of vehicle) (3) A/C control unit isfaulty (outside of warranty). The only concern 18 presented more than one time was for the backup camera. Below is a summary of service visits 19 for each of the above issues: 20 Plaintiff first reported that the backup camera is inoperative on September 23, 2011 21 (12,459 miles). The dealership ran several diagnostic tests,scanned for trouble codes in all 22 modules. After performing allof these tests,the dealership never found a problem. On August 23 10, 2012 (19,560 miles), nearly a year afterthe firstcomplaint, Plaintiff complained that the 24 back-up camera was inoperative at times. Technicians at the dealership escalated the matter to 25 Hyundai’s Tech Line. Tech Line advised that the AVN unit has to re-boot when the vehicle is 26 started, if vehicle isput into reverse before the re-boot has completed, the backup camera will be 27 inoperable, Plaintiff was advised of this. On March 3,2014 (38,030 miles) and on August 1, 28 2015 (57,973 miles), while the AVN was already out of warranty, Plaintiff complained that the M:\KING, ANNA\TRIAL\TRIAL DOCUMENTS\TRIBRFO!.DOCX 2 DEFENDANT HYUNDAI MOTOR AMERICA’S TRIAL BRIEF backup camera would not work again. Despite the AVN already being out of warranty, technicians atthe dealership took a look and could not duplicate plaintiff's concern on both occasions. There was also a complaint that the music stops when backing up, however this was a normal safety condition of the vehicle. C. Calls to Hyundai On January 11, 2016, Plaintiff called HMA. She stated she thought her vehicle was a ND lemon and wanted her money back. HMA made several attempts to contact the Plaintiff. Eventually, after speaking with the Plaintiff and gathering records from the dealerships, HMA Oo evaluated the claim and determined that the vehicle did not qualify for a buyback. oO On February 18, 2016, HMA’s Western Region department contacted the Plaintiff to oO — 11 inform her that HMA had denied the buyback request, but referred Plaintiff to the qualified third- 12 party dispute resolution program offered by HMA through the Better Business Bureau. Plaintiff, 13 likely on the advice of counsel, declined to pursue this free dispute resolution process, despite 14 the fact that it would cost Plaintiff nothing and that itwas not binding on Plaintiff, but binding on 15 HMA. 16 D. Subject Lawsuit 17 On October 28, 2016, Plaintiff filed this action asserting causes of action for violations of 18 the Song-Beverly Consumer Warranty Act against HMA. On January 15, 2019, HMA’s Motion 19 for Summary Adjudication as to the implied warranty claim made by Plaintiff in Plaintiff's First 20 Amended Complaint was granted. Itshould be noted that before filing this lawsuit, Plaintiff 21 never undertook arbitration with HMA's state certified BBB Auto Line Arbitration program. At 22 the outset of the instant litigation, HMA’s counsel requested that Knight Law Group provide a 23 settlement demand. Plaintiffs’ counsel did not respond. 24 i.Buyback Calculation 25 In order to evaluate the maximum worth of the case, it ishelpful to look at the buyback 26 calculation for the subject vehicle. Here, a statutory buyback would be at most the following: 27 +$4,000 down 28 +$28,347.84 (72 x $393.72 payments) MAKING, ANNA\TRIAL\TRIAL DOCUMENTS\TRIBRFO!.DOCX 3 DEFENDANT HYUNDAI MOTOR AMERICA’S TRIAL BRIEF -$2,741.46 (based on the following formula 12,459 miles — 11 miles at purchase + 120,000 miles x $26,428 purchase price—this assumes the jury will find the first substantially impairing defect was the “backup camera” concern reported for the first time at 12,459 miles) B =$32,347.84 total to Plaintiff WNW +Reasonably incurred attorney’s fees, costs, and expenses. DN ii.Settlement Discussions To Date I On March 1,2017, HMA served a Code of Civil Procedure Section 998 offer for $5,000.00, and for each side to bear their own respective costs and attorney’s fees. Plaintiff did 10 not accept this offer and did not provide a counter demand. 11 On May 26, 2017, HMA served a second Code of Civil Procedure Section 998 offer for a 12 statutory buyback, or alternatively $37,106.38, plus fees by motion (nearly five thousand dollars 13 more than the statutory buyback figures outlined above). Plaintiff did not accept this offer and 14 did not provide a counter demand until two years later. 15 On February 28, 2019, Plaintiff served a Code of Civil Procedure Section 998 offer for 16 $91,454.66 in exchange for a surrender of the vehicle, plus fees and costs by agreement or 17 motion. This offer amounts to more than the maximum this Plaintiff can recover ifthis case were 18 to proceed to trial. 19 On May 6, 2019, Plaintiff served the same Code of Civil Procedure Section 998 offer as 20 on February 28, 2019. Again, Plaintiffs offer amounts to more than the maximum this Plaintiff 21 can recover if this case were to proceed to trial. 22 The parties attended a mandatory settlement conference on June 14, 2019. At the 23 conference, Plaintiff again demanded more than the maximum allowable by law even ifPlaintiff 24 was to recover a statutory buyback and a double civil penalty. The matter did not settle. 25 Tl. ANALYSIS 26 A. Applicable Law 27 The California Song-Beverly Consumer Warranty Act atCiv. Code § 1793.2(d)(2) 28 provides, inpertinent part: “if the manufacturer or itsrepresentative in this state is unable to M:\KING, ANNA\TRIAL\TRIAL DOCUMENTS\TRIBRFO1.DOCX 4 DEFENDANT HYUNDAI MOTOR AMERICA’S TRIAL BRIEF service or repair a new motor vehicle .. . toconform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle .. .or promptly make restitution to the buyer. . .” Under the Act, Plaintiffs have to prove allof the following: 1. The vehicle had a non-conformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (applying an objective test to determine DD whether a reasonable person would understand there to be a defect). SN 2. The vehicle was presented to an authorized representative of the manufacturer of the Se vehicle for repair. oO 3. The manufacturer or his representative did not repair the non-conformity after a 1 reasonable number of repair attempts. 12 (Civ. Code § 1793.2; Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 886 887.) 13 A complaint is not a defect. A technical service bulletin is not an admission of a defect, 14 because technical service bulletins are routinely issued to dealers to help diagnose and repair 15 typical complaints. (American Honda Motor Co. v. Superior Court (2011) 199 Cal.App.4th 16 1367, 1378.) As our Supreme Court has pointed out: "Even a vehicle with a defect is not 17 necessarily a lemon. A 'nonconformity' requiring the vehicle's refund or replacement under our 18 law must "substantially impair[] the use, value, or safety of the new motor vehicle." (Civ. Code, 19 § 1793.22, subd. (e)(1).) Not every customer complaint about a new car, or even every valid 20 customer complaint, rises to that level. And customers and manufacturers frequently disagree 21 about whether a defect has been repaired or a reasonable number of attempts have been made." 22 (Johnson v. Ford Motor Co. (2005) 35 Cal.4th 1191, 1211.) 23 A prevailing plaintiff can be awarded restitution or a replacement vehicle, plus collateral 24 charges and incidental damages, which includes reasonable repair, towing and rental car costs 25 actually incurred by the consumer, and attorney’s fees. However, the award isreduced by the 26 amount attributable to the plaintiff's use of the vehicle prior to the first visitwhere the vehicle 27 was presented to the manufacturer for repair of the non-conformity. 28 In addition, in the case of a “willful” violation, a plaintiff may also be able to recover a M:KING, ANNA\TRIAL\TRIAL DOCUMENTS\TRIBRFO1.DOCX 5 DEFENDANT HYUNDAI MOTOR AMERICA’S TRIAL BRIEF statutory penalty in the amount of no more than two times the actual damages. A willful violation might be demonstrated where a manufacturer fails to buy a vehicle back after Plaintiff demands a repurchase from the manufacturer, and the manufacturer either (1) fails to respond, (2) denies the request when the vehicle qualifies for abuyback. In rare instances, aconsumer fF may be able to pursue a civil penalty which is akin to punitive damages. In order for a jury to AN even consider a civilpenalty, the plaintiff must first show that they were entitled to a repurchase. NH Then, plaintiff must establish that HMA knew plaintiff was entitled to that repurchase, knew it NN had an obligation to repurchase the vehicle and purposefully and willfully failed to repurchase CO the car. Just failing to offer a repurchase is not enough; there needs to be knowledge of the Oo obligation in this specific case and a willful failure to follow those obligations in this case. —_ Oo B. Application of Law to Instant Action 12 Plaintiff's only warrantable repeat concerns was a never verified complaint of the backup 13 camera being inoperable. The concern was never verified, letalone not repaired within a 14 reasonable number of repair attempts. The camera was repeatedly found to be operating as 15 designed. At the litigation inspection performed in this matter, the camera was put through 16 multiple repeat tests and functioned exactly as designed each time. Moreover, even ifthis issue 17 wasn’t resolved, an extremely infrequent (or non-existent) issue with a backup camera does not 18 substantially impair use, value, or safety. A year or more passed between each time that the 19 Plaintiff had any complaints at all. All of Plaintiff's other concerns were resolved in one repair 20 attempt or were not warrantable concerns atall. For the problems complained of by the Plaintiff, 21 the dealership, followed the appropriate diagnostic procedure, and then identified and resolved 22 the concerns promptly when warrantable. 23 C. Specific CACI And Other Jury Instruction Issues 24 1. Misuse Of CACI 3202’s “Two Opportunities” Instruction 25 HMA objects to CACI 3202's last sentence which reads "[Name of defendant] must have 26 been given at least two opportunities to fix the [consumer good/new motor vehicle]..." That 27 sentence ismeant to provide Defendant with the protection of Silvio v. Ford Motor Co. (2003) 28 109 Cal.App.4"" 1205, 1208, which holds that a vehicle which has an alleged nonconformity MAKING, ANNA\TRIAL\FRIAL DOCUMENTS\TRIBRFO1.DOCX 6 DEFENDANT HYUNDAI MOTOR AMERICA’S TRIAL BRIEF presented just once can never qualify for repurchase under Civil Code Section 1793.2(d). Unfortunately, this instruction has often been cited out of context in closing argument as the litmus test after which a vehicle qualifies for repurchase. In other words, Plaintiffs through their counsel may argue that after just the second repair in August of 2012, the subject vehicle qualified for repurchase. But there is no such absolute threshold. To allow this instruction and misleading argument about it would be wrong. In a case where the statutory presumption does N not apply, this instruction is the only one that provides a number for the reasonable number of “s opportunities and in combination with plaintiff's counsel misleading arguments that two visits is Co the only requirement to receive a buyback, itunfairly and incorrectly leads the jury to believe 10 that two visits is enough. Even the statutory rebuttable presumption, contained in Civil Code HW Section 1793.22(e), if read, provides greater protection to Defendant than this instruction as it 12 requires a consumer to have undergone arbitration and/or contacted the manufacturer in writing 13 before itcould apply. Assuming CACI 3202 isgiven, the lastsentence should be stricken. 14 2. CACTI 3241 Misstates The Mileage Offset 15 HMA objects to the portion of CACI 3241 which states the statutory mileage offset 16 should be set at the "time when [name of plaintiff] firstdelivered it to [name of defendant] or its 17 authorized repair facility to fix the defect." That is not the law. 18 Civil Code Section 1793.2(d)(2)(C) says the offset should be set at the first visit"for 19 correction of the problem that gave rise to the nonconformity." Civil Code Section 20 1793.22(e)(1) defines "nonconformity" as "a nonconformity which substantially impairs use, 21 value or safety of the new motor vehicle to the buyer or lessee." 22 So, our statutory scheme makes it clear that it'sthe first visitfor a substantially impairing 23 nonconformity that establishes the mileage offset, not the firstvisit or any problem or defect. 24 The language of CACI 3241 must be changed to reflect the statute. So, too, should any special 25 verdict form discussing the mileage offset. Otherwise, any complaint, no matter how minor, 26 could be used to minimize the statutory offset, in contravention of the Legislature’s intent. 27 /Il 28 /It M:\KING, ANNA\TRIAL\TRIAL DOCUMENTS\TRIBRFO!.DOCX 7 DEFENDANT HYUNDAI MOTOR AMERICA’S TRIAL BRIEF IV. CONCLUSION HMA contends that this isa case for a vehicle where no issues were found and there is WN not a condition which substantially impairs the use, value or safety of the subject vehicle and that WY Plaintiff isnot entitled to any relief in this action. HMA appreciates this Court’s review of this FSF brief and looks forward to trying this case before this Court. WO Dated: June 21, 2019 THETA LAW FIRM, LLP HD SI Ce SOHEYL TAHSILDOOST Attomeys for defendant Hyundai Motor America 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MAKING,ANNA\TRIAL\MILS\TO FILE\TRIBRFO1.DOCX 8 DEFENDANT HYUNDAI MOTOR AMERICA’S TRIAL BRIEF PROOF OF SERVICE (Code Civ. Proc., § 1013a(3) Revised 5-1-88) I am over the age of 18, not a party to this action, and employed in the county where this mailing occurred. My business address is 15901 Hawthorne Blvd., Suite 270, Lawndale, CA 90260. On June 21, 2019, I served the following documents described as DEFENDANT HYUNDAI MOTOR AMERICA’S TRIAL BRIEF on interested parties in this action by placing original/true copies thereof in sealed envelopes addressed as follows: fF Steve Mikhov Sepehr Daghighian Amy Morse Hackler Daghighian Martino & Novak WN Knight Law Group LLP 10250 Constellation Blvd Ste. 2500 DB 10250 Constellation Blvd Ste. 2500 Los Angeles, CA 90067 Los Angeles, CA 90067 (310) 552-2250 Phone SS (310) 552-2250 Phone (310) 552-7973 Fax (310) 552-7973 Fax eS Xx BY MAIL: I deposited such envelope in the mail at Lawndale, California. The envelope was mailed with proper postage thereon fully prepaid. Iam "readily familiar" with the firm's o practice of collection and processing correspondence for mailing. Said mailing is deposited with the United States Postal Service on that same day in the ordinary course of business and there is delivery service by United States mail at the place so addressed. Iam aware that on motion of 1] the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 12 x] BY PERSONAL SERVICE: I delivered such envelope by hand to the individual(s) listed 13 on the above service list. 14 LC] BY ELECTRONIC TRANSMISSION: I caused to be electronically transmitted such document referenced above to the individual(s) listed on the above service list. 15 CI BY FACSIMILE TRANSMISSION: I transmitted the facsimile to the individual(s) 16 listed on the above service listat the facsimile number listed thereon. The telephone number on the facsimile machine I used is (424) 286-2244. The facsimile machine I used complied with 17 Rule 2.306 and no error was reported by the machine. Pursuant to Rule 2.306, I caused the machine to print a transmission record of the transmission, a copy of which is attached to this 18 declaration. 19 CJ BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the person at the above-address. I 20 placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. 21 I declare under penalty of perjury under the laws of the State of California that the above 22 is true and correct. Executed on June 21, 2019 at Lawndale, California. 23 24 Steven Correa 25 26 27 28 MAKING,ANNA\TRIAL\MILS\TO FILE\TRIBRFO1.DOCX 9 DEFENDANT HYUNDAI MOTOR AMERICA’S TRIAL BRIEF