Preview
Electronically FILED by Superior Court of California, County of Los Angeles on 01/11/2021 12:00 AM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk
1 BOWMAN AND BROOKE LLP
Michael J. Hurvitz (SBN: 249050)
2 D. Tucker Dowling (SBN: 301800)
750 B Street, Suite 2200
3 San Diego, CA 92101
Telephone No.: (619) 376-2500
4 Facsimile No.: (619) 376-2501
Michael.Hurvitz@bowmanandbrooke.com
5 Tucker.Dowling@bowmanandbrooke.com
6 Attorneys for Defendant, KIA MOTORS AMERICA, INC.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF LOS ANGELES – STANLEY MOSK COURTHOUSE
10 AURELIO CAVAZOS JR., ) CASE NO.: 20STCV06840
)
11 Plaintiff, ) Assigned to: Hon. Gregory W. Alarcon
) Department: 36
12 vs.
)
DEFENDANT KIA MOTORS AMERICA, INC.’S REPLY
KIA MOTORS AMERICA, INC.; and DOES 1 ) TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE
13 )
through 10, inclusive, PORTIONS OF PLAINTIFF’S SECOND AMENDED
14 ) COMPLAINT
Defendants. )
15 ) Date: January 15, 2021
Time: 8:30 a.m.
16 Dept.: 36
17 RES. ID: 469388046704
18 Action Filed: February 18, 2020
Trial: None
19
20
21 TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD:
22 Defendant Kia Motors America, Inc. (“KMA”) hereby submits its brief in Reply to Plaintiff’s Opposition to KMA’s
23 Motion to Strike portions of Plaintiff’sSecond Amended Complaint. (hereinafter the “Complaint or “SAC”).
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PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 23230888v1
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1 I. INTRODUCTION
2 As set forth in its opening brief, KMA moves to strike Plaintiff’s prayer for punitive damages, civil penalties,and
3 related allegations from the operative Second Amended Complaint (“SAC”) on the grounds that (a) Plaintiffis not
4 entitled to a right to relief or statutory remedies under the Song-Beverly Act; (b) punitive damages are not recoverable
5 in this actionas a matter of law;(c) civil penalties are not recoverable in this action as a matter of law; (d) allegations
6 “on information and belief” do not satisfy the factual pleading requirements for fraud claims, statutorily-based causes
7 of action, or punitive damages under or Civil Code section 3294; and (d) Plaintiff’s SAC fails to plead any viable cause
8 of action justifying punitive damages and fails to plead specific facts establishing conduct or circumstances of malice,
9 oppression, or fraud by KMA.
10 Opposition wholly fails to refute the points and authorities in support of KMA’s Motion. First, even if
Plaintiff’s
11 this Court determines that Plaintiff’sSong-Beverly claims survive KMA’s concurrently filed Demurrer, Plaintiff alleges
12 no facts tending to show that, if KMA violated the Song-Beverly Act, it did so “willful[ly],” which is a required element of
13 a claim for civil penalties under the Act. (See Civ. Code § 1794(c).). Second, Plaintiff’s Song-Beverly claims do not
14 support a prayer for punitive damages. Third, as set forth in KMA's concurrently filed Demurrer, Plaintiff’s
fraud
15 allegations fail on their face for multiple reasons: they lack requisite factual specificity; they fail to establish that an officer,
16 director or managing agent of KMA authorized, ratified or personally engaged in any oppressive, malicious or
17 fraudulent conduct; and they are barred by the statute of limitations and by the economic loss rule. Similarly, as directly
18 pertinent to the instant motion, Plaintiff failed to plead facts showing that KMA acted with “Oppression, Fraud or Malice”
19 as necessary to justify punitive damages under Civil Code section 3294
20 Accordingly, this Court should grant KMA’s motion to strike, as outlined herein, pursuant to Code of Civil
21 Procedure section 436(b), without leave to amend.
22 A. Plaintiff’s SAC Does Not Support a Punitive Damages Request.
23 KMA’s motion to strike is based upon the well settled principle that punitive damages are never awarded as a
24 matter of right and are only awarded in the clearest of cases, i.e., when there is proof of “malice of fact” beyond mere
25 speculation. (Henderson v. Security Pacific National Bank (1977) 72 Cal. App.3d 764, 140 Cal. Rpt. 388.)
26 The rule of “liberal construction” of pleadings does not apply to a punitive damages claim. (G.D. Searle & Co.
27 v. Superior Court (1975) 49 Cal. App. 3d 22, 29 [“Notwithstanding relaxed pleading criteria,certain tortious injuries
28 demand firm allegations. Vague, conclusory allegations ... may not be rescued by the rule of liberal construction.”]
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30 DEFENDANT KIA MOTORS AMERICA, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE
PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 23230888v1
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1 (emphasis added).)
2 Instead, to survive a motion to strike a claim for punitive damages, a plaintiffmust plead the specific facts
3 showing entitlement to such relief. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1254; Grieves v. Superior
4 Court (1984) 157 Cal.App.3d 159, 166; Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 962-63.) To that end,
5 the plaintiffmust allege specific facts sufficient to bring the request for punitive damages within, the purview of Civil
6 Code § 3294, which provides: “[i]n an action for the breach of an obligation not arising from contract, where it is proven
7 by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff,
in
8 addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”
9 (Civil Code § 3294(a).)
10 Not only must there be circumstances of malice, oppression, or fraud, but the pleading must allege specific
11 facts sufficientto support such a claim. (Grieves, 125 Cal.App.3d at 166; G.D. Searle & Co. v. Superior Court (1975)
12 49 Cal.App.3d 22, 29.) The particularity requirement for pleading punitive damages necessitates pleading facts that
13 show “how, when, where, to whom, and by what means” the alleged “punitive conduct” arose. (See e.g. Lazar v. Sup.
14 Ct. (1996) 12 Cal.4th 631, 645; Robinson Helicopter Co., Inc. v. Dana Corporation (2004) 34 Cal.4th 979, 993.)
15 “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive
16 damages; not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the
17 pleading to support such a claim.” (Grieves, supra, 157 Cal.App.3d at 166.) When facts supporting oppression, fraud,
18 or malice have not been properly alleged in the complaint, the trial court should grant the motion to strike. (Id. at 168;
19 see also, Brousseau v. Jarrett, supra, 73 Cal.App.3d 864, at 872 (conclusory characterization of defendant’s conduct
20 as intentional, willful and fraudulent “is a patently insufficient statement of ‘oppression, fraud, or malice, express or
21 implied,’ within the meaning of section 3294”); Cyrus v. Haveson, 65 Cal. App. 3d 306, 316-17 (1976) [facts
22 demonstrating oppression, fraud or malice must be alleged]; G.D. Searle & Co., 49 Cal. App. 3d at 29 [“When
23 nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or
24 unlawful do not support a claim for exemplary damages . . . .”]; Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894-95
25 [conclusory averments of malice, oppression and willfulness insufficient to support an award of punitive damages].)
26 Based on this authority, as discussed below, Plaintiff’srequest for punitive damages should be stricken as
27 unsupported, improper, and contrary to the laws of California.
28 B. Plaintiff’s Factually Devoid Fraud Claim Fails to Allege Facts Showing that KMA Acted with
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30 DEFENDANT KIA MOTORS AMERICA, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE
PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 23230888v1
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1 “Oppression, Fraud or Malice.”
2 According to the Complaint, KMA committed fraud by “allowing the Subject Vehicle to be sold to Plaintiff
3 without disclosing that the Subject Vehicle and its 2.4L GDI engine was defective and susceptible to sudden and
4 catastrophic failure.”(SAC ¶ 112.) Yet Plaintiff’sconclusory allegations of “fraud” omit key information—the “how,
5 when, where, to whom, and by what means” the purported fraud occurred. (See Stansfield v. Starkey, 220 Cal. App.
6 3d 59, 73, 269 (Ct. App. 1990) citing Roberts v. Ball, Hunt, Hart, Brown & Baerwitz, 128 Cal.Rptr. 901).) The absence
7 of these critical facts is fatal not only to Plaintiff’s fraud cause of action, but also to the corresponding prayer for punitive
8 damages because Plaintiff
has not alleged that an officer, director or managing agent of KMA authorized, ratified or
9 personally engaged in any oppressive, malicious or fraudulent conduct, as required by Civil Code section 3294(b).
10 Plaintiff’s Opposition fails to address this dispositive authority altogether.
11 Indeed, Plaintiff’s fraud claim relies exclusively on boilerplate allegations affecting a broadly defined class of
12 “all Kia Vehicles,” out-of-context portions of KMA’s general advertising materials, and anonymous statements by third
13 party dealerships and repair — none of which are actionable
facilities or attributable to KMA. These allegations are
14 demonstrably insufficient even under the most liberal pleading standards.
15 For example, Plaintiffdoes not plead with any degree of specificity which advertisements, television
16 commercials, or service bulletins they relied upon in purchasing the Subject Vehicle. Merely alleging that KMA omitted
17 certain facts about an alleged engine defect in its general advertisements to unknown audience is insufficient to
18 establish (1) knowledge of a particular defect in a particular vehicle, (2) a particularomission by KMA, or (3) intent to
19 conceal this particular knowledge from this particular Plaintiff.(See, Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18,
20 30 [“something more than nonperformance is required to prove the defendant's intent not to perform his promise”].)
21 Moreover, even if the allegations in the Complaint are taken at face value, both KMA’s general advertising materials
22 and Plaintiff’sinteractions with unidentified third-party dealerships, which the Complaint characterizes as statements
23 concealing material facts about an Engine Defect, amount to nothing more than standard sales “puffery” that courts
24 have repeatedly held to be non-actionable. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 111 [statements of opinion, or
25 “puffing,” are non-actionable]; Schonfeld v. City of Vallejo (1975) 50 Cal.App.3d 401, 412 [a fraud claim cannot be
26 based on “sales talk”].)
27 Plaintiff likewise failed to allege any direct contact with KMA (as distinct fromthe dealer) prior to purchasing the
28 Subject Vehicle where the alleged omissions regarding the defect at issue should or could have been revealed.
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30 DEFENDANT KIA MOTORS AMERICA, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE
PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 23230888v1
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1 Representations of employees at a dealership are not representations of an agent of KMA itself. (Mel Clayton Ford v.
2 Ford Motor Co. (2002) 104 Cal.App.4th 46, 49.) Still,
to the extent Plaintiff claims to have relied on representations,
3 misstatements, or omissions by KMA's "network of dealers" throughout the course of warranty repairs, it is Plaintiff’s
4 burden to prove agency such that statements of a purported agent may be attributed to a purported principal.
5 (D'Acquisto v. Evola (1949) 90 Cal.App.2d 210, 213.) (See, D‘Acquisto v. Evola (1949) 90 Cal.App.2d 210, 213.) A
6 California corporation, such as KMA, is liable for punitive damages only if “those who managed its general affairs,
7 engaged in the requisite oppression, fraud or malice.” (White v. Ultramar (1999) 21 Cal.4th 563, 569 [“we believe the
8 Legislature intended ... to limitcorporate punitive damage liabilityto those employees who exercise substantial
9 independent authority and judgment over decisions that ultimately determine corporate policy” (internal citation
10 omitted)].) To that end, Plaintiff’s agency allegations are again demonstrably insufficient. First, the Complaint fails to
11 identify the particularname or location of the selling or repairing dealerships, the dates of the repairs, or the identity of
12 the individual(s) that made representations about the Subject Vehicle at the time of sale or service upon which Plaintiff
13 relied. Second, the Complaint fails to plead the content of the alleged third-party representations about the Subject
14 Vehicle, the capacity and authority of the unnamed individual(s) to make representations on behalf of KMA, or their
15 intent to deceive Plaintiffin making any such representations. Third, and perhaps most notably, the Complaint offers
16 no facts to establish or even suggest that KMA authorized or directed Plaintiff’sseller or repair facilitiesto make
17 representations about the Subject Vehicle.
18 seeks to attribute third-party representations to KMA, without pleading the basic “how, when,
In short, Plaintiff
19 where, to whom, and by what means” of the purported fraud. Such pure speculation and unreasoned conclusions
20 neither satisfy Plaintiff’s
burden of pleading and proving agency nor support a finding of malice, oppression or fraud
21 against KMA. Accordingly, Plaintiff’s prayer for punitive damages (and related conclusory allegations) must be stricken
22 from the operative Complaint.
23 C. Plaintiff’s Sixth and Seventh Causes of Action Fail to State Facts Sufficient to Establish a
24 Viable Cause of Action, Are Time-Barred, and Are Barred by the Economic Loss Rule and Therefore
25 Cannot Support a Claim for Punitive Damages.
26 KMA hereby incorporates the arguments set forth in its concurrently filed Demurrer as if fully set for herein. If
27 Plaintiff’s underlying fraud and CLRA causes of action fails for any reason, including insufficiency (or lack of specificity)
28 of allegations, statute of limitations,
or the Economic Loss rule, then the corresponding punitive damage claim must be
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30 DEFENDANT KIA MOTORS AMERICA, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE
PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 23230888v1
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1 stricken per Stafford v. Shultz, supra, 42 Cal.2d 767, 782. Therefore, Plaintiff’s prayer for punitive damages, which may
2 not be imposed, should be stricken from Plaintiff’s Complaint.
3 D. Plaintiff Cannot Recover Punitive Damages Under Song-Beverly
4 Punitive damages are not available under Song-Beverly, as damages are limited to a refund of the purchase
5 price paid and payable or replacement of the subject vehicle and a potential award of a Civil Penalty in an amount not
6 to exceed two times Plaintiff’s actual damages. (See Civ. Code, § 1794.)
7 The entirety of the statute’s language with respect to the damages for willful failure to comply reads:
8 Ifthe buyer establishes that the failure to comply was willful,the judgment may
include, in addition to the amounts recovered under subdivision (a), a civil penalty
9 which shall not exceed two times the amount of actual damages. This subdivision
shall not apply in any class action under Section 382 of the Code of Civil Procedure
10 or under Section 1781, or with respect to a claim based solely on a breach of an
implied warranty. Civil Code § 1794(c).
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12 These are the only non-compensatory damages addressed and therefore, the only ones available. The
13 balance of the statutory language does not get Plaintiff closer to a statutory basis upon which punitive damages could
14 be based. It lists—with specificity—all of the reliefavailable: replacement or reimbursement (id. § 1794(b)); cost of
15 repairs (id.§ 1794(b(2)); costs and expenses (id. § 1794(d)); and attorneys’ fees (id. § 1794(e)(1). Following the
16 statutory interpretation canon of expressio unius est exclusio alterius-”the express mention of one thing excludes all
17 others,” California courts consider the plain meaning of statutes and the Legislature’s intent to include or exclude
18 statutory language. Here, the plain statutory language of CivilCode section 1794 precludes Plaintiff’sprayer for
19 additional non-compensatory damages not explicitly authorized by the Legislature.
20 To that end, California courts have determined that recovery of both a civil penalty and punitive damages
21 constitutes a double recovery and, as such, a prayer for punitive damages in a complaint requesting both civil penalties
22 and punitive damages must be stricken:
23 “We are of the opinion that had the Legislature, by Civil Code section 3294 (permitting
punitive damages) and 1794 (permitting a civil penalty), intended a double recovery
24 of punitive and penal damages for the same willful,
oppressive, malicious, and
oppressive acts, it would in some appropriate manner have said so. And we believe
25 that by seeking a ‘civil penalty’ and also attorney's fees and all reasonable expenses
as allowed by Civil Code section 1794, plaintiff had in effect elected to waive punitive
26 damages under section 3294. [Plaintiff] the judgment's punitive damage award must
accordingly be stricken.”
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(Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228.)
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1 The California Supreme Court relied upon that canon in Imperial Merch. Servs., Inc. v. Hunt. In that case, the
2 Court concluded “the Legislature expressly designated specific damage remedies while omitting others, such as
3 prejudgment interest, [to] reflect[] that it intended the prescribed remedies to be exclusive.” (Imperial Merch. Servs.,
4 Inc. v. Hunt (2009) 47 Cal.4th 381, 390.) This reasoning applies with the same force here. That punitive damages are
5 not expressly included among the available remedies under Song-Beverly reflects a deliberate legislative choice, not
6 an oversight.
7 Further, Plaintiffrepresents that California courts “repeatedly held that the Song-Beverly Act […] provides for
8 recovery of punitive damages in cases of willful breach.” (See Opposition, page 5, citing Romo v. FFG Ins. Co. (C.D.
9 Cal. 2005) 397 F.Supp.2d 1237, 1240, Brilliant v. TiffinMotor Homes, Inc., No. C 09-04568 SI, 2010 WL 2721531
10 (N.D. Cal. July 7, 2010), and Clark v. LG Electronics U.S.A., No. 13-CV-485 JM (JMA), 2013 WL 5816410 (S.D. Cal.
11 Oct. 29, 2013).) This unsupported conclusion mischaracterizes relevant law. Indeed, not one of the cases cited by
12 Plaintiffcomes close to such a sweeping conclusion.
13 First, the line of cases cited by Plaintiff originate froma federal district court order -- Romo v. FFG Ins. Co. (C.D.
14 Cal. 2005) 397 F.Supp.2d 1237, 1240 -- which focused only on whether a claim for civil penalty satisfies the amount
15 in controversy for purposes of evaluating federal jurisdiction. (Id. at 1240.) The Romo court stated that civil penalties,
16 those “two times the amount of actual damages,” are “akin to punitive damages and ought to be treated the same for
17 the purposes of this analysis.” The Romo court concluded “[W]hen [] civil damages authorized by the Song-Beverly
18 Act are combined with the actual damages alleged, the composite sum satisfies the Magnuson-Moss jurisdictional
19 requirement.” In this case, “akin to” necessarily implies a basic comparison between statutory civil penalties, which are
20 limited to two times the amount of actual damages, and common law punitive damages.
21 The other cases Plaintiff refers to simply reiterate the holding in Romo, albeit sometimes imprecisely. In Brilliant
22 v. Tiffin Motor Homes, Inc., No. C 09-04568 SI, 2010 WL 2721531 (N.D. Cal. July 7, 2010), the court evaluated whether
23 Song-Beverly remedies generally are available in a Magnuson-Moss lawsuit. In passing, the court referred to the
24 availabilityof “punitive damages.” The court’s citation to Romo, however, makes clear it is referencing civil penalties.
25 Regardless, the citation is incidental to the court’s conclusion, which has nothing to do with punitive damages or civil
26 penalties. Rather, itis about whether the plaintiffsin that case could seek a refund or replacement. (Id. at *3
27 (“Defendant’s motion for summary judgment as to Plaintiff’srequest for a refund or replacement is therefore
28 DENIED.”).)
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1 Likewise, in Clark v. LG Electronics U.S.A., No. 13-CV-485 JM (JMA), 2013 WL 5816410 (S.D. Cal. Oct. 29,
2 2013), the Court was not considering whether punitive damages were available. Instead, the Court was evaluating
3 whether the defendant’s attempted disclaimer of various implied warranties was enforceable. Because Song-Beverly
4 permitted various categories of damages (including civil penalties,akin to punitive damages), the court decided that
5 those damages could not be waived. (Id. at *14.)
6 In sum, the statute explicitly and exhaustively identifies the nature and character of damages available under
7 Song-Beverly – punitive damages are not on that Thus, to the extent Plaintiff’s
list. prayer for punitive damages is
8 based on Song-Beverly, it must be stricken.
9 E. Plaintiff’s Conclusory Averments of Willfulness are Insufficient to Support an Award of Civil
10 Penalties
11 Plaintiff’s
Opposition contends that the SAC sufficiently alleges that KMA “willfully violated the Song-Beverly
12 Act. (Opposition, pp. 5: 15 -- 17, citing SAC ¶¶ 91, 98, 101, 105.) However, paragraphs 91, 98, 101, and 105 merely
13 parrot the statutory language on Civil Code section 1794, reaching (unfounded) pure legal conclusions. None of these
14 pleading paragraphs contain even a hint of case-specific factual allegations. None of these pleading paragraphs
15 describe the factual basis for Plaintiff’sbare legal conclusion that KMA knew of a particular engine defect in these
16 Plaintiff’s
vehicle. Or that KMA knew of the associated safety consequences and actively and intentionally concealed
17 this knowledge from this Plaintiff.Conclusory characterizations of a defendant’s conduct as intentional, willful and
18 fraudulent “is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied.’” (Brousseau v.
19 Jarrett, supra, 73 Cal.App.3d 864, at 872.)
20 Further, Plaintifffailed to allege facts establishing that KMA knew of its obligations to repurchase this vehicle
21 and willfullyfailed to do so. When determining whether the manufacturer’s failure to replace or repurchase was willful,
22 the jury needs to know whether the manufacturer was aware of consumer’s desire to have the vehicle repurchased.
23 (Kwan, supra, 23 Cal.App.4th at 185.) It is a generally accepted axiom that willfulness requires that “the person knows
24 what he is doing, intends to do what he is doing, and is a free agent.” (Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d
25 878, 895.) Here, Plaintiff alleges no facts indicating whether, when, and by what means KMA became aware that
26 Plaintiff possessed an allegedly nonconforming vehicle and desired to have it repurchased or replaced. Indeed, Plaintiff
27 does not allege any facts in the Complaint indicating that Plaintiffrequested a repurchase before filing this lawsuit, or
28 that KMA denied any such request. Thus, even if this Court determines that Plaintiff’s
Song-Beverly claims survive
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30 DEFENDANT KIA MOTORS AMERICA, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE
PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 23230888v1
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1 KMA’s concurrently filed Demurrer, Plaintiff’s
prayer for civil penalties under Song-Beverly may be properly stricken
2 because these claims are incapable of supporting any prayer for such relief.
3 IV. CONCLUSION
4 For the reasons stated in its Motion to Strike and above, KMA requests the Court grant its motion to strike
5 portions of Plaintiff’s Second Amended Complaint.
6 DATED: January 8, 2021 BOWMAN AND BROOKE LLP
7 By: ______________________________
Michael J. Hurvitz
8 D. Tucker Dowling
Attorneys for Defendant
9 KIA MOTORS AMERICA, INC.
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POS-050/EFS-050
ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NO:301800 FOR COURT USE ONLY
NAME: D. Tucker Dowling
FIRM NAME: BOWMAN AND BROOKE LLP
STREET ADDRESS: 750 B Street, Suite 2200
CITY: San Diego STATE: CA ZIP CODE: 92101
TELEPHONE NO.: 619-376-2500 619-376-2501
FAX NO. :
tucker.dowling@bowmanandbrooke.com
E-MAIL ADDRESS:
Defendant, KIA MOTORS AMERICA, INC.
ATTORNEY FOR (name):
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
STREET ADDRESS: 111 North Hill Street
MAILING ADDRESS:111 North Hill Street
CITY AND ZIP CODE:Los Angeles, CA 90012
BRANCH NAME: Stanley Mosk Courthouse CASE NUMBER:
20STCV06840
PLAINTIFF/PETITIONER: AURELIO CAVAZOS JR.
DEFENDANT/RESPONDENT: KIA MOTORS AMERICA, INC. JUDICIAL OFFICER:
Hon. Gregory W. Alarcon
DEPARTMENT:
PROOF OF ELECTRONIC SERVICE 36
1. I am at least 18 years old.
a. My residence or business address is (specify):
750 B St., Suite 2200 San Diego, CA 92101.
b. My electronic service address is (specify):
tucker.dowling@bowmanandbrooke.com
2. I electronically served the following documents (exact titles):
DEFENDANT KIA MOTORS AMERICA, INC.'S REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF’S SECOND AMENDED
COMPLAINT; DEFENDANT KIA MOTORS AMERICA, INC.'S REPLY IN SUPPORT OF MOTION TO STRIKE PORTIONS OF
PLAINTIFF’S SECOND AMENDED COMPLAINT; DECLARATION OF D. TUCKER DOWLING
The documents served are listed in an attachment. (Form POS-050(D)/EFS-050(D) may be used for this purpose.)
3. I electronically served the documents listed in 2 as follows:
a. Name of person served: Tionna Dolin, Esq.; Strategic Legal Practices, APC
On behalf of (name or names of parties represented, if person served is an attorney):
Plaintiff AURELIO CAVAZOS JR.
b. Electronic service address of person served :
todlin@slpattorney.com; emailservices@slpattorney.com
c. On (date): January 8, 2021
The documents listed in item 2 were served electronically on the persons and in the manner described in an attachment.
(Form POS-050(P)/EFS-050(P) may be used for this purpose.)
Date: January 8, 2021
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
D. Tucker Dowling
(TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT)
Page 1 of 1
Form Approved for Optional Use
Judicial Council of California
PROOF OF ELECTRONIC SERVICE Cal. Rules of Court, rule 2.251
www.courts.ca.gov
POS-050/EFS-050 [Rev. February 1, 2017] (Proof of Service/Electronic Filing and Service)
Preview
Electronically FILED by Superior Court of California, County of Los Angeles on 01/11/2021 12:00 AM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk 1 BOWMAN AND BROOKE LLP Michael J. Hurvitz (SBN: 249050) 2 D. Tucker Dowling (SBN: 301800) 750 B Street, Suite 2200 3 San Diego, CA 92101 Telephone No.: (619) 376-2500 4 Facsimile No.: (619) 376-2501 Michael.Hurvitz@bowmanandbrooke.com 5 Tucker.Dowling@bowmanandbrooke.com 6 Attorneys for Defendant, KIA MOTORS AMERICA, INC. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF LOS ANGELES – STANLEY MOSK COURTHOUSE 10 AURELIO CAVAZOS JR., ) CASE NO.: 20STCV06840 ) 11 Plaintiff, ) Assigned to: Hon. Gregory W. Alarcon ) Department: 36 12 vs. ) DEFENDANT KIA MOTORS AMERICA, INC.’S REPLY KIA MOTORS AMERICA, INC.; and DOES 1 ) TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE 13 ) through 10, inclusive, PORTIONS OF PLAINTIFF’S SECOND AMENDED 14 ) COMPLAINT Defendants. ) 15 ) Date: January 15, 2021 Time: 8:30 a.m. 16 Dept.: 36 17 RES. ID: 469388046704 18 Action Filed: February 18, 2020 Trial: None 19 20 21 TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD: 22 Defendant Kia Motors America, Inc. (“KMA”) hereby submits its brief in Reply to Plaintiff’s Opposition to KMA’s 23 Motion to Strike portions of Plaintiff’sSecond Amended Complaint. (hereinafter the “Complaint or “SAC”). 24 25 26 27 28 29 30 DEFENDANT KIA MOTORS AMERICA, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 23230888v1 31 1 I. INTRODUCTION 2 As set forth in its opening brief, KMA moves to strike Plaintiff’s prayer for punitive damages, civil penalties,and 3 related allegations from the operative Second Amended Complaint (“SAC”) on the grounds that (a) Plaintiffis not 4 entitled to a right to relief or statutory remedies under the Song-Beverly Act; (b) punitive damages are not recoverable 5 in this actionas a matter of law;(c) civil penalties are not recoverable in this action as a matter of law; (d) allegations 6 “on information and belief” do not satisfy the factual pleading requirements for fraud claims, statutorily-based causes 7 of action, or punitive damages under or Civil Code section 3294; and (d) Plaintiff’s SAC fails to plead any viable cause 8 of action justifying punitive damages and fails to plead specific facts establishing conduct or circumstances of malice, 9 oppression, or fraud by KMA. 10 Opposition wholly fails to refute the points and authorities in support of KMA’s Motion. First, even if Plaintiff’s 11 this Court determines that Plaintiff’sSong-Beverly claims survive KMA’s concurrently filed Demurrer, Plaintiff alleges 12 no facts tending to show that, if KMA violated the Song-Beverly Act, it did so “willful[ly],” which is a required element of 13 a claim for civil penalties under the Act. (See Civ. Code § 1794(c).). Second, Plaintiff’s Song-Beverly claims do not 14 support a prayer for punitive damages. Third, as set forth in KMA's concurrently filed Demurrer, Plaintiff’s fraud 15 allegations fail on their face for multiple reasons: they lack requisite factual specificity; they fail to establish that an officer, 16 director or managing agent of KMA authorized, ratified or personally engaged in any oppressive, malicious or 17 fraudulent conduct; and they are barred by the statute of limitations and by the economic loss rule. Similarly, as directly 18 pertinent to the instant motion, Plaintiff failed to plead facts showing that KMA acted with “Oppression, Fraud or Malice” 19 as necessary to justify punitive damages under Civil Code section 3294 20 Accordingly, this Court should grant KMA’s motion to strike, as outlined herein, pursuant to Code of Civil 21 Procedure section 436(b), without leave to amend. 22 A. Plaintiff’s SAC Does Not Support a Punitive Damages Request. 23 KMA’s motion to strike is based upon the well settled principle that punitive damages are never awarded as a 24 matter of right and are only awarded in the clearest of cases, i.e., when there is proof of “malice of fact” beyond mere 25 speculation. (Henderson v. Security Pacific National Bank (1977) 72 Cal. App.3d 764, 140 Cal. Rpt. 388.) 26 The rule of “liberal construction” of pleadings does not apply to a punitive damages claim. (G.D. Searle & Co. 27 v. Superior Court (1975) 49 Cal. App. 3d 22, 29 [“Notwithstanding relaxed pleading criteria,certain tortious injuries 28 demand firm allegations. Vague, conclusory allegations ... may not be rescued by the rule of liberal construction.”] 29 30 DEFENDANT KIA MOTORS AMERICA, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 23230888v1 31 1 (emphasis added).) 2 Instead, to survive a motion to strike a claim for punitive damages, a plaintiffmust plead the specific facts 3 showing entitlement to such relief. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1254; Grieves v. Superior 4 Court (1984) 157 Cal.App.3d 159, 166; Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 962-63.) To that end, 5 the plaintiffmust allege specific facts sufficient to bring the request for punitive damages within, the purview of Civil 6 Code § 3294, which provides: “[i]n an action for the breach of an obligation not arising from contract, where it is proven 7 by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in 8 addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” 9 (Civil Code § 3294(a).) 10 Not only must there be circumstances of malice, oppression, or fraud, but the pleading must allege specific 11 facts sufficientto support such a claim. (Grieves, 125 Cal.App.3d at 166; G.D. Searle & Co. v. Superior Court (1975) 12 49 Cal.App.3d 22, 29.) The particularity requirement for pleading punitive damages necessitates pleading facts that 13 show “how, when, where, to whom, and by what means” the alleged “punitive conduct” arose. (See e.g. Lazar v. Sup. 14 Ct. (1996) 12 Cal.4th 631, 645; Robinson Helicopter Co., Inc. v. Dana Corporation (2004) 34 Cal.4th 979, 993.) 15 “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive 16 damages; not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the 17 pleading to support such a claim.” (Grieves, supra, 157 Cal.App.3d at 166.) When facts supporting oppression, fraud, 18 or malice have not been properly alleged in the complaint, the trial court should grant the motion to strike. (Id. at 168; 19 see also, Brousseau v. Jarrett, supra, 73 Cal.App.3d 864, at 872 (conclusory characterization of defendant’s conduct 20 as intentional, willful and fraudulent “is a patently insufficient statement of ‘oppression, fraud, or malice, express or 21 implied,’ within the meaning of section 3294”); Cyrus v. Haveson, 65 Cal. App. 3d 306, 316-17 (1976) [facts 22 demonstrating oppression, fraud or malice must be alleged]; G.D. Searle & Co., 49 Cal. App. 3d at 29 [“When 23 nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or 24 unlawful do not support a claim for exemplary damages . . . .”]; Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894-95 25 [conclusory averments of malice, oppression and willfulness insufficient to support an award of punitive damages].) 26 Based on this authority, as discussed below, Plaintiff’srequest for punitive damages should be stricken as 27 unsupported, improper, and contrary to the laws of California. 28 B. Plaintiff’s Factually Devoid Fraud Claim Fails to Allege Facts Showing that KMA Acted with 29 30 DEFENDANT KIA MOTORS AMERICA, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 23230888v1 31 1 “Oppression, Fraud or Malice.” 2 According to the Complaint, KMA committed fraud by “allowing the Subject Vehicle to be sold to Plaintiff 3 without disclosing that the Subject Vehicle and its 2.4L GDI engine was defective and susceptible to sudden and 4 catastrophic failure.”(SAC ¶ 112.) Yet Plaintiff’sconclusory allegations of “fraud” omit key information—the “how, 5 when, where, to whom, and by what means” the purported fraud occurred. (See Stansfield v. Starkey, 220 Cal. App. 6 3d 59, 73, 269 (Ct. App. 1990) citing Roberts v. Ball, Hunt, Hart, Brown & Baerwitz, 128 Cal.Rptr. 901).) The absence 7 of these critical facts is fatal not only to Plaintiff’s fraud cause of action, but also to the corresponding prayer for punitive 8 damages because Plaintiff has not alleged that an officer, director or managing agent of KMA authorized, ratified or 9 personally engaged in any oppressive, malicious or fraudulent conduct, as required by Civil Code section 3294(b). 10 Plaintiff’s Opposition fails to address this dispositive authority altogether. 11 Indeed, Plaintiff’s fraud claim relies exclusively on boilerplate allegations affecting a broadly defined class of 12 “all Kia Vehicles,” out-of-context portions of KMA’s general advertising materials, and anonymous statements by third 13 party dealerships and repair — none of which are actionable facilities or attributable to KMA. These allegations are 14 demonstrably insufficient even under the most liberal pleading standards. 15 For example, Plaintiffdoes not plead with any degree of specificity which advertisements, television 16 commercials, or service bulletins they relied upon in purchasing the Subject Vehicle. Merely alleging that KMA omitted 17 certain facts about an alleged engine defect in its general advertisements to unknown audience is insufficient to 18 establish (1) knowledge of a particular defect in a particular vehicle, (2) a particularomission by KMA, or (3) intent to 19 conceal this particular knowledge from this particular Plaintiff.(See, Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 20 30 [“something more than nonperformance is required to prove the defendant's intent not to perform his promise”].) 21 Moreover, even if the allegations in the Complaint are taken at face value, both KMA’s general advertising materials 22 and Plaintiff’sinteractions with unidentified third-party dealerships, which the Complaint characterizes as statements 23 concealing material facts about an Engine Defect, amount to nothing more than standard sales “puffery” that courts 24 have repeatedly held to be non-actionable. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 111 [statements of opinion, or 25 “puffing,” are non-actionable]; Schonfeld v. City of Vallejo (1975) 50 Cal.App.3d 401, 412 [a fraud claim cannot be 26 based on “sales talk”].) 27 Plaintiff likewise failed to allege any direct contact with KMA (as distinct fromthe dealer) prior to purchasing the 28 Subject Vehicle where the alleged omissions regarding the defect at issue should or could have been revealed. 29 30 DEFENDANT KIA MOTORS AMERICA, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 23230888v1 31 1 Representations of employees at a dealership are not representations of an agent of KMA itself. (Mel Clayton Ford v. 2 Ford Motor Co. (2002) 104 Cal.App.4th 46, 49.) Still, to the extent Plaintiff claims to have relied on representations, 3 misstatements, or omissions by KMA's "network of dealers" throughout the course of warranty repairs, it is Plaintiff’s 4 burden to prove agency such that statements of a purported agent may be attributed to a purported principal. 5 (D'Acquisto v. Evola (1949) 90 Cal.App.2d 210, 213.) (See, D‘Acquisto v. Evola (1949) 90 Cal.App.2d 210, 213.) A 6 California corporation, such as KMA, is liable for punitive damages only if “those who managed its general affairs, 7 engaged in the requisite oppression, fraud or malice.” (White v. Ultramar (1999) 21 Cal.4th 563, 569 [“we believe the 8 Legislature intended ... to limitcorporate punitive damage liabilityto those employees who exercise substantial 9 independent authority and judgment over decisions that ultimately determine corporate policy” (internal citation 10 omitted)].) To that end, Plaintiff’s agency allegations are again demonstrably insufficient. First, the Complaint fails to 11 identify the particularname or location of the selling or repairing dealerships, the dates of the repairs, or the identity of 12 the individual(s) that made representations about the Subject Vehicle at the time of sale or service upon which Plaintiff 13 relied. Second, the Complaint fails to plead the content of the alleged third-party representations about the Subject 14 Vehicle, the capacity and authority of the unnamed individual(s) to make representations on behalf of KMA, or their 15 intent to deceive Plaintiffin making any such representations. Third, and perhaps most notably, the Complaint offers 16 no facts to establish or even suggest that KMA authorized or directed Plaintiff’sseller or repair facilitiesto make 17 representations about the Subject Vehicle. 18 seeks to attribute third-party representations to KMA, without pleading the basic “how, when, In short, Plaintiff 19 where, to whom, and by what means” of the purported fraud. Such pure speculation and unreasoned conclusions 20 neither satisfy Plaintiff’s burden of pleading and proving agency nor support a finding of malice, oppression or fraud 21 against KMA. Accordingly, Plaintiff’s prayer for punitive damages (and related conclusory allegations) must be stricken 22 from the operative Complaint. 23 C. Plaintiff’s Sixth and Seventh Causes of Action Fail to State Facts Sufficient to Establish a 24 Viable Cause of Action, Are Time-Barred, and Are Barred by the Economic Loss Rule and Therefore 25 Cannot Support a Claim for Punitive Damages. 26 KMA hereby incorporates the arguments set forth in its concurrently filed Demurrer as if fully set for herein. If 27 Plaintiff’s underlying fraud and CLRA causes of action fails for any reason, including insufficiency (or lack of specificity) 28 of allegations, statute of limitations, or the Economic Loss rule, then the corresponding punitive damage claim must be 29 30 DEFENDANT KIA MOTORS AMERICA, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 23230888v1 31 1 stricken per Stafford v. Shultz, supra, 42 Cal.2d 767, 782. Therefore, Plaintiff’s prayer for punitive damages, which may 2 not be imposed, should be stricken from Plaintiff’s Complaint. 3 D. Plaintiff Cannot Recover Punitive Damages Under Song-Beverly 4 Punitive damages are not available under Song-Beverly, as damages are limited to a refund of the purchase 5 price paid and payable or replacement of the subject vehicle and a potential award of a Civil Penalty in an amount not 6 to exceed two times Plaintiff’s actual damages. (See Civ. Code, § 1794.) 7 The entirety of the statute’s language with respect to the damages for willful failure to comply reads: 8 Ifthe buyer establishes that the failure to comply was willful,the judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty 9 which shall not exceed two times the amount of actual damages. This subdivision shall not apply in any class action under Section 382 of the Code of Civil Procedure 10 or under Section 1781, or with respect to a claim based solely on a breach of an implied warranty. Civil Code § 1794(c). 11 12 These are the only non-compensatory damages addressed and therefore, the only ones available. The 13 balance of the statutory language does not get Plaintiff closer to a statutory basis upon which punitive damages could 14 be based. It lists—with specificity—all of the reliefavailable: replacement or reimbursement (id. § 1794(b)); cost of 15 repairs (id.§ 1794(b(2)); costs and expenses (id. § 1794(d)); and attorneys’ fees (id. § 1794(e)(1). Following the 16 statutory interpretation canon of expressio unius est exclusio alterius-”the express mention of one thing excludes all 17 others,” California courts consider the plain meaning of statutes and the Legislature’s intent to include or exclude 18 statutory language. Here, the plain statutory language of CivilCode section 1794 precludes Plaintiff’sprayer for 19 additional non-compensatory damages not explicitly authorized by the Legislature. 20 To that end, California courts have determined that recovery of both a civil penalty and punitive damages 21 constitutes a double recovery and, as such, a prayer for punitive damages in a complaint requesting both civil penalties 22 and punitive damages must be stricken: 23 “We are of the opinion that had the Legislature, by Civil Code section 3294 (permitting punitive damages) and 1794 (permitting a civil penalty), intended a double recovery 24 of punitive and penal damages for the same willful, oppressive, malicious, and oppressive acts, it would in some appropriate manner have said so. And we believe 25 that by seeking a ‘civil penalty’ and also attorney's fees and all reasonable expenses as allowed by Civil Code section 1794, plaintiff had in effect elected to waive punitive 26 damages under section 3294. [Plaintiff] the judgment's punitive damage award must accordingly be stricken.” 27 (Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228.) 28 29 30 DEFENDANT KIA MOTORS AMERICA, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 23230888v1 31 1 The California Supreme Court relied upon that canon in Imperial Merch. Servs., Inc. v. Hunt. In that case, the 2 Court concluded “the Legislature expressly designated specific damage remedies while omitting others, such as 3 prejudgment interest, [to] reflect[] that it intended the prescribed remedies to be exclusive.” (Imperial Merch. Servs., 4 Inc. v. Hunt (2009) 47 Cal.4th 381, 390.) This reasoning applies with the same force here. That punitive damages are 5 not expressly included among the available remedies under Song-Beverly reflects a deliberate legislative choice, not 6 an oversight. 7 Further, Plaintiffrepresents that California courts “repeatedly held that the Song-Beverly Act […] provides for 8 recovery of punitive damages in cases of willful breach.” (See Opposition, page 5, citing Romo v. FFG Ins. Co. (C.D. 9 Cal. 2005) 397 F.Supp.2d 1237, 1240, Brilliant v. TiffinMotor Homes, Inc., No. C 09-04568 SI, 2010 WL 2721531 10 (N.D. Cal. July 7, 2010), and Clark v. LG Electronics U.S.A., No. 13-CV-485 JM (JMA), 2013 WL 5816410 (S.D. Cal. 11 Oct. 29, 2013).) This unsupported conclusion mischaracterizes relevant law. Indeed, not one of the cases cited by 12 Plaintiffcomes close to such a sweeping conclusion. 13 First, the line of cases cited by Plaintiff originate froma federal district court order -- Romo v. FFG Ins. Co. (C.D. 14 Cal. 2005) 397 F.Supp.2d 1237, 1240 -- which focused only on whether a claim for civil penalty satisfies the amount 15 in controversy for purposes of evaluating federal jurisdiction. (Id. at 1240.) The Romo court stated that civil penalties, 16 those “two times the amount of actual damages,” are “akin to punitive damages and ought to be treated the same for 17 the purposes of this analysis.” The Romo court concluded “[W]hen [] civil damages authorized by the Song-Beverly 18 Act are combined with the actual damages alleged, the composite sum satisfies the Magnuson-Moss jurisdictional 19 requirement.” In this case, “akin to” necessarily implies a basic comparison between statutory civil penalties, which are 20 limited to two times the amount of actual damages, and common law punitive damages. 21 The other cases Plaintiff refers to simply reiterate the holding in Romo, albeit sometimes imprecisely. In Brilliant 22 v. Tiffin Motor Homes, Inc., No. C 09-04568 SI, 2010 WL 2721531 (N.D. Cal. July 7, 2010), the court evaluated whether 23 Song-Beverly remedies generally are available in a Magnuson-Moss lawsuit. In passing, the court referred to the 24 availabilityof “punitive damages.” The court’s citation to Romo, however, makes clear it is referencing civil penalties. 25 Regardless, the citation is incidental to the court’s conclusion, which has nothing to do with punitive damages or civil 26 penalties. Rather, itis about whether the plaintiffsin that case could seek a refund or replacement. (Id. at *3 27 (“Defendant’s motion for summary judgment as to Plaintiff’srequest for a refund or replacement is therefore 28 DENIED.”).) 29 30 DEFENDANT KIA MOTORS AMERICA, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 23230888v1 31 1 Likewise, in Clark v. LG Electronics U.S.A., No. 13-CV-485 JM (JMA), 2013 WL 5816410 (S.D. Cal. Oct. 29, 2 2013), the Court was not considering whether punitive damages were available. Instead, the Court was evaluating 3 whether the defendant’s attempted disclaimer of various implied warranties was enforceable. Because Song-Beverly 4 permitted various categories of damages (including civil penalties,akin to punitive damages), the court decided that 5 those damages could not be waived. (Id. at *14.) 6 In sum, the statute explicitly and exhaustively identifies the nature and character of damages available under 7 Song-Beverly – punitive damages are not on that Thus, to the extent Plaintiff’s list. prayer for punitive damages is 8 based on Song-Beverly, it must be stricken. 9 E. Plaintiff’s Conclusory Averments of Willfulness are Insufficient to Support an Award of Civil 10 Penalties 11 Plaintiff’s Opposition contends that the SAC sufficiently alleges that KMA “willfully violated the Song-Beverly 12 Act. (Opposition, pp. 5: 15 -- 17, citing SAC ¶¶ 91, 98, 101, 105.) However, paragraphs 91, 98, 101, and 105 merely 13 parrot the statutory language on Civil Code section 1794, reaching (unfounded) pure legal conclusions. None of these 14 pleading paragraphs contain even a hint of case-specific factual allegations. None of these pleading paragraphs 15 describe the factual basis for Plaintiff’sbare legal conclusion that KMA knew of a particular engine defect in these 16 Plaintiff’s vehicle. Or that KMA knew of the associated safety consequences and actively and intentionally concealed 17 this knowledge from this Plaintiff.Conclusory characterizations of a defendant’s conduct as intentional, willful and 18 fraudulent “is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied.’” (Brousseau v. 19 Jarrett, supra, 73 Cal.App.3d 864, at 872.) 20 Further, Plaintifffailed to allege facts establishing that KMA knew of its obligations to repurchase this vehicle 21 and willfullyfailed to do so. When determining whether the manufacturer’s failure to replace or repurchase was willful, 22 the jury needs to know whether the manufacturer was aware of consumer’s desire to have the vehicle repurchased. 23 (Kwan, supra, 23 Cal.App.4th at 185.) It is a generally accepted axiom that willfulness requires that “the person knows 24 what he is doing, intends to do what he is doing, and is a free agent.” (Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 25 878, 895.) Here, Plaintiff alleges no facts indicating whether, when, and by what means KMA became aware that 26 Plaintiff possessed an allegedly nonconforming vehicle and desired to have it repurchased or replaced. Indeed, Plaintiff 27 does not allege any facts in the Complaint indicating that Plaintiffrequested a repurchase before filing this lawsuit, or 28 that KMA denied any such request. Thus, even if this Court determines that Plaintiff’s Song-Beverly claims survive 29 30 DEFENDANT KIA MOTORS AMERICA, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 23230888v1 31 1 KMA’s concurrently filed Demurrer, Plaintiff’s prayer for civil penalties under Song-Beverly may be properly stricken 2 because these claims are incapable of supporting any prayer for such relief. 3 IV. CONCLUSION 4 For the reasons stated in its Motion to Strike and above, KMA requests the Court grant its motion to strike 5 portions of Plaintiff’s Second Amended Complaint. 6 DATED: January 8, 2021 BOWMAN AND BROOKE LLP 7 By: ______________________________ Michael J. Hurvitz 8 D. Tucker Dowling Attorneys for Defendant 9 KIA MOTORS AMERICA, INC. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 DEFENDANT KIA MOTORS AMERICA, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 23230888v1 31 POS-050/EFS-050 ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NO:301800 FOR COURT USE ONLY NAME: D. Tucker Dowling FIRM NAME: BOWMAN AND BROOKE LLP STREET ADDRESS: 750 B Street, Suite 2200 CITY: San Diego STATE: CA ZIP CODE: 92101 TELEPHONE NO.: 619-376-2500 619-376-2501 FAX NO. : tucker.dowling@bowmanandbrooke.com E-MAIL ADDRESS: Defendant, KIA MOTORS AMERICA, INC. ATTORNEY FOR (name): SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES STREET ADDRESS: 111 North Hill Street MAILING ADDRESS:111 North Hill Street CITY AND ZIP CODE:Los Angeles, CA 90012 BRANCH NAME: Stanley Mosk Courthouse CASE NUMBER: 20STCV06840 PLAINTIFF/PETITIONER: AURELIO CAVAZOS JR. DEFENDANT/RESPONDENT: KIA MOTORS AMERICA, INC. JUDICIAL OFFICER: Hon. Gregory W. Alarcon DEPARTMENT: PROOF OF ELECTRONIC SERVICE 36 1. I am at least 18 years old. a. My residence or business address is (specify): 750 B St., Suite 2200 San Diego, CA 92101. b. My electronic service address is (specify): tucker.dowling@bowmanandbrooke.com 2. I electronically served the following documents (exact titles): DEFENDANT KIA MOTORS AMERICA, INC.'S REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT; DEFENDANT KIA MOTORS AMERICA, INC.'S REPLY IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT; DECLARATION OF D. TUCKER DOWLING The documents served are listed in an attachment. (Form POS-050(D)/EFS-050(D) may be used for this purpose.) 3. I electronically served the documents listed in 2 as follows: a. Name of person served: Tionna Dolin, Esq.; Strategic Legal Practices, APC On behalf of (name or names of parties represented, if person served is an attorney): Plaintiff AURELIO CAVAZOS JR. b. Electronic service address of person served : todlin@slpattorney.com; emailservices@slpattorney.com c. On (date): January 8, 2021 The documents listed in item 2 were served electronically on the persons and in the manner described in an attachment. (Form POS-050(P)/EFS-050(P) may be used for this purpose.) Date: January 8, 2021 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. D. Tucker Dowling (TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT) Page 1 of 1 Form Approved for Optional Use Judicial Council of California PROOF OF ELECTRONIC SERVICE Cal. Rules of Court, rule 2.251 www.courts.ca.gov POS-050/EFS-050 [Rev. February 1, 2017] (Proof of Service/Electronic Filing and Service)