Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 11/14/2024 Hearing on Motion for Summary Adjudication in Department 54

Tentative Ruling

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of the Issues identified in the Notice of Motion and which of the Undisputed Material Facts offered by the moving defendants and/or the Additional Material Facts offered by plaintiff will be addressed at the hearing and the parties should be prepared to point to specific evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Plaintiff Heather Ramirez-Kotey’s (“Plaintiffs”) motion for summary adjudication is GRANTED.

Opposing counsel separate statement fails to comply with California Rules of Court, rule 3.1350(f)(2), which requires that “[o]n the right side of the page, directly opposite the recitation of the moving party’s statement of material facts and supporting evidence, the response must unequivocally state whether that fact is ‘disputed’ or ‘undisputed.’ An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.”

I. Overview

In this Lemon Law action, Plaintiff alleges that her 2021 Honda Pilot had defects and nonconformities that Defendant American Honda Motors, Inc’s (“Defendant”) authorized repair facilities were unable to repair despite a reasonable number of attempts. Plaintiff further alleges Defendant does not maintain a qualified third-party dispute resolution process which substantially complies with Civil Code section 1793.22. Plaintiff alleges Defendant failed to issue restitution as required by the Song-Beverly Act, and as a result, civil penalties are warranted for Defendant’s noncompliance with the Song- Beverly Act.

In its Answer, Defendant asserts twenty-four affirmative defenses. Defendant’s Sixth Affirmative Defense states, “[Defendant] is informed and believes, and on that basis alleges, that Plaintiff and/or the owner of the subject vehicle received timely notice of the availability of a third-party dispute resolution process, and that no effort was made to use such process.” Defendant’s Eighth Affirmative Defense states, “[Defendant] is

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 11/14/2024 Hearing on Motion for Summary Adjudication in Department 54

informed and believes, and on that basis alleges, that it possesses a qualified thirdparty dispute resolution process, thereby barring Plaintiff from any civil penalty in this lawsuit.”

Moving Papers. Plaintiff now moves for summary adjudication on Defendant’s Sixth and Eighth Affirmative Defenses, arguing Defendant does not have a qualified thirdparty dispute resolution process because it lacks a certification from the California Department of Consumer Affairs (“DCA”). Plaintiff further argues that the DCA is the only organization that can grant a certification or determine whether a program is “qualified” in compliance with the Song-Beverly Act. Because Defendant has not obtained a DCA certification, Plaintiff contends Defendant is seeking the legal benefits, including a shield against non-willful civil penalties, of having a qualified third-party dispute resolution process without meeting California’s statutory and legal requirements and without submitting its program to the mandatory oversight by the DCA.

Plaintiff also moves on Defendant’s Eighth Affirmative Defense on the separate ground that willful civil penalties are not barred by the existence of a qualified third-party dispute resolution process.

Opposition. Defendant opposes the motion, arguing California law requires only substantial compliance, not strict compliance, with the applicable portions of the Song- Beverly Act. Defendant argues that it provides a National Center for Dispute Settlement Program (“NCDS”) that substantially complies with the Act’s requirements. Defendant concedes that its dispute resolution process is not certified by the DCA. However, it argues that despite this lack of certification there is a triable issue of fact as to whether Defendant has substantially complied with Civil Code section 1793.22, and whether Defendant has undertaken good faith efforts to provide an effective third-party dispute resolution process.

Reply. Plaintiff argues Defendant has conceded that it does not have a certified dispute resolution process, and therefore it does not have a “qualified” program, as required by the Song-Beverly Act. Additionally, Plaintiff argues that whether Defendant made its dispute resolution process in good faith has no bearing on whether the process is qualified. Finally, Plaintiff contends that whether Defendant engaged in willful conduct has nothing to do with Plaintiff’s motion for summary adjudication, because a claim for civil penalties under Civil Code section 1794, subdivision (e) does not require a finding of willfulness.

II. Objections to Evidence

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 11/14/2024 Hearing on Motion for Summary Adjudication in Department 54

Pursuant to California Rules of Court, rule 3.1354, subdivision (b), “[a]ll written objections to evidence must be served and filed separately from the other papers in support of or in the opposition to the motion.” To the extent Defendant has asserted objections to certain evidence offered by Plaintiff in her separate statement, such objections are overruled because Rule 3.1354 expressly requires written objections be set forth in a separate document and also quote the objectionable material (so the Court need not expend its finite resources to locate the evidence in order to rule on its admissibility).

To the extent Defendant’s objections are directed to the UMFs themselves, such objections are overruled because objections are properly directed at evidence only. (See Cal. Rules of Court, rules 3.1352, 3.1354.)

II.

Legal Standard

In evaluating a motion for summary judgment or adjudication, the Court engages in a three-step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings.

The Court cannot consider an unpled issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its burden of production. When a plaintiff moves for summary adjudication on an affirmative defense, “[t]he plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he or she is entitled to judgment on the defense as a matter of law.” (See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900.) To do so, “the plaintiff must negate an essential element of the defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support the defense.” (Ibid.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 11/14/2024 Hearing on Motion for Summary Adjudication in Department 54

If the plaintiff does so, the burden shifts to the defendant to show that a triable issue of fact exists as to that defense. In doing so, the defendant cannot rely on the mere allegations or denial of its pleadings, “but, instead, shall set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc. § 437c, subd. (p)(1).) A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. [fn. omitted.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

While a summary adjudication motion is treated largely the same as one for summary judgment, there are a few important differences. One of these differences is that California Rule of Court, rule 3.1350, subdivision (b) mandates that issues presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. Another difference is that summary adjudication cannot be granted unless it “completely disposes” of a cause of action, affirmative defense, claim for punitive damages, or question of duty. Code of Civil Procedure section 437c, subdivision (f)(1) provides in its entirety:

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.

Finally, in ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843.)

III.

Analysis

The Song-Beverly Act provides for civil penalties through two separate means. Civil Code section 1794, subdivision (c), allows for civil penalties for suits concerning any type of “consumer goods” and requires a willful refusal to comply with the act. Civil

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 11/14/2024 Hearing on Motion for Summary Adjudication in Department 54

Code section 1794, subdivision (e), permits civil penalties when the consumer goods at issue are new motor vehicles. This provision does not contain an explicit willfulness requirement. (See Suman v. BMW of North America, Inc. (1994) 23 Cal.App.4th 1, 10.)

Section 1794, subdivision (c), states, “[i]f the buyer establishes that the failure to comply was willful, the judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty which shall not exceed two times the amount of actual damages.”

Section 1794, subdivision (e)(1) provides that: “Except as otherwise provided in this subdivision, if the buyer establishes a violation of paragraph (2) of subdivision (d) of Section 1793.2, the buyer shall recover reasonable damages and attorney’s fees and costs, and may recover a civil penalty of up to two times the amount of damages.” Subdivision (e)(2) provides a limitation on damages, stating, “[i]f the manufacturer maintains a qualified third-party dispute resolution process which substantially complies with Section 1793.22, the manufacturer shall not be liable for any civil penalty pursuant to this subdivision.”

As a result, plaintiffs may not recover non-willful civil penalties if the defendant vehicle manufacturer maintains a qualified dispute resolution process which substantially complies with Section 1793.22. (Civ. Code, §1794, subd. (e)(2).) However, the existence of a qualified dispute resolution process does not prevent a consumer from recovering civil penalties for a willful violation under subdivision (c). (Jernigan v. Ford Motor Co. (1994) 24 Cal.App.4th 488, 493 [“in actions on all consumer goods civil penalties may be had for willful violations. In actions on new motor vehicles only, civil penalties may be had without a showing of willfulness, unless the manufacturer maintains a qualified dispute resolution process”].)

Civil Code section 1793.22, subdivision (d), provides nine requirements for a qualified third-party dispute resolution process, including that the process “obtains and maintains certification by the Department of Consumer Affairs pursuant to [Section 472] of the Business and Professions Code.” (Ibid.) Business and Professions Code section 472, subdivision (c), defines “Qualified third party dispute resolution process” as “a third party dispute resolution process which operates in compliance with subdivision (d) of Section 1793.22 of the Civil Code and this chapter and which has been certified by the department pursuant to this chapter.”

Business and Professions Code section 472.2, subdivision (a) requires that, “[a] manufacturer that itself operates the third-party dispute resolution process shall apply to

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 11/14/2024 Hearing on Motion for Summary Adjudication in Department 54

the department for certification of that process.” After the manufacturer applies, the DCA “shall review the application and accompanying information and, after conducting an onsite inspection, shall determine whether the third-party dispute resolution process is in substantial compliance with subdivision (d) of Section 1793.22 of the Civil Code and this chapter. If the department determines that the process is in substantial compliance, the department shall certify the process.” (Bus. & Prof. Code §472.2, subd. (b).)

A. Defendant’s Sixth Affirmative Defense

Defendant’s Sixth Affirmative Defense states, “[Defendant] is informed and believes, and on that basis alleges, that Plaintiff and/or the owner of the subject vehicle received timely notice of the availability of a third-party dispute resolution process, and that no effort was made to use such process.”

Issue 1: “Plaintiff is entitled to summary adjudication as to Defendant’s Sixth Affirmative Defense, because defendant does not have a qualified third-party dispute resolution process.”

Plaintiff argues that Defendant’s Sixth Affirmative Defense may be adjudicated because Defendant does not maintain a qualified third-party dispute resolution process. Plaintiff offers UMF Nos. 1-10 in support of this ground for summary adjudication. According to Plaintiff, it is undisputed that: (1) Defendant does not have a dispute resolution process that is certified by the DCA (UMF 3); (2) the DCA maintains a published, official list of manufacturers maintaining qualified dispute resolution programs, which does not include Defendant (UMF 4); (3) on or about July 24, 2024, the DCA sent a letter to all California Superior Courts regarding the DCA’s role in certifying and monitoring thirdparty dispute resolution processes (UMF 5); (4) the DCA’s letter includes a list of all manufacturers who have certified processes, which does not include Defendant (UMF 6); (5) Defendant has not had a certified third-party dispute resolution program since 2013 (UMF 7); (6) Defendant’s third-party dispute resolution process is not certified by the DCA (UMF 8); (7) Defendant’s third-party dispute resolution process has not been subject to California regulatory review and auditing required for certified programs (UMF 9); and (8) the DCA states that a qualified dispute resolution process requires certification from the California Department of Consumer Affairs (UMF 10).

The Court concludes that Plaintiff has satisfied her initial burden. The burden now shifts to Defendant to show a triable issue of material fact exists.

As noted above, Defendant’s separate statement does not comply with California Rules

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 11/14/2024 Hearing on Motion for Summary Adjudication in Department 54

of Court, rule 3.1350(f). Additionally, the Court has overruled Defendant’s objections since they were presented in violation of Rule 3.1354. Although Defendant generally contends that certain UMFs are disputed, it fails to provide any admissible evidence in support of its motion. Additionally, Defendant’s sole piece of evidence provided in support of its opposition consists of a copy of the Honda Consumer Information Booklet. (Declaration of Jennifer C. Koo, Exhibit A.) While this document may support Defendant’s contention that it uses an NCDS dispute resolution process, the mere fact that this document exists does not create a triable issue of fact as to whether Defendants’ third-party dispute resolution system is certified, is qualified, is in substantial compliance with Section 1793.22, or otherwise demonstrates a good faith effort to provide an effective dispute resolution process.

Therefore, summary adjudication is GRANTED as to Defendant’s Sixth Affirmative Defense.

B. Defendant’s Eighth Affirmative Defense

Defendant’s Eighth Affirmative Defense states, “[Defendant] is informed and believes, and on that basis alleges, that it possesses a qualified third-party dispute resolution process, thereby barring Plaintiff from any civil penalty in this lawsuit.” (Emphasis added.)

Issue 2: “Plaintiff is entitled to summary adjudication as to Defendant’s Eighth Affirmative Defense, because defendant does not have a qualified third-party dispute resolution process.”

Plaintiff argues that Defendant’s Eighth Affirmative Defense may also be adjudicated because Defendant does not maintain a qualified third-party dispute resolution process. Plaintiff’s UMF Nos. 11-20 are identical to UMF Nos. 1-10. For the reasons stated above, Plaintiff has satisfied her initial burden, and Defendant has failed to meet its burden.

Therefore, summary adjudication is GRANTED as to Defendant’s Eighth Affirmative Defense.

Issue 3: “Plaintiff is entitled to summary adjudication as to Defendant’s Eighth Affirmative Defense because willful civil penalties are not barred by the existence of a qualified third-party dispute resolution process.”

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 11/14/2024 Hearing on Motion for Summary Adjudication in Department 54

Although Defendant argues there is a triable issue of fact regarding whether its conduct meets the statutory standard for willfulness, that issue is not before the Court in the present motion. The questions presented are limited to whether Defendant had a qualified third-party dispute resolution process and whether, as a matter of law, Plaintiff is barred from recovering any civil penalties in the present lawsuit as a result.

As discussed above, Plaintiff has satisfied her initial burden of production, and Defendant has failed to meet its burden to show a triable issue of fact as to whether it has a qualified third-party dispute resolution process. However, the Court further notes that Defendant does not dispute Plaintiff’s material facts in support of this issue and does not appear to dispute Plaintiff’s legal contention that civil penalties are available for willful conduct regardless of the existence of a qualified third-party dispute resolution process.

As discussed above, under Civil Code section 1794, subdivision (c), a consumer may recover civil penalties for willful violations of the Song-Beverly Act regardless of whether the vehicle manufacturer has a qualified third-party dispute resolution process. (See Jernigan, supra, 24 Cal.App.4th at p. 493.) Therefore, even if Defendant had a qualified third-party dispute resolution process, Plaintiff is not barred from recovering any civil penalty. Therefore, summary adjudication is GRANTED as to Defendant’s Eighth Affirmative Defense for this reason as well.

IV.

Disposition

For the reasons set forth above, Plaintiff’s motion for summary adjudication of Defendant’s Sixth and Eighth Affirmative Defenses is GRANTED.

This minute order is effective immediately. Pursuant to California Rules of Court, rule 3.1312, Plaintiff shall prepare an appropriate order which conforms to Code of Civil Procedure section 437c(g).

Moving counsel’s notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact Defendant’s counsel and advise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact Defendant’s counsel prior to hearing, moving counsel is ordered to appear at the hearing.

Moving party has indicated the incorrect address in its notice of motion. The correct address for Department 54 of the Sacramento County Superior Court is 813 6th Street, Sacramento, California 95814. Moving party shall notify responding party(ies)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 11/14/2024 Hearing on Motion for Summary Adjudication in Department 54

immediately.

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-cagov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.pdf.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00335002-CU-BC-GDS: Heather Ramirez-Kotey vs. American Honda Motor Co., Inc., a California Corporation 11/14/2024 Hearing on Motion for Summary Adjudication in Department 54

a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.