Tran vs. Jaguar Land Rover North America, LLC

Here, Plaintiff alleged violations of the express warranties provided in the new car warranty attached as Ex. A to the Complaint. The untimely opposition to the motion for summary judgment asserted that Plaintiff was given a CPO warranty with her purchase. Given that this action was initiated in 2024, the request to amend was only raised in an effort to defeat summary judgment or adjudication, and that trial is set for 10/19/26, the Court denies Plaintiff’s request for leave to amend the Complaint.

A Word of Warning

Generative artificial intelligence (AI) tools that supply natural language answers to user prompts are now in wide use. Counsel are responsible for providing the Court with complete and accurate representations of cited legal authorities. Use of generative AI is not prohibited, but counsel must personally confirm for themselves the accuracy of any research conducted by these means, and counsel alone bears ethical responsibility for all statements made in filings. The signature or listing of counsel on a filing containing AI generated content, including citations generated by AI, constitutes a certification the signer (and any attorney listed on the filing) has personally verified the content’s accuracy.

The court will impute any errors by such AI tools to the signer and any other attorney or self- represented party listed on the filing. Failure to verify the accuracy of submissions, particularly the accuracy of citations to law and evidence, may be grounds for sanctions or disciplinary action before the State Bar.

Defendant to give notice.

16 Tran vs. TENTATIVE RULING: Jaguar Land Rover North For the reasons set forth below, Defendant Jaguar Land Rover North America, LLC America, LLC’s motion for summary adjudication is DENIED as to the 8th, 9th and 10th causes of action in Plaintiff Nhu Tran’s Complaint, and GRANTED as to the 5th 6th and 7th causes of action.

Statement of Law

“Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .”

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.)

A defendant moving for summary judgment satisfies the initial burden by submitting undisputed evidence “showing that a cause of action has no merit [because] one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc. § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-51.) However, “[t]he defendant must indeed present ‘evidence’."”(Aguilar, supra, 25 Cal.4th at 855, italics original.)

In addition, if a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840; see also Dix v. Live Nation Entertainment, Inc. (2020) 56 Cal.App.5th 590, 604 [where the evidence presented by defendant does not meet its burden, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.]).

If the moving party meets its burden, the burden then shifts to the party opposing summary judgment to show, by reference to specific facts, the existence of a triable, material issue as to a cause of action or an affirmative defense. (Aguilar, supra, 25 Cal.4th at p. 855; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.)

The nonmoving party must present substantial evidence in order to avoid summary judgment. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) “In some instances . . ., ‘evidence may be so lacking in probative value that it fails to raise any triable issue.’” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083- 1084, quoting Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988) 199 Cal.App.3d 791, 795.) “‘If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.’” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780, quoting Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482.)

In ruling on a motion for summary judgment, “the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom, and must view such evidence and such inferences

in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th at p. 843, citations omitted.) Courts “‘construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’” (Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622, 636, quoting Seo v. All–Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201–1202.) A court may not make credibility determinations or weigh the evidence on a motion for summary judgment, and all evidentiary conflicts are to be resolved against the moving party. (McCabe v.

American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.) “The court . . . does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Johnson v. United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754, citation omitted.) “[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference . . .” (Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)

Objections

Defendant asserts objections to the declaration of Ms. Tran and the declaration of Mr. Agyeman. The court OVERRULES the objections to the declaration of Tran at paragraphs 4 and 9. The court DECLINES TO RULE on the remaining objections to both declarations pursuant to Code Civ. Proc. § 437c, subd. (q) (“the court need rule only on those objections to evidence that it deems material to its disposition of the motion”).

Defendant’s Separate Statement

As a preliminary matter, Plaintiff contends that Defendant’s separate statement does not comply with California Rules of Court, rule 3.1350(d)(3), which provides: “The separate statement must be in the two-column format specified in (h). The statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.”

Plaintiff contends that Defendant repeatedly restarts and duplicates fact numbers under subsequent issues, which makes it difficult to identify the precise facts and evidence upon which Defendant relies.

The court finds that Defendant’s separate statement substantially complies with the requirements of the California Rules of Court, and that the duplication of facts for some of the issues does not render the separate statement difficult to comprehend. (See Brown v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003, 1021 [court may consider separate statement that “substantially complied with requirements”]).

5th Cause of Action - Failure to Commence Repairs Within a Reasonable Time and 6th Cause of Action -Failure to Complete Repairs Within 30 Days

In her Complaint, Plaintiff Tran alleges that Defendant JLRNA and its representative failed to commence the service or repairs within a reasonable time. (Compl., ¶ 33). Plaintiff has been damaged by Defendant’s failure to comply with its obligations pursuant to Civ. Code § 1793.2(b). (Compl., ¶ 34). Defendant and its representative allegedly failed to service or repair the Vehicle so as to conform to the applicable warranties within 30 days, in violation of Civil Code § 1793.2(b). (Compl., ¶ 38). Plaintiff has been damaged by Defendant’s failure to comply with its obligations pursuant to § 1793.2(b). (Compl., ¶ 39).

Civ. Code § 1793.2, subd. (b) states:

Where those service and repair facilities are maintained in this state and service or repair of the goods is necessary because they do not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days. Delay caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.

See also Schreidel v. American Honda Motor Co. (1995) 34 Cal.App.4th 1242, 1249 [“Service or repairs of nonconforming goods must be commenced within a “reasonable time,” and completed within 30 days unless the buyer agrees in writing to the contrary.”]).

Defendant contends that Plaintiff’s claims fail because Defendant never took longer than 30 days for each repair service. In support of

Defendant’s contention, Defendant presents the following in its Separate Statement of Undisputed Material Fact:

Plaintiff purchased the Vehicle on May 31, 2024, at Jaguar Land Rover Anaheim Hills (“JLR Anaheim Hills”) located at 5425 East La Palma Ave., Anaheim, California 92807. (SSUMF 12). JLRNA maintains a database of warranty claims submitted by its authorized repair facilities. (SSUMF 10). Repair facilities also provide JLRNA detailed reports of warranty claims. (SSUMF 11). During her possession of the Vehicle, Plaintiff presented the Vehicle for repair to LR Anaheim Hills; JLR Puente Hills, located at 17673 Gale Ave., City of Industry, California 91748; and JLR Riverside located at 8051 Auto Drive, Riverside, California 92504. (SSUMF 15).

The following is a summary of the repair history:

• June 3, 2024, at JLR Anaheim Hills with 130 miles on the odometer for the Check Engine Light being on and the Vehicle shaking; • July 3, 2024, at JLR Puente Hills with 979 miles on the odometer for the Check Engine Light being on; • September 5, 2024, at JLR Puente Hills with 5,160 miles on the odometer for Check Engine Light and engine shudder; • December 18, 2024, at JLR Riverside with 10,840 miles on the odometer for Check Engine Light and stuttering on first start up; and • September 24, 2025, at JLR Riverside with approximately 24,497 miles on the odometer for coolant leak

(SSUMF 16).

The bumper-to-bumper warranty had not expired at the most recent presentation. (SSUMF 17). A comparison of the “R.O. Opened” and the “Ready” dates from the repair orders produced by Plaintiff establish that the servicing retailers did not keep the Vehicle in their possession for more than 30 days during any of the first four presentations. (SSUMF 48). The records established that each servicing retailer commenced the repair within 30 days of presentation. (SSUMF 49). The repair orders that Plaintiff produced in response to Requests for Production Nos. 8 through 10 as well as JLRNA’s warranty reimbursement records to servicing retailers indicate that all of Plaintiff’s repair presentations occurred during the express warranty period. (SSUMF 50).

Defendant has established that Defendant commenced the repairs within a reasonable time and that all repairs were completed within 30 days. Accordingly, Defendant has met its burden.

Plaintiff does not dispute that all repairs were completed within 30 days. However, Plaintiff contends that Defendant violated this statute for the following reasons: The September 5 repair order contains no documented technician activity until September 9, with further work spread over September 10, 16, and 17. The December 18 repair order promised same-day completion, yet the first technician clock-in appears on December 19, and further entries appear on December 26.

However, none of these establish that Defendant did not commence the repairs within a reasonable time frame. The biggest gap noted by Plaintiff was only four days between the repair order and technician activity, and the repair was completed by September 17, 2025 (approximately twelve days).

Nor do these facts establish a failure to comply with Civ. Code § 1793.2, subd. (b)’s 30-day requirement.

Plaintiff’s cause of action was specifically grounded in Civ. Code § 1793.2, subd. (b). (See Compl., ¶¶ 33-36 and ¶¶ 38-41; see also FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 38 [The court looks to the pleadings as “the outer measure of materiality” in a motion for summary judgment.]). The fact that one facility may have promised same-day completion but was unable to do so does not constitute a violation of this subdivision.

Because Plaintiff failed to establish that any single repair attempt took longer than 30 days or that Defendant failed to commence the repairs within a reasonable time frame, Plaintiff failed to create a triable issue of material fact as to these causes of action. Accordingly, the court GRANTS the motion as to these causes of action.

7th Cause of Action -Failure to Maintain Sufficient Service and Repair Facilities

Plaintiff alleges that Defendant failed to maintain in this state sufficient service and repair facilities reasonably close to all areas where its consumer goods are sold to carry out the terms of the warranties or to designate and authorize in this state as service and repair facilities independent repair or service facilities reasonably close to all areas where its consumer goods are sold to carry out the terms of the warranty as required by Civil Code § 1793.2(a). (Compl., ¶ 43).

Civ. Code § 1793.2, subd. (a)(1)(A) provides in pertinent part:

(a) Every manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall:

(1)(A) Maintain in this state sufficient service and repair facilities reasonably close to all areas where its consumer goods are sold to carry out the terms of those warranties or designate and authorize in this state as service and repair facilities independent repair or service facilities reasonably close to all areas where its consumer goods are sold to carry out the terms of the warranties.

Defendant presents the following in support of its motion:

Plaintiff purchased the Vehicle on May 31, 2024, at Jaguar Land Rover Anaheim Hills located at 5425 East La Palma Ave., Anaheim, California 92807. (SSUMF 12). Plaintiff’s address is listed as 747 N. Ocean Bluff Avenue, San Dimas, CA 91773 (“San Dimas Address”). (SSUMF 13). During her possession of the Vehicle, Plaintiff presented the Vehicle for repair to LR Anaheim Hills; JLR Puente Hills, located at 17673 Gale Ave., City of Industry, California 91748; and JLR Riverside located at 8051 Auto Drive, Riverside, California 92504. (SSUMF 15).

The repair orders for the presentations at JRL Anaheim Hills and LR Riverside identify the San Dimas address as the customer address. (SSUMF 18). The distance between Plaintiff’s San Dimas address to JLR Anaheim Hills is 26 miles, and to JLR Riverside is 38 miles. (SSUMF 20). The distance between the Fontana Address to LR Puente Hills is 37 miles. (SSUMF 21). A comparison of the “R.O. Opened” and the “Ready” dates from the repair orders produced by Plaintiff establish that the servicing retailers did not keep the Vehicle in their possession for more than 30 days during any of the first four presentations. (SSUMF 48).

The repair orders that Plaintiff produced in response to Requests for Production Nos. 8 through 10 as well as JLRNA’s warranty reimbursement records to servicing retailers indicate that all of Plaintiff’s repair presentations occurred during the express warranty period. (SSUMF 50)

Defendant also contends that Plaintiff asserted in her discovery responses that she properly maintained the vehicle at these repair centers/facilities. In response to Special Interrogatory No. 9 that requested Plaintiff to describe in detail all facts that support any contention that she properly maintained the Vehicle, Plaintiff responded in part that “Pursuant to CCP § 2030.230, Responding Party elects to refer to documents and specifies the documents already provided by Plaintiff to Defendant” and “the documents

served along with these responses.” (SSUMF 42). Defendant contends that Plaintiff tacitly concedes that she properly maintained the subject vehicle and cannot conversely claim that Defendant failed to maintain or designate repair facilities reasonably close to areas where its goods are sold.

At the outset, the plain language of the statute only requires that the manufacturer maintain such facilities reasonably close to all areas where its consumer goods are sold. Defendant had a service facility at JLR Anaheim Hills, where Plaintiff purchased the vehicle. Defendant also had two other service facilities that were 38 miles away or less. Therefore, the court finds that Defendant met its burden with regards to this claim.

In response, Plaintiff does not dispute those facts. Instead, Plaintiff argues that Defendant presents no competent evidence concerning appointment availability, technician staffing, facility workload, diagnostic capacity, ability to obtain manufacturer guidance, or the time facilities could actually begin work.

However, Defendant has provided evidence that it had three repair facilities all within 38 miles (including one at the dealership where Plaintiff purchased her vehicle) and that all repairs were completed within 30 days.

Plaintiff also contends Defendant’s own discovery responses characterize authorized retailers as separate third parties and disclaim possession or control of retailer-generated information, that Defendant’s motion asks the Court to “infer actual network sufficiency without any evidence regarding those operational facts.” However, Plaintiff presents no evidence in support of this assertion. Plaintiff does not create any triable issue as to whether any of the facilities she visited were repair facilities maintained by Defendant as required by Civ. Code § 1793.2, subd. (a)(1)(A).

Ultimately, Plaintiff argues that she had to use three different authorized retailers, and the same engine/check-engine-light concerns recurred. However, Plaintiff is essentially arguing that the statute was violated because the dealer did not successfully repair the vehicle. But Civ. Code § 1793.2, subd. (a)(1)(A) requires Defendant to designate and authorize “repair or service facilities reasonably close to all areas where its consumer goods are sold to carry out the terms of the warranties.” Plaintiff has not created a triable issue as to this subdivision.

Accordingly, the court GRANTS the motion as to this cause of action.

8th Cause of Action -Failure to Make Service Literature and Parts Available

Plaintiff alleges that Defendant failed to make available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period, as required by Civil Code § 1793.2(a)(3). (Compl., ¶ 48). Plaintiff has been damaged by Defendant’s failure to comply with its obligations pursuant to § 1793.2(a)(3). (Compl., ¶ 49).

Civ. Code § 1793.2, subd. (a)(3) provides that manufacturers shall “[m]ake available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.”

Defendant contends Section 1793.2(a)(3) simply requires Defendant to provide “sufficient service literature and replacement parts to effect repairs during the express warranty period”, and Plaintiff’s special interrogatory responses and the repair orders that Plaintiff produced in response to Requests for Production Nos. 8 through 10, as well as Defendant’s warranty reimbursement records to servicing retailers, establish that all Plaintiff’s repair presentations occurred within the express warranty period. (SSUMF 42, 50). Defendant sets forth that these responses and production contradict any potential claim that the servicing retailer halted or terminated repair past the expiration of the warranty period due to a lack of parts. (SSUMF 51).

Defendant presents its special interrogatory no. 18 to Plaintiff, which states: “If YOU contend that any NONCONFORMITY in the SUBJECT VEHICLE has not been repaired after a reasonable number of repair attempts, please describe with specificity each such NONCONFORMITY, including but not limited to the nature of the NONCONFORMITY, the circumstances under which the NONCONFORMITY occurred, the date that YOU first became aware of the NONCONFORMITY, the actual or approximate odometer reading when YOU first became aware of the NONCONFORMITY, the date(s) YOU presented the NONCONFORMITY to JLRNA or any JLRNA authorized repair facility, and the date(s) the NONCONFORMITY manifested itself after the last repair attempt. In answering this interrogatory, please describe each NONCONFORMITY in the same manner YOU would describe the concern if YOU were presenting it to a JLRNA authorized repair facility for repair under warranty.”

Plaintiff responded: “Responding Party refers to Code of Civil Procedure Section 2030.230 and specifies the sales, service records, and registration relative to the subject vehicle. Damages are not static in a lemon law case and this interrogatory calls for a static response. Responding Party, who has offered Defendants the opportunity to take Plaintiff's deposition on multiple occasions, will respond further in a fully noticed deposition. Discovery and investigation are continuing.” (SSUMF No. 43, Ex. D).

Defendant provided evidence of Plaintiff’s responses to interrogatories and requests for production, which demonstrate that Plaintiff is relying on the sales, service records, and registration. Defendant has shown through the service records that the dealer and other repair facilities performed warranty work on Plaintiff’s vehicle, and that the repairs were completed within 30 days and during the warranty period.

In her Opposition, Plaintiff argues that the subject-vehicle records show repeated dependence on manufacturer-controlled diagnostic and repair resources. Dealers used TOPIx Cloud, electrical wiring diagrams, fault-breakdown procedures, RVC codes, repair plans, and PCM software. Plaintiff contends that the June repair addressed a P0351-13 diagnostic code as a backed-out connector, and when the condition returned in December, the dealer found no physical connector abnormality and instead generated a repair plan requiring a PCM software update, which demonstrates that the earlier information or procedure did not effect a lasting repair. (See DF Ex. G). Defendant did not address this discrepancy in its Reply.

The court finds that Plaintiff has created a triable issue of material fact given the inconsistent determinations between visits that resulted in ineffective repairs. Accordingly, the motion as to this cause of action is DENIED.

9th Cause of Action – Advertising Defective Merchandise Without Disclosing Defects

In Plaintiff’s Complaint, Plaintiff alleges the following: On May 31, 2024, Defendant advertised, called attention to, or gave publicity to the sale of merchandise, which merchandise was defective in any manner, without conspicuously displaying directly in connection with the name and description of that merchandise and each article, unit, or part thereof, a direct and unequivocal statement, phrase, or word which clearly indicated that the merchandise or each article, unit, or

part thereof so advertised was defective, in violation of Business & Professions Code section 17531. (Compl., ¶ 53).

The representations were made in a newspaper, magazine, circular, form letter or in an open publication, published, distributed, or circulated in this state, including over the Internet, or on any billboard, card, label, or other advertising medium, or by means of another advertising device. (Compl., ¶ 54). Plaintiff has suffered injury in fact and has lost money or property as a result of Defendant Warrantor’s violation of Business & Professions Code section 17531. Pursuant to Business & Professions Code section 17535, the Court may enjoin Defendant from engaging in any future violations of section 17531, and may make such orders or judgments, including the appointment of a receiver, as may be necessary to restore to Plaintiff any money or property, real or personal, which may have been acquired by means of the violation of Business & Professions Code section 17531. (Compl., ¶ 55).

Bus. & Prof. Code § 17531 provides as follows:

It is unlawful for any person, firm, or corporation, in any newspaper, magazine, circular, form letter or any open publication, published, distributed, or circulated in this state, including over the Internet, or on any billboard, card, label, or other advertising medium, or by means of any other advertising device, to advertise, call attention to or give publicity to the sale of any merchandise, which merchandise is secondhand or used merchandise, or which merchandise is defective in any manner, or which merchandise consists of articles or units or parts known as “seconds,” or blemished merchandise, or which merchandise has been rejected by the manufacturer thereof as not first class, unless there is conspicuously displayed directly in connection with the name and description of that merchandise and each specified article, unit, or part thereof, a direct and unequivocal statement, phrase, or word which will clearly indicate that the merchandise or each article, unit, or part thereof so advertised is secondhand, used, defective, or consists of “seconds” or is blemished merchandise, or has been rejected by the manufacturer thereof, as the case may be...

First, Defendant contends that Plaintiff’s request for an injunction fails, because “[i]njunctive relief had no application to wrongs which have been completed [citation], absent a showing that past violations will probably recur.” (Madrid v. Perot Systems Corp. (2005) 130 Cal. App. 4th 440, 465 [internal citations omitted]). However, Plaintiff’s

prayer also seeks damages and restitution. (See Compl., Prayer at ¶¶ 1, 2). Accordingly, Defendant does not meet its burden with this argument.

Next, Defendant contends that Plaintiff’s claim fails because of Plaintiff’s discovery responses. Defendant sets forth the following: Defendant’s Request for Production No. 3 requested the production of “All sales literature, including any internet web pages, relating to the VEHICLE which YOU reviewed or relied upon before acquiring the VEHICLE.” (SSUMF 39). Plaintiff served her verified responses to the written discovery requests and produced documents on or around February 4, 2025. (SSUMF 41). In response to Request for Production No. 3, Plaintiff eventually responded after numerous boilerplate objections that “subject to and without waiving said objection: after a good faith search, Plaintiff has determined that any relevant web pages, which date back to before 2018 are no longer available.” (SSUMF 45).

Vehicles distributed by Defendant in the United States are identified by a model year rather than their calendar year of production. (SSUMF 6). A new model year is typically introduced in the preceding calendar year; thus, 2024 model year vehicles are introduced in 2023. (SSUMF 7). Defendant does not start advertising or marketing vehicles before it introduces vehicles to market. (SSUMF 8). Thus, Defendant did not advertise its 2024 model year vehicles prior to 2023, and certainly did not have any advertising for any 2024 model vehicles in 2018 or before. (SSUMF 9).

However, Defendant’s request for production was narrowed to “sales literature, including any internet web pages.” Plaintiff’s Complaint did not just reference sales literature. She alleged that the representations were made: in a newspaper, magazine, circular, form letter or in an open publication, published, distributed, or circulated in this state, including over the Internet, or on any billboard, card, label, or other advertising medium, or by means of another advertising device. This would include a window sticker advertising a vehicle as “new” or a representative stating that the vehicle is “new”.

As set forth above, the court looks to the pleadings as “the outer measure of materiality” in a motion for summary judgment. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) Defendant’s discovery and Plaintiff’s responses that Defendant set forth in its SSUMF do not address the entirety of Plaintiff’s allegations.

Accordingly, the court finds that Defendant failed to meet its burden, and the motion is DENIED as to this cause of action.

Conversion

Plaintiff alleges the following: Plaintiff is the owner of and has an immediate right to possession of a specific sum of money which is capable of identification. Specifically, pursuant to Civil Code § 1793.2(d), Plaintiff is entitled to restitution of the amounts paid or payable for the Vehicle from Defendant. (Compl., ¶ 57). Instead of delivering the money to which Plaintiff is entitled to Plaintiff, Defendant has wrongfully converted that money for its own use. (Compl., ¶ 58).

The “elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066.)

“Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved.” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.) California cases that permitted an action for conversion of money involved an amount of money that was “readily ascertainable.” (Id. at 396.)

Defendant contends that Plaintiff cannot state a claim for conversion based on Defendant’s failure to deliver restitution, citing to Voris v. Lampert (2019) 7 Cal.5th 1141. In Voris, the court held that conversion claims “typically involve those who have misappropriated, commingled, or misapplied specific funds held for the benefit of others.” (Id. at 1153). In Voris, the court rejected an employee’s claim for conversion based on unpaid wages, holding:

Unlike the cases involving failure to turn over commissions, for example, which were earmarked for a specific person before being misappropriated and absorbed into another's coffers, a claim for unpaid wages simply seeks the satisfaction of a monetary claim against the employer, without regard to the provenance of the monies at issue. In this way, a claim for unpaid wages resembles other actions for a particular amount of money owed in exchange for contractual performance—a type of claim that has long been understood to sound in contract, rather than as the tort of conversion.

(Id. at 1156).

However, Plaintiff cites to Ortega v. Toyota Motor Sales, USA, Inc. (S.D. Cal. 2008) 572 F.Supp.2d 1218, which is on point with its facts. In Ortega, the court held that “Plaintiff states a claim for conversion because the Complaint alleges that Defendant has a statutory duty to deliver a specific, identifiable sum of money to Plaintiff (restitution in the amounts paid or payable to for the vehicle) and has instead wrongfully converted the money to its own use, causing damages.” (Id. at 1220).

Defendant contends that Ortega is a federal decision that was decided eleven years prior to Voris. However, these two decisions are not inconsistent. With regards to restitution, the court in Voris held: “But Cortez is less helpful to Voris's case than he suggests; the language he cites concerned the availability of a restitutionary remedy under the Unfair Competition Law (UCL), which provides equitable relief for unfair business practices ...and our holding was expressly limited to that context.” (Voris, 7 Cal.5th at 1153). (See also Brighton Trustees v. Transamerica Life Insurance Company (C.D. Cal., Jan. 23, 2020), No. 219CV04210CASGJSX) 2020 WL 2036652 at *5, a more recent federal decision which discussed Voris, supra, and found Ortega, supra, to be “instructive” with regards to the issue of restitution.)

Accordingly, the court finds that Defendant failed to meet its initial burden, and the motion is DENIED as to this cause of action.

Defendant shall give notice.

17 Code 4 Media NO TENTATIVE RULING Group, Inc. vs. Kim 18