Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Erik A Hennings vs BMW of North America LLC et al
Case No: 17CV02351
Hearing Date: Fri Feb 28, 2020 9:30

Nature of Proceedings: Motion to Seal Documents Lodged Conditionally Under Seal; Motion for Summary Judgment/Adjudication

Tentative Ruling: 1. The court denies defendants CMG Motors, Inc., dba BMW of San Diego, and BMW of North America, LLC’s Motion to File Under Seal Confidential Testimony, Correspondence, and References Thereto in Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment and Defendant’s Reply. On or before March 2, 2020, the parties shall filed unredacted copies of all documents filed conditionally under seal.

2. The court, on its own motion, strikes the Sur Reply that plaintiff Erik A. Hennings filed on January 31, 2020, and the declaration of Daniel Kalinowski in support thereof filed on January 31, 2020. The court denies defendants’ request for a sanction under CCP § 128.5.

3. The court grants, in part, defendants CMG Motors, Inc., dba BMW of San Diego, and BMW of North America, LLC’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication. The court grants defendants summary adjudication of plaintiff Erik A. Hennings’s first, third, fourth, and fifth causes of action. The court denies the motion as to the second cause of action. The court denies plaintiff Erik A. Hennings’s request for a continuance of the hearing on the motion.

Background: This action arises out of plaintiff Erik A. Hennings’s purchase of a 2013 BMW automobile from defendants CMG Motors, Inc., dba BMW of San Diego (“CMG”), and BMW of North America, LLC (“BMW”), on August 2, 2013. The vehicle was equipped with airbags manufactured by Takata Corporation, which were defective and subject to recalls. Hennings’s causes of action are 1) violation of the Song-Beverly Act, breach of implied warranty; 2) violation of the Song-Beverly Act § 1793.2; 3) fraudulent inducement—concealment (against BMW only); 4) fraudulent inducement—intentional misrepresentation; (against BMW only); and 5) negligent repair (against CMG only).

Trial is scheduled for March 13, 2020.

Motion to Seal Documents: Defendants BMW and CMG move to seal the following documents: 1) confidential deposition testimony of BMW’s Person Most Knowledgeable, Martin Rapaport, attached as Exhibit 7 to Hennings’s evidence offered in opposition to the motion for summary judgment/adjudication; 2) non-public correspondence between BMW and the National Highway Traffic Safety Administration (“NHTSA”), attached as Exhibit 8 to Hennings’s evidence; and 3) all references to Hennings’s Exhibits 7 and 8 in Hennings’s Memorandum of Points and Authorities in Opposition to defendants’ Motion for Summary Judgment (“MSJ”), Hennings’s Response to Undisputed Material Facts and Additional Material Facts in Support of Opposition to the MSJ, the Declaration of Daniel Kalinowski in Support of Opposition to the MSJ, defendants’ Memorandum of Points and Authorities in Reply to Hennings’s MSJ Opposition, defendants’ Evidentiary Objections, and defendants’ Response to Hennings’s Additional Material Facts. Hennings opposes the motion.

“[T]he First Amendment right of access applies to civil proceedings as well as to criminal proceedings.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1209 (1999). CRC 2.550(d) reads: “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.”

A motion for sealing a record “must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” CRC 2.551(b)(1). A court cannot weigh the competing interests and concerns “without (1) identifying the specific information claimed to be entitled to such treatment; (2) identifying the nature of the harm threatened by disclosure; and (3) identifying and accounting for countervailing considerations.” H.B. Fuller Co. v. Doe, 151 Cal.App.4th 879, 894 (2007).

Defendants do not identify specifically what needs to be sealed. Exhibit 7 is a 135 page deposition transcript. There are portions of the pleadings that are redacted but the motion does not say what they are. The court would have to comb through each publicly filed pleading to determine the location of the information to be sealed and then go to the lodged document to find out what that is. Defendants have not carried their burden of identifying what is to be sealed.

The first two grounds defendants assert for sealing these records are: 1) There is a stipulated protective order in this case and defendants marked these documents as confidential pursuant to that order. 2) The documents in Exhibit 8 were produced in a federal case and were subject to a protective order in that case. As to these two grounds, the court “must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” CRC 2.551(a); H.B. Fuller Co. v. Doe, supra, 151 Cal.App.4th at 888. The stipulation in this case expressly requires a motion to seal and provides that Hennings does not waive any claim that the documents are not confidential or trade secrets. [Stipulated Protective Order filed Oct. 18, 2019, 2:15-16, 4:21-25] The court does not know the terms of the federal protective order, though it would not bind Hennings or this court. The protective orders do not require sealing of the records.

The third ground for sealing is: 3) The testimony related to the documents sought to be sealed relates to confidential and protected information produced in the federal litigation. These are conclusory statements and do not support sealing the records. The court does not know why the information meets the criteria set forth in CRC 2.550(d).

The fourth ground is: 4) The documents and communications between or among BMW and NHTSA were submitted to NHTSA under confidentiality expectations and thus, are not public documents. Again, this statement simply says the documents were not public in another context and does not tell this court why the documents should not be public in this case.

The court does not find an overriding interest that overcomes the right of public access to the record. The court does not have information regarding what interest will be prejudiced if the record is not sealed. The proposed sealing is not narrowly tailored.

For the foregoing reasons the court denies defendants CMG Motors, Inc., dba BMW of San Diego, and BMW of North America, LLC’s Motion to File Under Seal Confidential Testimony, Correspondence, and References Thereto in Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment and Defendant’s Reply. On or before March 2, 2020, the parties shall filed unredacted copies of all documents filed conditionally under seal. (These must be electronically filed, so the court cannot simply unseal the documents filed provisionally under seal. In the case of Hennings’s appendix of documentary evidence, Hennings may simply provide full copies of the exhibits previously omitted or redacted with a cover sheet identifying what they are.)

Motion for Summary Judgment/Adjudication: Defendants BMW and SMG (collectively “BMW”) move for summary judgment because federal law preempts enforcement of the claims; the possibility of a product failure does not constitute a breach of the implied warranty of merchantability; Hennings has not identified a particular purpose for the vehicle; BMW has not violated Civil Code § 1793.2 because there is an exception for conditions beyond the control of the manufacturer; BMW cannot be liable for fraudulent misrepresentations or concealment because Takata admitted that it created a scheme to defraud manufacturers, including BMW, and there is no evidence of damage; the claim of negligent repair fails because NHTSA authorized the recall fix that BMW performed and there is no evidence of damage. Hennings opposes the motion.

1. Pleadings: Hennings filed a sur reply and evidence in support thereof. On December 5, 2019, the court entered a stipulation and order extending the deadline for a reply and other dates so that BMW could depose plaintiff. The stipulation provided that Hennings had “the option to submit a Sur Reply, to be limited only to addressing any issued raised in the Reply specifically as to facts testified to by Plaintiff in deposition that may be used in support of Defendants’ MSJ Reply….” The reply does not raise any issue related to Hennings’s deposition testimony and does not even mention his deposition. To the extent that Hennings said things in his deposition that were helpful to his case, those are facts that Hennings knew when he filed his opposition to the motion for summary judgment/adjudication. The court, on its own motion, strikes the Sur Reply that Hennings filed on January 31, 2020, and the declaration of Daniel Kalinowski in support thereof filed on January 31, 2020.

BMW asks for sanctions against Hennings’s counsel pursuant to CCP § 128.5. The request does not comply with CCP § 128.5(f)(1)(A) or (B). Therefore, the court denies the request for sanctions.

2. Summary Judgment/Adjudication Standards: Summary judgment is appropriate where there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CCP § 437c(c). “The 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; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 850 (2001). “A defendant bears the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto. (§ 437c, subd. (p)(2).)” Id.

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” Aguilar v. Atl. Richfield Co., 25 Cal.4th 826, 850 (2001). A burden of production entails only the presentation of evidence, while a burden of persuasion “entails the establishment through such evidence of a requisite degree of belief.” Id.

A party moving for summary judgment has the burden to show that it is entitled to judgment with respect to all of the plaintiff’s theories of liability. Lopez v. Superior Court, 45 Cal.App.4th 705, 717 (1996). The court “must deny the motion if there is a single issue of material fact in dispute.” Cates v. California Gambling Control Com., 154 Cal.App.4th 1302, 1308 (2007).

“A party may move for summary adjudication as to one or more causes of action within an action…. A motion for summary adjudication shall be granted only if it completely disposes of a cause of … or an issue of duty. CCP § 473c(f)(1). “A summary adjudication motion is subject to the same rules and procedures as a summary judgment motion.” Case v. State Farm Mut. Auto. Ins. Co., 30 Cal.App.5th 397, 401 (2018), quoting Lunardi v. Great-W. Life Assurance Co., 37 Cal.App.4th 807, 819 (1995).

3. Objections to Evidence:

a. Hennings’s Objections: Hennings objects to portions of BMW’s evidence in support of the motion. These objections do not comply with CRC 3.1354(b) because they are not consecutively numbered and they are not referenced by objection number in Hennings’s response to the separate statement. Without this information in the separate statement the court is left only with Hennings’s statements of dispute or lack of dispute, which are not based on the inadmissibility of the evidence. Indeed, Hennings cites some of the very evidence he objects to in support of his statements of dispute. Therefore, the court overrules the objections.

b. BMW’s Objections: BMW objects to portions of Hennings’s evidence in opposition to the motion. These objections, too, do not comply with CRC 3.1354(b). Although they are consecutively numbered, the objections are not referenced by objection number in BMW’s response to the separate statement. Therefore, the court overrules the objections.

4. Facts: The court has taken the material facts from BMW’s separate statement of undisputed material facts in support of the motion (“BUF”) ##1-19 and Hennings’s responses thereto; and Hennings’s separate statement of undisputed material facts in opposition to the motion (“HUF”) ##1-26 and BMW’s responses thereto. Where either party has indicated a fact is in dispute, the court has examined the underlying evidence to determine if there is a genuine dispute or the extent of any dispute.

On August 2, 2013, Hennings purchased a new 2013 BMW 328i. [BUF #1] On November 3, 2015, NHTSA issued a Coordinated Remedy Order (“CRO”). Pursuant to statutory authority, NHTSA has the authority to implement and oversee automotive recalls. [BUF #2] On March 15, 2016, NHTSA issued a first amendment to the original CRO. (Hennings points out that the statement does not reflect BMW’s role in negotiating the CRO. But that does not change the force or effect of NHTSA’s CRO and amendments thereto.) [BUF #3] NHTSA issued second and third amendments to the CRO on September 29 and December 9, 2016. [BUF ##4, 5]

On November 3, 2015, NHTSA issued a Consent Order regarding the alleged failure of TK Holdings, Inc. (“Takata”) to fully comply with the requirements of the National Traffic and Motor Vehicle Safety Act of 1966 as amended and recodified (the “Safety Act”), 49 U.S.C. section 30101 , et seq., and applicable regulations thereunder. [BUF #6] On May 4, 2016, NHTSA issued a first amendment to the original Consent Order. [BUF #7]

On February 5, 2016, BMW filed a mandatory Part 573 Defect Information Report (“DIR”) with NHTSA, indicating “due to the large volume of new inflators needed to repair vehicles, the necessary parts will not be immediately available.” The DIR detailed which BMW vehicles are affected by the Takata airbag recall. [BUF #8]

On January 13, 2017, Takata signed a Rule 11 Plea Agreement in which it admitted to testing, designing, validating, manufacturing and selling defective airbag inflators. Takata admitted to defrauding “victim automotive manufacturers” about the safety of its airbag inflators. Takata was ordered to pay restitution to the “victims of their fraud,” that is, auto manufacturers who were defrauded in connection with their purchase of Takata airbag systems based on materially false, fraudulent, and misleading documents and information. [BUF #9]

In March of 2016, Hennings received a notice of Recall Campaign No. 16V-071 from BMW regarding the driver’s front airbag (“March 2016 Recall Notice”). [BUF #10] BUF #11 states: “In June of 2016, plaintiff received a notice of updates regarding Recall Campaign No. 16V-071 from BMW NA regarding the availability of replacement airbag inflators.” However, the underlying evidence does not demonstrate that the notice was sent to Hennings or that he received it. Therefore, that fact is disputed. On August 10, 2018 at 42,297 miles, Hennings presented his vehicle to BMW San Diego, for replacement of the airbag inflator. It was successfully replaced on August 10, 2017 at no charge to Hennings. [BUF #12]

Hennings’s complaint filed on May 30, 2017, raises only the issue with the Takata airbag system in his vehicle. [BUF ##13, 14] Hennings says he also took the vehicle to BMW San Diego for other issues and his homelink and Bluetooth systems are still inoperable. But “the complaint limits the issues to be addressed in defendant’s motion for summary judgment. [Citation] If a plaintiff wishes to expand the issues to be considered, he must seek leave to amend the complaint.” Alvis v. County of Ventura, 178 Cal.App.4th 536, 548 (2009). “A sufficient motion cannot be successfully resisted by counterdeclarations which create immaterial factual conflicts outside the scope of the pleadings; counterdeclarations are no substitute for amended pleadings.” AARTS Productions, Inc. v. Crocker National Bank, 179 Cal.App.3d 1061, 1065 (1986). For the same reasons, the court is not considering HUF ##18-23.

Hennings has not alleged that his vehicle’s airbag ever ruptured or otherwise failed. [BUF #15] Hennings has not identified any particular purpose for which he purchased the vehicle. [BUF #17] Hennings has not identified any evidence that shows that BMW had reason to know of any particular purpose for which he purchased the vehicle or that he was relying on BMW’s skill or judgment for a particular purpose. [BUF ##18, 19]

The defective air bag inflator installed as original equipment in Hennings’s vehicle constituted a safety risk. Defective air bag inflators may malfunction and cause shrapnel to explode into the occupants of the vehicle, causing severe personal injury or death. [HUF #1] The additional fact regarding a Takata airbag inflator that exploded in a BMW vehicle in Switzerland is not material as there is evidence that it was an anomaly and it was a different Takata inflator than what was installed in Hennings’s vehicle. [HUF ##1, 2]

HUF ##3-9 concerning correspondence regarding Takata airbags in 2010 are immaterial as they relate to different model years and inflators. Similarly, the 2013 communication referenced in HUF ##10 and 11 relate to different model years and inflators.

When deciding which vehicle to purchase, Hennings considered safety and quality. [HUF #14] He reviewed advertisements and does not recall any disclosure regarding problems with airbags. [HUF #15] BMW Santa Barbara’s sales representatives touted the superiority and quality of BMW vehicles but did not inform Hennings of any problems with Takata airbags installed in BMW vehicles. [HUF #16] If he had known about the defective nature of Takata airbags in the 2013 BMW 328i, Hennings would not have purchased it. [HUF #17]

Prior to the NHTSA Recall No. 16V071 notice in March of 2016, neither BMW nor its dealerships ever informed Hennings of any issues or problems with Takata airbags, or of any ongoing NHTSA investigation into the Takata airbags. [HUF #24] After receiving the notice of NHTSA Recall No. 16V071 in March 2016, Hennings followed up with BMW NA and San Diego BMW as to when the recall would be performed. For more than a year, BMW NA and BMW San Diego did not perform the recall. It was not until more than one year later that BMW NA and San Diego BMW finally performed the recall. [HUF #25] Some replacement airbag inflators were available by February 5, 2016. [HUF #26]

BMW offered a supplemental undisputed fact with its reply. That is not authorized and the court disregards it.

5. Preemption: BMW maintains that Hennings’s causes of action are preempted by NHTSA’s regulation as evidenced by the CRO and amendments thereto.

“[A] federal safety standard will pre-empt a state common-law tort action with which it conflicts.” Geier v. American Honda Motor Co., 529 U.S. 861, 870 (2000). “A state law also is pre-empted if it interferes with the methods by which the federal statute was designed to reach this goal.” International Paper Co. v. Ouellette, 479 U.S. 481, 494 (1987).

BMW argues that NHTSA’s actions and orders, which required BMW NA to undertake certain actions on both a timeline and pursuant to a process NHTSA dictated, impliedly preempt plaintiff s state law claims because BMW could not comply with the NHTSA orders and what Hennings claims state law requires at the same time. This argument depends on the details of the NHTSA orders, specifically the CRO and amended CROs.

This is where BMW’s separate statement is deficient. A separate statement must set forth “plainly and concisely all material facts that the moving party contends are undisputed.” CCP § 437c(b)(1). But the terms of the NHTSA orders are not stated in the separate statement. In Reeves v. Safeway Stores, Inc., 121 Cal.App.4th 95 (2004), the court of appeal explained that stating what someone said in a deposition is not a material fact and “is of interest only as evidence of a material fact.” Id. at 106. Here the material facts are that NHTSA issued an order and what it said as the force of law. But the separate statement only lists certain orders that NHTSA made. It does not tell the court what the orders say.

This is significant as it would require the court to go find the page in the 243 pages of evidence BMW filed and find the particular provision on which BMW relies. For example, in its memorandum, BMW relies on the fact that Hennings’s vehicle is in “Priority Group 5” and when the remedy was to be completed for that group. These are facts that do not appear in the separate statement. The “Golden Rule of Summary Adjudication” is as follows: “If it is not set forth in the separate statement, it does not exist.” Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co., 133 Cal.App.4th 1197, 1208 (2005).

The purpose of the separate statement is “to permit the judge to determine quickly whether the motion is supported by sufficient undisputed facts. … This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion.” Kulesa v. Castleberry, 47 Cal.App.4th 103, 113 (1996). Failure to comply with the statutory requirement of a separate statement is ground for denying the motion. CCP § 437c(b)(1). The court also has discretionary power to deny summary judgment or adjudication on the basis of failure to comply with CRC 3.1350. Truong v. Glasser, 181 Cal.App.4th 102, 118 (2009).

Because of the deficient separate statement, BMW has not sustained its initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact regarding preemption. The court will not grant summary adjudication based on preemption.

6. Breach of Implied Warranty: “Unless disclaimed in the manner prescribed by this chapter, every sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer’s and the retail seller’s implied warranty that the goods are merchantable.” Civil Code § 1792. An “‘Implied warranty of merchantability’ … means that the consumer goods … (2) Are fit for the ordinary purposes for which such goods are used.” Civil Code § 1791.1. “Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.” Civil Code § 1794(a).

Fitness for the ordinary purpose for which a product is sold “is shown if the product is in safe condition and substantially free of defects.” Mexia v. Rinker Boat Co., 174 Cal.App.4th 1297, 1303 (2009) [internal quotation and citation omitted]. The implied warranty “does not impose a general requirement that goods precisely fulfill the expectation of the buyer. Instead, it provides for a minimum level of quality.” American Suzuki Motor Corp. v. Superior Court, 37 Cal.App.4th 1291, 1296 (1995) [internal quotation and citation omitted].

In American Suzuki, the appellate court ruled that class certification was unwarranted “Because the vast majority of the Samurais sold to the putative class ‘did what they were supposed to do for as long as they were supposed to do it’ [citation], we conclude that these vehicles remained fit for their ordinary purpose. This being so, their owners are not entitled to assert a breach of implied warranty action….” Id. at 1298-1299. If a defect has not manifested itself in the limited useful life of a vehicle, “the buyer has received what he bargained for.” Hicks v. Kaufman & Broad Home Corp., 89 Cal.App.4th 908, 923 (2001). A plaintiff establishes a breach of warranty if it can prove the product contains “an inherent defect which is substantially certain to result in malfunction during the useful life of the product.” Id. at 923.

It is undisputed that the complaint is based on the defects in the Takata airbag system and such a system was installed in Hennings’s vehicle. [BUF #14] (The court has addressed above Hennings’s argument that there were other defects that are not subject to the complaint.) It is also undisputed that Hennings has not alleged that his vehicle’s airbag ever ruptured or otherwise failed. [BUF #15]

Hennings argues that the vehicle was not merchantable because it “was beset by grave and unpredictable safety problems from the time of sale until the airbag’s eventual replacement over four (4) years later.” [Opposition 14:19-21] He relies on Isip v. Mercedes-Benz USA, LLC, 155 Cal.App.4th 19 (2007), in which the court stated: “Defining the warranty in terms of a vehicle that is ‘in safe condition and substantially free of defects’ is consistent with the notion that the vehicle is fit for the ordinary purpose for which a vehicle is used.” Id. at 27.

But that definition does not eliminate the requirement that a defect manifest itself. In Isip, the plaintiff experienced myriad problems with the vehicle in the first year of ownership: the air-conditioning emitted an offensive smell every time it was turned on causing a headache and sneezing; the car made a loud tugging noise when engaging the gear; it made a clanking noise when releasing the brake in reverse; “when the car automatically shifted gears to pick up speed, the car pulled back, hesitated, and then took off like a slingshot”; it hesitated and pulled back before slowing down; the engine made a loud knocking sound; there were fluid leaks; and white smoke came out of the exhaust system. Id. at 22. The court concluded: “A vehicle that smells, lurches, clanks, and emits smoke over an extended period of time is not fit for its intended purpose.” Id. at 27.

Here there is only evidence that Takata airbag inflators like the one in Hennings’s car failed. But the airbag system in Hennings’s car did not fail and BMW replaced it. There is no allegation that the replacement is in any way defective.

BMW has sustained its initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact on implied warranty cause of action. Hennings has not sustained his burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact; to wit: that the alleged defect manifested itself before it was remedied. The court will grant summary adjudication of the first cause of action for breach of implied warranty.

7. Express Warranty: Civil Code § 1793.2(b) provides in pertinent part: “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.”

Hennings sought a repair after getting the recall notice and more than one year later that BMW NA and San Diego BMW finally performed the recall. [HUF #25] BMW contends that it did not violate Civil Code § 1793.2(b) because of delays caused by conditions beyond its control. BMW relies on NHTSA’s detailed timeline and the lack of availability of replacement inflators. [Motion Memorandum 21:18-22:5] Again BMW relies on facts not set forth in the separates statement.

BMW has not sustained its initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. The court will not grant summary adjudication of the second cause of action.

8. Fraudulent Misrepresentation and Concealment: The elements of fraud are: (1) a misrepresentation of material fact; (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. Lazar v. Superior Court, 12 Cal.4th 631, 638 (1996). “The elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” Linear Technology Corp. v. Applied Materials, Inc., 152 Cal.App.4th 115, 131 (2007).

BMW’s first argument is that it cannot be liable for fraud because Takata pled guilty to a scheme to defraud manufacturers (Issues 3 and 4). BMW offers a single fact in support of summary adjudication of these two causes of action based on Takata’s plea. On January 13, 2017, Takata signed a Rule 11 Plea Agreement in which it admitted to testing, designing, validating, manufacturing and selling defective airbag inflators. Takata admitted to defrauding “victim automotive manufacturers” about the safety of its airbag inflators. Takata was ordered to pay restitution to the “victims of their fraud,” that is, auto manufacturers who were defrauded in connection with their purchase of Takata airbag systems based on materially false, fraudulent, and misleading documents and information. [BUF #9]

BMW contends this shows there is no evidence BMW knew of any defect at the time of the purchase. But, at most, this fact demonstrates that BMW did not learn of the defect from Takata. (The statement of fact does not identify BMW as one of the “victim automotive manufacturers.”) Also, there is nothing in this fact indicating when Takata committed its fraud or that there was no other information subsequent to Takata’s fraud that would have given BMW knowledge. As to issues 3 and 4, BMW has not sustained its initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.

BMW also contends it is entitled to summary adjudication of these two causes of action because the airbag inflator was replaced for free before it malfunctioned. As noted above, resulting damage is a necessary element of fraud. As discussed above with respect to the implied warranty claim, there is no evidence that Hennings was damaged by the presence of the Takata airbag inflator in his vehicle from time of purchase to the time of replacement on August 10, 2017, at no charge to Hennings. Hennings goes on at length about justification for punitive damages. But BMW does not seek summary adjudication of a claim to punitive damages. Rather, BMW contends the fraud claims fail for lack of evidence of actual damages. “In California, as at common law, actual damages are an absolute predicate for an award of exemplary or punitive damages.” Kizer v. County of San Mateo, 53 Cal.3d 139, 147 (1991).

BMW has sustained its initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact as to the third and fourth causes of action. Hennings has not sustained his burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. The court will grant summary adjudication of the third and fourth causes of action.

9. Negligent Repair: For this cause of action, Hennings must prove that 1) BMW repaired the vehicle, 2) BMW was negligent in repairing the vehicle, 3) plaintiff was harmed, and 4) that BMW’s negligence was a substantial factor in causing Hennings’s harm. CACI 1220. Hennings argues that the delay in repairing the vehicle constitutes negligent repair. The court need not decide whether actions predating the repair could constitute negligent repair because, as discussed above, Hennings has not suffered damages.

BMW has sustained its initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact as to the fifth cause of action. Hennings has not sustained his burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. The court will grant summary adjudication of the fifth cause of action.

10. Hennings’s Request for a Continuance: Hennings asks the court to continue the hearing on the motion in the event the court is inclined to grant summary judgment or adjudication. The court shall deny a motion or continue it if it appears from affidavits “that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented.” CCP § 437c(h). The declarations must state““(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.” Cooksey v. Alexakis, 123 Cal.App.4th 246, 254 (2004). The party seeking a continuance must show diligence in discovery and a request for continuance will be denied where the party fails to explain why the discovery sought could not have been completed sooner. Id. at 255. Continuances under CCP § 437c(h) are to be liberally granted. Hamilton v. Orange Cty. Sheriff’s Dep’t, 8 Cal.App.5th 759, 765 (2017), citing Bahl v. Bank of America, 89 Cal.App.4th 389, 395 (2001).

Hennings says that, at the deposition of BMW’s person most knowledgeable on October 22, 2019, only eight pages from a much larger production in another case were produced. When he served his opposition to the motion for summary judgment/adjudication on November 27, 2019, Hennings said he intended to file a motion to compel further production. He did not file a motion to compel until February 3, 2020, and set it for hearing on the day of trial. In addition to the untimeliness of the motion under CCP 2024.020(a) because it is set for hearing on the day of trial, Hennings’s delay does not demonstrate diligence.

Also, the court is granting summary adjudication of some causes of action because of the absence of evidence of damages. Hennings does not suggest that BMW has evidence of his damages.

The court denies Hennings’s request for a continuance.

11. Order: The court grants, in part, defendants CMG Motors, Inc., dba BMW of San Diego, and BMW of North America, LLC’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication. The court grants defendants summary adjudication of plaintiff Erik A. Hennings’s first, third, fourth, and fifth causes of action. The court denies the motion as to the second cause of action. The court denies plaintiff Erik A. Hennings’s request for a continuance of the hearing on the motion.