Filed 12/5/19 Moore v. Kia of Riverside CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

HENRIETTA MOORE,

Plaintiff and Appellant,

v.

KIA OF RIVERSIDE,

Defendant and Respondent.

E071347

(Super.Ct.No. RIC1613612)

OPINION

APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge. Affirmed.

Law Office of Zulu Ali, Zulu Ali, Geoffrey W. Sorkin and Sajjad Hussain for Plaintiff and Appellant.

SJL Law, Julian G. Senior and Marcelo Lee for Defendant and Respondent.

Henrietta Moore sued Kia of Riverside (Kia or the dealership) for fraud and unfair competition after Kia allegedly misrepresented that her leased car had an irreparable defect. The trial court granted Kia’s summary judgment motion. We affirm.

BACKGROUND

I. The Complaint’s Allegations

According to Moore’s verified complaint, in April 2012, she leased a 2012 Kia Optima from the dealership. She entered into a three-year lease with a monthly payment of $271. In May 2014, the car was not operating properly. Kia told her that the engine had failed for reasons not covered by the warranty and that the problem was not a manufacturer’s defect. Kia also said that the problem could not be repaired. The dealership told her that her “only option” was to buy or lease another car, and it held her responsible for the remaining payments on the 2012 lease. Moore leased a 2014 Optima with a monthly payment of $441, which included the payments remaining on the 2012 lease.

In February 2016, Moore learned that Kia had recalled the 2012 Optima for engine defects. Later, she also learned that the dealership had repaired her 2012 Optima and had sold it shortly after the dealership told her that the engine problem was irreparable.

II. Kia’s Summary Judgment Motion

Kia moved for summary judgment on the ground that Moore could not establish numerous elements of her fraud and unfair competition causes of action.

The evidence in support of and in opposition to Kia’s summary judgment motion consisted mostly of excerpts from Moore’s deposition. For the most part, Moore could not identify any statements made by Kia. She testified that she did not recall any conversations with anybody at Kia about the 2012 Optima. No one told her that the car was not operating correctly because the engine had failed for reasons not covered by the warranty. No one at the dealership told her anything about the motor or engine in the 2012 Optima. But she replaced the 2012 Optima “[b]ecause of the motor.” She had to lease the 2014 Optima because her son needed a car for work. She leased the 2014 Optima on the basis of something that someone at the dealership said, but she could not recall what was said or who said it. The speaker was “[p]robably” a salesperson.

In response to one question, Moore testified that, prior to trading in the 2012 Optima, she “asked the salesperson could he put an engine in the car. And he said no, that they were going to junk it.” She did not know the name of the salesperson. This took place “when [she] went to lease the 2014 Optima.” Her son told her that Kia “put a motor in” her 2012 Optima and sold it.

Moore did not make payments on either the 2012 or the 2014 Optima; her son made the payments. The payments doubled after she leased the 2014 Optima. Her credit score went from almost 800 to the 600s because some of her son’s payments were late.

The court granted Kia’s summary judgment motion. It ruled that there were no triable issues of material fact as to whether Kia made false statements on which Moore could justifiably rely. Moreover, the court ruled, her claim of damages was speculative and uncertain. The court entered judgment for Kia.

STANDARD OF REVIEW

The trial court may grant summary judgment if there is no triable issue of material fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f); Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813.) To prevail, moving defendants must show that one or more elements of the challenged causes of action cannot be established or that there is a complete defense to the causes of action. (§ 437c, subds. (a), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar).)

Once the moving defendants have carried their initial burden, the burden shifts to the plaintiff to show a triable issue of material fact with respect to the causes of action or defense. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) The court must consider all the evidence and the reasonable inferences from it in the light most favorable to the nonmoving party. (Aguilar, at p. 843.) “There is a triable issue of material fact 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.” (Id. at p. 850.)

We review summary judgment orders de novo and apply the same legal standard as the trial court. (Travelers Property Casualty Co. of America v. Superior Court (2013) 215 Cal.App.4th 561, 574.) We independently examine the record to determine whether there are triable issues of material fact and whether the moving party is entitled to summary judgment as a matter of law. (Ibid.)

DISCUSSION

Moore contends that the court erred with respect to the fraud cause of action. She argues that there were triable issues of material fact as to whether Kia misrepresented facts and whether those misrepresentations caused damages. We disagree.

The essential elements of fraud “are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another’s reliance on the misrepresentation, (4) justifiable reliance, and (5) resulting damage.” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1255.)

Here, Moore did not introduce evidence creating a triable issue of material fact as to whether Kia misrepresented anything. The only statement that Moore could attribute to Kia was a response to her question about whether a new engine could be put in her car. An unidentified salesperson “said no, that they were going to junk it.” In opposition to Kia’s summary judgment motion, Moore produced no admissible evidence that this statement was false. She points to her deposition testimony that her son said Kia “put a motor in” the car and sold it. But the testimony was inadmissible hearsay, given that Moore was offering her son’s statement for its truth. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119 [the court must decide a summary judgment motion on the basis of admissible evidence].)

Moreover, assuming that the unidentified salesperson’s statement was false, Moore introduced no evidence of knowledge of falsity. She argues that the unidentified salesperson must have known the statement was false because “whether the engine could be replaced . . . is basic knowledge and expertise that an ordinary car dealership (like Defendant) must possess in order to operate its business.” This amounts to nothing more than speculation and is insufficient to carry Moore’s burden. In opposition to a summary judgment motion, “the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant’s showing. [Citations.] For this purpose, responsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163; see also Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1299 [speculation is not evidence].)

In short, the court did not err by granting Kia’s summary judgment motion. Kia showed that Moore could not establish essential elements of her fraud cause of action—a misrepresentation with knowledge of its falsity. We need not reach Moore’s additional argument that the court erred with respect to damages.

 

DISPOSITION

The judgment is affirmed. Kia shall recover its costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ

J.

We concur:

MILLER

Acting P. J.

RAPHAEL

J.