Orange County Team Secures Summary Judgment And Recovery Of Costs For Kia America In Hotly Contested Lemon Law Dispute

Orange County, Calif. (December 2, 2025) – Orange County Partner Cary Mullen and Associate James Werner recently secured a dismissal on summary judgment and recovery of costs for the firm's client, Kia America, Inc., in the matter of Charbel Adaimy v. Kia America, Inc., (erroneously sued as Kia Motors America, Inc.), LASC No. 23STCV24815.

On August 26, 2025, Los Angeles Superior Court Judge Daniel S. Murphy granted summary judgment in favor of Kia America ("Kia"), dismissing all four causes of action for breach of express warranty and breach of implied warranty brought by a consumer under the Song-Beverly Consumer Warranty Act ("Act") – California's "Lemon Law." The plaintiff – a purchaser of a new automobile distributed by Kia – claimed the automobile contained defects and nonconformities to warranty, including transmission defects, electrical defects, and engine defects, among others, which manifested during the applicable warranty period. The plaintiff claimed Kia violated the Act because its authorized repair facility failed to repair the defects and nonconformities after a reasonable number of repair opportunities per Cal. Civil Code § 1793.2(d)(2), the authorized repair facility did not conform the vehicle to warranty within a reasonable time per Cal. Civil Code § 1793.2(b) ("30-day requirement"), and Kia failed to provide adequate service literature and replacement parts per Cal. Civil Code § 1793.2(a)(3). The plaintiff additionally claimed Kia violated the implied warranty of merchantability because it failed to sell a car that was merchantable per Cal. Civil Code § 1792. Finally, the plaintiff claimed that because Kia failed to conform the vehicle after a reasonable number of repair attempts and did not promptly offer to repurchase or replace the vehicle, it willfully refused its legal obligation to do so, which entitled the plaintiff to restitution, a two-timescivil penalty, and attorneys' fees and costs.

I. The CourtGrantsKia's Motion for Summary Judgment

This dispute turned on the core issue of what constitutesa reasonable number of repair attempts sufficient to require the manufacturer or distributor to promptly offer to repurchase or replace the new motor vehicle under the law. What is considered a reasonable number of repair attempts is ordinarily a question of fact, but it must be more than one. (Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208-09.)

The plaintiff's primary theory of liability was premised on the contention that the vehicle was subject to at least two repair attempts for the same transmission defect that the dealer could not fix. In opposing Kia's motion for summary judgment, the plaintiff filed a declaration attesting that, in addition to the repair records in support of his claims, he visited the dealer on a third unspecified occasion with a transmission complaint, but the dealer failed to document it. The plaintiff also argued his visits to the dealer for routine maintenance or other visits for recall repairs without complaint counted in aggregate towards a reasonable number of repair opportunities for the transmission defect. The Court disagreed with the plaintiff.

Due in no small part to Mr. Werner's strong briefing and oral argument,the Court found that the plaintiff had no evidence of a transmission defect to warranty which persisted despite Kia's authorized repair facility having at least two repair attempts, and the plaintiff had no evidence of any other warranty-covered defect. In addition, the Court agreed with Kia that the declaration the plaintiff filed directly contradicted his deposition testimony, which cannot create a triable issue of material fact. (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087.) Thus, Kia successfully repaired the vehicle to conform to warranty within a reasonable number of attempts, satisfying its obligation under Civil Code § 1793.2(d)(2).

As to the remainder of the plaintiff's claims, the undisputed material facts showed that Kia's authorized repair facility initiated repairs within a reasonable time and completed the repair within 30 days, so plaintiff's claim under 1793.2(b) failed as a matter of law. The Court also found that because Kia had fixed the vehicle within a reasonable number of repair opportunities, no reasonable trier of fact could conclude that Kia's authorized repair facility lacked sufficient service literature or replacement parts to effect repair, or that Kia breached the implied warranty of merchantability.

II. Plaintiff's Motion for Reconsideration Denied

On August 18, 2025, the plaintiff filed his motion for reconsideration. The plaintiff's motion attacked Kia's moving summary judgment papers and evidence by claiming the defendant withheld deposition testimony, which created a triable issue of material fact because the missing testimony was evidence that the plaintiff visited the dealer prior to the first repair visit admitted into evidence. Once more, the Court disagreed with the plaintiff.

On September 22, 2025, the Court denied the plaintiff's motion because it found that it was not based on "new or different facts, circumstances, or law." (Cal. Code of Civil Proc. § 1008(a).) These are "strict jurisdictional limits," and a court cannot consider a motion for reconsideration that does not meet these requirements. (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1278.). In reaching this conclusion, the Court agreed with Kia that "the information obtained from the plaintiff's own deposition is not 'new or different,' because the plaintiff has possessed the information from the outset." (See McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1265 ["To merit reconsideration, a party must give a satisfactory reason why it was unable to present its 'new' evidence at the original hearing."]" But even when giving the plaintiff a benefit of the doubt, the Court reasoned that theplaintiff's counsel made a strategic decision to omit that testimony from their briefing. Had it been included, however, that equivocal deposition testimony lacked substantial responsive evidence sufficient to raise a material dispute. So, it made no difference. Finally, the Court denied the plaintiff's counsel's request for alternative relief for excusable neglect under Code of Civil Procedure § 473(b) because the omitted testimony would not have created a triable issue, so relief was unwarranted.

III. Plaintiff's Motion to Tax or Strike Kia's Costs Denied

On September 8, 2025, Kia filed a memorandum of costs. On September 12, 2025, the plaintiff filed his motion to tax or strike Kia's costs in its entirety. The plaintiff claimed that Kia's costs were unnecessary and unreasonable. In addition, plaintiff argued that Kia was not entitled to recover its costs because only plaintiff was entitled to recover costs under the Act pursuant to Cal. Civil Code § 1794. Finally, plaintiff argued that Kia was not entitled to its pre-statutory offer of compromise Cal. Code of Civil Proc. § 998 costs because the offer limits recovery only to post-offer costs. For a third time, the Court disagreed withthe plaintiff.

On October 22, 2025, the Court denied plaintiff's motion to tax or strike Kia's costs completely. In pertinent part, the Court concluded that "[n]o statute, including the Song-Beverly Act, expressly precludes a prevailing [distributor] from recovering its costs. California courts have 'reject[ed] the buyer's contention that Civil Code section 1794 provide[s] the exclusive mechanism for cost recovery in a Song-Beverly Act case and preclude[s] recovery of costs under Code of Civil Procedure sections 998 and 1032.'" (Covert v. FCA USA, LLC (2022) 73 Cal.App.5th 821, 835.) "Civil Code section 1794, subdivision (d), d[oes] not expressly prohibit prevailing sellers from recovering their costs." Thus, a prevailing [distributor] is entitled to costs under section 1032. Also, "Section 998 does not expressly preclude the prevailing defendant's pre-offer costs. The Court entered judgment in Kia's favor, and the plaintiff recovered nothing on the complaint. Thus, Kia is a prevailing party under section 1032 and is entitled to recover its costs, and its costs are not cut off under section 998.

Thankfully, the Court made a final determination that all Kia's claimed costs were reasonable and necessarily incurred and substantiated by proper invoicing.

IV. Key Takeaway

For manufacturers and distributors faced with the unenviable position of defending against warranty claims made by aggressive and sophisticated plaintiff attorneys, it is critical to retain strategic attorneys like Mr. Mullen and Mr. Werner who will advocate zealously for their clients from start to finish. These three rulings made by the court here are not only evidence of diligence but are also a roadmap to successful litigation in consumer warranty defense.

For questions about these decisions or best practices in defending consumer warranty claims, please contact Cary Mullen. For more information on Lewis Brisbois' capabilities in this area, visit our Consumer Warranty Practice page.

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