Department 58

Hearing Date: December 6, 2022

Case Name: Aaron Caver et al. v. Kia Motors America, Inc.

Case No.: 21STCV13606

Motion: Motion for Summary Judgment/Adjudication

Moving Party: Defendant Kia Motors America

Responding Party: Plaintiffs Aaron Caver and Tynisha Knox

Tentative Ruling: The Motion for Summary Judgment is continued to a later date to be determined at the hearing.

Background

This is an action brought under the Song-Beverly Act by Plaintiffs Aaron Caver (Caver) and Tynisha Knox (Knox) against Defendant Kia Motors America, Inc. (Kia). Plaintiffs are co-owners of a 2016 Kia Soul (Vehicle). Knox initially leased the Vehicle in December 2015 from Kia of Downtown and in January 2020, Knox and Caver purchased the Vehicle from Car Pros Kia Glendale.

The Complaint alleged claims for (1) violation of Civil Code section 1793.2, subdivision (d), (2) violation of Civil Code section 1793.2, subdivision (b), (3) violation of Civil Code section 1793.2, subdivision (a)(3), (4) breach of express written warranty, and (5) breach of implied warranty of merchantability.

Motion for summary judgment

Defendant moves for summary judgment of all claims, based primarily on the evidence in the form of two declarations: Mandyjay Lewis (Lewis) and Mohamed Kharboush (Kharboush). Lewis is an “Escalated Case Administration Manager” for Kia and “handle[s] matters which are customer facing,” while Kharboush is the General Manager at Car Pros Kia Glendale. Plaintiff objects to both declarations.

The Court sustains the objections for lack of foundation. (Cal. Rules of Court, rule 5.111(b)(2) [“A declaration must be based on personal knowledge and explain how the person has acquired that knowledge”].) Lewis, as a manager for a team “which reviews consumers’ requests for repurchase or replacement under the lemon law,” does not explain the basis for her knowledge that Kia “does not manufacturer any vehicles or consumer products” and is only a “distributor of new, Kia-branded motor vehicles.” (Lewis Decl., ¶¶ 2, 3.) As to Kharboush, he cannot competently testify that the Vehicle is used as to the Plaintiffs because he has no knowledge of the ownership history prior to his dealership selling the Vehicle in January 2020.

Defendant also contends that it is only a distributor and did not manufacture the Vehicle. However, “Kia Motors America” issued the warranty. “If express warranties are made by persons other than the manufacturer of the goods, the obligation of the person making such warranties shall be the same as that imposed on the manufacturer under this chapter.” (Civ. Code, § 1795, italics added.) Thus, even if Defendant is a distributor, it may still be liable for breach of the express warranty.

In addition, Defendant argues that distributors cannot be liable for a breach of implied warranty. It advances a plain text argument that Civil Code section 1792 only applies to manufacturers and retail sellers, while section 1792.2 specifically imposes implied warranties on distributors for the sale of consumer goods that are required for a particular purpose. (See Civ. Code, §§ 1792, 1792.2, subd. (a).)

The Court does not make a finding on whether Defendant is, in fact, a distributor or manufacturer. To the extent that Defendant is impliedly asserting that Plaintiff has named the wrong party, at least for the implied warranty claim, the Court shall permit Plaintiffs 60 days leave to amend the Complaint to add in the Vehicle manufacturer. (See Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 929 [trial court abused its discretion in refusing leave to amend to allege viable Magnuson-Moss claims after summary judgment was granted on Song-Beverly claims].) The Court assumes that the manufacturer is affiliated with the current Defendant and Defendant’s counsel will accept service on its behalf once named.

The hearing on the motion for summary judgment is therefore continued. The Court shall either reset the hearing or set a Status Conference to do so.