Judge Bruce G. Iwasaki

Department 58

Hearing Date: March 6, 2024

Case Name: Caver v. Kia Motors America, Inc.

Case No.: 21STCV13606

Matter: Demurrer

Moving Party: Defendant Kia Motors America, Inc.

Responding Party: Plaintiffs Tynisha Knox

Tentative Ruling: The Demurrer is sustained in its entirety with leave to amend.

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) and DOES 1-10. Plaintiffs are co-owners of a 2016 Kia Soul (Vehicle). Initially, Knox leased the Vehicle by herself in December 2015 from Kia of Downtown. Then, in January 2020, Knox and Caver purchased the Vehicle together.

On March 20, 2023, Defendant Kia filed a demurrer to the First Amend Complaint. Plaintiffs opposed the demurrer. The Court sustained the demurrer based on uncertainty.

The Second Amended Complaint alleged claims for (1) Plaintiff Knox’s cause of action for violation of Civil Code section 1793.2, subdivision (d), (2) Plaintiff Knox’s cause of action for violation of Civil Code section 1793.2, subdivision (b), (3) Plaintiff Knox’s cause of action for violation of Civil Code section 1793.2, subdivision (a)(3), (4) Plaintiff Knox’s cause of action for breach of express written warranty, (5) Plaintiff Knox’s cause of action for breach of implied warranty of merchantability, (6) Plaintiff Caver’s cause of action for violation of Civil Code section 1793.2, subdivision (d), (7) Plaintiff Caver’s cause of action for violation of Civil Code section 1793.2, subdivision (b), (8) Plaintiff Caver’s cause of action for violation of Civil Code section 1793.2, subdivision (a)(3), (9) Plaintiff Caver’s cause of action for breach of express written warranty, and (10) Plaintiff Caver’s cause of action for breach of implied warranty of merchantability.

Defendant Kia then demurred to the entire SAC. The Court sustained the demurrer as to the first through tenth causes of action with leave to amend.

Now, on the Third Amended Complaint, only Plaintiff Knox remains. The TAC alleges causes of action for (1.) a violation of Civil Code section 1793.2, subdivision (d), (2.) a violation of Civil Code section 1793.2, subdivision (b), (3.) a violation of Civil Code section 1793.2, subdivision (a)(3), (4.) a breach of express written warranty, and (5.) a breach of implied warranty of merchantability.

Defendant Kia demurred to the entire TAC. Plaintiff opposed the demurrer. The Court sustains the demurrer in its entirety with leave to amend.

Defendant’s request for judicial notice of Item No. 1 is granted (See SAC ¶ 6.) and Exhibit A is granted. (Evid. Code, § 452, subd. (d).)

Legal Standard for Demurrers

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc. § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc. § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Analysis

Defendant Kia argues the TAC remains uncertain, the second cause of action fails to state a claim, and the matter must be dismissed for failing to join an indispensable party.

Failure to Join an Indispensable Party

Defendant Kia demurs to the entire TAC on the grounds that Plaintiff Knox has failed to join Plaintiff Caver, who, Kia claims, is an indispensable party to this action.

A necessary party is one “(1) in [whose] absence complete relief cannot be accorded among those already parties or (2) [who] claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” (Code Civ. Proc., § 389, subd. (a); Doe v. Regents of University of California (2022) 80 Cal.App.5th 282, 301[a person meeting the requirements of Code of Civil Procedure § 389, subd. (a) “ ‘is often referred to as a “necessary party” ’ ”].)

A person who is a necessary party is “regarded as indispensable” if the court determines “in equity and good conscience” the action must be dismissed in the person's absence by considering factors that include: “(1) [the] extent [to which] a judgment rendered in the person's absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.” (Code Civ. Proc., § 389, subd. (b).)

“A determination that the persons are necessary parties is the predicate for the determination whether they are indispensable parties.” (Deltakeeper v. Oakdale Irrigation Dist. (2001) 94 Cal.App.4th 1092, 1100.) “Whether a party is necessary and/or indispensable is a matter of trial court discretion in which the court weighs ‘factors of practical realities and other considerations.’ ” (Hayes v. State Dept. of Developmental Services (2006) 138 Cal.App.4th 1523, 1529.)

To the extent that Plaintiff Knox is suing under the purchase of the Vehicle, Defendant Kia argues that Plaintiff Caver is an indispensable party. As stated in the purchase agreement (Request for Judicial Notice, Ex A.), Caver is the purchaser of the subject vehicle and Plaintiff Knox is the co-buyer. Defendant argues that it cannot effectuate complete relief because it cannot repurchase the Vehicle without consent from all legal owners of the vehicle.

In opposition, Plaintiff Knox argues that former Plaintiff Caver is not an indispensable party because there are no factual allegations involving him. That is not the point.

The only issue raised on this indispensable party argument concerns the repurchase remedy. Because Defendant cannot effectuate a repurchase of the Vehicle from Plaintiff Knox without Plaintiff Caver renders Caver an indispensable party.

The repurchase remedy does not render Plaintiff Caver an indispensable party because alternative remedies are available. Plaintiff Knox’s reliance on Martinez v. Kia Motors America, Inc. (2011) 193 Cal.App.4th 187 is instructive; this case demonstrates that when the option of repurchase is no longer available under the SBA, the statutory relief can still be effectuated. (Id. at 199 [“In sum, there is no requirement under the statutory provisions of the Act that, as a matter of law, a consumer must maintain ownership or control of the nonconforming vehicle for purposes of claiming the benefits of the Act. Nor is there any statutory support for the notion that a consumer loses the protection of the Act once the nonconforming vehicle is repossessed.”].)

Thus, Defendant’s argument that “relief cannot be accorded among the parties to this action” in the absence of Plaintiff Caver is not well taken. The demurrer based on a failure to join an indispensable party is overruled.

Uncertainty as to the First through Fifth Causes of Action

Defendant Kia also argues the first through fifth causes of action are uncertain because Plaintiff Knox fails to allege whether she bought or leased a new motor vehicle. Rather, Plaintiff’s allegations appear to be deliberately vague: she pleads she “obtained” the Vehicle. (TAC ¶ 6.)

The opposition argues that the Complaint is clear and the SBA covers both lease and purchase vehicles. That is, Plaintiff argues that “whether the vehicle was leased or purchased” “is not relevant.” (Opp., 3:25-26.)

Plaintiff’s opposition is correct to some extent; that is, as Plaintiff well knows from previous demurrer rulings, she can state a claim for both a purchase and a lease; however, the remedies and rights are different depending on whether the transaction is for lease or purchase and whether the lease or purchase was for a new or used vehicle.

For example, Section 1794 describes two different remedies available for consumers seeking relief under Song-Beverly for a breach of the implied warranty of merchantability. If the buyer has rightfully rejected or justifiably revoked acceptance of the goods or has exercised any right to cancel the sale, “ ‘the buyer may ... recover[ ] so much of the price as has been paid ....’ ” (Mocek v. Alfa Leisure, Inc. (2003) 114 Cal.App.4th 402, 406; see § 1794, subd. (b)(1).) However, “[w]here the buyer has accepted the goods, ... the measure of damages shall include the cost of repairs necessary to make the goods conform.” (§ 1794, subd. (b)(2).) So, the remedies under Song-Beverly hinge upon whether the buyer has rejected or accepted the goods. It is only when the buyer has rightfully rejected the goods that the buyer can recover the purchase price or what he or she paid under the lease.

Thus, whether a Plaintiff purchased or leased the Vehicle and then accepted or rejected the goods, dictates the remedy available and the defenses against such claims. Plaintiff cannot deliberately avoid committing to a set of facts for pleading purposes.

The failure to identify a purchase or lease and subsequent facts renders the nature of the claim and Defendant’s liability uncertain. The demurrer to the first through fifth causes of action are sustained.

Failure to State Claim

Finally, Defendant Kia specifically argues the second cause of action for violation Civil Code, section 1793.2(d) fails to state a claim.

A cause of action for violation of Civil Code, section 1793.2, subdivision (d), must allege that Defendant or an authorized repair facility “failed to begin repairs within a reasonable time or complete repairs within 30 days so as to conform to the applicable warranty.” (CACI 3205.)

The Complaint does not allege that any repairs were not started in a reasonable time or were not completed within 30 days. Instead, in opposition, Plaintiff argues that Defendant, having multiple opportunities to demur on this ground, cannot now raise this issue. (Code Civ. Proc., § 430.41, subd. (b).)

Code of Civil Procedure section 430.41, subdivision (b), states: “A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.”

In reply, Defendant Kia does not address this argument. Defendant could have asserted this ground in its earlier demurrer to the Second Amended Complaint, because the allegations of this cause of action were substantively identical in both versions of the complaint. Because Defendant did not assert this ground in its demurrer to the first or second amended complaint, the Court cannot sustain the demurrer to the TAC on this ground.

The demurrer on this ground is overruled.

Conclusion

The demurrer is sustained in its entirety. Plaintiff shall have leave to amend. The amended complaint shall be served and filed on or before April 5, 2024.