Judge: Cherol J. Nellon, Case: 24STCV01273, Date: 2024-06-06 Tentative Ruling

Case Number: 24STCV01273    Hearing Date: June 6, 2024    Dept: 14

#10

Case Background

            This is a lemon law case involving a 2016 Kia Optima.

            On January 17, 2024, Plaintiff Yasmin Zarate filed a Complaint against Kia America, Inc. for (1) Violation of subdivision (d) of Civil Code section 1793.2; (2) Violation of Subdivision (b) of Civil Code section 1793.2; (3) Violation of Subdivision (a)(3) of Civil Code section 1793.3; (4) Breach of Express Warranty, Violation of Civil Code section 1791.2(a), section 1794; and (5) Breach of the Implied Warranty of Merchantability.

Trial is not yet set.

Instant Motion

Defendant now demurs to all the causes of action in the complaint on the grounds that it fails to state sufficient facts to constitute any cause of action and that portions of the complaint are also vague and uncertain.

Decision

The demurrer is OVERRULED.

Discussion

First Cause of Action for Violation of Subdivision (d) of Civil Code Section 1793.2 

Civil Code section 1793.2 subdivision (d)(1) states the following: “Except as provided in paragraph (2), if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that amount directly attributable to use by the buyer prior to the discovery of the nonconformity.” (Civ. Code § 1793.2(d)(1).)

The Complaint alleges that during the warranty period, the Subject Vehicle contained or developed multiple defects, including defective body system; defective powertrain system; defective safety system; defective electrical system; defective braking system; and defective noise system, and that Defendant was unable to service or repair the Vehicle within a reasonable number of attempt. The allegations in the complaint are sufficiently pled to constitute a cause of action under Civil Code section 1793.2(d). 

Second Cause of Action for Violation of Subdivision (b) of Civil Code section 1793.2

Civil Code section 1793.2 subdivision (b) states the following: “Where those service and repair facilities are maintained in this state and service or repair of the goods is necessary because they do not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state. 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.”  (Civ. Code § 1793.2(b).

Kia argues that Plaintiff failed to identify the Kia authorized service or repair facilities to which she presented the vehicle, the dates she presented the vehicle and the duration of any such visits. The Complaint alleges “Although Plaintiff presented the Vehicle to Defendant, Defendant failed to commence the service or repairs within a reasonable time and failed to service or repair the Vehicle so as to conform to the applicable warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b). Plaintiff did not extend the time for completion of repairs beyond the 30-day requirement.”  These allegations are sufficient to plead a cause of action under Civil Code section 1793.2(b). Kia cites to no law which requires Plaintiff to plead the identity of the repair facilities, the dates she presented the vehicle and the duration of any visits. See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550 (less particularity required where defendant is the party in possession of the facts).

Third Cause of Action for Violation of Subdivision (a)(3) of Civil Code section 1793.2(a)(3)

Civil Code § 1793.2(a)(3) provides: 

“(a) Every manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall: 

… 

(3) Make available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.”

The complaint alleges that Kia did not make available literature and replacement parts to effect repairs during the express warranty period.  Kia cites no case law that requires specific facts be alleged to state a claim for violation of Civil Code section 1793.2(a)(3). 

Fourth Cause of Action for Breach of Express Warranty: Sections 1791.2 and 1794 

Civil Code § 1791.2 provides: 

“(a) “Express warranty” means: 

(1) A written statement arising out of a sale to the consumer of a consumer good pursuant to which the manufacturer, distributor, or retailer undertakes to preserve or maintain the utility or performance of the consumer good or provide compensation if there is a failure in utility or performance; or 

(2) In the event of any sample or model, that the whole of the goods conforms to such sample or model. 

(b) It is not necessary to the creation of an express warranty that formal words such as “warrant” or “guarantee” be used, but if such words are used then an express warranty is created. An affirmation merely of the value of the goods or a statement purporting to be merely an opinion or commendation of the goods does not create a warranty. 

(c) Statements or representations such as expressions of general policy concerning customer satisfaction which are not subject to any limitation do not create an express warranty.” 

Civil Code § 1794 provides in relevant part: 

“(a) 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.” (Emphasis added). 

Defendant Kia also argues that this cause of action is duplicative of Plaintiff’s first cause of action (for violation of Civil Code § 1793.2(d)(1). That is not entirely accurate. Section 1793.2(d) obliges a manufacturer to either (1) replace the car or (2) repay the purchase price, minus the value the consumer obtained from the use of the car. But lemon law lawsuits are authorized only through Section 1794; and under that section, a consumer may bring an action for either failure to comply with any obligation under the lemon law statutes or under a warranty. Failure to comply with an obligation to replace or buy back the vehicle is a different theory of recovery than failure to repair the vehicle under an express warranty. 

This cause of action is neither poorly pled nor duplicative.

Fifth Cause of Action for Breach of Implied Warranty of Merchantability

“Under the implied merchantability warranty, ‘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.’ (§ 1792.) The warranty ‘ “ arises by operation of law” ’ and therefore applies despite its omission from a purchase contract.” (Brand v. Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1545; see also, Under Civil Code section 1791.1(a), an “implied warranty of merchantability” or “implied warranty that goods are merchantable” means that the consumer goods meet each of the following: (1) pass without objection in the trade under the contract description, (2) are fit for the ordinary purposes for which such goods are used, (3) are adequately contained, packaged, and labeled; and (4) conform to the promises or affirmations of fact made on the container or label.” (Civ. Code, § 1791.1(a).)

Defendant argues that Plaintiff merely states conclusions that the Subject Vehicle “(1) does not pass without objection in the trade under the contract description, (2) is not fit for the ordinary purposes for which such goods are used, (3) is not adequately contained, packaged, and labelled, and (4) does not conform to the promises or affirmations of fact made on the container or label” without pleading any injury or damage and without stating facts showing causation. Again, Defendant provides no law that requires this cause of action to be specifically pleaded. The court finds the allegations are sufficient to withstand demurrer.

Conclusion

Because Plaintiff has sufficiently pled her causes of action, Defendant’s demurrer to the complaint is OVERRULED. Defendant                is to Answer within 10 days.