Judge: Curtis A. Kin, Case: 19STCV27900, Date: 2022-08-09 Tentative Ruling

Case Number: 19STCV27900    Hearing Date: August 9, 2022    Dept: 72

MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION

Date:                    8/9/22 (9:30 AM)                   

Case:                   Uriel Hernandez Jr. v. Kia Motors America, Inc. (19STCV36154)

TENTATIVE RULING:

Defendant Kia Motors America, Inc.’s Motion for Summary Judgment, or in the Alternative, for Summary Adjudication is GRANTED.

Plaintiff’s First Cause of Action for violation for Civil Code section 1793.2(d) and Fourth Cause of Action for breach of express warranty fail as a matter of law, because the subject vehicle plaintiff purchased was a used vehicle without a new express warranty, and such a vehicle is not a “new motor vehicle” under the Song Beverly Consumer Warranty Act.

At issue here is whether the subject vehicle, which plaintiff purchased as a used vehicle with arguably a balance on the original warranty (Resp. to UMF 6), qualifies as a “new motor vehicle” under Civil Code § 1793.22(e)(2).

It is undisputed that plaintiff Uriel Hernandez Jr. purchased the vehicle used from Carmax, not defendant Kia Motors America, Inc. (UMF 4.) Plaintiff also does not dispute that defendant did not issue any new express warranties with plaintiff’s purchase of the subject vehicle. (UMF 7.)

The Fourth District of the Court of Appeal recently found that the phrase “other motor vehicles sold with a manufacturer’s new car warranty” in Civil Code § 1793.22(e)(2) refers to “cars sold with a full warranty, not to previously sold cars accompanied by some balance of the original warranty.” (Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, 225.) The Rodriguez court found that the phrase “other motor vehicles sold with a manufacturer’s new car warranty” contained in the statutory definition of Civil Code § 1793.22(e)(2) was not a distinct type of vehicle subject to the “replace-or-refund” remedy of Civil Code § 1793.2(d). Rather, the Rodriguez court found that the phrase functions as “a catchall for sales of essentially new vehicles where the applicable warranty was issued with the sale.” (Rodriguez, 77 Cal.App.5th at 215.) This catchall “ensure[s] that manufacturers cannot evade liability under the Act by claiming a vehicle doesn't qualify as new because the dealership hadn’t actually used it as a demonstrator,” such as in the case of a “service loaner” sold with a full care warranty. (Rodriguez, 77 Cal.App.5th at 221.)

The Court finds Rodriguez to be persuasive, including with respect to the following arguments:

• “[T]he provision’s grammatical structure signals the list contains two types of vehicles, not three. If the list contained three distinct types of vehicles, we would expect to see commas separating the types. Instead, the use of ‘and’ and ‘or’ to separate the three items indicates the Legislature structured the provision as a list of two vehicles (dealer-owned vehicles ‘and’ demonstrators) followed by an adjectival clause qualifying or describing those vehicles.” (Rodriguez, 77 Cal.App.5th at 220.) In other words, had the definition of “new motor vehicle” included “a dealer-owned vehicle, a ‘demonstrator,” or other motor vehicle sold with a manufacturer’s new car warranty,” the text of the statute so worded and punctuated might support plaintiff’s interpretation that “other motor vehicles sold with a manufacturer’s new car warranty” includes used vehicles with some balance of the manufacturer’s warranty that came with the car when it was initially sold new.  But the text and punctuation of the statute is otherwise, and, as such, “the most natural interpretation of the phrase ‘other motor vehicle sold with a manufacturer’s new car warranty’ is that it, too, refers to vehicles that have never been sold to a consumer and come with full express warranties” (Ibid.)

• Other provisions in the Song-Beverly Act include the word “used,” including Civil Code § 1795.5, which provides for seller refund-and-replace provisions for used consumer goods. (Rodriguez, 77 Cal.App.5th at 221-22 [“As we’ve seen, the Act makes it clear when a provision applies to used or previously owned products by including the term ‘used’ in the provision. Notably, that term is absent from the definition of ‘new motor vehicle’ as well as from the manufacturer's refund-or-replace provision. Instead, the Legislature created a separate, seller refund-or-replace provision for used goods”].)

• Other provisions in the Song-Beverly Act include the word “transferred,” including Civil Code § 1795.90(a), which defines “consumer” to include “any person to whom the motor vehicle is transferred during the duration of an express warranty.” “The lack of reference to transferred warranties in the definition of ‘new motor vehicle’ suggests the Legislature made a deliberate choice not to include sales of used vehicles accompanied by unexpired express warranties.” (Rodriguez, 77 Cal.App.5th at 222.)

• The legislative history of Assembly Bill Number 2057, through which “other motor vehicles sold with a manufacturer’s new car warranty” was added to the definition of “new motor vehicle,” did not mention used vehicles. (Rodriguez, 77 Cal.App.5th at 223.) Rather, the purpose of the bill was to add “‘demonstrator’ vehicles sold with a manufacturer’s new car warranty” to the definition of “new motor vehicle” because “[s]ome buyers [were] being denied the remedies under the lemon law because their vehicle is a ‘demonstrator’ or ‘dealer-owned’ car, even though it was sold with a new car warranty.” (Id. at 222-23, quoting Dept. Consumer Affairs, Enrolled Bill Rep. on Assem. Bill No. 2057 (Sept. 25, 1987) pp. 3, 5, italics added.)

Plaintiff relies on the holding in Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, in which the Third District of the Court of Appeal held: “We conclude the words of section 1793.22 are reasonably free from ambiguity and cars sold with a balance remaining on the manufacturer’s new motor vehicle warranty are included within its definition of ‘new motor vehicle.’” (Jensen, 35 Cal.App.4th at 123.) To be sure, this holding in Jensen conflicts with the Rodriguez court’s holding.  For the reasons stated above, however, the Court finds the Rodriguez court’s reasoning, which fully acknowledges the holding and analysis in Jensen (see Rodriguez, 77 Cal.App.5th at 224), more persuasive.  As noted by the Rodriguez court, Jensen’s “statement about ‘the Acts coverage for subsequent purchasers of vehicles with a balance remaining on the express warranty most be read in light of the facts then before the court and are limited in that respect.  (Rodriguez, 77 Cal.App.5th at 224, citing Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 923.)  Critically, as observed by the Rodriguez court, the facts in Jensen included a car leased with a full manufacturer’s warranty issued by the manufacturer’s representative and the Jensen court “was not asked to decide whether a used car with an unexpired warranty sold by a third party reseller qualifies as a new motor vehicle.”  (Id.)  Indeed, as further noted by the Rodriguez court, Jensen’s holding “hurts, not helps” plaintiff’s argument here, because the Jensen court rejected the defendant car manufacturer’s “attempt to avoid liability by claiming the vehicle wasn’t actually a demonstrator,” which ultimately “exemplifies the need for a catchall provision [i.e., “other motor vehicles”] covering any not-previously-sold car accompanied by a full new car warranty.”  (Rodriguez, 77 Cal.App.5th at 224.)

Finally, although the California Supreme Court has granted review of Rodriguez, the case is still citable to establish the existence of a conflict in authority, which allows a trial court such as this one to choose sides in the conflict. (Rodriguez v. FCA US (Cal. 2022) 295 Cal.Rptr.3d 351.) For the reasons stated above, the Court rules in accordance with Rodriguez.

Accordingly, because plaintiff’s remaining causes of action, namely the first and fourth causes of action, fail as a matter of law, defendant is entitled to summary judgment.