Judge: Curtis A. Kin, Case: 19STCV36154, Date: 2022-12-13 Tentative Ruling

Case Number: 19STCV36154    Hearing Date: December 13, 2022    Dept: 72

DEMURRER AND MOTION TO STRIKE

Date:             12/13/22 (9:30 AM)               

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

TENTATIVE RULING:

Defendant Kia Motors America, Inc.’s Demurrer to Second Amended Complaint is SUSTAINED.

Defendant Kia Motors America, Inc.’s Motion to Strike Portions of Complaint is DENIED as MOOT.

Plaintiff Uriel Hernandez Jr.’s request for judicial notice is DENIED. Trial court rulings are not binding on this Court.

Defendant Kia Motors America, Inc. demurs to the first and only cause of action for Violation of the Magnuson-Moss Warranty Act (“Magnuson-Moss”) on the following grounds: (1) the dismissal of claims under the Song-Beverly Consumer Warranty Act (“Song-Beverly”) requires the dismissal of the Magnuson-Moss cause of action; and (2) plaintiff fails to state a cause of action.

“[A] consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief” under Magnuson-Moss. (15 U.S.C. § 2310(d).) “Magnuson-Moss…requires disclosures in connection with written warranties, regulates the substantive content of warranties, and establishes a federal cause of action for breach of a written or an implied warranty (15 U.S.C. § 2310(d)), among other provisions.”¿(Orichian v. BMW of North America, LLC (2014) 226 Cal.App.4th 1322, 1330.)

Here, plaintiff alleges the defendant’s breach of express and implied warranties by failing to repair the subject vehicle. (SAC, ¶ 11, 13-20, and 95). Because plaintiff purchased the subject vehicle for personal purposes and plaintiff presented the vehicle for repair during the warranty period (SAC ¶¶ 9, 11), plaintiff sufficiently alleges that he is a “consumer” under Magnuson-Moss. (15 U.S.C. § 2301(3) [definition of “consumer”].) Plaintiff also sufficiently alleges defendant is a “warrantor,” because defendant allegedly warranted the subject vehicle. (15 USC § 2301(5); SAC ¶¶ 4, 6, 9, 10 & Ex. A.) Whether plaintiff initially resorted to an informal dispute settlement procedure, as required under 15 U.S.C. § 2310(a)(3)(C), is a question of fact. On the face of the Second Amended Complaint, plaintiff sufficiently alleges that defendant had no informal procedure to which he was required to resort. (SAC ¶ 97; Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191 [“[A] demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense”].)

However, “Magnuson-Moss¿does not substitute federal law for state law of consumer product warranties, but instead supplements state law.”¿(Orichian, 226 Cal.App.4th at 1330.) “Magnuson–Moss¿‘calls for the application of state written and implied warranty law, not the creation of additional federal law,’¿except in specific instances in which it expressly prescribes a regulating rule. [Citation.]” (Daugherty v. Am. Honda Motor Co.¿(2006) 144 Cal.App.4th 824, 833.)¿ The Daugherty court held that the “failure to state a warranty claim under state law necessarily constitute[s] a failure to state a claim under¿Magnuson-Moss.” (Id.) 

The Court previously found on summary judgment that pursuant to the holding in Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, plaintiff may not invoke Song-Beverly because plaintiff purchased the vehicle used. (8/9/22 Minute Order; Rodriguez, 77 Cal.App.5th at 222-23.)

Plaintiff claims an entitlement to “California lemon law remedies” but cites no state law other than Song-Beverly upon which the Magnuson-Moss cause of action can be based. (See SAC ¶ 59 [citing option of restitution under Song-Beverly], ¶ 99.)

Plaintiff attempts to distinguish Daugherty on the ground that the defects manifested after the express warranties had expired, whereas the defects in the instant action appeared during the express warranty period. (Daugherty, 144 Cal.App.4th at 832.)  That is a distinction without a difference here.  The Daugherty court asserted the generally applicable proposition that a cause of action under Magnuson-Moss rises and falls with an underlying state warranty law claim. That proposition did not depend on any analysis concerning whether an express warranty claim can be based on a latent defect discovered after the expiration of the warranty.  The Court finds plaintiff’s attempt to distinguish Daugherty unavailing.

Accordingly, pursuant to the binding precedent in Daugherty (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456), this Court concludes that, because plaintiff fails to allege a state law warranty claim upon which to base the Magnuson-Moss claim, plaintiff’s claim under the Magnuson-Moss Warranty Act must fail.

The demurrer is SUSTAINED.

The Court allows ten (10) days leave amend. Plaintiff maintains a¿Magnuson-Moss¿claim may be based on the warranty provisions of the California Uniform Commercial Code. (Opp. at 8:16-23; Orichian v. BMW of North America, LLC (2014) 226 Cal.App.4th 1322, 1332 [“Plaintiff's count under Magnuson-Moss for breach of written warranty was based on the California Uniform Commercial Code, which provides a remedy for breach of express warranty”].)¿

Based on the ruling on the demurrer, the motion to strike is DENIED as MOOT.