Judge: Curtis A. Kin, Case: 22STCV15922, Date: 2022-09-20 Tentative Ruling

Case Number: 22STCV15922    Hearing Date: September 20, 2022    Dept: 72

DEMURRER

Date:                 9/20/22 (9:30 AM)                 

Case:                 Robert Joseph Meier et al. v. Kia America, Inc. (22STCV15922)

TENTATIVE RULING:

Defendant Kia America, Inc.’s Demurrer to Complaint is OVERRULED.

As a preliminary matter, the opposition was untimely served and filed on September 13, 2022. Based on the hearing date of September 20, 2022, the deadline to serve and file the opposition was September 7, 2022. (CCP § 1005(b) [deadline to serve and file opposition is nine court days before hearing].) Notwithstanding any argument in the opposition, defendants’ arguments in the demurrer are without merit for the reasons stated below.

With respect to the fifth cause of action for Violation of Business and Professions Code Section 17200, defendant Kia America, Inc. argues that plaintiffs Robert Joseph Meier and Caitlynn Michelle Meier fail to allege standing and that they have not alleged any unlawful, unfair, or fraudulent business practice upon which to maintain this cause of action.

In the first cause of action, plaintiffs allege a violation of the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”). “Virtually any law can serve as the predicate for a section 17200 action.”  (Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969.) Plaintiffs allege that the subject 2019 Kia Nero did not conform to the written warranty issued by defendant and that they presented the vehicle to defendant’s authorized representative for repair multiple times. (Compl. ¶ 14.) Defendant did not repair the vehicle to conform to the warranty after a reasonable number of attempts but failed to replace the vehicle or make restitution, as required by Civ. Code § 1793.2(d)(2). (Compl. ¶ 13.)

As a result, plaintiffs lost property to the extent that their ability to use the subject vehicle has been diminished or lost money to which plaintiffs would have been entitled as restitution. (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 323 [plaintiff may demonstrate standing under Business and Professions Code § 17204 by showing diminishment of present or future property interest or deprivation of money or property to which plaintiff has a cognizable claim].)

Based on this alleged violation of the Song-Beverly Act, plaintiff may proceed with the fifth cause of action based on an unlawful practice.

The demurrer to the fifth cause of action is OVERRULED.

Ten (10) days to answer.