Judge Daniel M. Crowley, Case Number: 19STCV00228, Date: 2023-05-11 Tentative Ruling

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Defendant Kia America, Inc.’s motion for summary judgment is denied. Defendant’s motion in the alternative for summary adjudication of the 1st, 2nd, and 3rd causes of action is denied.

Defendant Kia America, Inc. [f/k/a Kia Motors America, Inc.] (“KA”) (“Defendant”) moves for summary judgment or, in the alternative, for summary adjudication of Plaintiffs Elias Gonzalez Lorenzo aka Elias Gonzalez-Loreno’s (“Gonzalez Lorenzo”) and Ana Lazo’s (“Lazo”) (collectively, “Plaintiffs”) complaint on the following grounds: (1) Plaintiffs’ first cause of action for violation of Song-Beverly Act – breach of express warranty is without merit because Plaintiffs bought a used vehicle and Defendant did not issue any express warranties at the time of sale [Issue 1]; (2) Plaintiffs’ second cause of action for violation of Song-Beverly Act – breach of implied warranty is without merit because Plaintiffs bought a used vehicle, Defendant did not sell the Subject Vehicle and Defendant did not issue any express warranties at the time of sale [Issue 2]; and (3) Plaintiffs’ third cause of action for violation of Song-Beverly Act – Section 1793.2 is without merit because Plaintiffs bought a used vehicle, Defendant did not sell the Subject Vehicle, and Defendant did not issue any express warranties at the time of sale [Issue 3]. (Notice of Motion, pg. 2.)

Plaintiffs’ 11/28/23 evidentiary objection to the Declaration of Chris Ourkhan (“Ourkhan”) is sustained.

On January 4, 2019, Plaintiffs filed the operative complaint alleging three causes of action: (1) violation of the Song Beverly Consumer Warranty Act (“Song-Beverly”) – breach of express warranty, (2) violation of Song-Beverly – breach of implied warranty, and (3) violation of Song-Beverly – §1793.2.

On November 22, 2022, Defendant filed the instant motion. This Court previously ruled on the instant motion as unopposed on May 11, 2023. However, this Court granted Plaintiffs’ motion for relief under C.C.P. §473(b) for relief from this Court’s May 11, 2023, ruling. (10/30/23 Minute Order.) Plaintiffs filed their opposition on November 28, 2023. Defendant filed its reply on December 7, 2023.

On January 21, 2012, Plaintiffs purchased a 2011 Kia Sorento (“Subject Vehicle”). (Complaint ¶8.) Plaintiffs allege the Subject Vehicle was delivered to them with serious defects and nonconformities to warranty and developed other serious defects and nonconformities to warranty including, but not limited to, engine, SRS, transmission, brakes, and electrical defects. (Complaint ¶9.) Plaintiffs allege express warranties accompanied the sale of the Subject Vehicle by which Defendant undertook to preserve or maintain the utility or performance of Plaintiffs’ vehicle or to provide compensation if there was a failure in such utility or performance. (Complaint ¶8.) Plaintiffs allege they delivered the Subject Vehicle to Defendant’s authorized sale representative(s), First Kia of Simi Valley, on multiple occasions, and the Subject Vehicle was delivered for repairs of the engine, SRS, transmission, brake and electrical, which amount to nonconformities to the express warranties that accompanied the sale of the Subject Vehicle. (Complaint ¶47.)

Civil Code §1793.2 requires a manufacturer to replace a defective “new motor vehicle” or make restitution if, after a reasonable number of attempts, the manufacturer (or its representative) is unable to repair the vehicle to conform to the applicable express warranty. (Civil Code §1793.2(d)(2).)

Defendant argues that pursuant to the recent holding in Rodriguez v. FCA US, LLC, a used car cannot as a matter of law be considered a “new motor vehicle” under Civil Code §1793.2 and, thus, Plaintiffs do not have a cause of action for breach of express warranty under §1793.2 because they, like the Plaintiffs in Rodriguez, bought a used vehicle with a balance remaining on the new vehicle warranty. (Motion, pg. 2; Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, 222-223, pending review (July 13, 2022).)

In Rodriguez, the buyer of a used truck, which still had a balance on the manufacturer’s limited powertrain warranty at the time the buyer purchased it from a used car dealership, brought an action against the manufacturer for breach of express warranty under Civil Code §1793.2(d)(2). The trial court granted the manufacturer’s motion for summary judgment. The Court of Appeal upheld the trial court’s ruling and held that a used truck with an unexpired express warranty was not a “new motor vehicle” subject to the refund-or-replace provision of the Song-Beverly Act. (Rodriguez, 77 Cal.App.5th at pg. 215.)

The Rodriguez Court explained that Civil Code §1793.2(d)(2) applies to the sales of new vehicles only, which is defined in Civil Code §1793.22(e)(2) as, “a new motor vehicle that is bought or used primarily for personal, family, or household purposes . . . [and includes] a dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer's new car warranty.” The Rodriguez Court considered the language of the provision, its statutory context, and legislative intent and history and concluded that the phrase “‘other motor vehicle sold with a manufacturer’s new car warranty’ unambiguously refers to cars that come with a new or full express warranty.” (Id. at pg. 222.) The Rodriguez Court found that the plaintiff had no recourse under the Song Beverly Act because his used car purchased from a third-party dealership without any evidence that any express warranties had been issued to plaintiff at the time of sale, did not meet the definition of “new motor vehicle.” (Id. at pg. 225.)

The California Supreme Court has granted review of Rodriguez, but ordered under Rule 8.1115(e)(3) that “pending review, [Rodriguez] may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales Inc. v. Superior Court (1962) 57 Cal.2d 450 to choose between sides of any such conflict.” (Rodriguez v. FCA US (Cal. 2022) 295 Cal.Rptr.3d 351, 351; CRC, Rule 8.1115(e)(3).)

Defendant submitted evidence that the Subject Vehicle was not a new motor vehicle under Song-Beverly. Specifically, Defendant submitted evidence that Glendale Kia is an independent third-party dealer not owned by Defendant. (Defendant’s Undisputed Separate Statement of Fact [“D-USSF”] 2.) Defendant submitted evidence that it was the original distributor of the Subject Vehicle when it was new and made express warranties with respect to the Subject Vehicle when it was new but did not make any express warranties with respect to the sale of the Subject Vehicle as a used vehicle. (Defendant’s Disputed Separate Statement of Fact [“D-DSSF”] 4; Decl. of Lewis ¶6.) However, Defendant failed to produce admissible evidence that that Subject Vehicle was not a demonstrator. Defendant failed to meet its burden to show that there is no triable issue of material fact as to the first cause of action and does not shift the burden to Plaintiffs to demonstrate a triable issue of material fact.

Assuming, arguendo, Defendant met its burden, Plaintiff submitted evidence demonstrating a triable issue of material fact as to whether Defendant’s warranties are transferrable to subsequent owners. (P-DSSF 4; Decl. of Mukai, Exh. 2; Exh. 3 at 45:1-4, 51:25-53:3, 54:5-54:8, 54:14-55:23, 57:3-24, 58:19-59:11, 60:1-61:18, 61:22-62:14, 63:2-64.1, 66:3-14, 66:21-67:2, 68:8-69:8, 74:22-75:4, 76:15-23; 82:16-22, 83:3-84:9, 85:20-22; Exh. 4 at 93:21-24.)

Accordingly, summary judgment is denied. In the alternative, summary adjudication is denied as to the 1st cause of action [Issue 1] for breach of express warranty.

Civil Code §1795.5 only imposes implied warranty liability on “the distributor or retail seller making express warranties with respect to used consumer goods (and not the original manufacturer, distributor or retail seller making express warranties with respect to such goods when new).” (Civ. Code §1795.5(a).)

“[O]nly distributors or sellers of used goods . . . have implied warranty obligations in the sale of used goods.” (Ruiz Nunez v. FCA US, LLC (2021) 61 Cal.App.5th 385, 399.) In Kiluk v. Mercedes-Benz USA LLC, the court found defendant Mercedes-Benz USA, LLC issued a used vehicle warranty—a certified preowned warranty—in addition to its already existing new vehicle warranty §1795.5, which applied to the defendant manufacturer. (Kiluk v. Mercedes-Benz USA LLC (2019) 43 Cal.App.5th 334, 338-340.) The Kiluk Court stated the implied warranty does not attach to every subsequent sale or lease of a vehicle simply because the original new vehicle warranty is still in effect. (Id. at pg. 340 n.4.) Instead, it only applies to a manufacturer or distributor who gives a used vehicle warranty with the sale or lease of a used car.

Defendant moves for summary adjudication of Plaintiffs’ 2nd cause of action for breach of implied warranty on the grounds that Plaintiff bought a used car; Defendant did not sell the car, and Defendant did not issue any express warranty with respect to the used car. (Motion at pgs. 2-4.) As discussed above, Defendant failed to meet its burden to demonstrate that the Subject Vehicle was not a “demonstrator,” and that there is no triable issue of fact.

Accordingly, Defendant’s motion for summary adjudication as to Plaintiff’s 2nd cause of action for breach of implied warranty is denied.

Section 1793.2 provides, “[e]very manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall . . . [m]aintain in this state sufficient service and repair facilities reasonably close to all areas where its consumer goods are sold to carry out the terms of those warranties or designate and authorize in this state as service and repair facilities independent repair or service facilities reasonably close to all areas where its consumer goods are sold to carry out the terms of the warranties.” (Civ. Code §1793.2(a)(1)(A).)

Defendant moves for summary adjudication of Plaintiffs’ 3rd cause of action for violation of §1793.2 on the grounds that the statute does not apply to sales of used vehicles with some balance remaining on the New Vehicle Limited Warranty. (Motion, pg. 4; see Rodriguez, 77 Cal.App.5th at pgs. 222-223.) Defendant argues although its new vehicle warranties may have still been in effect when Plaintiffs purchased the Subject Vehicle, Defendant did not give Plaintiffs any additional used vehicle warranties when they purchased the Subject Vehicle. (Motion, pgs. 4-5.) As discussed above, Defendant failed to meet its burden to demonstrate that the Subject Vehicle was not a “demonstrator,” and that there is no triable issue of fact.

Accordingly, Defendants’ motion for summary adjudication as to Plaintiff’s third cause of action for negligent repair is denied.

Based on the foregoing, Defendants’ motion for summary judgment is denied. Defendants’ motion in the alternative for summary adjudication of the 1st, 2nd, and 3rd causes of action is denied.

Hon. Daniel M. Crowley

Judge of the Superior Court