Judge Daniel M. Crowley, Case Number: 24STCV05552, Date: 2024-09-19 Tentative Ruling

Defendant Kia America, Inc.’s demurrer to Plaintiffs Denise Navarette’s and Maria Sandoval’s entire complaint is sustained with 20 days leave to amend.

Defendant Kia America, Inc. (“KA”) (“Defendant”) demurs to Plaintiffs Denise Navarette’s (“Navarette”) and Maria Sandoval’s (“Sandoval”) (collectively, “Plaintiffs”) complaint (“Complaint”) on the grounds Plaintiffs’ Complaint fails to allege facts sufficient to constitute causes of action against Defendant, and portions of the Complaint are uncertain. (Notice of Demurrer, pgs. 1-2.)

Before filing a demurrer, the moving party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer. (C.C.P. §430.41, emphasis added.)

Defendant’s counsel declares that on June 6, 2024, counsel for Defendant met and conferred telephonically with Plaintiffs’ counsel, and the parties were unable to reach an agreement. (Decl. of Sniderman ¶¶3-4.) Defendant’s counsel’s declaration is sufficient under C.C.P. §430.41. Accordingly, the Court will consider Defendant’s demurrer.

Plaintiffs filed their operative Complaint on March 5, 2024, against Defendant. Plaintiff filed the operative FAC against Defendant alleging five causes of action: (1) violation of Civil Code §1793.2(D); (2) violation of Civil Code §1793.2(B); (3) violation of Civil Code §1793.2(A)(3); (4) breach of express written warranty (Civ. Code §§1791.2(A), 1794); and (5) breach of implied warranty of merchantability (Civ. Code §§1791.1, 1794). Plaintiffs’ causes of action arise from the purchase of a 2017 Kia Optima (“Subject Vehicle”). (See Complaint.)

Defendant filed the instant demurrer on June 18, 2024. Plaintiffs filed their opposition on September 6, 2024. Defendant filed its reply on September 12, 2024.

Defendant demurs to each cause of action on the basis each fails to state facts sufficient to constitute a cause of action against Defendant. (Demurrer, pg. 1; C.C.P. §430.10(e).) Defendant demurs to the 4th cause of action on the ground that it is uncertain and unintelligible. (Demurrer, pg. 1; C.C.P. §430.10(f).)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

Plaintiffs’ conclusory allegations that the Subject Vehicle contained or developed defects, including but not limited to “a. Defective body system; b. Defective powertrain system; c. Defective safety system; d. Defective electrical system; e. Defective braking system; f. Defective noise system; and g. Any additional complaints made by Plaintiffs, whether or not they are contained in the records or on any repair orders” and the allegation that “Plaintiffs provided Defendant KA sufficient opportunity to service or repair the Vehicle” is not sufficient to state causes of action against Defendant under the Song-Beverly Consumer Warranty Act (“Song-Beverly”). (See Complaint ¶¶11, 13.) Plaintiffs’ allegations merely restate the Song-Beverly Act without providing Defendant sufficient notice regarding the circumstances giving rise to Plaintiffs’ particular claim for the Subject Vehicle.

Accordingly, Defendant’s demurrer to Plaintiff’s entire Complaint is sustained with 20 days leave to amend.

Defendant’s demurrer to Plaintiffs’ entire Complaint is sustained with 20 days leave to amend.

Hon. Daniel M. Crowley

Judge of the Superior Court