Judge: David Sotelo, Case: 22STCV11303, Date: 2022-10-04 Tentative Ruling

Case Number: 22STCV11303    Hearing Date: October 4, 2022    Dept: 40

Fidel Hernandez Medina and Patricia Hernandez purchased a used 2019 Toyota Camry from a

Toyota Motor Sales, U.S.A., Inc.: the vehicle’s odometer read 35,270 at the time of sale. 

Defendant represented that portions of the factory warranty would apply to the vehicle,

including bumper-to-bumper coverage of 3-years/36,000 miles and powertrain warranty

of 5-years/60,000 miles.

Plaintiffs allege that they presented it on five occasions for repair of electrical, infotainment, fuel injection system, emissions system, engine, and other serious defects, and to date, the electrical, infotainment, and fuel injection defects remain unrepaired. Plaintiffs allege three causes of action: (1) Breach of Express Warranty, (2) Breach of Implied Warranty, and (3) Violation of the Song-Beverly Act section 1793.2(b).

Procedural Background: On April 4, 2022, Plaintiffs filed a complaint against Defendants alleging three violations of the Song-Beverly Act.  Defendants demurred to each cause of action.  Plaintiffs filed the First Amendment Complaint (“FAC”) on July 15, 2022. The Court overruled Defendant’s demurrer as to the first cause of action and sustained the demurrer as to the second and third causes of action with leave to amend.  Defendant demurrer again as to the Second and Third causes of action.

Analysis

Second and Third Cause of Action, Violation of the Song-Beverly Act § 1793.2(b): OVERRULED

Defendant argues these causes of action fail to state facts sufficient to constitute a cause of action against Defendant and that Civil Code § 1792 and 1793.2(b) do not apply to the subject vehicle because the definition of “consumer goods” under Civil Code 1791 (a) does not include used vehicles.  Sections 1792[1] and 1793.2(b) concern the sale of “consumer goods.”  Section Civil Code § 1791 (a) defines “consumer goods” as “any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes . . . .”  (Emphasis added.)  Because Plaintiffs allegedly purchased the subject vehicle in used condition, Defendant contend that sections 1792 and 1793.2 (b) do not support Plaintiffs’ second and third causes of action.

Plaintiffs correctly cite Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112 for the proposition that a used vehicle with a balance remaining on the new motor vehicle warranty is considered a “new motor vehicle” under Civil Code § 1795.5.  Plaintiffs also rely on and Kiluk v. Mercedes Benz USA, LLC (2019) 43 Cal.App.5th 334 for the related proposition that section 1795.5 applies to used vehicles with a remaining balance on a warranty issued by the manufacturer when the manufacturer acts in the capacity of a retailer.  

Jensen expressly states that “the more specific definition found in the current section of 1793.22 governs the more general definition [of “consumer goods” as “new products”] found in section 1791.”  (Jensen, supra, 35 Cal.App.4th at p. 126.)  Furthermore, Plaintiffs have alleged that they “relied on the authorized dealership’s salesperson’s representations that, at this low mileage [of 35,720], portions of the factory warranty would remain outstanding, that the factory stood behind the vehicle, and that portions of the factory warranty remained outstanding.”  (SAC ¶ 10.)

Defendant also argues that Kiluk is inapplicable because that case concerned a manufacturer that stepped into the shoes of a retailer.  However, Plaintiffs have alleged that Defendant is a distributor of the goods in question (see SAC ¶ 23) and have also alleged throughout the SAC that they purchased from a dealership and sought repair from dealerships that were “authorized” by Defendant.  (See SAC ¶¶ 9, 10, 14-18, 23, 49, 50.)  

Second Cause of Action, Breach of Implied Warranty: SUSTAINED, With leave to Amend

Defendant also argues this cause of action is uncertain because it “includes one conclusory assertion better suited to a cause of action for breach of the implied warranty of fitness for a particular purpose.”  (Opposition, 6:10-12; SAC ¶ 32.) 

Plaintiff does not oppose this argument.  To the extent that the Second cause of action states multiple causes of action in a single action, the Court SUSTAINS the demurrer as to the second cause of action with leave to amend.

Conclusion: Defendant’s demurrer is OVERRULED as to the Third cause of action and SUSTAINED with Leave to Amend as to the Second.