Judge: Frank M. Tavelman, Case: 24NNCV05759, Date: 2025-06-13 Tentative Ruling

Case Number: 24NNCV05759    Hearing Date: June 13, 2025    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

This action is brought by Keira Davis (Keira), an adult in her own capacity. The action is also brought by Kerdes Mangum (Kerdes), Kasii Mangum (Kasii), and King Mangum (King) who are the minor children of Keira (hereinafter collectively referred to as the Minor Plaintiffs). As will be discussed in the Court’s substantive ruling, no guardian ad litem has been appointed for Minor Plaintiffs to date.

Plaintiffs allege that Keira leased a car from Kia American, Inc. (Defendant) which contained a defective seatbelt. Plaintiffs allege that the seatbelt of the car was defective in that it became stuck when used by Kerdes and continually tightened around him. Plaintiffs’ First Amended Complaint (FAC) states causes of action for (1) Breach of Express Warranty in Violation of the Song-Beverly Consumer Warranty Act (by Keira), (2) Breach of Implied Warranty in Violation of the Song-Beverly Consumer Warranty Act (by Kiera), (3) Violation Of The Song Beverly Act § 1793.2 (by Keira), (4) Negligence Per Se (by all Plaintiffs), and (5) Negligent Infliction of Emotional Distress (by all Plaintiffs).

Before the Court is a demurrer brought by Defendant to several aspects of the FAC. Defendant first specially demurs to each cause of action stated by Minor Defendants (causes of action four and five) arguing that the Minor Plaintiffs lack standing in the absence of a guardian ad litem. Defendant generally demurs to each cause of action as stated by Keira on grounds that the FAC contains insufficient factual allegations.

The Court notes that the demurrer is unopposed. On March 7, 2025, the Court granted the motion of Andrew Weiss, Esq. to be relieved as attorney of record for Plaintiffs. (See Mar. 7, 2025 Minute Order.) Keira was present at the hearing on the motion and represented to the Court that she was seeking new representation. Keira reiterated as much at an April 16, 2025 case management conference. No notice of a new attorney of record has been filed to date. 

ANALYSIS: 

I.                LEGAL STANDARD 

Demurrer

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

II.              MERITS

Meet and Confer

C.C.P. §§ 430.41(a) and 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. The Court notes that the meet and confer declaration filed in connection with this demurrer only attests as to efforts to informally resolve the issues with Plaintiffs’ former counsel. It appears Defendant has not met and conferred with Keira or anyone currently representing her. Regardless, failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (C.C.P. §§ 430.41(a)(4).)

Facts Alleged

On or about October 4, 2024, Plaintiff Keira Davis leased a 2024 Kia EV9, VIN KNDAA5S27R6038896. (FAC ¶ 9.) On October 20, 2024, Plaintiff had just finished charging the Subject Vehicle at Kia of Carson (Carson) and was on her way to run some household errands. (FAC ¶ 16.) Plaintiff was accompanied by her minor children Kerdes, Kasii, and King, who were in the back seat. (FAC ¶ 16.)

Upon exiting Carson, Kerdes said that his seat belt was too tight, and he needed to refasten it. (FAC ¶ 17.) When Kerdes had a hard time refastening the belt, Keira pulled over a block or two from Carson to see what was wrong. (FAC ¶ 17.) Keira was unable to release and refasten Kerdes’ seatbelt and Kerdes grew increasingly uncomfortable. (FAC ¶ 18.)

Keira then drove back to Carson and parked the Subject Vehicle at the Service Department. (FAC ¶ 19.) As it was Sunday, the Service Department was closed, and so Keira ran into the Showroom to request help. (FAC ¶ 19.) The employees in the Showroom ran to assist, but the attempts to loosen the seatbelt only caused it to become tighter. (FAC ¶ 20.) Plaintiffs allege that during this time the belt began to cave in parts of Kerdes’ chest and stomach, and Kerdes eventually stopped moving or responding. (FAC ¶¶ 20-21.) Eventually, someone decided to cut Kerdes out with a pair of scissors, which took several minutes. (FAC ¶ 22.)

“After the Incident, some Carson employees apologized and said that they don’t know how this could have happened. They said that Keira should call the Service Department to have the seatbelt replaced.” (FAC ¶ 27.) “The next day, Keira called Carson and asked to speak with a manager. She was promised a return call concerning the Incident, which, as of the date of this writing, has never come. No one from Carson has reached out to Keira and her family regarding the Incident, which only adds to the emotional distress that she has suffered.” (FAC ¶ 28.)

Special Demurrer for Lack of Standing – Sustained with Leave to Amend

A special demurrer lies on the ground that “[t]he person who filed the pleading does not have the legal capacity to sue.” (CCP § 430.10(b).)

Here, Defendant specially demurs to the entire Complaint as stated by the Minor Plaintiffs. Defendant argues that Minor Plaintiffs lack the capacity required to bring these claims pursuant to C.C.P. § 372(a). This section provides:

When a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case.

(C.C.P. §372(a).)

As can be seen from the plain language of the statute, C.C.P. § 372(a) stands for the principle that a minor inherently lacks the capacity to bring a legal action on their own behalf. Instead, a guardian ad litem must be appointed to represent the interest of Kerdes, Kasii, and King in this action. No such appointment has been made in this case and thus the demurrer under C.C.P. § 430.10(b) is appropriate. Indeed, this demurrer must be sustained as the failure to appoint a guardian ad litem is in many cases fatal to any further action taken in the litigation. (See Berg v. Traylor (2007) 148 Cal.App.4th 809 [“It is the general rule that an omission to cause the appointment of a guardian if there be none is fatal to all subsequent steps taken in the action.”].)

Accordingly, the special demurrer to the entire FAC as stated by Minor Plaintiffs is SUSTAINED leave to amend. Leave to amend is granted as the appointment of guardian ad litem is a defect which could be easily remedied.

Although the Court has sustained the special demurrer, it will nonetheless also rule on the demurrers as to the causes of action such that any amended pleading will have addressed those issues to the extent necessary.

First Cause of Action – Breach of Song-Beverly Express Warranty – Sustained with Leave to Amend

The necessary elements for breach of express warranty in violation of the Song-Beverly Act are: "(1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element)." Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 152, superseded in other part by FRC Rule 26 (b).

Here, Defendant argues that Plaintiff has failed to allege sufficient facts as to the nature of the nonconformity suffered by the vehicle and has failed to allege sufficient facts as to the number of repair attempts. While the Court find the argument as to the nature of the defect to be unpersuasive, it does agree that the FAC contains insufficient facts as to repair attempts.

As concerns the nature of the defect, the Court finds the allegations of the FAC are quite clear. The FAC alleges in plaint language that the seatbelt in the Subject Vehicle was not properly functioning. This malfunction caused the seatbelt to tighten around Kerdes to the point of injury, a clear departure from the ordinary function of a seatbelt. The Court finds these allegations are sufficient to allege a nonconformity significantly imparting the safety of the vehicle. 

However, the FAC does not contain sufficient allegations as to the presentation of the Subject Vehicle for repair. In fact, the FAC contains no allegation that the Subject Vehicle was ever presented for repair of if Keira followed up on Carson’s offer to repair the belt. Without the allegation that Keira presented the vehicle for repair, her claim for violation of express warranty is subject to demurrer.

Accordingly, the demurrer to this cause of action is SUSTAINED with leave to amend.

Second COA – Breach of Song-Beverly Implied Warranty – Overruled

The necessary elements for breach of implied warranty in violation of the Song-Beverly Act are: (1) the plaintiff bought a new or used vehicle from the defendant; (2) at the time of the purchase the defendant was in the business of selling consumer goods to retail buyers or manufacturing consumer goods; (3) the vehicle was not of the same quality as those generally acceptable in the trade or was not fit for the ordinary purposes for which the goods are used; (4) plaintiff was harmed; and (5) the defendant's breach of implied warranty was a substantial factor in causing plaintiff's harm. (CACI #3210.)

Defendant argues that this cause of action is subject to demurrer because it fails to set forth the defect in the Subject Vehicle and fails to allege that the defect rises to the level of being “unmerchantable”. The Court finds these arguments unpersuasive.

As previously stated, the FAC clearly states the defect in the vehicle pertained to the seatbelt. The Court believes it would be hard pressed to find someone who believed that a vehicle with such a malfunctioning seatbelt could provide “safe, reliable transportation” as Defendant claims. While nothing in this alleged defect would prevent the Subject Vehicle from moving from Point A to Point B, the fact remains that a seatbelt which allegedly strangles its passengers is obviously unsafe.

Accordingly, the demurrer to this cause of action is OVERRULED.

Third COA – Breach of Song-Beverly Cal. Civ. Code § 1793.2(b) – Sustained with Leave to Amend

Plaintiffs third cause of action is stated as a violation of the portion of Song-Beverly located at Cal. Civ. Code § 1793.2(b) which provides:

Where those service and repair facilities are maintained in this state and service or repair of the goods is necessary because they do not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days. Delay caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.

Upon review, the Court finds there are no factual allegations in the FAC as to Defendant’s alleged failure to make timely repairs in violation of Cal. Civ. Code § 1793.2(b). As previously stated, the FAC is silent as to whether Keira ever presented the vehicle for repairs, much less that Defendant declined or neglected to make the repairs in a timely manner.

Accordingly, the demurrer to this cause of action is SUSTAINED with leave to amend.

Fourth COA – Negligence Per Se – Sustained without Leave to Amend

Defendant demurs to this cause of action on grounds that Negligence Per Se is not a cognizable cause of action in California. (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285 [“the doctrine of negligence per se does not establish tort liability… this alone does not entitle a plaintiff to a presumption of negligence in the absence of an underlying negligence action… Accordingly, to apply negligence per se is not to state an independent cause of action. The doctrine does not provide a private right of action for violation of a statute.”].)

Here, the FAC fails to allege a “preexisting common law cause of action” based on a duty of care independent of Section 27315(k) of the California Vehicle Code. As the FAC fails to state an ordinary Negligence cause of action upon which the Negligence Per Se allegations may be predicated, the Court finds the fourth cause of action is properly subject to demurrer.

Accordingly, the demurrer to this cause of action is SUSTAINED with leave to amend. While it appears unlikely that the defects in this cause of action could be cured by further amendment, the Court does not find it impossible and thus grants leave to amend.

Fifth COA – Negligent Infliction of Emotional Distress- Sustained with Leave to Amend

Defendant demurs to this cause of action, arguing that Negligent Infliction of Emotional Distress is not an independent cause of action in California. (See Burgess v. Superior Court (1992) 2 Cal.4th 1064.) While the Court ultimately finds the demurrer to this cause of action should be sustained, it finds Defendant’s argument oversimplifies the cayuse of action. 

Under California law, a negligent infliction of emotional distress cause of action is permitted in two types of actions: “bystander” and “direct victim” cases. (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 127.) “Direct victim cases involve the breach of a duty owed [to] the plaintiff that was assumed by the defendant, imposed on the defendant as a matter of law, or arose out of a preexisting relationship between the two.” (Id. [citations omitted].) Direct victim cases involve instances where a plaintiff has established a special relationship between themselves and the tortfeasor, such as a fiduciary or guardian. (See Christen v. Superior Court (1991) 54 Cal.3d 868, 884; Burgess supra, 2 Cal.4th at 1073.)

Here, the Court finds the FAC contains none of the needed allegations to set forth either a bystander or direct victim claim. This is in large part because, as mentioned above, the FAC sets forth no Negligence cause of action. Without a properly stated negligence cause of action, Plaintiffs have failed to allege the basic element of a duty owed to them by Defendants. Instead, Plaintiff’s appear to improperly rely on their allegations of Negligence Per Se to establish the elements of Negligence. As detailed in the discussion of the fourth cause of action, this is insufficient. In order to properly allege Negligent Infliction of Emotional Distress, Plaintiffs must allege facts speaking to each of the elements of Negligence.

Accordingly, the demurer to this cause of action is SUSTAINED with leave to amend. 

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Kia American, Inc.’s Demurrer came on regularly for hearing on June 13, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE SPECIAL DEMURRER TO THE FOURTH AND FIFTH CAUSES OF ACTION AS STATED BY MINOR PLAINTIFFS IS SUSTAINED WITH LEAVE TO AMEND.

THE GENERAL DEMURRER TO THE FIRST, THIRD, FOURTH, AND FIFTH CAUSES OF ACTION IS SUSTAINED WITH LEAVE TO AMEND.

THE GENERAL DEMURRER TO THE SECOND CAUSE OF ACTION IS OVERRULED.

PLAINTIFF WILL HAVE 20 DAYS’ LEAVE TO AMEND.

THE COURT WILL ADVANCE AND CONTINUE THE JULY 30, 2025 CASE MANAGEMENT CONFERENCE TO SEPTEMBER 29, 2025 AT 9:00 AM.

KIA AMERICA, INC. TO GIVE NOTICE.

IT IS SO ORDERED.