Judge Kerry Bensinger, Case Number: 24STCV28158, Date: 2025-03-18 Tentative Ruling

On October 28, 2024, plaintiff Elba Figueroa (Plaintiff) filed this Song-Beverly action against defendants Kia America, Inc. (Kia) and Kia Downtown Los Angeles (KDLA) (together, Defendants), alleging causes of action for (1) Violation-Song-Beverly Consumer Warranty Act Breach of Express Warranty, (2) Violation-Song-Beverly Consumer Warranty Act Breach of Implied Warranty, (3) Failure to Make Available Parts & Literature Civil Code § 1793.2(a)(3), (4) Violation of Business and Professions Code § 17200, (5) Violation of Business and Professions Code § 17500, (6) Negligent Misrepresentation, and (7) Negligent Repair. Plaintiff seeks statutory remedies and injunctive relief.

On October 8, 2024, Defendants filed a Demurrer to the causes of action 1-6 in the Complaint.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.” (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)

Defendants demur to all but the negligent repair cause of action. In support, Defendants advance three general arguments. First, the recent decision in Rodriguez v. FCA US, LLC (2024) 17 Cal.5th 189 forecloses the First, Second, and Third Causes of Action (the Song-Beverly claims). Second, the Complaint is uncertain. Third, the objectionable causes of action fail to state facts sufficient to state a claim. The court addresses each argument in turn.

The Song-Beverly claims are fatally defective. “[A] motor vehicle purchased with an unexpired manufacturer’s new car warranty does not qualify as a … ‘new motor vehicle’ [under the Song-Beverly Act] unless the new car warranty was issued with the sale.” (Rodriguez v. FCA US, LLC (2024) 17 Cal.5th 189, 196.) Here, Plaintiff alleges she purchased a used vehicle without existing Manufacturer’s warranties. (Complaint, ¶¶ 16-17.) Plaintiff’s Song-Beverly claims fail. Plaintiff apparently concedes the point. (See Opp., p. 2.)

Accordingly, the demurrer to the First, Second, and Third Causes of Action are SUSTAINED. Leave to amend is DENIED.

Defendants argue the Complaint is uncertain. In support, Defendants point to conflicting allegations in the Complaint which identify the Vehicle as a 2021 Kia Telluride (Complaint, ¶ 16), as an unidentified RV (Complaint, ¶ 21), and as class trailers (Complaint, ¶ 72). Defendants are unable to ascertain the nature of the allegations they are called to answer. Plaintiff, having not addressed the argument, concedes the point.

Accordingly, the demurrer to the remaining causes of action is SUSTAINED on this ground. Nonetheless, the court proceeds to consider Defendants’ last argument.

The Fourth Cause of Action is based on the following allegations: “Defendant, KIA violated the Song-Beverly Act, and the Consumers Legal Remedies Act by manufacturing and selling VEHICLEs that they knew to be defective, malfunctioning, and were sold with defective components. (Complaint, ¶ 48.) Defendant, KIA intentionally manufactured defective VEHICLE with known defects and known defective designs and sold them into the stream of commerce without warning the general public and or remedying the defects. Defendants’ pattern of behavior was a deceptive business practice and a fraudulent business practice, under the statute. (Complaint, ¶ 49.) Defendants’ conduct alleged in further detail above and herein, Defendants engaged in conduct which constitutes (a) unlawful and (b) unfair business practices prohibited by Bus. & Prof. Code § 17200 et seq. (Complaint, ¶ 54.) Specifically, Defendant KIA intentionally placed the VEHICLE, and similar VEHICLES of the same make, model, and years, into the stream of commerce, in the State of California. These VEHICLE were poorly manufactured, with defective components, and defective designs. (Complaint, ¶ 57.) Defendants violated Civ. Code § 1790.1, by deceiving the Plaintiff and consumers, in the State of California, into waiving their Song Beverly Consumer Warranty rights, which is an unlawful, unfair, and or fraudulent business act or practice. Defendants placed a waiver of Song Beverly Consumer Act, California jurisdiction, and the right to a jury trial, in the middle of an expansive owner’s manual. They failed to provide Plaintiff with the owner’s manual, at the sale of the Subject RV. (Complaint, ¶ 59.) They instruct their selling dealerships, in the State of California to have unsuspecting purchasers, sign a document, with the purchase contract, that purports to withhold their warranty coverage, if they don’t sign the document. The behavior is a deceptive practice under the statute and Defendants intended to force Purchasers into waiving their rights, a violation of Civ. Code § 1790.1. Purchasers are not given an opportunity to examine the owner’s manual, before signing. Generally, the owner’s manual is not provided with the unit that is sold. (Complaint, ¶ 60.) Defendant, KDLA is a willing co-conspirator, in violating the Song Beverly Warranty Act and defrauding California Consumers. (Complaint, ¶ 61.) Defendant, KDLA is well aware of the highly defective components in this VEHICLE. Defendant intentionally failed to diagnose the issues in the VEHICLE due to the fact that their repairs would prove willfully inadequate. Their repairs were not in conformity with the manufacturer’s policies and guidelines and industry standards. Defendants breached their duty to the Plaintiff and they were negligent. (Complaint, ¶ 62.) Defendant, KDLA knew that they would likely not be reimbursed for multiple repairs by the manufacturer, due to the same underlying issues reoccurring. They intentionally misdiagnosed the mechanical issues or surreptitiously failed to diagnose the mechanical issues, in order to avoid non-payment from the manufacturer. (Complaint, ¶ 63.)

Defendants argue the Fourth Cause of Action fails for four reasons: (1) Plaintiff does not allege an economic injury, (2) it is predicted on violations of the Song-Beverly Act, which Plaintiff cannot sustain, (3) the allegations are general and conclusory, and (4) the Plaintiff does not allege with reasonable particularity how Defendants violated the Consumer Legal Remedies Act (CLRA).[2]

“To bring a UCL claim, a plaintiff must show either an (1) unlawful, unfair, or fraudulent business act or practice, or (2) unfair, deceptive, untrue or misleading advertising. [Citation.]¿ Because the UCL is written in the disjunctive, it establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent.”¿ (Adhav v. Midway Rent A Car, Inc. (2019) 37 Cal.App.5th 954, 970, citations and quotations omitted.)¿ The UCL is “not an all-purpose substitute for a tort or contract action.”¿ (Madrid v. Perot Sys. Corp. (2005) 130 Cal.App.4th 440, 452 (citations omitted).) “A plaintiff must have suffered an ‘injury in fact’ and ‘lost money or property as a result of the unfair competition’ to have standing to pursue either an individual or a representative claim under the California unfair competition law.” (Hall v. Time, Inc. (2008) 158 Cal.App.4th 847, 849.) “The phrase ‘as a result of’ in the UCL imposes a causation requirement; that is, the alleged unfair competition must have caused the plaintiff to lose money or property.” (Id.)

Here, contrary to Defendants’ position, Plaintiff alleges having suffered an injury in fact. (Complaint, ¶¶ 64, 67.) Further, save for the references to an unidentified RV, as discussed above, the allegations are sufficiently clear to apprise Defendants of the nature of the claim. However, Defendants’ remaining arguments are meritorious. As alleged, Plaintiff’s UCL claim is intertwined with purported violations of the Song-Beverly Act. Given the court’s ruling on the Song-Beverly claims, Plaintiff cannot base her UCL cause of action upon violations of that Act. Further, Plaintiff does not make clear what conduct violates the CLRA.

Accordingly, the demurrer to the Fourth Cause of Action is SUSTAINED. Leave to amend is GRANTED.

The Fifth Cause of Action is based on the following allegations: Defendants caused to be made or disseminated throughout California and the United States, through advertising, marketing and other publications, statements that were untrue or misleading, and which were known, or which by the exercise of reasonable care Defendants should have known to be untrue and misleading to consumers, including Plaintiff. (Complaint, ¶ 71.) Defendants have violated section 17500 because their misrepresentations and omissions regarding the safety, reliability, and functionality of the Class Trailers were material and likely to deceive a reasonable consumer. (Complaint, ¶ 72.) Plaintiff has suffered injuries in fact, including the loss of money or property, resulting from Defendants’ unfair, unlawful, and/or deceptive practices. In purchasing the VEHICLE, Plaintiff relied on Defendants’ misrepresentations and/or omissions with respect to the VEHICLE’s quality, components, safety and reliability. Defendants’ representations were untrue because it built, distributed and sold the VEHICLE with the known Defect. Had Plaintiff known this, they would not have purchased the VEHICLE or would not have paid as much for them. Accordingly, Plaintiff did not receive the benefit of their bargain. (Complaint, ¶ 73.)

Defendants argue the Fifth Cause of Action fails because the allegations are vague ad conclusory. The court agrees. Although Plaintiff need not plead with specificity the alleged misrepresentation (see Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1261 [“[C]auses of action under the CLRA and UCL must be stated with reasonable particularity, which is a more lenient pleading standard than is applied to common law fraud claims.”]), the allegations are far too general and do not meet the reasonable particularity standard. For instance, Plaintiff refers to a defect that is not defined anywhere in the Complaint.[3]

Accordingly, the demurrer to the Fifth Cause of Action is SUSTAINED. Leave to amend is GRANTED.

The Sixth Cause of Action is based on the following allegations: “Prior to the execution of the purchase contract, at the time the purchase contract was executed, and afterward, Defendant made misrepresentations of fact as set forth above in the Complaint.” (Complaint, ¶ 77.) “Prior to the execution of the purchase contract, at the time the purchase contract was executed, and afterward, Defendant omitted material facts from statements it made as set forth above in the Complaint, the disclosure of which were required by law.” (Complaint, ¶ 78.) Specifically, Defendant made the following misrepresentations to Plaintiff: (1) misrepresenting the condition and history of the VEHICLE; (2) misrepresenting an intent to thoroughly inspect and go through the VEHICLE prior to Plaintiff taking delivery; (3) misrepresenting the prices and need for additional service contracts and accessories; (4) misrepresenting the safety of the VEHICLE; (5) providing false assurances about the safety and reliability of the VEHICLE; (6) taking advantage of Plaintiff to sell a VEHICLE that was in need of repairs only to charge them for repairs that should have been made prior to sale; (7) making false promises about the merchantability and the existence of an implied warranty of merchantability (8) establishing policies and procures that take advantage consumers; (9) having no policies and procedures in place to confirm that any VEHICLE being offered for sale does in fact adhere with the standards of the vehicle industry; (10) directing Plaintiff to sign false, and misleading documents; and (11) intentionally selling VEHICLE that had known damages and concealing those facts from Plaintiff.” (Complaint, ¶ 79.)

Defendants argue the Sixth Cause of Action is not plead with sufficient specificity. The court agrees. The elements of a cause of¿action for negligent misrepresentation are (1) that defendant represented to him that a fact was true, (2) that defendant’s representation was false, (3) that defendant knew that the representation was false when it was made or that said statement was made without regard for its truth, (4) that defendant intended that plaintiff rely on the representation, (5) that plaintiff reasonably relied on defendant’s representation, (6) plaintiff was harmed, and (7) plaintiff’s reliance on defendant’s representation was a substantial factor in causing him harm.¿ (Civ. Code § 1710(1); CACI No. 1903.)¿ Causes of action for negligent misrepresentation sound in fraud and, therefore, each element must be pleaded with specificity. (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 231.) Here, although the allegations make clear the nature of the misrepresentations and when they were made, Plaintiff does not identify who made the representations. The allegations refer vaguely a “Defendant” without additional explanation.

Accordingly, the demurrer to the Sixth Cause of Action is SUSTAINED. Leave to amend is GRANTED.

Based on the foregoing, the demurrers are Sustained. Leave to amend is Granted as to the Fourth, Fifth, and Sixth Causes of Action only.

Plaintiff is ordered to serve and file her First Amended Complaint consistent with this order within 30 days.

Kerry Bensinger

Judge of the Superior Court

[1] Plaintiff’s opposition was not timely filed. The court exercises its discretion to consider the arguments raised therein. (Cal. R. Ct., rule 3.1300(d).)

[2] Defendants also argue the Fourth Cause of Action fails because Plaintiff does not allege any fraudulent business practice with the required specificity. But, as alleged, the Fourth Cause of Action is based on unfair and unlawful conduct, not fraudulent. (See Complaint, ¶¶ 54-55.)

[3] Additionally, the Fifth Cause of Action fails for uncertainty as discussed above. (See Complaint, ¶ 72.)