Judge: Loren G. Freestone, Case: 37-2022-00030877-CU-BC-CTL, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 05, 2023

10/06/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2022-00030877-CU-BC-CTL DELAMORA VS AMERICAN HONDA MOTOR CO INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant American Honda Motor Co.'s demurrer to Plaintiffs Maria Delamora and Patricia Flores' complaint is SUSTAINED WITH LEAVE TO AMEND.

Honda argues that the sole cause of action for breach of express warranty under Song-Beverly claim fails as a matter of law because Plaintiffs did not purchase a 'new motor vehicle.' In order to state a cause of action for breach of express warranty under Song-Beverly, the vehicle must be a 'new motor vehicle.' (See Civ. Code, §§ 1793.2, subd. (d)(2), 1792.22, subd. (e)(2).) Plaintiffs allege that the subject vehicle is a 'used 2019 Honda CR-V.' (Compl. ¶ 14.) Plaintiffs concede that the vehicle was purchased used with 20,319 miles, and that they only acquired the remaining balance on the original warranties. (Opp. at 2:2–8.) Plaintiffs rely on Jensen v. BMW of North America Inc. (1995) 35 Cal.App.4th 112. In that case, the Third District Court of Appeal stated that 'cars sold with a balance remaining on the manufacturer's new motor vehicle warranty are included within its [Song-Beverly']s definition of 'new motor vehicle.'' (Id. at pp. 122–127.) Honda relies on Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, review granted July 13, 2022, No. S274625. In that case, the Fourth District Court of Appeal, Division Two, held that Song-Beverly's definition of 'new motor vehicle' does not include 'previously sold cars accompanied by some balance of the original warranty.' (Id. at pp. 219–225.) The California Supreme Court granted review in Rodriguez. However, 'by standing administrative order of the California Supreme Court, superior courts may choose to be bound by parts of a published Court of Appeal decision under review when those parts conflict with another published appellate court decision.' (Advisory Com. com., Cal. Rules of Court, rule 8.1115.) The California Supreme Court's order granting review in Rodriguez similarly stated that the Court of Appeal's published opinion '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] to choose between sides of any such conflict.' (Rodriguez v. FCA US (2022) 512 P.3d 654.) The court has reviewed both Jensen and Rodriguez. The court finds Rodriguez to be better reasoned.

The demurrer is therefore sustained and the motion to strike the prayer for civil penalties under Calendar No.: Event ID:  TENTATIVE RULINGS

2992099  41 CASE NUMBER: CASE TITLE:  DELAMORA VS AMERICAN HONDA MOTOR CO INC [IMAGED]  37-2022-00030877-CU-BC-CTL Song-Beverly is denied as moot.

Although Plaintiffs cannot state a claim under Song-Beverly, they may be able to amend to state a claim under a different statute. For example, Rodriguez noted that 'the beneficiary of a transferrable express warranty can sue a manufacturer for breach of an express warranty to repair defects under the California Uniform Commercial Code.' (Rodriguez, supra, 77 Cal.App.5th at p. 225.) A consumer who purchases a used vehicle and obtains the remainder of the express warranty may also be able to state a claim under the Magnuson-Moss Warranty Act. (See 15 U.S.C., § 2301(3) [defining 'consumer' to include 'any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product'].) In light of the above, the demurrer is sustained with leave to amend. Plaintiffs may file a first amended complaint within 10 days.

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