Judge Michael J. Strickroth, Case 2019-01087662 2023-08-28 Tentative Ruling

Judge: Michael J. Strickroth, Case: 2019-01087662, Date: 2023-08-28 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

Defendant Kia America Inc.’s Motion for Summary Judgment is GRANTED.

The Court rules as follows on Plaintiffs’ Objections to the Declaration of Dany Chittamany, filed 2-17-23 under ROA No. 230: objection 1 is SUSTAINED, the remaining objections are overruled. Defendant’s Objections to the Declaration of Delores Lake, filed 3-1-23 under ROA No. 239 are OVERRULED. Defendant’s Objections to the Declaration of Matthew Pardo, filed 3-1-23 under ROA No. 240 are OVERRULED.

A motion for summary judgment shall be granted where there is no triable issue of any material fact and the moving party is entitled to judgment as a matter of law. Code of Civil Procedure § 437c, subd. (c).) “A defendant moving for summary judgment meets his burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. [Citation.] If the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of fact exists as to that cause of action or defense… A triable issue of material fact exists ‘if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ [Citation.].” Blue Shield of California Life & Health Insurance Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.

Defendant moves for summary judgment, or, in the alternative, summary adjudication as follows:

1. Plaintiffs’ First Cause of Action for violation for Civil Code Section 1793.2(d) fails as a matter of law because Plaintiffs purchased the Subject Vehicle used and a used vehicle is not a “new motor vehicle” under the Song Beverly Consumer Warranty Act (“the Act”).

2. Plaintiffs’ Second Cause of Action for violation for Civil Code Section 1793.2(b) fails as a matter of law because Plaintiffs purchased the Subject Vehicle used and a used vehicle is not a “new motor vehicle” under the Song Beverly Consumer Warranty Act (“the Act”).

3. Plaintiffs’ Third Cause of Action for violation for Civil Code Section 1793.2(a)(3) fails as a matter of law because Plaintiffs purchased the Subject Vehicle used and a used vehicle is not a “new motor vehicle” under the Song Beverly Consumer Warranty Act (“the Act”).

4. Plaintiffs’ Fourth Causes of Action for Breach of Express Warranty Fail as a Matter of Law because Plaintiffs purchased the Subject Vehicle used and a used vehicle is not a “new motor vehicle” under the Act.

Defendant argues that pursuant to Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (Rodriguez), Plaintiffs’ 2012 Kia Optima (Vehicle) is not a “new motor vehicle” entitled to protections of the Song-Beverly Act.

On 7/13/22, the California Supreme Court granted review in Rodriguez and such review is pending. As of 8/23/23, the Supreme Court’s docket reflects Rodriguez has been fully briefed but no hearing date has been set. Pursuant to California Rules of Court, rule 8.1115(e)(1), Rodriguez is persuasive authority.

Rodriguez states, “While we acknowledge that in isolation the phrase ‘other motor vehicle sold with a manufacturer's new car warranty’ could arguably refer to any car sold with a manufacturer's warranty still in force, we agree with FCA that context clearly requires a more narrow interpretation…[¶] To begin with, the phrase appears in a definition of new motor vehicles. That fact alone strongly suggests the Legislature did not intend the phrase to refer to used (i.e., previously sold) vehicles. But, more importantly, the phrase is preceded by ‘a dealer-owned vehicle and demonstrator,’ which comprise a specific and narrow class of vehicles…[¶] Indeed, nothing about the wording or structure of the provision indicates the Legislature intended to expand the definition of ‘new motor vehicle’ to include used vehicles sold with some part of the manufacturer's warranty still in force…[¶] The lack of reference to transferred warranties in the definition of ‘new motor vehicle’ suggests the Legislature made a deliberate choice not to include sales of used vehicles accompanied by unexpired express warranties…[¶] we conclude the phrase ‘other motor vehicle sold with a manufacturer's new car warranty’ unambiguously refers to cars that come with a new or full express warranty.” Id. at 219-222.

In opposition, Plaintiffs contends that instead of following Rodriguez, the Court should apply Jensen v. BMW of N. Am. Inc. (1995) 35 Cal.App.4th 112 (Jensen). In Jensen, the Court of Appeal rejected BMW’s argument that the vehicle was not new and stated, “We conclude the words of section 1793.22 are reasonably free from ambiguity and cars sold with a balance remaining on the manufacturer's new motor vehicle warranty are included within its definition of ‘new motor vehicle.’ The use of the word ‘or’ in the statute indicates ‘demonstrator’ and ‘other motor vehicle’ are intended as alternative or separate categories of ‘new motor vehicle’ if they are ‘sold with a manufacturer's new car warranty.’ [citation]”

Plaintiffs also cite Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 336 (Kiluk), which held that a manufacturer could be liable for warranty claims arising from the sale of a certified pre-owned vehicle with a certified preowned warranty issued by the manufacturer.

The present case involves a 2012 Kia Optima which was originally sold on 12/7/11 with Kia’s new vehicle warranties; the 10-year/100,000-mile powertrain warranty only applied to the original purchaser while subsequent purchasers/owners received the balance of a five-year/60,000-mile powertrain warranty. (Chittamany Decl., ¶ 5.) Plaintiffs purchased the vehicle used from Defendant’s authorized dealer in May 2013 with approximately 27,000 miles. (Id. at ¶ 6; Lake Decl. ¶ 3.) It is undisputed that Plaintiffs received the balance of both the 5-year/60,000 mile basic and powertrain warranties. (Undisputed Fact 5.) However, Plaintiff declares the dealership staff also told her the vehicle was being sold to her with Defendant’s 10-year/100,000-mile basic warranty along with the balance of a five-year/60,000-mile powertrain warranty. (Lake Decl. ¶ 4.)

Plaintiff declares they presented the vehicle to Redding Kia for engine and other problems multiple times under warranty and the facility ultimately replaced the vehicle’s engine but problems are still ongoing. (Id. at ¶ 5.)

None of the cases cited above are directly on point.

In Rodriguez, at 223 [upholding grant of summary judgment], the vehicle was sold by “an unaffiliated, third party reseller,” whereas Plaintiffs have presented evidence they purchased the used vehicle from an authorized dealership here. In Jensen, at 119 [upholding plaintiff’s verdict], the vehicle was “demonstrator” which was sold to the plaintiff with a new vehicle warranty, whereas Plaintiffs’ vehicle here was previously owned by another consumer. In Kiluk, at 337 [upholding plaintiff’s verdict], the vehicle came with a certified preowned warranty. Here, Plaintiffs contend the new vehicle warranty remained in effect from the initial purchase by a third-party consumer, but do not claim that a certified preowned warranty was issued upon their purchase of the used vehicle.

The Court finds persuasive the following analysis of the Fourth District, Division 3 in footnote 4 of Kiluk, 43 Cal.App.5th at 340, which states, in part:

“Would a car accompanied by a 20-year warranty still be a ‘new motor vehicle’ under the Song-Beverly Act on year 18? That would seem to follow from the holding in Jensen. The Jensen court relied on the definition of ‘new motor vehicle’ in section 1793.22 (Jensen, supra, 35 Cal.App.4th at pp. 121-122, 41 Cal.Rptr.2d 295), which includes ‘a dealer-owned vehicle and a “demonstrator” or other motor vehicle sold with a manufacturer's new car warranty,’ and concluded that every car sold with any portion of a new-vehicle warranty remaining is a new motor vehicle. (§ 1793.22, subd. (e)(2), italics added.) But arguably that language refers to cars originally sold with a new motor vehicle warranty, not subsequent sales. (See Veh. Code, § 430 [‘A “new vehicle” is a vehicle constructed entirely from new parts that has never been the subject of a retail sale’].)”

Here, it is undisputed Plaintiffs did not purchase the car as a “new vehicle” or demonstrator, nor did they purchase the vehicle with a certified preowned warranty issued by the manufacturer. To the extent the statutory definition of “other motor vehicle sold with a manufacturer's new car warranty” is vague, the following reasoning from Rodriguez is persuasive:

“To begin with, the phrase appears in a definition of new motor vehicles. That fact alone strongly suggests the Legislature did not intend the phrase to refer to used (i.e., previously sold) vehicles. But, more importantly, the phrase is preceded by “a dealer-owned vehicle and demonstrator,” which comprise a specific and narrow class of vehicles. Though they have not been previously sold to a consumer, demonstrators and dealer-owned cars are used in the sense that they will have been driven for various purposes before sale. As such, they will necessarily have more miles on their odometers than the typical vehicle in a dealer's new car inventory. What makes these vehicles unique is that even though they aren't technically new, manufacturers (or their dealer-representatives) treat them as such upon sale by providing the same type of manufacturer's warranty that accompany new cars. [¶] In other words, demonstrators and dealer-owned vehicles comprise a narrow category of basically new vehicles—they have never been previously sold to a consumer and they come with full express warranties. Given this context, we think the most natural interpretation of the phrase ‘other motor vehicle sold with a manufacturer's new car warranty’ is that it, too, refers to vehicles that have never been previously sold to a consumer and come with full express warranties.”

Plaintiffs have not presented evidence which would allow a trier of fact to find the subject vehicle falls within the Song-Beverly Act’s definition of “other vehicles sold with a manufacturer’s new car warranty.” Therefore, the motion for summary judgment is granted because there is no triable issue as to Plaintiff’s claims under the Song-Beverly Act.

Should the tentative become the order of the court, the court vacates the trial date of 10/16/2013. Kia is to prepare a proposed judgment consistent with the Court’s ruling granting summary judgment, and file/serve same. The Court sets this matter for an OSC hearing re defendant’s submission of a proposed judgment for 9/18/2023, at 8:30 AM, in C15.

Kia to give notice.