Judge: Robert B. Broadbelt, Case: 22STCV14051, Date: 2023-01-24 Tentative Ruling

Case Number: 22STCV14051    Hearing Date: January 24, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Kia America, Inc.

RESPONDING PARTY:       Plaintiff Jennifer Gonzalez

Motion for Judgment on the Pleadings

The court considered the moving, opposition, and reply papers filed in connection with this motion.

BACKGROUND

Plaintiff Jennifer Gonzalez (“Plaintiff”) filed this lemon law action against defendant Kia America, Inc. (“Defendant”) on April 28, 2022.  Plaintiff asserts four causes of action against Defendant for (1) violation of subdivision (d) of Civil Code section 1793.2; (2) violation of subdivision (b) of Civil Code section 1793.2; (3) violation of subdivision (a)(3) of Civil Code section 1793.2; and (4) breach of the implied warranty of merchantability.

Defendant now moves the court for an order granting its motion for judgment on the pleadings as to each of Plaintiff’s causes of action.

REQUEST FOR JUDICIAL NOTICE

The court grants Defendant’s request for judicial notice.  (Evid. Code, § 452, subd. (d).)

The court grants Plaintiff’s request for judicial notice.  (Evid. Code, § 452, subd. (c); In re Ge M. (1991) 226 Cal.App.3d 1519, 1523, fn. 2 [“Judicial notice may properly be taken of legislative history”].)

MOTION FOR JUDGMENT ON THE PLEADINGS

The court denies Defendant’s motion for judgment on the pleadings as to the first cause of action for violation of subdivision (d) of Civil Code section 1793.2 because it states facts sufficient to constitute a cause of action since (1) Plaintiff does not allege that she purchased the vehicle from a seller not affiliated with Defendant, and (2) even if Plaintiff did allege that she purchased the subject vehicle from a third-party seller, she also alleges that she “entered into a warranty contract with Defendant” regarding the subject vehicle, and therefore has alleged facts establishing that the subject vehicle is a “new motor vehicle” under the Song-Beverly Act.  (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).)

The court notes that Defendant moves for judgment on the pleadings as to Plaintiff’s first, second, and third causes of action on the same ground: that Plaintiff “only alleges that she purchased the subject vehicle from an unidentified seller” and therefore has not alleged that she purchased a new motor vehicle from Defendant pursuant to Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (“Rodriguez”).  (Mot., p. 7:13-15.)  First, although Plaintiff does not allege that she purchased the subject vehicle directly from Defendant, Plaintiff does not allege that she purchased the vehicle from a third party not affiliated with Defendant.  Instead, Plaintiff alleges only that she “entered into a warranty contract with Defendant” regarding the subject vehicle on or about September 4, 2019.  (Compl., ¶ 9.)  The allegations of the Complaint do not establish that Plaintiff did not purchase the vehicle from Defendant or any of its authorized dealers. 

Second, as noted by Plaintiff, on July 13, 2022, the California Supreme Court granted the petition for review of Rodriguez.  Thus, while the court may cite Rodriguez for its persuasive value, the court may not cite its holding as binding or precedential.  (Cal. Rules of Ct., rule 8.1115, subd. (e)(1).)  While the court recognizes that Rodriguez concluded that Civil Code section 1793.22’s definition of a “new motor vehicle” extends to “cars sold with a full warranty, [and] not to previously sold cars accompanied by some balance of the original warranty[,]” the court is not bound by that holding.  (Rodriguez, supra, 77 Cal.App.5th at p. 225 [emphasis added].)  Finally, as set forth above, even if Plaintiff had alleged that she purchased the vehicle from another party, courts have concluded that “cars sold with a balance remaining on the manufacturer’s new motor vehicle warranty are included within its definition of ‘new motor vehicle.’”  (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 123.)  Plaintiff alleges that she entered into a warranty contract with Defendant on September 4, 2019, and therefore has sufficiently alleged that the subject vehicle is a “car[] sold with a balance remaining on the manufacturer’s new motor vehicle warranty” and may constitute a “new motor vehicle” under the Song-Beverly Act.  (Ibid.; Compl., ¶ 9.)

The court denies Defendant’s motion for judgment on the pleadings as to the second cause of action for violation of subdivision (b) of Civil Code section 1793.2 because it states facts sufficient to constitute a cause of action for the same reasons set forth in connection with the first cause of action.  (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).)

The court denies Defendant’s motion for judgment on the pleadings as to the third cause of action for violation of subdivision (a)(3) of Civil Code section 1793.2 because it states facts sufficient to constitute a cause of action for the same reasons set forth in connection with the first cause of action.  (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).)

The court denies Defendant’s motion for judgment on the pleadings as to the fourth cause of action for breach of the implied warranty of merchantability because it states facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).)  

Defendant contends that it, as a manufacturer, cannot be held liable for breach of the implied warranty as to used cars.  The court recognizes that “liability for breach of implied warranty lies with distributors and retailers, not the manufacturer, where there is no evidence the manufacturer played any role in the sale of [a] used car to [the] plaintiff.”  (Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 398.)  However, as set forth above, Plaintiff (1) has not alleged that the subject vehicle was used, and (2) in any event, has alleged facts establishing that the subject vehicle is a “new motor vehicle” as defined by the Song-Beverly Act.  The court therefore finds that Plaintiff has alleged facts sufficient to state a cause of action for breach of the implied warranty of merchantability against Defendant as a manufacturer.   

ORDER

            The court denies defendant Kia America, Inc.’s motion for judgment on the pleadings.

The court orders plaintiff Jennifer Gonzalez to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 24, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court