Judge Robert S. Draper, Case BC711352 2023-04-17 Tentative Ruling

Judge: Robert S. Draper, Case: BC711352, Date: 2023-04-17 Tentative Ruling

Case Number: BC711352 Hearing Date: April 17, 2023 Dept: 78

Superior Court of California

County of Los Angeles

Department 78

DELINDA W. SMITH,

Plaintiff;

vs.

KIA MOTORS AMERICA INC,

Defendant. Case No.: BC711352

Hearing Date: April 17, 2023

[TENTATIVE] RULING RE:

DEFENDANT KIA MOTORS AMERICA INC.’S DEMURRER TO THE FIRST AMENDED COMPLAINT.

Defendant Kia Motors America Inc.’s Demurrer to the First Amended Complaint is SUSTAINED as to the First through Fifth Causes of Action without leave to amend.

Defendant Kia Motors America Inc.’s Demurrer to the First Amended Complaint is SUSTAINED as to the Sixth Cause of Action with 10 days leave to amend.

FACTUAL BACKGROUND

This is an action for breach of an automobile express warranty. The operative First Amended Complaint (“FAC”) alleges as follows.

In October 2015, Plaintiff Delinda W. Smith (“Smith” or “Plaintiff”) purchased a used KIA Rio (“Subject Vehicle”) that had a balance remaining on its express written warranty. (FAC ¶¶ 6-7.) At the time of the initial sale, KIA sold the Subject Vehicle with a 5-year, 60,000-mile warranty, and a Limited Powertrain Warranty that also lasted for 5 years, and 60,000 miles. (FAC ¶¶ 4-6.) During the warranty period, the vehicle developed several defects, which Defendant KIA Motors America Inc. (“KIA”) was unable to repair. (FAC ¶ 8.)

PROCEDURAL HISTORY

On June 22, 2018, Smith filed the Complaint asserting five causes of action:

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;

4. Breach of Express Written Warranty; and,

5. Breach of the Implied Warranty of Merchantability

On April 29, 2022, KIA filed a Brief Regarding Used Car Remedies Under the Beverly-Song Act (“Motion for Non-Suit” or “Motion”). The Motion discussed the recent decision in Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, which KIA argued precludes Smith’s claims under the SBA.

On May 4, 2022, the Court held the Final Status Conference. At this hearing, the Court recognized that KIA’s Brief essentially operated as a Motion for Non-Suit and ordered the parties to file supplemental briefing for the Court’s consideration.

On May 18, 2022, Smith filed a Motion for Leave to File a First Amended Complaint.

On June 20, 2022, the Court granted KIA’s Motion for Non-Suit as to all claims brought under the Song-Beverly Act but recognized that Smith still had the Motion for Leave to Amend pending, and therefore did not enter judgment.

On October 18, 2022, the Court granted Smith’s Motion for Leave to File a First Amended Complaint.

On November 17, 2022, Smith filed the operative First Amended Complaint adding a sixth cause of action for Violation of the Magnuson-Moss Warranty Act.

On January 19, 2023, KIA filed the instant Demurrer to the First Amended Complaint.

On April 4, 2023, Smith filed an Opposition.

As of April 12, 2023, KIA has not filed a Reply. Any Reply was due by April 10, 2023.

DISCUSSION

I. REQUEST FOR JUDICIAL NOTICE

In ruling upon demurrers, courts may consider matters that are proper for judicial notice. (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 834.)

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

Here, KIA requests judicial notice of the following:

1. The Purchase Contract for the Subject Vehicle. (Ex. A.)

2. The Order for Nonsuit filed in this matter on June 20, 2022. (Ex. C.)

KIA’s Requests for Judicial Notice are GRANTED.

II. DEMURRER

KIA demurs to all causes of action in the First Amended Complaint.

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) As is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A. First Through Fifth Causes of Action

First, KIA demurs to the First through Fifth Causes of Action, contending that these causes were dismissed pursuant to the Court’s June 20, 2022 Order granting KIA’s Motion for Non-Suit. KIA states that when KIA’s Counsel approached Plaintiff’s Counsel regarding this issue, Plaintiff’s Counsel stated that he understood the first five causes of action were dismissed pursuant to that order. (Tsai Decl. ¶ 10.) However, Plaintiff’s Counsel stated that he kept the first five causes of action in the First Amended Complaint as he understood that the Court granted Plaintiff leave to file the proposed complaint attached to Smith’s Motion for Leave to Amend, and that version included the SBA causes of action. (Ibid.)

In her Opposition, Plaintiff concedes that the SBA causes of action were included in the First Amended Complaint as they were present in the proposed complaint that the Court granted Plaintiff leave to file. However, Plaintiff also argues that, as the California Supreme Court has granted review of Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, the case upon which the Motion for Non-Sut was granted, “should the California Supreme Court overturn Rodriguez and hold that purchasers of used cars can seek redress through the SBA, Plaintiff reserves the right to re-plead her SBA claims.” (Opposition at p. 7.)

The June 20, 2022 Order granting Kia’s Motion for Non-Suit explicitly states that “[t]his Order disposes of all claims in the present Complaint.” Plaintiff provides no authority stating that a plaintiff may revive previously dismissed causes of action and moreover there is no basis for doing so here given that the Rodriguez decision remains on appeal to the Supreme Court.

Accordingly, KIA’s Demurrer to the First through Fifth Causes of Action is SUSTAINED without leave to amend.

B. Sixth Cause of Action – Violation of the Magnuson-Moss Warranty Act

Next, KIA demurs to the Sixth Cause of Action for Violation of the Magnuson-Moss Warranty Act (“MMWA”).

The Magnuson-Moss Act “authorizes a civil suit by a consumer to enforce the terms of an implied or express warranty. Magnuson–Moss ‘calls for the application of state written and implied warranty law, not the creation of additional federal law,’ except in specific instances in which it expressly prescribes a regulating rule.” (Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 832–833.)

Here, KIA contends that Plaintiff’s MMWA cause of action must fail, as Plaintiff fails to assert a cause of action under state law. KIA cites Daugherty v. America Honda Motor Co., supra. In Daugherty, car buyer plaintiffs filed a class action lawsuit against defendant manufacturer asserting causes of action under MMWA, Unfair Competition Law, and the Consumers Legal Remedies Act. Plaintiffs sought an injunction compelling defendant to create a fund to remedy the alleged defect and to disgorge all profits wrongfully obtained through the unfair business practice.

Defendant demurred and the trial court sustained defendant’s demurrer, holding that plaintiffs’ theory of liability would make manufacturers liable for defects in their product past the point of any limited warranty. As to the MMWA, the trial court sustained the demurrer, finding that plaintiffs’ failure to state a warranty claim under state law obviated their MMWA cause of action.

The Daugherty Court affirmed, holding that “failure to state a warranty claim under state law necessarily constitutes a failure to state a claim under Magnuson-Moss.” (Daugherty, 144 Cal.App.4th at 832.)

In opposition, Plaintiff argues that Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, states that Plaintiff may state a cause of action under MMWA without alleging a violation of state law.

In Dagher, plaintiff consumer purchased a vehicle from defendant manufacturer. The trial court granted defendant’s motion for summary judgment and denied defendant’s motion for leave to amend to add a cause of action under the MMWA.

The Dagher Court affirmed the granting of summary judgment, but reversed the denial of leave to amend, holding that plaintiff “has some viable cause of action under Magnuson-Moss, and this record supports a conclusion that the trial court abused its discretion in denying the motion to amend the current complaint.” (Dagher, 238 Cal.App.4th at 277.)

The Dagher Court did not discuss Daughtery extensively as the Dagher defendant opposed a motion for leave to amend based on timeliness. However, the Dagher Court did differentiate the two cases by stating that while no violation of state law existed in Daughtery, in Dagher both parties conceded that “some express warranty claims are viable in this action, whether under the Commercial Code or Magnuson-Moss.” (Ibid.)

Here, while KIA repeatedly notes that the First Amended Complaint fails to allege a violation of state law under the Commercial Code or other applicable state law, KIA fails to show that Plaintiff cannot allege a violation of state law under the Commercial Code or other California law related to Plaintiff’s warranty.

Accordingly, while the Court finds that a violation of state law is necessary to support an MMWA cause of action, the Court also finds that the First Amended Complaint could reasonably be amended to allege such a violation, albeit not under the SBA.

Accordingly, KIA’s Demurrer to the Sixth Cause of Action is SUSTAINED. However, Plaintiff is granted 10 days leave to amend to add a violation of state law upon which the MMWA cause of action can be predicated.

DATED: April 17, 2023

___________________________

Hon. Jill T. Feeney

Judge of the Superior Court