Judge: Theodore R. Howard, Case: 19-1100540, Date: 2023-08-17 Tentative Ruling
Defendant Kia Motors America’s (“Defendant”) Demurrer to plaintiff Barbara R. Hurd’s (“Plaintiff”) Third Amended Complaint (“TAC”) is OVERRuled.
A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749.)
“In our examination of the complaint we are guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. [Citations omitted.] However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. [Citations omitted.]” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672.)
Under Section 430.10(e) the test is whether the complaint states any valid claim entitling plaintiff to relief, even if plaintiff’s cause of action is improperly titled, or an improper remedy is stated. (Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38 (“Quelimane”).) Under a general demurrer, plaintiff’s complaint must fail to state a valid cause of action for the demurrer to be sustained.
Defendant demurs solely to cause of action (“COA”) No. 2 – Violation of the Magnuson-Moss Warranty Act on the basis that it fails to state sufficient facts to constitute a cause of action. (Civ. Proc. Code § 430.10(e).)
“The Magnuson–Moss Warranty (“Magnuson”)—Federal Trade Commission Improvement Act, 15 U.S.C. sections 2301 et seq., 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, supra, 144 Cal.App.4th at 832-833.) Daugherty held, “the trial court correctly concluded that failure to state a warranty claim under state law necessarily constituted a failure to state a claim under Magnuson–Moss.” (Id., at 833.) The court rejected the plaintiff’s argument that she had properly pled a cause of action under Magnuson-Moss in the absence of a state law warranty claim. (Ibid.)
Additionally, “[c]laims under the Magnuson–Moss Warranty Act derive from state law warranty claims. See 15 U.S.C. § 2310(d). Thus, Chrysler's motion to dismiss Plaintiffs' MMWA claims rises or falls with its motion to dismiss the express and implied warranty claims. Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 & n. 3 (9th Cir.2008) (“[T]his court's disposition of the state law warranty claims determines the disposition of the Magnuson–Moss Act claims.”).” (Sater v. Chrysler Grp. LLC, No. EDCV 14-00700-VAP, 2015 WL 736273, at *10 (C.D. Cal. Feb. 20, 2015). “Dismissal of the state law express and implied warranty claims requires the same disposition with respect to an associated [Magnuson] claim.” (Clark v. LG Elecs. U.S.A., Inc., No. 13-CV-485 JM JMA, 2013 WL 5816410, at *16 (S.D. Cal. Oct. 29, 2013); See also, Daughtery v. Am. Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824.)
In the TAC, Plaintiff cites to Song-Beverly (“Act”) in the COA to support the Magnuson claim noting, “[u]nder the Act, Plaintiffs is entitled to reimbursement of the entire amount paid or payable, or alternatively, a replacement vehicle and/or California lemon law remedies.” (TAC ¶ 109.) While there are no other code section specifically cited under the COA, the COA does incorporate the prior paragraphs by reference. (TAC ¶ 100.) In those paragraphs, Plaintiff has also alleged there was a breach of the express warranty under Cal. Uniform Commercial Code (“UCC”) §§ 274(2), 2313, and 2711 – 2713. (TAC ¶¶ 15-20.)
The court has noted in two prior rulings that the Act does not apply in this case as Plaintiff purchased the subject vehicle used from a third-party and not from Defendant or any entity affiliated with Defendant. (ROA ## 226, 269.) As such, the used nature of the subject vehicle does not permit Plaintiff to recover under the Act. (Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, 214.) However again, Plaintiff has now alleged breaches of warranty under the UCC. Defendant did not make any arguments regarding the UCC in its Demurrer. Additionally, Defendant in its reply brief conceded Plaintiff could utilize the UCC to assert a basis for warranty claims under Magnusson-Moss. (Reply, 3:22-26.) As there is an potential theory of recovery under the UCC, the court cannot sustain the demurrer simply due to Plaintiff’s incorrect inclusion of the Act. (Quelimane, supra, 19 Cal. 4th at 38.)
As Defendant made no arguments regarding the UCC and as Defendant specifically conceded Plaintiff may have a basis for recovery under the UCC and Magnusson-Moss, the court cannot sustain the demurrer.
The Demurrer is OVERRULED.
Plaintiff to give notice.