Judge: Yolanda Orozco, Case: 19STCV13270, Date: 2022-09-09 Tentative Ruling
Case Number: 19STCV13270 Hearing Date: September 9, 2022 Dept: 31
MOTION FOR JUDGMENT ON THE PLEADINGS IS DENIED
Background
On April 17, 2019, Plaintiffs Adolfo Flores and Olga Flores filed a Complaint against Defendant Kia Motor America, Inc. and Does 1 to 10. The Complaint alleges
1) Violation of the Song-Beverly Act, Breach of Express Warranty;
2) Violation of the Song-Beverly Act, Breach of Implied Warranty;
3) Violation of the Song-Beverly Act § 1793.2;
4) Fraudulent Inducement – Concealment; and
5) Fraudulent Inducement – Intentional Misrepresentation.
On November 11, 2021, Defendant moved for summary adjudication of Plaintiff’s second, third, fourth, and fifth causes of action. The Court granted summary adjudication as to the fourth and fifth causes of action and denied adjudication as to the second and third cause of action. (Min. Or. 02/07/22.)
Trial was set for May 09, 2022 but has been rescheduled for September 14, 2022.
On June 21, 2022, Defendant moved for Judgment on the Pleadings.
On August 31, 2022, Plaintiffs filed Opposition papers. On September 01, 2022, Defendant filed a Reply.
Meet and Confer
Defense counsel asserts that per Code of Civil Procedure section 439, subdivision (a), defense counsel met and conferred with Plaintiff’s attorney via email and telephone regarding the Motion for Judgment on the Pleadings. (Chinery Decl. ¶¶ 3, 4.) Thus, the meet and confer requirement is met.
Legal Standard
“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) When considering demurrers and judgment on the pleadings, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) A motion for judgment on the pleadings does not lie as to a portion of a cause of action. (Id.) “In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)
Discussion
Timeliness of the Motion
Under Code of Civil Procedure section 438 subdivision (e), the Court has the discretion to consider statutory motions for judgment on the pleadings:
“No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.”
(Code Civ. Proc., § 438 subd. (e). [underline added], see also Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1054. [“section 438, subdivision (e) “authorizes the trial court to permit late filings of such motions and does not specify any grounds which might serve to limit its power to do so.”].)
“‘It is evident that whether to grant ... leave [to file a late motion for judgment on the pleadings] is a matter residing in the trial court's discretion to control litigation before it.’ [Citation.] There was no abuse of that discretion. ‘The interests of all parties are advanced by avoiding a trial and reversal for defect in pleadings.’ [Citation.].” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1063.].)
Accordingly, the Court will hear this Motion.
Motion for Judgment on the Pleadings
On May 30, 2016, Plaintiffs Adolfo and Olga Flores purchased a used 2014 Kia Sorrento from Car Pros Kia in Carson, California. Plaintiffs allege that, following their purchase, the subject vehicle encountered serious defects and nonconformities with respect to the engine—a gasoline direct injection (“GDI”) engine—such that the subject vehicle was prone to risk of an engine fire.
Defendant asserts that it was not the original distributor of Plaintiffs’ vehicle when it was new, that it did not manufacture the vehicle and did not make any warranties in connection with the sale of the used vehicle to Plaintiffs by Car Pros Kia, which is an independent third-party dealer.
Defendant cites to Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 and argues that Plaintiffs’ used vehicle is not subject to the repurchase or replacement remedies provided under the Song-Beverly Act such that the first, second, and third cause of action should be dismissed.
Plaintiffs assert that under Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, vehicles sold as used are covered under the Song-Beverly Act if the vehicle still has a remainder of the manufacturer’s new car warranty. (Id. at 123 [“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.”].)
In their Complaint Plaintiffs allege the following:
“These causes of action arise out of the warranty obligations of Kia in connection with a vehicle purchased by Plaintiff’s and for which Kia issued a written warranty.” (Compl. ¶ 7.) “On May 30, 2016, Plaintiffs purchased a used Kia Sorento” and “[e]xpress warranties accompanied the sale of the vehicle to Plaintiffs by which Kia undertook to preserve or maintain the utility or performance of Plaintiffs’ vehicle or to provide compensation if there was a failure in such untility or performance.”
(Compl. ¶ 11.) The Court notes that on the face of the Complaint, there is no allegation that the retailer who sold Plaintiff’s the subject vehicle was unaffiliated with Kia.
In Rodriguez, the Appeal Court reasoned that “[t]he record doesn’t indicate whether Pacific Auto Center issued any warranties to plaintiffs, but that would be the only way they could seek a refund or replacement under the Act.” (Rodriguez, supra, 77 Cal.App.5th at 223.) The Appeal Court in Rodriguez reasoned that Johnson v. Nissan N.Am., Inc. (N.D. Cal. 2017) 272 F.Supp.3d 1168 was on point and that under Johnson, the only way plaintiff would be entitled to the Song-Beverly Act’s express warranty protections was if CarMax extended the express and implied warranties to plaintiff. (See Rodriguez, supra, 77 Cal.App.5th at 223, citing Nissan N.Am., Inc. (N.D. Cal. 2017) 272 F.Supp.3d at 1179.)
Like demurrers, motions for judgment on the pleadings challenge the legal sufficiency of the allegations, not their veracity. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Any defects must either appear on the face of the pleading, or else be taken by judicial notice. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-22.)
Plaintiffs have plead that when they purchased the used subject vehicle “express warranties” accompanied the sale of the vehicle and that Kia issued a written warranty. On the face of the Complaint, the facts are distinguishable from those alleged in Rodriguez and absent any defects on the face of the Complaint, Defendant’s Motion is DENIED.
Conclusion
For the reasons stated Defendant’s Motion is DENIED.
Defendant to give notice.
The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.