Stiles v. Kia Motors America, Inc. ( 2024 )

Filed 5/23/24 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
BRANDI STILES et al., 2d Civ. No. B325798
(Super. Ct. No. 56-2019-
Plaintiffs and Appellants, 00527171-CU-BC-VTA)
(Ventura County)
v.
ORDER MODIFYING
KIA MOTORS AMERICA, INC., OPINION
[NO CHANGE IN
Defendant and Respondent. JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on May 2, 2024, be modified
as follows:
1. On page 5, fourth sentence of the second full paragraph, the word
“new” is to be inserted between the words “all” and “consumer” so that
the sentence reads:
“In fact, the implied warranty provisions on which Kia relies
cover all new consumer goods.”
2. On page 8, the second full paragraph under “III. Implied Warranty,”
beginning, “Section 1792 provides,” is deleted and the following two full
paragraphs are inserted in its place:
Section 1792 provides, in part: “[E]very sale of consumer
goods that are sold at retail in this state shall be accompanied
by the manufacturer’s and the retail seller’s implied warranty
that the goods are merchantable.”
Section 1791, subdivision (a) defines consumer goods as “any
new product or part thereof that is used, bought, or leased for
use primarily for personal, family, or household purposes, except
for clothing and consumables.”
There is no change in the judgment.
GILBERT, P.J. BALTODANO, J. CODY, J.
2
Filed 5/2/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
BRANDI STILES et al., 2d. Civ. No. B325798
(Super. Ct. No. 56-2019-
Plaintiffs and Appellants, 00527171-CU-BC-VTA)
(Ventura County)
v.
KIA MOTORS AMERICA,
INC.,
Defendant and Respondent.
This appeal arises out of the Song-Beverly Consumer
Warranty Act (Song-Beverly Act). (Civ. Code,1 § 1790, et seq.)
Here we hold that a previously owned motor vehicle purchased
with the manufacturer’s new car warranty still in effect is a “new
motor vehicle” as defined by section 1793.22, subdivision (e)(2).
Thus the replace or refund remedy of section 1793.2, subdivision
(d)(2) applies. The trial court sustained the demurrer of Kia
Motors America, Inc. (Kia) without leave to amend. We reverse.
1 All statutory references are to the Civil Code.
FACTS
First Amended Complaint
The first amended complaint alleges:
Brandi Stiles and Abel Gorgita (collectively Stiles)
purchased a 2011 Kia Optima in April 2013. Kia is the
manufacturer and distributor of the car. Express warranties
accompanied the sale by which Kia agreed to preserve the utility
and performance of the car or provide compensation on failure of
utility or performance. At the time Stiles purchased the car,
some of Kia’s original warranties were still in effect, including
the basic and drivetrain warranties.
At the time of Stiles’ purchase, the car had serious defects
and developed other serious defects covered by the warranties,
including transmission, electrical, brakes, engine, suspension,
and steering defects. Stiles brought the car to an authorized Kia
repair facility, but Kia was unable to repair the defects after a
reasonable number of attempts. Kia failed to replace the car or
make restitution as required under the Song-Beverly Act.
The complaint alleges causes of action under the Song-
Beverly Act for breach of implied warranty; and violation of
section 1793.2, failure to promptly make repairs.
Demurrer
Kia demurred to Stiles’s first amended complaint.
Although the complaint does not expressly state so, it is
undisputed that Stiles purchased the car from a third party and
not from Kia or any of its authorized dealerships.
The trial court sustained Kia’s demurrer on the ground
that the remedies Stiles seeks under the Song-Beverly Act apply
only to new motor vehicles, and Stiles’s car is not a “new motor
vehicle” as defined in section 1793.22, subdivision (e)(2). The
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court relied on Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th
209, review granted July 13, 2022, S274625 (Rodriguez), which
held that a used motor vehicle with an unexpired warranty is not
a “new motor vehicle” under the Song-Beverly Act. The court
rejected Jensen v. BMW of North America, Inc. (1995) 35
Cal.App.4th 112 (Jensen), which held that a previously owned
motor vehicle with an unexpired warranty qualifies as a “new
motor vehicle” under the Song-Beverly Act.
DISCUSSION
I. Standard of Review
The function of a demurrer is to test whether, as a matter
of law, the facts alleged in the complaint state a cause of action
under any legal theory. (Intengan v. BAC Home Loans Servicing
LP (2013) 214 Cal.App.4th 1047, 1052.) We assume the truth of
all facts properly pleaded, as well as facts of which the trial court
properly took judicial notice. (Ibid.) But we do not assume the
truth of contentions, deductions, or conclusions of law. (Ibid.)
Our review of the court’s decision is de novo. (Ibid.)
II. Replace or Refund Remedy
Section 1793.2, subdivision (d)(2) provides in part: “If the
manufacturer or its representative in this state is unable to
service or repair a new motor vehicle, as that term is defined in
paragraph (2) of subdivision (e) of Section 1793.22, to conform to
the applicable express warranties after a reasonable number of
attempts, the manufacturer shall either promptly replace the
new motor vehicle in accordance with subparagraph (A) or
promptly make restitution to the buyer in accordance with
subparagraph (B).”
Section 1793.22, subdivision (e)(2) provides in part: “ ‘New
motor vehicle’ includes . . . a dealer owned vehicle and
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‘demonstrator’ or other motor vehicle sold with a manufacturer’s
new car warranty . . . .”
Thus Stiles is entitled to the replace or refund remedy of
section 1793.2, subdivision (d)(2) if the car she purchased was a
“motor vehicle sold with a manufacturer’s new car warranty.”
(§ 1793.22, subd. (e)(2).) Stiles so alleges. That should be the end
of the discussion.
Kia, in its relentless attempt to avoid the clear meaning of
section 1793.22, subdivision (e)(2), assumes a legislative role and
tries to amend the statute. Kia claims we must add “new or full”
prior to warranty. (§ 1793.22, subd. (e)(2).) Had the Legislature
intended to qualify warranty with “new or full” it would have said
so. We may not add words to a clear and unequivocal statute.
(Hudson v. Superior Court (2017) 7 Cal.App.5th 1165, 1172.)
Kia argues Stiles’s interpretation is undercut by the Song-
Beverly Act’s definition of express warranty as a “written
statement arising out of a sale to the consumer.” (§ 1791.2, subd.
(a)(1).) Kia interprets the provision to mean the warranty arises
out of the sale to the first consumer and the warranty does not
“arise out of” the resale of a motor vehicle to a subsequent
consumer. Stiles does not allege the warranty arose out of the
resale to her; she alleges she purchased the car with an existing
new car warranty. The warranty arose when Stiles’ car was first
sold to a consumer, the car still qualifies as a “motor vehicle sold
with a manufacturer’s new car warranty.” (§ 1793.22, subd.
(e)(2).) Stiles’ interpretation of section 1793.22, subdivision (e)(2)
has nothing to do with the Song-Beverly Act’s definition of
express warranty.
Kia argues Stiles’ interpretation conflicts with the Song-
Beverly Act’s implied warranty provisions. Section 1791.1,
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subdivision (c) provides in part: “The duration of the implied
warranty of merchantability and where present the implied
warranty of fitness shall be coextensive in duration with an
express warranty which accompanies the consumer goods,
provided the duration of the express warranty is reasonable; but
in no event shall such implied warranty have a duration of less
than 60 days nor more than one year following the sale of new
consumer goods to a retail buyer.”
Kia argues that if used cars with transferred warranties
were new motor vehicles as Stiles claims, a new one-year implied
warranty would attach to the vehicle with each resale within the
warranty period. This would, in Kia’s view, conflict with the one-
year maximum in section 1791.1, subdivision (c).
But section 1793.2, subdivision (d)(2) applies only to
express warranties of motor vehicles. The definition of a new
motor vehicle in section 1793.22, subdivision (e)(2) expressly
applies to section 1793.2, subdivision (d)(2). The provisions on
implied warranties in the Song-Beverly Act make no reference to
the definition of “new motor vehicle” in section 1793.22,
subdivision (e)(2). In fact, the implied warranty provisions on
which Kia relies cover all consumer goods. The provisions of
sections 1793.2 and 1793.22, which are specific to motor vehicles,
prevail. (See Cockshott v. Department of Forestry and Fire
Protection (2004) 125 Cal.App.4th 235, 240 [specific statutory
provision governs the general].)
The Legislature has clearly defined “new motor vehicle” for
the purposes of the replace or refund remedy of section 1793.2,
subdivision (d)(2). Stiles’s complaint alleges facts that show she
is entitled to that remedy. Whether and to what extent remedies
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for breach of an implied warranty under section 1791.1 may
apply is beside the point.
Kia’s reliance on Rodriguez, supra, 77 Cal.App.5th 209,
review granted July 13, 2022, S274625, is misplaced. There, as
here, plaintiffs purchased a previously owned motor vehicle with
remaining miles on the manufacturer’s written warranty. The
vehicle proved defective and an authorized dealership was unable
to repair it. Plaintiffs sued the manufacturer for violating the
replace or refund provision of section 1793.2. The trial court
sustained the manufacturer’s demurrer on the ground that the
vehicle was not a “new motor vehicle” as defined in section
1793.22, subdivision (e)(2).
The Court of Appeal affirmed the ensuing judgment in
Rodriguez. The court reasoned that the phrase in section
1793.22, subdivision (e)(2), “or other motor vehicle sold with a
manufacturer’s new car warranty” appears under the definition
of new motor vehicles. (Rodriguez, supra, 77 Cal.App.5th at p.
220.) What was more important to the Rodriguez court is that
the phrase is preceded by “dealer-owned vehicle and a
‘demonstrator.’ ” The court stated that dealer-owned and
demonstrator vehicles are “basically” new because “they have
never been previously sold to a consumer and they come with full
express warranties.” (Ibid.) The court interpreted the phrase
“other motor vehicle sold with a manufacturer’s new car
warranty” to be limited to vehicles that have “never been
previously sold to a consumer and come with full express
warranties.” (Ibid.) The court stated the section describes only
two types of vehicles— dealer-owned and demonstrator— not
three. (Ibid.)
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We cannot argue with the Rodriguez court’s conclusion that
the phrase “or other motor vehicle sold with a manufacturer’s
new car warranty” appears under the definition of a new motor
vehicle. (§ 1793.22, subd. (e)(2).) That is why we conclude
Stiles’s car, in precisely meeting the definition as a “motor vehicle
sold with a manufacturer’s new car warranty,” is a new motor
vehicle as defined by the statute. More importantly, the
Rodriguez court adds words to the statute. The statute contains
no such limitation as vehicles that have never been previously
sold to a consumer and come with full express warranties.2
Section 1793.22, subdivision (e)(2) was enacted in 1992. (Stats.
1992, ch. 1232, § 7.) In the more than 30 years since then, the
Legislature has had ample opportunity to add such limiting
language. It has not done so. It would be more than
presumptuous for us to add what the Legislature has not. The
court’s assertion that section 1793.22, subdivision (e)(2) has only
two categories— dealer-owned and demonstrator— defies the
rules of English grammar and logic.
In section 1793.22, subdivision (e)(2), the dealer-owned and
demonstrator categories are followed by the disjunctive “or”
which precedes “other motor vehicle sold with a manufacturer’s
new car warranty.” The disjunctive is ordinarily used to
distinguish that which precedes it from that which follows it.
“[O]ther motor vehicles” is clearly a third separate category.
Jensen, supra, 35 Cal.App.4th 112, was properly decided.
Jensen involved a previously owned vehicle that was subject to
the manufacturer’s new car warranty. The Court of Appeal held
2 Stiles claims that dealer-owned and demonstrator
vehicles are not sold with full new car warranties. Kia does not
dispute the claim.
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that the vehicle qualified as a new motor vehicle as defined in
section 1793.22, subdivision (e)(2). In so holding, the court
concluded that the statute was reasonably free from ambiguity,
and relied on the rule of statutory construction, that we must
examine the language of the statute, giving the words their
ordinary meaning, and if the words are reasonably free from
ambiguity, the language controls. (Id. at pp. 122-123.) The court
also concluded that the legislative history supported its
interpretation. The court stated the legislative history shows the
legislature has systematically differentiated warranty problems
unique to motor vehicles, including transferability and mobility.
(Id. at p. 124.)
We, like Jensen, but unlike Rodriguez, look to the plain
words of the statute. If any legislative history is required, its
most salient feature is that more than 30 years after section
1793.22 was enacted and almost 30 years after Jensen was
decided, the Legislature has not amended the definition of “new
motor vehicle” in section 1793.22. And neither will we.
III. Implied Warranty
Stiles’s complaint alleged breach of implied warranty of
merchantability pursuant to section 1792.
Section 1792 provides, in part: “. . . any new product or
part thereof that is used, bought, or leased for use primarily for
personal, family, or household purposes, except for clothing and
consumables.”
Kia, relying on Rodriguez, demurred solely on the ground
that Stiles’s car was not a “new motor vehicle” within the
meaning of section 1793.22. We have rejected that argument.
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IV. Improper Argument
We do not consider arguments Kia makes for the first time
on appeal.
DISPOSITION
The judgment is reversed. Costs are awarded to
appellants.3 4 5
GILBERT, P. J.
We concur:
BALTODANO, J.
CODY, J.
3 Kia’s request for judicial notice of the materials relating
to legislative history, filed September 8, 2023, is granted. In all
other respects the request for judicial notice is denied as
unnecessary to this opinion.
4 Stiles’s motion for judicial notice of briefs filed in Jensen,
supra, 35 Cal.App.4th 112, filed on February 26, 2024, is denied
as unnecessary to this opinion.
5 Kia’s motion to strike or leave to file supplemental brief,
filed on March 13, 2024, is denied. This court is well aware of
what is appropriate in a reply brief and is fully capable of sorting
out any points that may be inappropriate.
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Mark S. Borrell, Judge
Superior Court County of Ventura
______________________________
Knight Law Group, Roger R. Kirnos, Amy-Lyn Morse;
Greines, Martin, Stein & Richland, Cynthia E. Tobisman, Joseph
V. Bui, and Rachel A. Beyda for Plaintiffs and Appellants.
Horvitz & Levy, Lisa Perrochet, Shane H. Mckenzie,
Jonathan Z. Morris; Lehrman, Villegas, Chinery & Douglas, Kate
S. Lehrman and Jacqueline Bruce-Chinery for Defendant and
Respondent.