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Court of Appeal:
Used Car Can Be ‘New’ Under Wording of State Lemon Law
Opinion By Gilbert Rejects Contrary Conclusion by Fourth District Panel
By a MetNews Staff Writer
A used car can be a “new” vehicle for purposes of the state’s lemon law if the manufacturer’s warranty is still in effect, Div. Six of the Court of Appeal for this district has held, repudiating contrary precedent from the Fourth District.
Presiding Justice Arthur Gilbert authored the opinion, filed Thursday. It reverses a judgment of dismissal that was entered after Ventura Superior Court Judge Mark S. Borrell sustained a demurrer by a car manufacturer, Kia Motors America, Inc., without leave to amend.
Kia contended that the automobile in question does not come under the provisions of the Song-Beverly Consumer Warranty Act, codified Civil Code §1790 et seq., because it was sold to the plaintiffs, Brandi Stiles and Abel Gorgita, by a third party, not by it or its dealerships. The plaintiffs argued that the car, though a second-hand vehicle, is, in fact, subject to what is known as the “lemon law” because it is still under Kia’s warranty.
Wording of Provision
Civil Code §1793.2(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).”
Sec. 1793.22(e)(2), in turn, says:
“ ‘New motor vehicle’ includes...a dealer owned vehicle and ‘demonstrator’ or other motor vehicle sold with a manufacturer’s new car warranty....”
Gilbert wrote: “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.’…Stiles so alleges. That should be the end of the discussion.”
Slough’s Opinion
But the discussion continued because Div. Two of the Fourth District Court of Appeal, in it April 7, 2022 opinion in Rodriguez v. FCA U.S., LLC, came to a contrary conclusion. The California Supreme Court has granted review in that case.
Justice Marsha G. Slough said in Rodriguez:
“The sole issue in this case is whether the phrase “other motor vehicle sold with a manufacturer’s new car warranty” covers sales of previously owned vehicles with some balance remaining on the manufacturer’s express warranty. We conclude it does not and that the phrase functions instead as a catchall for sales of essentially new vehicles where the applicable warranty was issued with the sale.”
She declared that Song-Beverly Act “provides express warranty protections for used goods only where the entity selling the used product issues an express warranty at the time of sale” and that “a hallmark of the Act is that its consumer protections apply against the party who sold the product to the buyer and issued the express warranty.”
The jurist noted that “demonstrators and dealer-owned vehicles comprise a narrow category of basically new vehicles—they have never been previously sold to a consumer and they come with full express warranties,” and said:
“Given this context, we think the most natural interpretation of the phrase ‘other motor vehicle sold with a manufacturer’s new car warranty’ is that it, too, refers to vehicles that have never been previously sold to a consumer and come with full express warranties.”
Differing View
Rejecting that reasoning, Gilbert said:
“[T]he 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. Section 1793.22, subdivision (e)(2) was enacted in 1992….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.”
No Need
Kia on March 13 filed a motion to strike portions of the appellants; reply brief or for consent to file supplemental brief in response to that brief. Gilbert said in a footnote that the motion is denied, remarking:
“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.”
The case is Stiles v. Kia Motors America, Inc., 2024 S.O.S. 1505.
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