Quesada v. MVVT Motors, LLC

Non-appearances: If nobody appears for the hearing and the court has not been notified that all parties submit on the tentative ruling, the court shall determine whether the matter is taken off calendar or the tentative ruling becomes the final ruling.

NO. CASE NAME MATTER

1:30 p.m.

1 Quesada v. MVVT Defendant MVVT Motors, LLC’s (“Dealer” or “MVVT”) demurrer to the Motors, LLC fifth cause of action for breach of implied warranty or merchantability of the first amended complaint by Plaintiff Karen Quesada is SUSTAINED with 20 days leave to amend.

Plaintiff’s request for judicial notice is GRANTED as to exhibits 1-7, but denied as to exhibit 8.

A. Legal Standard on Demurrer

A demurrer challenges the sufficiency of a pleading by raising questions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 833.) As such, the only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.) If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility the defect can be cured by amendment. (Blank, supra, 39 Cal.3d at p. 318.)

On the other hand, “a trial court does not abuse its discretion by sustaining a general demurrer without leave to amend if it appears from the complaint that under the applicable substantive law there is no reasonable possibility that an amendment could cure the complaint’s defect.” (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486.)

In ruling on a demurrer, the trial court must accept as true all material facts properly pleaded in plaintiff’s petition, disregarding only conclusions of law and allegations contrary to judicially noticed facts. (Burt v. County of Orange (2004) 120 Cal.App.4th 273, 277.) All that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief under any possible legal theory. (Woods v. Superior Court (1981) 28 Cal.3d 668, 673.) In evaluating the demurrer, the trial court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Blank, supra, 39 Cal.3d at p. 318.) “‘A general demurrer admits the truth of all material factual allegations in the complaint [citation]; ... the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.’ [Citations.]” (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist.

Agricultural Assn. (1986) 42 Cal.3d 929, 936; see Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 245 [proof of damages].)

B. Fifth Cause of Action for Breach of Implied Warranty under Song-Beverly

Defendant argues that Plaintiff’s express warranty claims fail as a matter of law because Plaintiff purchased a used vehicle and because Defendant is a dealer, and not a manufacturer.

Under the Song-Beverly Act, there are remedies for “consumer goods” which are defined as new goods under Civ. Code § 1791 and “new motor vehicles” which are defined distinctly under Civ. Code § 1793.22. With regards to breach of express warranty with respect to “new motor vehicles” (the most commonly used provision of the Act and what is commonly referred to as the lemon law), a consumer may sue an automobile manufacturer or other original warrantor who does not repair a new motor vehicle to conform to an express warranty within a reasonable number of attempts. (Cal. Civ. Code § 1793.2.) A “new motor vehicle” includes “a dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer’s new car warranty.” (Cal. Civ. Code § 1793.22(e)(2).)

Relying on Rodriguez v. FCA US, LLC, Rodriguez v FCA US LLC (2024) 17 Cal. 5th 189, 201, Defendant argues that a used vehicle is not a “new motor vehicle” or “consumer good” for which Song-Beverly Act remedies are available. In Rodriguez, the Supreme Court concluded that “a motor vehicle purchased with an unexpired manufacturer's new car warranty does not qualify as a “motor vehicle sold with a manufacturer's new car warranty” under section 1793.22, subdivision (e)(2) ’s definition of “new motor vehicle” unless the new car warranty was issued with the sale.” (Id. at 196).

In Leber v. DKD of Davis, Inc. (2015) 237 Cal.App.4th 402, the court held that a truck that was sold “as is” is not “new” and therefore does not trigger implied warranties of merchantability and fitness under the Song–Beverly Consumer Warranty Act. (Leber v. DKD of Davis, Inc. (2015) 237 Cal.App.4th 402, 407). Further, the court held that an exception applies under Song-Beverly where “an express warranty” is provided during the sale of used good. (Id. at 408). While a manufacturer may issue such an express warranty, in that case, as between the buyer and seller who was not a manufacturer an express warranty does not automatically arise out of the sale. (Id. at 409). Indeed, where a sale is sold “as is” the dealer expressly and clearly negates its intent to provide an express warranty. (Id.)

Here, while Plaintiff contends that an implied warranty arises under Vehicle Code §§ 11713.18(a)(7)-(8) for used vehicles that are sold as “certified.” While an implied warranty may exist under other statutes, the fifth cause of action, however, expressly seeks remedies under the Song-Beverly Act (and not the Vehicle Code). (See FAC, ¶ 103 (“Plaintiff is entitled under the Song-Beverly Act to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorneys’ fees, reasonably incurred in connection with the commencement and prosecution of this action.”)

Under Rodriguez and Leber, however, the remedies available under the Song-Beverly Act do not apply here because the vehicle was purchased used. (Rodriguez, supra, (2024) 17 Cal. 5th at p. 196). Further, the vehicle was sold to Plaintiff “as is” (FAC, ¶ 17) such that, as between Defendant, as seller, and Plaintiff, as buyer, no express warranty was sold with the used vehicle for the used vehicle exception under the Song Beverly Act to apply. (Leber, supra, 237 Cal.App.4th p. 409). The court does not find Plaintiff’s argument that Leber or Rodriguez were wrongly decided to be persuasive. Under the circumstances alleged, under Rodriguez and Leber, which the court relies on, remedies under the Song-Beverly Act do not apply.

The demurrer to the fifth cause of action is, therefore, SUSTAINED. Because implied warranties may still exist under other statutes or by operation of law, however, the court grants leave to amend for Plaintiff to allege a breach of implied warranty cause of action based on a non- Song-Beverly statute.

Moving Defendant to give notice.

Case Management Conference

The Case Management Conference is continued to August 06, 2026, at 9:00 a.m. in this department.

Plaintiff to give notice.

2 Rodriguez v. The unopposed Demurrer by Defendants Michael Mahon, Obie Walli, Eli Mahon Realty Investments, LLC and Exclusive Lifestyles SoCal, LLC to Plaintiffs Jessie Rodriguez; Josh Painter, J. Painter Real Estate, LLC and J. Painter, Inc.; Amy Green, individually, and as trustee of the Amy Green Trust u/a/d May 15, 2001; Peter Lorimer; Jose Zavalza; Oscar Mendoza; Jason Lucero; ("Avance"); ZMR Real Estate, Inc.; and LMM Real Estate, Inc.’s (aka “All Plaintiffs except for Danny Morel and Avance Real Estate, Inc.”) FAC filed under ROA 171 is SUSTAINED with 20 days leave to amend.

The failure to oppose a demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 (“Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue”).) In addition, it is axiomatic the failure to challenge a contention in a brief results in the concession of that argument. (DuPont Merck Pharmaceutical Co. v.

Sup. Ct. (2000) 78 Cal. App. 4th 562, 566 (“By failing to argue the contrary, plaintiffs concede this issue”); Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal. App. 4th 507, 529 (“failure to address the threshold question . . . effectively concedes that issue and renders its remaining arguments moot”); Glendale Redevelopment Agency v. Parks (1993) 18 Cal. App. 4th 1409, 1424 (issue is impliedly conceded by failing to address it).)

Here, there is no opposition to the Demurrer and therefore, the court deems the Demurrer on the grounds stated as unopposed and construes the failure to oppose the Demurrer as an abandonment of the claims argued therein.

Accordingly, the Court SUSTAINS the Demurrer in full, but nevertheless GRANTS Plaintiffs 20 days leave to amend.

Moving party to give notice.

Case Management Conference

The Case Management Conference is continued to August 06, 2026, at 9:00 a.m. in this department.

Plaintiff to give notice.

3 Ruby v. Farano Plaintiffs Paula Sanburg Ruby and Barry Ruby move to compel further responses from Defendant Charles M. Farano to Requests for Admission, Set One. For the following reasons set forth below, the motion is DENIED.

A party may move to compel further responses to requests for admission where an answer is evasive or incomplete, or where an

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