Filed 3/15/22 Planet Clair v. American Honda Motor Co. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

PLANET CLAIR LLC,

Plaintiff and Appellant,

v.

AMERICAN HONDA MOTOR 

CO., INC.,

Defendant and 

Respondent.

 B308151

 (Los Angeles County

Super. Ct. No. 

20STCV25783)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, William F. Fahey, Judge. Reversed and 

remanded.

The Bravo Law Firm and Nicholas A. Bravo for Plaintiff 

and Appellant.

Lewis Brisbois Bisgaard & Smith, Wendy S. Dowse, 

Trevor J. Ingold, Jessica L. Barakat and Jordan R. Fisher for 

Defendant and Respondent.

_____________________________
2

Planet Clair LLC appeals the judgment entered after the 

trial court sustained without leave to amend American Honda 

Motor Co., Inc.’s demurrer to Planet Clair’s complaint for breach 

of express and implied warranties pursuant to the Song-Beverly 

Consumer Warranty Act (Civ. Code, § 1790 et seq.)1(SongBeverly Act or Act). We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Complaint

On July 9, 2020 Planet Clair filed a complaint against 

American Honda alleging causes of action under the SongBeverly Act for breach of the implied warranty of merchantability

and breach of the express warranty arising from its purchase in 

March 2020 of a new Honda Passport from an authorized 

California Honda dealer. The express warranty included 

warranties the vehicle would be free from all defects in material 

and workmanship and would be fit for the ordinary purposes for 

which it was intended. The complaint sought restitution or 

replacement of the vehicle, actual damages, civil penalties as 

provided in the Song-Beverly Act and attorney fees and costs.

According to the complaint Planet Clair purchased the 

vehicle “for personal, family, and/or household purposes of its 

principal.” Soon after taking possession of the vehicle, Planet 

Clair “presented the vehicle for warrantable nonconformities/defects substantially affecting the use, value and 

safety of the vehicle, including but not limited to: [¶] defective 

and/or malfunctioning transmission and/or powertrain

components and/or systems; [¶] additional defects which are 

1 Statutory references are to this code unless otherwise 

noted.
3

unknown to Plaintiff as they have yet to be properly identified, 

diagnosed, and repaired.” The complaint alleged,“Plaintiff 

delivered the Vehicle to Manufacturer or its authorized repair 

facilities Defendants [sic], and each of them, failed to service or 

repair the Vehicle to match the written warranty after a 

reasonable number of opportunities to do so.” 

2. The Demurrer

On August 17, 2020 American Honda demurred to the 

complaint, arguing, among other matters, Planet Clair had failed 

to sufficiently allege the Song-Beverly Act applied to the 

purchased vehicle. American Honda contended the Song-Beverly 

Act applied to the purchase of a vehicle by a corporate entity only 

if the vehicle was used for a business purpose. (See § 1793.22, 

subd. (e)(2).) Because the complaint alleged the vehicle was used 

by Planet Clair’s principal for his or her personal, family and/or 

household purposes, American Honda argued,the Song-Beverly 

Act’s provisions did not apply. Further, American Honda 

asserted,the complaint should be dismissed without leave to 

amend because, having pleaded personal use of the vehicle, 

Planet Clair could not amend to plead the vehicle was used for 

business purposes.

3. The Trial Court’s Ruling Sustaining the Demurrer 

Without Leave To Amend and Subsequent Judgment of 

Dismissal

During the hearing on the demurrer Planet Clair argued 

personal use of the vehicle by Planet Clair’s principal did not 

preclude application of the Song-Beverly Act because such use 

may simultaneously serve a business purpose. After taking the 
4

matter under submission the trial court sustained the demurrer 

without leave to amend.2 

DISCUSSION

1. Standard of Review

A demurrer tests the legal sufficiency of the factual 

allegations in a complaint. We independently review the superior 

court’s ruling on a demurrer and determine de novo whether the 

complaint alleges facts sufficient to state a cause of action or 

discloses a complete defense. (Mathews v. Becerra (2019) 

8 Cal.5th 756, 768; T.H. v. Novartis Pharmaceuticals Corp. (2017) 

4 Cal.5th 145, 162.) We assume the truth of the properly pleaded 

factual allegations, facts that reasonably can be inferred from 

those expressly pleaded and matters of which judicial notice has 

been taken. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20; 

Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) 

However, we are not required to accept the truth of the legal 

conclusions pleaded in the complaint. (Mathews, at p. 768; Zelig 

v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) We 

affirm the judgment if it is correct on any ground stated in the 

demurrer, regardless of the trial court’s stated reasons (Aubry v. 

2 We augment the record to include the October 20, 2020 

entry of a judgment of dismissal on our own motion pursuant to 

California Rules of Court, rule 8.155(a)(1)(A).

Planet Clair’s October 1, 2020 notice of appeal was filed 

after entry of the September 21, 2020 order sustaining the 

demurrer without leave to amend, a nonappealable order, and

before the October 20, 2020 judgment of dismissal. We treat the 

notice of appeal, otherwise premature, as having been filed 

immediately after entry of the judgment of dismissal. (Cal. Rules 

of Court, rule 8.104(d)(2).) 
5

Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967; Las Lomas 

Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 

848), but liberally construe the pleading with a view to 

substantial justice between the parties. (Code Civ. Proc., § 452; 

Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 726; 

see Schifando, at p. 1081.) “Further, we give the complaint a 

reasonable interpretation, reading it as a whole and its parts in 

their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

“‘Where the complaint is defective, “[i]n the furtherance of 

justice great liberality should be exercised in permitting a 

plaintiff to amend his [or her] complaint.”’” (Aubry v. Tri-City 

Hospital Dist., supra, 2 Cal.4th at p. 970.) A plaintiff may 

demonstrate for the first time to the reviewing court how a 

complaint can be amended to cure the defect. (Code Civ. Proc., 

§ 472c, subd. (a) [“[w]hen any court makes an order sustaining a 

demurrer without leave to amend the question as to whether or 

not such court abused its discretion in making such an order is 

open on appeal even though no request to amend such pleading 

was made”]; see Sierra Palms Homeowners Assn. v. Metro Gold 

Line Foothill Extension Construction Authority (2018) 

19 Cal.App.5th 1127, 1132 [plaintiff may carry burden of proving 

an amendment would cure a legal defect for the first time on 

appeal]; Rubenstein v. The Gap, Inc. (2017) 14 Cal.App.5th 870, 

881 [“‘[w]hile such a showing can be made for the first time to the 

reviewing court [citation], it must be made’”]; Smith v. State 

Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 

711.)

2. Governing Law

“Enacted in 1970, the Act ‘regulates warranty terms, 

imposes service and repair obligations on manufacturers, 
6

distributors, and retailers who make express warranties, requires 

disclosure of specified information in express warranties, and 

broadens a buyer’s remedies to include costs, attorney’s fees, and 

civil penalties. [Citations.] It supplements, rather than 

supersedes, the provisions of the California Uniform Commercial 

Code. [Citations.]’ [Citations.] ‘[T]he Act is manifestly a 

remedial measure, intended for the protection of the consumer; it 

should be given a construction calculated to bring its benefits into 

action.’” (Joyce v. Ford Motor Co. (2011) 198 Cal.App.4th 1478, 

1486.) Section 1794 governs civil actions under the Song-Beverly 

Act and provides in part: “(a) Any buyer of consumer goods who

is damaged by a failure to comply with any obligation under this 

chapter or under an implied or express warranty or service 

contract may bring an action for the recovery of damages and 

other legal and equitable relief.”3 

“Under the implied merchantability warranty, ‘every 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.’ (§ 1792.) The 

warranty ‘“arises by operation of law”’ and therefore applies 

despite its omission from a purchase contract.” (Brand v. 

Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1545.)

3 “Buyer” is defined as “any individual who buys consumer 

goods from a person engaged in the business of manufacturing, 

distributing, or selling consumer goods at retail.” (§ 1791, 

subd. (b).) “Consumer goods” means “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.” (§ 1791, subd. (a).)
7

As it pertains to express warranties of new motor vehicles 

the Song-Beverly Act requires a manufacturer “that gives an

express warranty on a new motor vehicle to service or repair that 

vehicle to conform to the warranty. If the manufacturer is unable 

to do so after a reasonable number of attempts, the purchaser 

may seek replacement of the vehicle or restitution in an amount 

equal to the purchase price less an amount directly attributable 

to use by the purchaser prior to the discovery of the 

nonconformity.” (Hanna v. Mercedes-Benz USA, LLC (2019) 

36 Cal.App.5th 493, 497, fn. 2; see § 1793.2, subd. (d)(2).)4 

3. The Complaint Did Not Sufficiently Allege the Vehicle 

Was Bought or Used Primarily for Business Purposes; 

Planet Clair Should Be Given Leave To Amend 

As discussed, the repair or replace provision of 

section 1793.2, subdivision (d)(2), applies only to a “new motor 

vehicle,” which is defined as “a new motor vehicle that is bought 

or used primarily for personal, family, or household purposes. 

‘New motor vehicle’ also means a new motor vehicle with a gross 

vehicle weight under 10,000 pounds that is bought or used 

primarily for business purposes by a person, including a 

4 Section 1793.2, subdivision (d)(2), states: “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). However, the buyer shall be free to elect 

restitution in lieu of replacement, and in no event shall the buyer 

be required by the manufacturer to accept a replacement vehicle.”
8

partnership, limited liability company, corporation, association, 

or any other legal entity, to which not more than five motor 

vehicles are registered in this state.”5 (§ 1793.22, subd. (e)(2).)

As an initial matter, Planet Clair argues the definition of 

“new motor vehicle” contained in section 1793.22, 

subdivision (e)(2), applies only to claims for breach of an express 

warranty. Claims for breach of an implied warranty pursuant to 

sections 1792 and 1794, it contends, are not limited by the new 

motor vehicle definition, but may be asserted by any vehicle 

purchaser. While Planet Clair is correct that the new motor 

vehicle definition is contained only in the provisions regarding 

express warranties, the Act’s general definitions, which apply to 

the implied warranty provisions, continue to define “buyer” as an 

individual and “consumer goods” as those used for personal, 

family or household purposes. (See § 1791, subds. (a) & (b).) 

Focusing on this aspect of the statutory language, at oral 

argument American Honda contended the implied warranty 

provisions of the Act applied only to individual purchasers and 

5 While the Song-Beverly Act was initially intended to 

protect individual consumers purchasing goods primarily for 

personal, family or household purposes, the definition of “new 

motor vehicle,” added in 1998, was amended in 2000 to include 

certain corporate entities purchasing vehicles for business 

purposes as a means of expanding protection to small businesses. 

(See Park City Services, Inc. v. Ford Motor Co., Inc. (2006) 

144 Cal.App.4th 295, 306-308; Sen. Com. on Judiciary, Analysis 

of Sen. Bill No. 1718 (1999-2000 Reg. Sess.) as amended May 4, 

2000, p. 4 [“[t]he sponsor of the bill, Consumers for Auto 

Reliability and Safety, state that SB 1718 will improve protection 

for self-employed entrepreneurs and small business owners, 

enhance motor vehicle safety, and enable more lemon owners to 

use the auto manufacturers’ dispute resolution programs”].)
9

not corporate purchasers. Addressing this definitional 

discrepancy, our colleagues in Division Two of the Fourth District 

explained, “We can avoid absurdity only by adding a gloss to the 

plain language of the statute. Thus, even though ‘buyer’ is still 

defined as an individual purchaser of goods for personal use, it 

must be deemed to include some corporate purchasers of new 

motor vehicles for business use—namely, those to whom ‘not 

more than five motor vehicles are registered in this state.’” (Park 

City Services, Inc. v. Ford Motor Co., Inc., (2006) 144 Cal.App.4th 

295, 306-307 [“we have already established that, when the 

Legislature extended the Song-Beverly Act to business vehicles, 

it was not necessarily writing with its sharpest pen”].) Contrary 

to the position taken at oral argument, American Honda, citing 

Park City Services, Inc., conceded in its brief that “buyer” must be 

interpreted to include corporate entities whose purchases meet 

the definition of “new motor vehicle.” We agree with the court’s 

reasoning in Park City Services, Inc. and American Honda’s 

concession that the Act’s implied warranty provisions must be 

interpreted to apply, at the very least, to purchasers meeting the 

“new motor vehicle” definition of section 1793.22. Because Planet 

Clair should be given an opportunity to allege its purchase 

qualified as a “new motor vehicle,” we need not determine on this 

appeal whether the Act’s implied warranty provisions would 

apply to a corporate purchaser who could not meet that 

definition.

Turning to the definition of “new motor vehicle,” American 

Honda argued, and the trial court ruled, the Song-Beverly Act did 

not apply in this case because a corporate entity’s purchase of a 

vehicle is covered only if the vehicle is purchased primarily for 

business purposes and Planet Clair alleged the vehicle was 
10

purchased “for personal, family, and/or household purposes of its 

principal.” This analysis of Planet Clair’s complaint was correct. 

However, contrary to American Honda’s arguments, a corporate 

entity purchasing a vehicle for the personal use of its principal

could certainly have a business purpose, for example as part of an 

executive’s compensation package or as a way of ensuring an 

employee has reliable transportation to visit clients. (See, e.g.,

Moreno v. Visser Ranch, Inc. (2018) 30 Cal.App.5th 568, 579-580 

[finding triable issue of material fact as to whether employee’s 

use of company-owned vehicle for personal business had benefit 

to company of allowing employee to immediately respond to 

maintenance calls]; In re Marriage of Schulze (1997) 

60 Cal.App.4th 519, 529-530 [car furnished by employer included 

in gross income].) The fact the vehicle may be used by an

employee for personal, family or household purposes is not 

necessarily inconsistent with its acquisition by a corporate entity 

for a business-related purpose. 

Planet Clair seeks leave to amend the complaint, as it did 

in the trial court, asserting it could more clearly allege its 

purchase satisfies the statutory definition. It should be given an 

opportunity to do so. However, under the circumstances of this 

case, an amendment containing no more than the statutory 

language would be insufficient in light of the prior pleading. To 

satisfactorily amend the complaint Planet Clair must allege, in 

good faith, underlying facts that would support its contention the 

vehicle was bought or used primarily for a business purpose. 

In addition, Planet Clair must allege the additional 

elements required by the definition of “new motor vehicle,”

specifically that the vehicle weighed less than 10,000 pounds and 

Planet Clair had fewer than five motor vehicles registered in 
11

California. (§ 1793.22, subd. (e)(2).) Planet Clair has represented 

it can allege these facts, and it should be given an opportunity to 

do so.6 (See Sierra Palms Homeowners Assn. v. Metro Gold Line 

Foothill Extension Construction Authority, supra, 19 Cal.App.5th 

at p. 1132.)

4. The Complaint Sufficiently Alleged American Honda 

Had a Reasonable Number of Attempts To Repair the 

Vehicle

As discussed, before the purchaser of a new motor vehicle 

may seek replacement or restitution, it must allow the 

manufacturer “a reasonable number of attempts” to fix the 

problem. (§ 1793.2, subd. (d)(2).) The Act does not define what 

constitutes a reasonable number of attempts, but the plain 

language of the statute makes clear that more than one attempt 

is necessary. (See Silvio v. Ford Motor Co. (2003) 

109 Cal.App.4th 1205, 1208 [“[t]he statute does not require the 

manufacturer to make restitution or replace a vehicle if it has 

had only one opportunity to repair that vehicle”].)

6 American Honda has requested we take judicial notice of 

the sales contract entered by Planet Clair, on which Planet Clair 

failed to check the box indicating the primary use of the vehicle 

was for business or commercial purposes. We deny the request. 

The omission of this representation in the sales contract is not 

fatally inconsistent with the allegations in Planet Clair’s 

complaint; and, in any event, resolution of inconsistent 

statements is not appropriate on demurrer. (See Herrera v. 

Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 

1375 [“‘[w]hen judicial notice is taken of a document, . . . the 

truthfulness and proper interpretation of the document are 

disputable’”].)
12

Here, the complaint alleged American Honda failed to 

repair the vehicle “after a reasonable number of opportunities to 

do so.” American Honda argues this allegation is conclusory and 

cannot withstand demurrer. While the allegation is again 

lacking in detail, it sufficiently alleges the ultimate fact, that 

more than one opportunity to repair was afforded, which is 

“‘“sufficient to acquaint [the] defendant with the nature, source 

and extent of [the] cause of action.”’” (Doheny Park Terrace 

Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 

132 Cal.App.4th 1076, 1099.) In addition, “‘“less particularity is 

required where the defendant may be assumed to have 

knowledge of the facts equal to that possessed by the plaintiff.”’” 

(Ibid.) That is the case here, where American Honda’s own 

service records should provide detail regarding its repair 

attempts on the vehicle.7 Accordingly, the complaint adequately 

alleged reasonable repair attempts were made. 

American Honda also argues Planet Clair failed to allege 

any facts that would qualify for application of the Act’s 

presumption that a reasonable number of attempts have been 

made to repair the vehicle. Section 1793.22, subdivision (b), sets 

forth three circumstances under which “[i]t shall be presumed 

that a reasonable number of attempts have been made to conform 

7 American Honda has requested we take judicial notice of 

an invoice for service of the subject vehicle from May 2020. 

American Honda argues the invoice conclusively shows the 

vehicle was presented for repairs only once, thus negating any 

allegation to the contrary. We deny the request. Not only is the 

invoice not appropriate for consideration on a demurrer, but also 

the document, without additional evidence, does not establish 

that no other attempts at repair were made.
13

a new motor vehicle to the applicable express warranties.”8 

However, this section sets forth a rebuttable presumption 

affecting the burden of proof, not a definition of “reasonable 

attempts.” (§ 1793.22, subd. (b)(3) [“[t]his presumption shall be a 

rebuttable presumption affecting the burden of proof”].) 

Accordingly, Planet Clair was under no obligation to plead 

evidentiary facts establishing application of the presumption. 

(See C.A. v. William S. Hart Union High School Dist. (2012) 

53 Cal.4th 861, 872 [“each evidentiary fact that might eventually 

form part of the plaintiff’s proof need not be alleged”].)

8 The presumption applies if, within 18 months from delivery 

to the buyer or 18,000 miles on the odometer of the vehicle, 

whichever occurs first, one or more of the following occurs: 

(1) “[t]he same nonconformity results in a condition that is likely 

to cause death or serious bodily injury if the vehicle is driven and 

the nonconformity has been subject to repair two or more times”; 

(2) “[t]he same nonconformity has been subject to repair four or 

more times”; or (3) “[t]he vehicle is out of service by reason of 

repair of nonconformities . . . for a cumulative total of more than 

30 calendar days since delivery of the vehicle to the buyer.” 

(§ 1793.22, subd. (b).)
14

DISPOSITION

The judgment is reversed, and the cause remanded with 

directions to the trial court to vacate its order sustaining the 

demurrer without leave to amend and to enter a new order 

sustaining the demurrer with leave to amend. Planet Clair is to 

recover its costs on appeal.

PERLUSS, P. J.

We concur:

FEUER, J. 

WISE, J.*

* Judge of the Alameda County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.