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.,

Plaintiffs and Appellants,

v.

KIA MOTORS AMERICA, INC.,

Defendant and Respondent. 2d Ci v. No. B325798 (Super. Ct. No. 56

- 2019

- 00527171

- CU

- BC

- VTA) (Ventura County)

ORDER MODIFYING OPINION [NO CHANGE IN 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 pa ragraph under “ III. Implied Warranty

, ” beginning, “ Section 1792 provides

, ” is delet ed and the following two full paragraph s 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. ”2

Section 1791, subdivision (a) defines consumer goods as “any new product or part thereof that is used, bought, or leased for use primaril y 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.Filed 5 / 2 / 24 CERTIFIED FOR PUBLI CATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

BRANDI STILES et al.,

Plaintiff s and Appellant s ,

v.

KIA MOTORS AMERICA

, INC

. ,
Defendant and Respondent. 2d. Ci v. No. B325798 (Super. Ct. No. 56

- 2019

- 00527171

- CU

- BC

- VTA) (Ventura County)

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 purchase d 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

.2 FACTS First Amended Complaint The first amended complaint alleges:
Brandi Stiles and Ab el Gorgita (collectively Stiles) purchased a 2011 Kia Optima in April 2013. Kia is the
manufac turer 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 K ia’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, b rakes, 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 un der the Song

- Beverly Act. The complaint alleges causes of action under the Song

B everly 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.
Alt hough 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)

. The3

court relied on Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th
209
, rev iew granted Jul y 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 A ct . 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 compla int 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
manufac turer 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

attem pts, 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 1793.2 2 , subdivision ( e )(2) provides in part: “ ‘New

moto r vehicle’ includes

. . . a dealer owned vehicle and4

‘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 17 9 3.2, subdivision (d)(2) if the car she pu rchased 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 o f
section 1793 .22
, subdivisio n (e)(2) , assumes a legislative role and
tries to amend the statute . Kia clai ms we must add “new or full” prior to warranty. (§ 1793.22, subd. (e)(2).) H ad the L egislature 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 sa le to the consumer.” ( § 1791.2, subd. (a)(1).) Kia interprets the provision to mean the w arranty 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 no t alleg e the warranty arose out of the
resale to her ; she alleges she purchased the car with an existing

new car warranty. T he warranty arose when Stiles’ car was first sold to a consumer, the car still qualifies as a “motor vehicle sold
with a manufactur er’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

Bever ly Act ’ s implied warranty provisions. Section 1791.1,5

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 w hich 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 b uyer .” 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 th e 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 gene ral].) The Legislature has clearly defined “ new motor vehicle ” for the purposes of the replace or refund remedy of section 17 9 3.2
, subdivision (d)(2)

. Stiles’ s complaint alleges facts that show she
is entitled to that remedy. Whether and to what extent remedies6

for breach of an implied warranty under section 1791.1 may apply is beside the point.
K ia’s reliance on Rodriguez

, supra , 77 Cal.App.5th 209

,

rev iew 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 Cou r t of Appeal affirmed the ensuing judgment in Rodriguez . The court reas oned 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 wa s 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 .)7 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
vehi cle 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 1793.2 2, subdivision (e)(2) was enacted in 1992. (Stats. 1992, ch. 1232, § 7.) In the more than 30 years since the n , 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. T he court’s assertion that section 1793.22, subdivision (e)(2) has only two categories

— dealer

- owned and demonstrator

— defies the
rules o f English grammar and logic

. In section 1793.22, subdivision (e)(2), t he dealer

- owne d 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.8

that the veh icle 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 lan guage 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 l egislative history supported its interpretation. The cour t stated the l egislative history shows the
l egislature 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 o f the statute. If any l egislative 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, bou ght, 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.9 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:

BALTOD ANO, J.

CODY, J.

3 Kia’s request for judicial notice of the materials relating to legislative history , filed September 8, 2 023, 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 unnecessa ry to this opinion.

5 Kia’s motion to strike or leave to file supplemental brief

, filed on March 13, 2024, is denied. This court i s well aware of what is appropriate in a reply brief and is fully capable of sorting out any points t ha t may be inappropriate

.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 fo r Plaintiffs and Appellants

. Horvitz & Levy

, Lisa Perrochet

, Shane H. Mckenzie

, Jonathan Z. Morris ; Lehrman, Villegas, Chinery & Douglas, Kate
S. Lehrman and Jacqueline Bruce

- Chinery f or Defendant a nd Respondent

.