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 Civ. 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 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.”
2

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.
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.,

 Plaintiffs and Appellants,

v.

KIA MOTORS AMERICA,

INC.,

 Defendant and Respondent.

2d. Civ. 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 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.
2

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 SongBeverly 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 
3

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 
4

‘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 SongBeverly 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 SongBeverly 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 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 oneyear 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 
6

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.)
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 

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. 
8

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.
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:

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. 
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.