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, B308151
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20STCV25783)
AMERICAN HONDA MOTOR
CO., INC.,
Defendant and
Respondent.
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.
_____________________________
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 (Song-
Beverly 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 Song-
Beverly 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 non-
conformities/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.
2
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
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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).)
4
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,
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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).)
6
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.”
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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”].)
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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
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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
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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’”].)
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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.
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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).)
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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.
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