APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge. (Super.Ct.No. RIC435815)
The opinion of the court was delivered by: King J.
CERTIFIED FOR PUBLICATION
Plaintiff and appellant Juanita Martinez purchased a new 2002 Kia Sedona. She experienced significant problems with the vehicle within the warranty period, and took it to two Kia dealerships for repair. The dealerships denied warranty coverage and told her she would have to pay for the repair. Unable to pay, she left the vehicle at a dealership. It was later repossessed and sold. Plaintiff filed an amended complaint against defendant and respondent Kia Motors America, Inc., alleging two violations of the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.)*fn1 (the Act): breach of express warranty (§ 1793.2) and breach of the implied warranty of merchantability (§ 1792). Defendant moved for summary judgment on the ground that plaintiff was not entitled to any of the remedies provided by the Act because she no longer possessed the vehicle. In granting summary judgment, the trial court ruled that plaintiff could not seek replacement or reimbursement under the Act because she no longer possessed the vehicle. We disagree.
"The Song-Beverly Act is a remedial statute designed to protect consumers who have purchased products covered by an express warranty. [Citation.] One of the most significant protections afforded by the act is . . . that 'if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer . . . .' [Citation.]" (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 798, fn. omitted.) In providing these remedies, the Legislature has not required that the consumer maintain possession of the goods at all times. All that is necessary is that the consumer afford the manufacturer a reasonable number of attempts to repair the goods to conform to the applicable express warranties. On this basis we reverse the judgment.
In July 2002, plaintiff purchased a new Kia Sedona. The sale of the vehicle was accompanied by an express written warranty for 60 months or 60,000 miles, issued by defendant. Within the first year, plaintiff began noticing a burning smell emanating from the vehicle. She complained about the smell to the dealer on at least four occasions during the first three years. The dealer did nothing about the problem. No other mechanical problems were experienced throughout the first three years of ownership.
On June 18, 2005, the odometer reading on the car was 38,162 miles. While plaintiff was driving the car on that date, the vehicle started shaking and making strange noises; smoke started coming from the engine compartment. Plaintiff smelled a strong acidic odor, which she believed to be battery acid. The lights and windows began malfunctioning. She pulled to the side of the road. While there, a Good Samaritan, who was a mechanic at a local car care center, visually inspected the engine area and believed the alternator had overcharged the battery. Plaintiff called her son, who purchased and installed a new battery. The vehicle would not start. The car was then towed to a local dealership, Kia of Riverside.
After being denied warranty service at Kia of Riverside, the car was towed to another dealer, Kia of Temecula, for repairs. A "master technician" spent approximately 10 hours inspecting and working on the car and concluded that plaintiff had incorrectly tried to jump-start the vehicle battery by reversing the polarity, thus causing the problems. Warranty coverage was denied. The technician did not test the alternator during the inspection because the dealership did not have the means to do so. Following the Temecula dealership's refusal to repair the car, plaintiff, unable to use the vehicle, left it at the dealership "so they could fix it."
After plaintiff stopped making payments, the vehicle was repossessed by the lien holder in February 2006. In the meantime, Kia of Temecula had charged plaintiff $901 in storage fees. These were paid by the lien holder. Following repossession and sale, the vehicle was towed to Kia of Glendale, which determined that the car's alternator had been overcharging and causing damage to electrical components. Kia of Glendale made the necessary repairs, which were paid for by defendant pursuant to the warranty.
As framed by the parties, this appeal is limited to the question of whether a plaintiff must possess or own the vehicle at issue in order to obtain replacement or restitution pursuant to the Act. We hold that under the applicable statutes a plaintiff does not need to possess or own the vehicle to avail himself or herself of the Act's remedies. To judicially impose such a requirement into the Act ...