MARTINEZ v. KIA MOTORS AMERICA, INC
















Filed 3/2/11





CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

JUANITA MARTINEZ, Plaintiff and Appellant, v. KIA MOTORS AMERICA, INC., Defendant and Respondent.

E049780 (Super.Ct.No. RIC435815) O P I N I O N

APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge. Reversed.
Geller & Stewart, Michael S. Geller and Richard A. Stewart for Plaintiff and Appellant.
Greenberg Traurig, Kevin T. Collins and M. Theresa Tolentino Meehan for Defendant and Respondent.
I. INTRODUCTION
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.)^[1] (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.
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