Colette Encinas v. Kia America, Inc.

Plaintiff failed to amend his initial complaint within 30 days of March 27, 2026 as ordered by the Court in its minute order on Defendant's demurrer to the initial complaint.

On June 11, 2026, the Court granted the parties' Stipulation and Proposed Order Permitting Plaintiff to File First Amended Complaint, allowing Plaintiff to file a corrected FAC and to vacate Plaintiff's Motion for Relief. That same day, Plaintiff's FAC was filed.

In light of the Stipulation and Order, this motion is moot as the parties stipulated and agreed that the FAC could be filed five court days after the Court entered an order approving the parties' stipulation. The motion is taken off-calendar.

--- RULING: In the event a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court's records.

ORDER Defendant Hlib Kryvonosov's Motion to Dismiss Plaintiff's Action as to Defendant Per C.C.P. Sec. 581(f)(2) came on regularly for hearing on August 21, 2026, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: THE MOTION TO DISMISS PLAINTIFF'S ACTION IS TAKEN OFF-CALENDAR IN LIGHT OF THE PARTIES' JUNE 11, 2026 STIPULATION AND ORDER ALLOWING THE FILING OF THE FIRST AMENDED COMPLAINT. defendant TO GIVE NOTICE. IT IS SO ORDERED.

AUGUST 21, 2026 DEMURRER Los Angeles Superior Court Case # 25NNCV08932 MP: Plaintiff Colette Encinas RP: No opposition received NOTICE: The Court is not requesting oral argument on this matter.

The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested. Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party's intention to appear and argue. The tentative ruling will become the ruling of the court if no argument is received. Notice may be given either by email at [email protected] or by telephone at (818) 260-8412.

ALLEGATIONS: Colette Encinas ("Plaintiff") alleges that she acquired a certified pre-owned 2022 Kia Sorento, accompanied with Kia America, Inc.'s ("Defendant") express and implied warranties. Plaintiff asserts that defects/nonconformities to the warranty manifested during the warranty period, including engine and electrical system defects. Plaintiff claims Defendant was unable to conform the vehicle to applicable warranties despite a reasonable number of repair attempts. The Complaint, filed December 15, 2025, alleges: (1) Breach of Express Warranty; (2) Breach of Implied Warranty; and (3) Violation of the Song-Beverly Act, Sec. 1793.2(b).

RELEVANT BACKGROUND On January 16, 2026, Defendant filed an answer. On April 10, 2026, the Court sustained without leave to amend Plaintiff's unopposed demurrer to the Thirty-Ninth Affirmative Defense for Additional Defense; and sustained with 30 days leave to amend the demurrer to the Second to Thirty-Eighth Affirmative Defenses. On May 8, 2026, Defendant filed the First Amended Answer ("FAA").

MOTION ON CALENDAR: On May 20, 2026, Plaintiff filed a Demurrer to the FAA. The Court is not in receipt of an opposition brief. The Court notes that, pursuant to C.R.C. Rule 8.54(c), a failure to oppose a motion may be deemed consent to its being granted.

LEGAL STANDARD: The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. Sec. 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.) A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.)

But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal. 3d at 318.) Pursuant to C.C.P. Sec.Sec. 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

MEET AND CONFER: C.C.P. Sec.Sec. 430.41(a) and 435.5(a) require that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review, the Court finds the meet and confer requirements were met. (See Souto Decl., P.P.3-5, Exs. B-C.)

ANALYSIS: Plaintiff demurs to Defendant's FAA with respect to: (1) the Second to Fifth, Seventh to Twelfth, Fourteenth to Twenty-Second, Twenty-Fifth to Thirtieth, and Thirty-Third to Thirty-Fifth Affirmative Defenses for failure to state sufficient facts and uncertainty; (2) the Thirty-Sixth Affirmative Defense for violating C.C.P. Sec. 458; and (3) the Twenty-Third Affirmative Defense as a non-legally cognizable defense.

A. The Second to Fifth, Seventh to Twelfth, Fourteenth to Twenty-Second, Twenty-Fifth to Thirtieth, and Thirty-Third to Thirty-Fifth Affirmative Defenses - Sustained with Leave to Amend Plaintiff demurs to these Affirmative Defenses, arguing that they do not state sufficient facts and are uncertain. Plaintiff argues that each of these Affirmative Defenses fail to include any supporting facts and are mere legal conclusions.

In the Second Affirmative Defense for Unclean Hands, Defendant alleges that Plaintiff presented the subject vehicle for repair to Defendant's authorized repair facilities, but Plaintiff provided incomplete information regarding any defects, malfunctions, misadjustments, and/or nonconformities; Plaintiff knew of any alleged defects or non/conformities in the subject vehicle, yet unjustifiably delayed in and did not immediately bring the vehicle in to Defendant's authorized repair facility; and around November 14, 2025, Defendant reached out to Plaintiff to request certain documents in order to properly evaluate Plaintiff's buy-back demand, but Plaintiff improperly withheld these documents and obstructed Defendant's evaluation. Finally, Defendant alleges that Plaintiff failed to properly maintain the vehicle for service in accordance with warranty and owner's manual for the subject vehicle. (FAA, P.2.)

Plaintiff argues that Defendant fails to allege facts regarding what documents she withheld from Defendant, what supporting facts Defendant has that she unjustifiably delayed bringing in the vehicle for repair, and how she failed to properly maintain the vehicle. The Court finds merit to this argument and find, as currently alleged, the Second Affirmative Defense is pled in a conclusory manner without facts supporting Defendant's assertions. As such, the demurrer to the Second Affirmative Defense is sustained. Although Defendant did not oppose the demurrer, the Court will allow Defendant a final opportunity to amend the FAA.

In the Third Affirmative Defense for Estoppel alleges that Plaintiff's claims are, in whole or in part, barred by estoppel because prior to filing the lawsuit, Plaintiff demanded Defendant repurchase the subject vehicle to avoid litigation, Defendant began investigating and requested certain documents to evaluate the repurchase, and then Plaintiff retracted the statement and filed the lawsuit. (FAA, P.3.) It is unclear how these allegations amount to estoppel. As currently alleged, Defendant's additional facts do not amount to an estoppel defense. As such, the demurrer to the Third Affirmative Defense is sustained with leave to amend.

The Court has reviewed the remaining affirmative defenses (Waiver, Laches, Mitigation of Damages, Failure to Preserve Evidence, etc.) at issue and finds that while Defendant has alleged additional language since the demurrer on the initial answer (as denoted in bold in the FAA), these amendments still contain conclusory language and fail to allege supporting facts for the affirmative defenses at issue. As stated previously, Defendant fails to plead any ultimate facts to support how these defenses apply to bar Plaintiff's causes of action or absolve Defendant from liability. (FPI Development, Inc. v.

Nakashimi (1991) 231 Cal.App.3d 367, 384 [stating that answer must aver facts as carefully as "new matter" pursuant to C.C.P. Sec. 431.30(b) and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint].) Thus, the demurrer to the Second to Fifth, Seventh to Twelfth, Fourteenth to Twenty-Second, Twenty-Fifth to Thirtieth, and Thirty-Third to Thirty-Fifth Affirmative Defenses is sustained with leave to amend.

B. The Thirty-Sixth Affirmative Defense - Overruled " In pleading the Statute of Limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of Section ____ (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred." (C.C.P. Sec. 458.) "It is necessary for defendant who pleads the statute of limitations to specify the applicable section, and, if such section is divided into subdivisions, to specify the particular subdivision or subdivisions thereof. If he fails to do so the plea is insufficient." (Brown v. World Church (1969) 272 Cal.App.2d 684, 691.)

The Thirty-Sixth Affirmative Defense for Civil Penalties Statute of Limitations alleges that any cause of action in Plaintiff's complaint seeking civil penalties is barred by the statute of limitations in C.C.P. Sec. 340(a) and that there are no applicable tolling doctrines that would extend Plaintiff's claims. (FAA, P.36.) C.C.P. Sec. 340(a) provides a one-year statute of limitations period for an "action upon a statute for a penalty or forfeiture, if the action is given to an individual, or to an individual and the state, except if the statute imposing it prescribes a different limitation."

Previously, the Court found that the initial answer failed to allege the specific subdivision of C.C.P. Sec. 340, which had subparts (a) to (e). (April 10, 2026 Minute Order at p.4.) Upon amendment, Defendant has now cited to and alleged subsection (a) of C.C.P. Sec. 340 for the basis for this affirmative defense. As such, the demurrer to the Thirty-Sixth Affirmative Defense is overruled.

C. The Twenty-Third Affirmative Defense - Overruled The Twenty-Third Affirmative Defenses for Arbitration Agreement alleges that, to the extent any arbitration agreement exists, Defendant elects to bring this matter before a qualified arbitrator rather than in the instant court. (Answer at P.23.) Defendant alleges that on May 2, 2023, Plaintiff purchased the subject vehicle from Car Pros Kia Glendale and, with the purchase, Plaintiff received various documents accompanying the subject vehicle, including the sales contract, which contained an arbitration provision at page 5 that governs any dispute as to the condition of the subject vehicle. (Id.)

Plaintiff argues that this is not a legally cognizable affirmative defense, citing C.C.P. Sec. 430.20(a), which states that a party may demur to an answer on the ground that the "answer does not state facts sufficient to constitute a defense." As previously discussed by the Court in its prior ruling on the demurrer to the initial answer, Plaintiff's view is not shared by the Second District Court of Appeal. (See April 10, 2026 Minute Order at p.4 [citing " Ross v. Blanchard (1967) 251 Cal.App.2d 739, 742 citing Local 659, I.A.T.S.E. v. Color Corp. of America, 47 Cal.2d 189, 194-195; Berman v. Renart Sportswear Corp., 222 Cal.App.2d 385 [an agreement to arbitrate is an affirmative defense]"].)

The Court stated that if Defendant sought to pursue arbitration, it could do so by motion practice; and if arbitration was to be used as a defense, Defendant was ordered to specifically identify the arbitration provision which was being relied upon. (Id.) The Court notes that Plaintiff did not address these authorities previously cited by the Court. Furthermore, upon amendment, Defendant alleged the source of the arbitration agreement, such that it addressed the issue raised in the Court's prior order. As such, the demurrer to the Twenty-Third Affirmative Defense is overruled.

--- RULING: In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court's records.

ORDER Plaintiff Colette Encinas's Demurrer came on regularly for hearing on August 21, 2026, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: tHE DEMURRER TO THE FIRST AMENDED ANSWER Is SUSTAINED WITH 30 DAYS' LEAVE TO AMEND AS TO THE SECOND TO FIFTH, SEVENTH TO TWELFTH, FOURTEENTH TO TWENTY-SECOND, TWENTY-FIFTH TO THIRTIETH, AND THIRTY-THIRD TO THIRTY-FIFTH AFFIRMATIVE DEFENSES. THE DEMURRER IS OVERRULED AS TO THE TWENTY-THIRD AND THIRTY-SIXTH AFFIRMATIVE DEFENSES. PLAINTIFF TO GIVE NOTICE. IT IS SO ORDERED.

Case Number: 26NNCV03173 Hearing Date: August 21, 2026 Dept: A TENTATIVE RULING AUGUST 21, 2026 MOTION TO COMPEL ARBITRATION AND APPOINT ARBITRATOR Los Angeles Superior Court Case # 26NNCV03173 MP: Plaintiff/Petitioner Nadeza Mikhaylova/ Petitioner Behnaz Ghaffari Manjili RP: Defendant/Respondent North Light Specialty Insurance Company NOTICE: The Court is not