Judge Carolyn M. Caietti, Case 37-2020-00040953-CU-BC-CTL 2024-01-19 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2020-00040953-CU-BC-CTL, Date: 2024-01-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 18, 2024

01/19/2024 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2020-00040953-CU-BC-CTL OCHOA VS FORD MOTOR COMPANY [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Ford Motor Company and Perry Ford of National City's Motion for Judgment on the Pleadings is DENIED.

A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint. (C.C.P., § 438.) Per C.C.P. section 438(c)(B)(ii), a defendant may move for judgment on the pleadings on the grounds that the complaint does not state facts sufficient to constitute a cause of action against the defendant. Like a demurrer, the grounds for the motion must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.

(C.C.P., § 438(d); Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012–1013 (citations omitted).) The allegations are accepted as true. (Hardy v. America's Best Home Loans (2014) 232 Cal.App.4th 795, 802.) Courts must construe the pleadings liberally. (C.C.P., § 452.) Courts may not resolve questions of witness credibility or evidentiary conflicts, but must deny the motion if there are material factual issues that require evidentiary resolution. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) In this case, Defendants move for judgment on the pleadings on the second, third, fifth and sixth causes of action. The fifth cause of action is against both Defendants; the second, third and sixth causes of action are against Defendant Ford Motor Company (Ford), only.

Second Cause of Action – Civil Code Section 1793.2(b) The FAC sufficiently states facts of a violation of Civil Code section 1793.2(b) that Defendant Ford did not service or repair the vehicle as to conform to the applicable warranties within 30 days. (FAC, at ¶¶ 15, 16, 17.) First, Defendant does not provide any case authority supporting its interpretation of the statute that it does not apply because the vehicle was in for repairs for a total of 15 days. A reasonable inference can be made Defendant failed to effect the repairs within 30 days as it returned the vehicle in an unrepaired state, necessitating Plaintiffs' return a few months later. Thus, the motion to the second cause of action is DENIED.

Third Cause of Action – Civil Code Section 1793.2(a)(3) The FAC sufficiently states facts of a violation of Civil Code section 1793.2(a)(3) that Defendant Ford did not make sufficient service literature and replacement parts to effect repairs available to its authorized service and repair facilities. (FAC, at ¶¶ 24-28, 44-45.) In liberally construing the FAC, inferences can be made that literature was insufficient and/or not provided to authorized repair facilities or that the Calendar No.: Event ID: TENTATIVE RULINGS

2995637 66 CASE NUMBER: CASE TITLE: OCHOA VS FORD MOTOR COMPANY [IMAGED] 37-2020-00040953-CU-BC-CTL associated replacement parts were insufficient and/or not provided. Defendant does not provide any legal authority Plaintiffs are to allege the specific literature not provided; this information is within Defendant's knowledge and possession. Thus, the motion to the third cause of action is DENIED.

Fifth Cause of Action – Implied Warranty of Merchantability The FAC sufficiently states facts of a breach of the implied warranty of merchantability. Defendants maintain the claim is time-barred under Civil Code section 1791.1(c). However, while a consumer need not discover a latent defect within the one-year durational period for an implied warranty, the consumer must still bring an action for breach of the implied warranty within the four-year statute of limitations, which accrues from the date of delivery and not on the date of discovery. (Mexia v. Rinker Boat Company, Inc. (2009) 174 Cal.App.4th 1297, 1305.) Here, Plaintiffs purchased the vehicle on February 7, 2018, and filed the original complaint on February 11, 2020, and within four years of purchase. Thus, the motion to the fifth cause of action is DENIED.

Sixth Cause of Action – Fraudulent Inducement (Concealment) The FAC sufficiently states facts to constitute fraudulent inducement (concealment). This case is analogous to the facts in Dhital v. North America, Inc. (2022) 84 Cal.App.5th 828 (rev. granted Feb. 1, 2023 (S277568), request for depublication denied), which the First District Court of Appeal decided after the Court heard Defendants' first motion for judgment on the pleadings.

The necessary elements of a concealment/suppression claim consist of: (i) misrepresentation (false representation, concealment, or nondisclosure); (ii) knowledge of falsity; (iii) intent to defraud (i.e., to induce reliance); (iv) justifiable reliance; and (v) resulting damage. (Dhital, supra.) Suppression of a material fact is actionable when there is a duty of disclosure, which may arise form a relationship between the parties, such as a buyer-seller relationship. (Ibid.) Fraud, including concealment, must be pleaded with specificity. (Ibid.) Like in Dhital, Plaintiffs alleged the transmission system in their vehicle were defective. (e.g., FAC, at ¶¶ 13-18, 53.) Defendant Ford knew of the defects and the hazards they posed (e.g., id., at ¶¶ 19-23, 54-55); Defendant had exclusive knowledge of the defects but intentionally concealed and failed to disclose that information (id., at ¶¶ 56-60); Defendant intended to deceive Plaintiffs by concealing known problems (id., at ¶¶ 30, 60); Plaintiffs would not have purchased the car if they had known of the defects (id., at ¶¶ 29, 61-62); and Plaintiffs suffered damages in the form of money paid to purchase the car (id., at ¶ 65). Critically, Plaintiffs alleged the transmission system was defective and caused safety problems such as heavy vibration while driving, not functioning, a lack of power, hesitation on acceleration, not shutting off, vehicle shaking and the malfunction indicator light illuminating. (FAC, at ¶¶ 14-17.) Defendant was aware of the defects as a result of product testing and technical service bulletins and consumer complaints. (Id., at ¶¶ 19-28, 59; Dhital, supra, at p. 728 (declining to hold that the plaintiffs were required to allege more detailed allegations about the alleged defects and that the plaintiffs adequately pleaded their fraud claim).) Defendant's argument Plaintiffs did not adequately plead reliance is not persuasive. There are several facts alleged that Plaintiffs would not have purchased the vehicle had Defendant disclosed the transmission defect and its safety consequences. The Myers case cited by Defendant is readily distinguishable. (Myers v. BMW of North America, LLC (N.D. Cal., Dec. 19, 2016) 2016 WL 11791913.) As Defendant acknowledges, the plaintiff in Myers did not allege she interacted with dealer representatives or sales associates prior to purchase. Here, Plaintiffs allege they interacted with sales representatives and considered Defendant's advertisements and other marketing material concerning the vehicle. (FAC, at ¶ 9.) There are also other sufficient facts showing Defendant had exclusive knowledge of material facts not known to Plaintiffs. (See, LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336; Bigler-Engler v. Breg, Inc.

(2017) 7 Cal.App.5th 276, 311.) As discussed above, these circumstances are factually alleged in the Calendar No.: Event ID: TENTATIVE RULINGS

2995637 66 CASE NUMBER: CASE TITLE: OCHOA VS FORD MOTOR COMPANY [IMAGED] 37-2020-00040953-CU-BC-CTL FAC. (FAC, at ¶¶ 19-30.) The FAC also alleges Plaintiffs received a written warranty from Defendant.

(E.g., FAC, at ¶ 11, Ex. A.) In liberally construing the FAC, sufficient facts are alleged.

The Court declines to consider Defendant's new reply argument regarding the economic loss rule as it was not raised in the moving papers and Plaintiffs have not had an opportunity to oppose. (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489 [new theories cannot be presented for the first

time in a reply brief].) Thus, the motion to the sixth cause of action is DENIED.

Concluding Orders For these reasons, the motion for judgment on the pleadings is DENIED.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

Defendants are ordered to serve written notice of the Court's final order by January 23, 2024.

The parties are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

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