Judge: Curtis A. Kin, Case: 19STCV36154, Date: 2022-09-01 Tentative Ruling

Case Number: 19STCV36154    Hearing Date: September 1, 2022    Dept: 72

MOTION FOR LEAVE TO FILE

SECOND AMENDED COMPLAINT

Date:           9/1/22 (8:30 AM)                   

Case:          Uriel Hernandez Jr. v. Kia Motors America, Inc. (19STCV36154)

TENTATIVE RULING:

Plaintiff Uriel Hernandez Jr.’s Motion for Leave to File Second Amended Complaint is GRANTED IN PART.

Plaintiff moves for leave to file a Second Amended Complaint adding a cause of action under the Magnuson-Moss Warranty Act and fraud under the Consumer Legal Remedies Act.  Requests for leave to amend pleadings will normally be granted unless (a) the party seeking to amend has been dilatory in bringing the proposed amendment; and (b) the delay in seeking leave to amend will cause prejudice to an opposing party. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) 

Plaintiff commenced this action on October 9, 2019, asserting five causes of action under the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”) and a sixth cause of action for fraud by omission. (Arabi Decl. ¶ 6.) On January 7, 2020, the Court sustained defendant’s demurrer to the fraud by omission without leave to amend. (Arabi Decl. ¶ 7.) On January 21, 2020, plaintiff filed a First Amended Complaint. (Arabi Decl. ¶ 8.)

On October 5, 2021, the Court granted summary adjudication in favor of defendant as to the second, third, and fifth causes of action under the Song-Beverly Act. (Arabi Decl. ¶ 9.) On May 25, 2022, defendant filed a second motion for summary adjudication to the remaining first and fourth causes of action based on the Court of Appeal’s opinion in Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209.  On August 9, 2022, the Court granted summary adjudication on the first and fourth causes of action in favor of defendant.

Plaintiff contends it filed this motion in response to the second motion for summary adjudication. (Arabi Decl. ¶ 19.) Plaintiff maintains the proposed cause of action under the Magnuson-Moss Warranty Act allows plaintiff to cover remedies under the Song-Beverly Act, even if the Court were to strike the Song-Beverly Act claims in accordance with the holding in Rodriguez.

The Court finds that leave to amend is proper for the Magnuson-Moss Warranty Act cause of action. Plaintiff had no reason to know that the remaining Song-Beverly Act claims set forth in the first and fourth causes of action would be subject to summary adjudication until Rodriguez was published in April of this year. Indeed, defendant concedes that this is a “plausible explanation” regarding why plaintiff did not originally assert a Magnuson-Moss cause of action. (Opp. at 7:25-27 [“While Plaintiff provided a plausible explanation as to why he did not originally plead a violation of the Magnuson Moss Federal Warranty Act (that Rodriguez was decided in April 2022) . . . .”].) Accordingly, the Court grants leave for plaintiff to add the proposed third cause of action for violation of the Magnuson-Moss Warranty Act.

With respect to the proposed fourth cause of action for violation of the Consumer Legal Remedies Act (“CLRA”), the Court finds that defendant would be prejudiced with the addition of a CLRA cause of action.

On January 20, 2020, the Court sustained defendant’s demurrer to the fraud by omission cause of action on the ground that it was barred by the economic loss rule. (Arabi Decl. ¶ 7.) Two years later, plaintiff now seeks to add a CLRA cause of action on the ground that it is not barred by the economic loss rule. (Arabi Decl. ¶ 19.) Because plaintiff admits the proposed CLRA claim is “virtually co-extensive” with claims existing at the time the instant motion was filed (Arabi Decl. ¶ 20), plaintiff could have attempted to assert this cause of action sometime before defendant first moved for summary adjudication on May 20, 2021.

Defendant is now prejudiced because it has not conducted discovery for fraud-based claims. (Hurvitz Decl. ¶¶ 15, 16.) Discovery is now closed. (12/14/21 Minute Order [ordering cut-off dates to be pursuant to April 25, 2022 trial date]; CCP § 2024.020(a) [right to complete discovery proceedings on or before 30 days before trial date].) Moreover, defendant would be entitled to demur to the CLRA claim and file a motion for summary judgment or adjudication as to this claim. (Hurvitz Decl. ¶¶ 17, 18.) Because plaintiff was in the position to attempt to assert the CLRA cause of action prior to summary adjudication being granted as to all causes of action in the First Amended Complaint, plaintiff may not essentially defeat the grant summary judgment by adding a “moving target” in the form of the proposed CLRA cause of action. (See Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280 [“[W]hen a plaintiff seeks leave to amend his or her complaint only after the defendant has mounted a summary judgment motion directed at the allegations of the unamended complaint, even though plaintiff has been aware of the facts upon which the amendment is based, it would be patently unfair to allow plaintiffs to defeat the summary judgment tmotion by allowing them to present a moving target unbounded by the pleadings”].)

For the foregoing reasons, the motion is GRANTED IN PART. Plaintiff is GRANTED leave to file a Second Amended Complaint asserting a cause of action for violation of the Magnuson-Moss Warranty Act.  The motion is DENIED with respect to adding a cause of action for violation of the Consumer Legal Remedies Act. Within five (5) court days hereof, plaintiff Uriel Hernandez Jr. shall file his Second Amended Complaint.