Judge: David A. Hoffer, Case: 30-2021-01197351, Date: 2022-09-26 Tentative Ruling

Before the Court are a Demurrer and Motion to Strike, both filed by Defendant Hyundai Motor America (“HMA”) on 5/26/22, as to portions of the First Amended Complaint (the “FAC”) as filed by Plaintiff Sandy Yvonne Rodriguez on 3/24/22.

The Demurrer is directed to the Second and Third Causes of Action (each a “COA”) in the FAC.  For COA 2, HMA argues that this COA fails as pled as it does not identify any period when the vehicle was out of service for more than 30 consecutive days, citing to Herrera v. Ford Motor Co., No. 20-CV 00395-LHK, 2020 WL 3451328, at *4-5 (N.D. Cal. June 24, 2020) [to state a claim under §1793.2(b), a plaintiff must plead “that a single repair attempt took the defendant more than 30 days complete”] and Schick v. BMW of N. Am. LLC 801 F.App'x 519, 521 (9th Cir. 2020) ["... under any reasonable reading of the statute, § 1793.2(b) requires only that BMW complete any single repair attempt within 30 days."].) But a published California opinion has assumed, without deciding, that a cumulative period may suffice. (See Ramos v. Mercedes-Benz USA (2020) 55 Cal.App.5th 220, at 226, fn. 2 [“We have not been asked to decide whether the 30 days of failure to complete repairs must be 30 consecutive days. For purposes of this appeal, we assume plaintiff proved the 30-day failure to repair requirement without deciding the question.”].)  In the absence of controlling authority to support HMA’s position, the Demurrer on COA 2 is OVERRULED.

For COA 3, the Demurrer is SUSTAINED without further leave to amend. The FAC again fails to identify any parts or any literature that was unavailable to its “authorized service and repair facilities” to effect repairs. Instead, COA 3 seems to assert that because repair efforts were unsuccessful or unsatisfactory, insufficient service literature was provided. (See FAC ¶¶ 26, 53, 54.) That assertion does not suffice to state the claim.  As Plaintiff has failed to identify any cognizable basis for the claim despite having been granted leave to amend, the Demurrer as to COA 3 is thus now sustained without further leave to amend.

In light of the rulings on the Demurrer on COA 3, the Motion to Strike as to ¶¶ 54-55 of the FAC and the Prayer “insofar as it relates to” the third COA is MOOT.  

The Motion to Strike as to COA 2 is DENIED.  Civil Code §1793.2(b) does not permit restitution or replacement for delay in repairing a nonconformity that did not substantially impair the use, value or safety of the vehicle. (Ramos v. Mercedes-Benz USA, LLC (2020) 55 Cal.App.5th 220, 227.) But the extent to which Ramos may apply here is beyond the scope of the pleadings.  Nor has HMA presented authority to establish that no civil penalty could be recovered for a violation if willful, or that any portion of the Prayer may otherwise be stricken overall.   

Moving party HMA is to file its Answer to the FAC within 10 days and is to give notice of these rulings.