Judge: David A. Rosen, Case: 22GDCV00636, Date: 2023-02-24 Tentative Ruling
Case Number: 22GDCV00636 Hearing Date: February 24, 2023 Dept: E
Case No: 22GDCV00636
Hearing Date: 02/24/2023 – 10:00am
Trial Date: Unset
Case Name: ANOUSH NARINYAN, an indiv; v. ASTON
MARTIN LAGONDA OF NORTH AMERICA, INC., a Connecticut corporation, and DOES 1-10
TENTATIVE RULING ON
DEMURRER AND MOTION TO STRIKE
Moving Party: Defendant, Aston Martin Lagonda of North
America (Defendant or Aston Martin)
Responding Party: Plaintiff
– No Opposition submitted
No Reply submitted.
Moving Papers: Notice of
Demurrer/Memo; Declaration of Sasha Bassi
Proof of Service
Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: No
– The proof of service of the instant motion alleges service by electronic
transmission. The email address on the proof of service that Defendant served
Plaintiff at was “e-service@quillarrowlaw.com”. However, on eCourt, Plaintiff’s
counsel’s email address is listed as “kjacobson@quillarrowlaw.com”. Since there is no Opposition, this
issue will be brought up at the hearing to make sure there are no problems with
lack of notice.
RELIEF REQUESTED
Defendant, Aston Martin Lagonda of North America, demurs to Plaintiff’s
Complaint on the following grounds:
1.
Plaintiff’s entire Complaint on the grounds that the Complaint is
uncertain, vague, and ambiguous. (Code of Civil Procedure section 430.10(f).)
2.
Plaintiff’s third cause of action for violation of Cal Civ. Code §
1793.2(b) fails to constitute a cause of action and is uncertain. (Code Civ.
Proc., § 430.10 (e) and (f).)
BACKGROUND
The instant Complaint
was filed on 09/27/2022 and alleged three causes of action against Defendant:
(1) Violation of Song-Beverly Act – Breach of Express Warranty, (2) Violation
of Song-Beverly Act – Breach of Implied Warranty, and (3) Violation of the
Song-Beverly Act Section 1793.2.
Plaintiff
alleges that on March 16, 2021, Plaintiff leased a 2020 Aston Martin Vantage,
having VIN No.: SCFSMGAW0LGN04618 ("the Subject Vehicle”). Plaintiff’s
Complaint arises from warranty and repair obligations of Defendant in
connection the vehicle Plaintiff leased.
PROCEDURAL
Meet
and Confer
A party filing a
demurrer “shall meet and confer in person or by telephone with the party who
filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer.” (Code Civ.
Proc., §430.41, subd. (a).) “The parties
shall meet and confer at least five days before the date the responsive
pleading is due. If the parties are not able to meet and confer at least five
days prior to the date the responsive pleading is due, the demurring party
shall be granted an automatic 30-day extension of time within which to file a
responsive pleading, by filing and serving, on or before the date on which a
demurrer would be due, a declaration stating under penalty of perjury that a
good faith attempt to meet and confer was made and explaining the reasons why
the parties could not meet and confer.”
(Code Civ. Proc., §430.41, subd. (a)(2).) Failure to sufficiently meet
and confer is not grounds to overrule or sustain a demurrer. (Id., §430.41(a)(4).)
Defendant’s
counsel alleged it attempted to get in touch with Plaintiff’s counsel but was
unable to do so. Bassi alleges she sent an email stating the grounds on which
Defendant would challenge the pleading. Bassi also alleges they called
Plaintiff’s office but was unable to reach Plaintiff’s counsel. (Decl. Bassi
¶2.) Bassi also alleges they served Plaintiff’s counsel with a 430 Declaration
attesting to Bassi’s efforts to get in touch with Plaintiff regarding the meet
and confer, but Bassi has still not heard back.
LEGAL STANDARDS FOR DEMURRERS
Demurrer
– Sufficiency
A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th
740, 747.) When considering demurrers,
courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of
Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting
all material facts properly pleaded, but not contentions, deductions or
conclusions of fact or law ….” (Berkley
v. Dowds (2007) 152 Cal.App.4th 518, 525.)
In a demurrer proceeding, the defects must be apparent on the face of
the pleading or via proper judicial notice.
(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) A demurrer tests the pleadings
alone and not the evidence or other extrinsic matters; therefore, it lies only
where the defects appear on the face of the pleading or are judicially
noticed. (Code Civ. Proc., §§ 430.30,
430.70.) The only issue involved in a
demurrer hearing is whether the complaint, as it stands, unconnected with
extraneous matters, states a cause of action. (Hahn, supra, 147
Cal.App.4th at 747.)
The
general rule is that the plaintiff need only allege ultimate facts, not
evidentiary facts. (Doe v. City of
Los Angeles (2007) 42 Cal.4th 531, 550.)
“All that is required of a plaintiff, as a matter of pleading … is that
his complaint set forth the essential facts of the case with reasonable
precision and with sufficient particularity to acquaint the defendant with the
nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp.
(1945) 26 Cal.2d 149, 156-157.)
On
demurrer, a trial court has an independent duty to “determine whether or not
the … complaint alleges facts sufficient to state a cause of action under any
legal theory.” (Das v. Bank of America,
N.A. (2010) 186 Cal.App.4th 727, 734.)
Demurrers do not lie as to only parts of causes of action, where some
valid claim is alleged but “must dispose of an entire cause of action to be
sustained.” (Poizner v. Fremont
General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an
abuse of discretion to sustain a demurrer without leave to amend if there is
any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d
335, 349.)
Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored
and will only be sustained where the pleading is so bad that defendant cannot
reasonably respond—i.e., cannot reasonably determine what issues must be
admitted or denied, or what counts or claims are directed against
him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14
Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague,
“ambiguities can be clarified under modern discovery procedures.” (Ibid.)
ANALYSIS
Ground 1
Defendant’s
first ground for demurrer is that Plaintiff’s entire Complaint is uncertain,
vague, and ambiguous. Since Defendant’s second ground for demurrer was that the
third cause of action is uncertain and fails to state a cause of action, the
“Ground 1” portion of the analysis will focus strictly on the uncertainty as
alleged to the first and second causes of action because the uncertainty
element as to the third cause of action will be analyzed under “Ground 2.”
Further, the Court notes that Defendant did not demur to the first and second
causes of action on grounds for failure to state facts sufficient to constitute
a cause of action.
First, Defendant argues that Plaintiff’s Complaint
failed to plead material facts with any certainty, let alone with the clarity
and precision required by law to provide sufficient notice of Plaintiff’s
statutory claims. Despite only demurring to the first and second cause of
action on grounds of uncertainty, Defendant argues that because of this
uncertainty, the Complaint fails to state sufficient facts to support a cause
of action.
Defendant argues that there are heightened pleading
requirements with particularity in this case.
The Court finds Defendant’s arguments as to there
being a heightened pleading requirement unavailing. Defendant cited: Covenant Care, Inc. v.
Superior Court (2004) 32 Cal.4th 771, 790; Ankey v. Lockheed Missiles &
Space Co. (1979) 88 Cal.App.3d 531, 537; Harman v. City and County of San
Francisco (1927) 7 Cal.3d 150, 157; and Williamson v. Joyce (1902)
137 Cal. 151 to support this argument on heightened pleading. However, not a
single case cited by Defendant pertained to the Song-Beverly Consumer Warranty
Act. All the cases Defendant cited were inapposite. Therefore, Defendant’s argument
as to a heightened pleading requirement existing here is unavailing.
Defendant also argues as follows:
Plaintiff’s
Complaint vaguely asserts, in passing, that the subject vehicle is a “new motor
vehicle” (Complaint ¶ 25), but that is not a statement as to the vehicle’s condition,
but a legal term found in the Song-Beverly Act that can encompasses new vehicles
as well as certain types of used vehicles. Therefore, this legal term provides
no clarity as to the condition of the vehicle at the time of Plaintiff’s lease.
The condition of the vehicle at the time of Plaintiff’s acquisition is a
critical component of Song-Beverly causes of action because all of Plaintiff’s
claims under the Act are dependent on the subject vehicle being a “consumer
good.” Used goods are not considered “consumer goods” except in certain limited
circumstances and only as it pertains to distributors of used goods and sellers
of used goods, not the manufacturer/original warrantor. (Cal. Civ. Code §§ 1791
and 1795.5.) As such, it is impossible for Aston Martin to be put on notice
regarding Plaintiff’s claims given that the Plaintiff has clearly not met the
requisite standard for pleading. Even setting aside the requisite heightened
pleading standard for these statutory claims, the Complaint is uncertain
because, as discussed above, Plaintiff fails to plead one of the most critical
facts in a Song-Beverly action.
(Def. Mot. p.
4-5.)
Here, Defendant’s argument is also
unavailing. First, Defendant cites no case law to justify its argument. Second,
Defendant’s argument is unclear. Defendant cites Civil Code 1791 without
specifying a subsection. Civil Code 1791(a) states, “ “Consumer goods”
means any new product or part thereof that is used, bought, or leased for use
primarily for personal, family, or household purposes, except for clothing and
consumables. “Consumer goods” shall include new and used assistive devices sold
at retail.” (Ibid.)
Here, in Plaintiff’s Complaint, Plaintiff
alleged the subject vehicle was a consumer good (Compl. ¶12.), that Plaintiff
leased the vehicle (Compl ¶8.), and that Defendant failed to either promptly
replace the “new motor vehicle…” (Compl. ¶25.) Therefore, Defendant’s argument
is unavailing for not citing any case law to support its argument, for its
argument being unclear, and because Plaintiff appeared to plead the exact
characteristics Defendant argued were not pled. Further, Defendant doesn’t even
mention what the elements are for a cause of action for the first two causes of
action. Not to mention, Defendant’s notice of motion did not demur for failure
to state sufficient facts to the first and second causes of action.
Defendant also argues as follows:
Plaintiff also
fails to plead a litany of other facts as well that are critical to a Song-Beverly
claim. Plaintiff’s Complaint sets forth a very vague list of alleged issues the
vehicle experienced, stating that there were “engine, electrical, and emission
system defects.” (Complaint, ¶ 18.) Plaintiff’s Complaint then states, in
conclusory fashion, that the vehicle was presented for repair and has not been
repaired within a reasonable number of attempts. (Complaint, ¶ 50.) Missing
from Plaintiff’s Complaint are allegations relating to, among other things,
what issues the Plaintiff actually experienced with the vehicle, when the
alleged issues occurred and/or manifested, which of the alleged issues the
vehicle was presented to a dealership for repair, which service visits occurred
during the warranty period, and whether Plaintiff is currently experiencing
with the vehicle. (See Oregel v. Am. Isuzu Motors, Inc. (2001) 90 Cal.App.4th
1094, 1101 [explaining the three elements for breach of express warranty under
Song-Beverly Act are (1) substantial nonconformity, (2) vehicle be presented
for repair and (3) vehicle not repaired within reasonable number of attempts.];
California Civil Jury Instructions (“CACI”) No. VF-3203 [setting forth elements
of Song-Beverly claim; Krieger supra at 215 [statute of limitations is four
years]; CACI No. 3202 [in determining whether [defendant] had a reasonable
number of opportunities to fix [the vehicle], should consider all the
circumstances surrounding each repair visit.”].) The allegations are critical
components of Song-Beverly causes of action. For instance, the number of times
the vehicle was presented for repair to authorized dealerships or repair
facilities and for what issues is crucial to a determination of whether
Plaintiff can maintain a viable claim for breach of express warranty under the
Song-Beverly Act. (See CACI No. 3202.) The same is true regarding when the
alleged repair visits occurred since, at a minimum, Plaintiff must have
presented the subject vehicle for repair of any alleged issues while the
warranty was in existence. (See Daughtry v. Am. Honda Motor Co., Inc. (2006)
144 Cal.App.4th 824, 830-832.) For the foregoing reasons, the Complaint is
vague, and uncertain and the demurrer must be sustained.
(Def. Mot. p. 5-6.)
As a preliminary matter, the first four
sentences in Defendant’s argument above are not supported by any citation, and
the Court finds this argument unavailing. Defendant provides no support for its
arguments as to the level of specificity that must be alleged in the Complaint,
as opposed to what must be provided in response to reasonable and appropriate
Discovery.
Second, Defendant cites Oregel v.
American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101 which states
the three elements for alleging a cause of action for breach of express
warranty. Oregel states, “A
plaintiff pursuing an action under the Act has the burden to prove that (1) the
vehicle had a nonconformity covered by the express warranty that substantially
impaired the use, value or safety of the vehicle (the nonconformity element);
(2) the vehicle was presented to an authorized representative of the
manufacturer of the vehicle for repair (the presentation element); and (3) the
manufacturer or his representative did not repair the nonconformity after a
reasonable number of repair attempts (the failure to repair element). (Civ.
Code, § 1793.2; Ibrahim v. Ford Motor Co. (1989) 214
Cal.App.3d 878, 886-887.)” (Oregel v. American Isuzu Motors, Inc. (2001)
90 Cal.App.4th 1094, 1101.)
Here, Plaintiff alleged those elements.
(1) the vehicle had a nonconformity
covered by the express warranty that substantially impaired the use, value or
safety of the vehicle (the nonconformity element)
Plaintiff
alleged, “The Subject Vehicle was sold to Plaintiff with express warranties
that the Subject Vehicle would be free from defects in materials,
nonconformity, or workmanship during the applicable warranty period and to the
extent that the Subject Vehicle had defects, Defendant ASTON MARTIN LAGONDA OF
NORTH AMERICA, INC. would repair the defects. The Subject Vehicle was delivered
to Plaintiff with serious defects and nonconformities to warranty and developed
other serious defects and nonconformities to warranty including, but not
limited to, engine, electrical, and emission system defects.” (Compl. ¶¶17-18.)
Plaintiff also alleged, “The foregoing defects and nonconformities to warranty
manifested themselves in the Subject Vehicle within the applicable express
warranty period. The nonconformities substantially impair the use, value,
and/or safety of the vehicle.” (Compl. ¶22.)
Therefore, Plaintiff alleged the first
element.
(2) the vehicle was presented to an
authorized representative of the manufacturer of the vehicle for repair (the
presentation element
Plaintiff alleged, “Plaintiff delivered the vehicle to an authorized ASTON
MARTIN LAGONDA OF NORTH AMERICA, INC. repair facility for repair of the
nonconformities.” (Compl. ¶23.)
Therefore, Plaintiff alleged the second
element.
(3) the manufacturer or his
representative did not repair the nonconformity after a reasonable number of
repair attempts (the failure to repair element)
Plaintiff alleged, “Defendant was unable
to conform Plaintiff’s vehicle to the applicable express warranty after a
reasonable number of repair attempts.” (Compl. ¶24.)
Therefore, Plaintiff alleged the third
element, and overall, Plaintiff successfully alleged the first cause of action
for breach of express warranty under the Song-Beverly Act.
Third, Defendant argues that the number of
times the vehicle was presented for repair must be alleged. Defendant cites no
case law for this. Defendant simply cites CACI 3202 which appears to be the
jury instructions as to explaining the definition of “repair opportunities.”
This CACI citation does not constitute requirements for what must be alleged in
a Complaint for a cause of action.
Fourth, Defendant argues that Plaintiff
needed to allege when the repair visits occurred so Defendant can tell if they
fell within the express warranty. Again, Defendant provides no citation or case
law to support its argument. Further, Plaintiff alleged “Defendant was unable
to conform Plaintiff’s vehicle to the applicable express warranty after a
reasonable number of repair attempts.” (Compl. ¶24.) Also, Plaintiff alleged it
“received various warranties, inter alia, a 3-year/unlimited mile express
bumper to bumper warranty, a 3-year/unlimited mile powertrain warranty which,
inter alia, covers the engine and the transmission, as well as various
emissions warranties that exceed the time and mileage limitations of the bumper
to bumper and powertrain warranties.” (Compl. ¶9.) If the car was purchased on
March 16, 2021, as alleged, and the Complaint was filed on 09/27/2022, then it
would appear that the repair visits would have occurred within the express
warranty.
Tentative Ruling Ground 1
Defendant’s
demurrer as to uncertainty of the Complaint overall is OVERRULED.
Ground 2
Defendant’s
second ground for demurrer was that the third cause of action for violation of
Civil Code 1793.2(b) fails to state facts sufficient to constitute a cause of
action and that it is uncertain.
Defendant cites Civil Code 1793.2(b). Civil Code 1793.2(b)
states as follows, “Where those service and repair facilities are maintained in
this state and service or repair of the goods is necessary because they do not
conform with the applicable express warranties, service and repair shall be
commenced within a reasonable time by the manufacturer or its representative in
this state. Unless the buyer agrees in writing to the contrary, the goods shall
be serviced or repaired so as to conform to the applicable warranties within 30
days. Delay caused by conditions beyond the control of the manufacturer or its
representatives shall serve to extend this 30-day requirement. Where delay
arises, conforming goods shall be tendered as soon as possible following
termination of the condition giving rise to the delay.” (Ibid.)
Defendant argues that plaintiff did not meet the
heightened pleading standard. This argument is unavailing as Defendant
continued to cite a case that was not on point.
Also, Defendant argues that Plaintiff’s Complaint only
sets forth a vague description of the repair history. However, Defendant
provides no legal argument or citations for its argument.
Plaintiff alleged, “Defendant’s authorized facilities
did not conform the Subject Vehicle to warranty within 30-days and/or commence
repairs within a reasonable time, and ASTON MARTIN LAGONDA OF NORTH AMERICA,
INC. has failed to tender the subject vehicle back to Plaintiff in conformance
with its warranties within the timeframes set forth in Civil Code section
1793.2(b).” (Compl. ¶50.) Defendant cites no case law that anything more is
required to be alleged by Plaintiff.
TENTATIVE RULING GROUND 2
Defendant’s demurrer as to the third cause of action for
failing to state sufficient facts and being uncertain is OVERRULED.
Tentative Ruling
Defendant’s
demurrer on both grounds is OVERRULED. Further, Defendant must address the
service issue that the Court pointed out earlier in this Tentative Ruling.
MOTION
TO STRIKE
Moving Party: Defendant, Aston Martin Lagonda of North
America, Inc. (Defendant or Aston Martin)
Responding Party: Plaintiff – No Opposition
submitted.
No Reply submitted.
Moving Papers: Notice of
Motion/Memo; Bassi Declaration
Proof of Service
Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: No – same problem as listed in the demurrer.
RELIEF REQUESTED
Defendant moves to strike the following
portions of Plaintiff’s Complaint:
Paragraphs 53-57 and
the Prayer for Relief insofar as it relates to the third cause of action, on
the basis that the applicable law does not allow for recovery of “the entire
purchase price” or diminution in value, plus civil penalties, for violations of
Civil Code Section 1793.2(b). (Code Civ. Proc., § 436 (a) and (b).)
Meet and
Confer
Before filing a motion
to strike pursuant to this chapter, the moving party shall meet and confer in
person or by telephone with the party who filed the pleading that is subject to
the motion to strike for the purpose of determining if an agreement can be
reached that resolves the objections to be raised in the motion to strike. If
an amended pleading is filed, the responding party shall meet and confer again
with the party who filed the amended pleading before filing a motion to strike
the amended pleading. (CCP §435.5(a).)
This analysis is the
same as the analysis under the demurrer tentative ruling for the meet and
confer requirement.
LEGAL
STANDARD – MOTION TO STRIKE
The court may, upon a motion, or at any time in
its discretion, and upon terms it deems proper, strike any irrelevant, false,
or improper matter inserted in any pleading. (Code Civ. Proc. § 436(a).) The
court may also strike all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court.
(Code Civ. Proc. § 436(b).) A motion to strike cannot be based upon the
grounds that a complaint fails to state facts sufficient to constitute a cause
of action, but instead is properly based on grounds of superfluous or abusive
allegations, or improprieties in form or procedure. (Ferraro
v. Camarlinghi (2008) 161 Cal.App.4th 509,
528-29.)
The grounds for moving
to strike must appear on the face of the pleading or by way of judicial
notice. (Code. Civ. Proc. § 437; Turman v. Turning Point of
Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges read
allegations of a pleading subject to a motion to strike as a whole, all parts
in their context, and assume their truth”].)
Further, CCP
§431.10(a)-(c) states as follows:
(a) A material allegation in a pleading is one essential
to the claim or defense and which could not be stricken from the pleading
without leaving it insufficient as to that claim or defense.
(b) An immaterial allegation in a pleading is any of the
following:
(1) An allegation that is not essential to the statement
of a claim or defense.
(2) An allegation that is neither pertinent to nor
supported by an otherwise sufficient claim or defense.
(3) A demand for judgment requesting relief not
supported by the allegations of the complaint or cross-complaint.
(c) An “immaterial allegation” means “irrelevant matter”
as that term is used in Section 436.
(CCP §431.10(a)-(c).)
ANALYSIS
Defendant moves to
strike Paragraphs 53-57 of the Complaint, which are Paragraphs located in
Plaintiff’s third cause of action for Violation of Song-Beverly Act Section
1793.2(b).
Defendant argues
Plaintiff cannot seek damages under the third cause of action for the “entire
purchase price,” and “diminution in value.”
The argument is unavailing.
Defendant cited no case law or statutes to support its argument. Therefore, the
Court fails to see how those allegations would be immaterial or improper. Most
importantly, the Court doesn’t even see where in the Complaint in Paragraphs 53-57
that Plaintiff seeks damages for the “the entire purchase price” or “diminution
in value.”
Defendant argues that Plaintiff
cannot seek the remedy of “restitution,” “reimbursement,” or “replacement”
under the third cause of action. As to “restitution, the Court fails to see
where in Paragraphs 53-57 Plaintiff even sought “restitution.” As to “reimbursement”
and “replacement,” Defendant cites case law out of context and contrary to what
the cases actually said.
Defendant cited Gavaldon
v. Daimler Chrysler Corp. (2004) 32 Cal.4th 1246 to argue that Plaintiff
cannot seek restitution, reimbursement, or replacement under the third cause of
action; however, Gavaldon does not support Defendant’s argument. Gavaldon
held that the Song-Beverly Consumer Warranty Act did not authorize
replacement/restitution remedy for breach of an extended service contract on a
defective minivan, but instead limited such remedy to breaches of express
warranties. (Gavaldon v. Daimler Chrysler Corp. (2004) 32 Cal.4th 1246,
1262.) Here, Plaintiff is not basing its third cause of action on a breach of
extended service contract. Plaintiff is basing its action on breach of an
express warranty.
Defendant also cites to
Ramos v. Mercedes-Benz USA, LLC (2020) 55 Cal.App.5th 220 to argue Plaintiff
cannot seek restitution or replacement. Again, Defendant’s citation does not
support Defendant’s argument. Ramos held that Plaintiff was only
entitled to recover damages caused by the delay in repairing a nonconformity
that did not substantially impair the car’s use, value or safety. (Ramos v.
Mercedes-Benz USA, LLC (2020) 55 Cal.App.5th 220, 228.) Here, this case is
at the pleading stage, there has been no determination as to whether a
nonconformity substantially impaired the car’s use, value, or safety.
Defendant also argues a
second time as to why Plaintiff cannot seek diminution in value damages as
follows:
Similarly, diminution in value damages are not recoverable
for a violation of 1793.2(b), or in the alternative, are not well-pled.
Diminution in value is defined under Comm. Code Section 2714(2) as the “measure
of damages for breach of warranty is the difference at the time and place of
acceptance between the value of the goods accepted and the value they would
have had if they had been as warranted….” Thus, the question for diminution in
value is the value at delivery. The diminution is not reduction in value that
occurs after-the-fact because the car is sitting at a service facility.
Plaintiff cannot have suffered “diminution in value damages” which are measured
from the time of sale as a result of the vehicle being out of service for 30 or
more days, an event (and alleged harm) which occurs after its sale. Moreover,
Plaintiff has failed to allege specific factual allegations to meet the
heightened pleading standard necessary for such statutory causes of action.
(Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)
Specifically, Plaintiff fails to allege how the vehicle being in service for
thirty days has led to diminution in value, and to what extent that claimed
diminution in value has occurred. To the extent Plaintiff seeks other unspecified
damages, the cause of action is vague and deficient.
(Def. Mot. p. 6.)
Here, the
Court finds Defendant’s argument borderline incomprehensible. Further, the
Court already stated in its tentative ruling on the demurrer that the Covenant
Care, Inc. case that Defendant cited is not relevant to the instant
scenario.
Defendant’s
motion to strike as to Paragraphs 53-57 is DENIED. Defendant did not even
address all of the Paragraphs from 53-57; therefore, the Court fails to see why
the Paragraphs that Defendant didn’t even address are irrelevant or improper.
Further, as to the Paragraphs in 53-57 that Defendant did address, Defendant
did not cite any applicable case law to justify its arguments. Therefore,
again, the Court fails to see how those Paragraphs are irrelevant or improper.
Defendant also moved to strike the “Prayer
for Relief insofar as it relates to the third cause of action, on the basis
that the applicable law does not allow for recovery of “the entire purchase
price” or diminution in value, plus civil penalties, for violations of Civil
Code Section 1793.2(b).”
“A notice of motion to strike a portion of
a pleading must quote in full the portions sought to be stricken except where
the motion is to strike an entire paragraph, cause of action, count, or
defense. Specifications in a notice must be numbered consecutively.” (Cal.
Rules of Court, Rule 3.1322(a).)
Here, as to the Prayer for Relief,
Defendant did not indicate what it wanted stricken in any specific manner to
alert the Court or the Plaintiff as to what it was seeking it wanted stricken. Defendant
did not even identify a specific Paragraph as a whole.
Further, even if Defendant had asserted
successful arguments as to why certain damages and forms of relief should be
stricken from the third cause of action, Defendant fails to realize that Plaintiff
had two other causes of action. Even if Defendant succeeded in demonstrating
that certain requests should be stricken to the third cause of action, it is
possible that those requests for damages could be appropriate for the first and
second causes of action. Therefore, the requests in the prayer would not be
irrelevant or improper if there is a basis for them under the other two causes
of action. Therefore, as to Defendant’s motion to strike portions in the Prayer
for Relief that Defendant does not even make clear what those portions are,
Defendant’s motion to strike is DENIED.
Tentative Ruling
Defendant’s
motion to strike is DENIED. Further, Defendant would need to address the
service issue that the Court mentioned previously.