Judge David A. Rosen, Case Number: 23GDCV01060, Date: 2023-08-04 Tentative Ruling

Judge: David A. Rosen, Case: 23GDCV01060, Date: 2023-08-04 Tentative Ruling

Case Number: 23GDCV01060 Hearing Date: August 4, 2023 Dept: E

Case No: 23GDCV01060
Hearing Date: 08/04/2023 – 10:00am

Trial Date: UNSET

Case Name: RUPERTO ROBENIOL, an individual; v. MERCEDES-BENZ USA, LLC, a Delaware Limited Liability Company and ENVISION MOTORS HOLDINGS, LLC, a Delaware Limited Liability Company d/b/a MERCEDES-BENZ OF WEST COVINA, and DOES 1-10 inclusive

TENTATIVE RULING ON DEMURRER

Moving Party: Defendant, Mercedes-Benz USA LLC (MBUSA or Defendant)

Responding Party: No Opposition Submitted

Moving Papers: Notice/Motion; Bassi Declaration; Proposed Order

Opposition Papers: No Opposition Submitted

Reply Papers: No Reply Submitted

RELIEF REQUESTED
Defendant, MBUSA, demurs to Plaintiff’s Complaint as follows:

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 second cause of action for breach of implied warranty is untimely because it was brought beyond the four-year statute of limitations set forth in Civil Code §1791.1(c) and Commercial Code §2725. (Code Civ. Proc., §430.10(e).)

BACKGROUND
On 05/23/2023, Plaintiff, Ruperto Robeniol, filed a Complaint alleging three causes of action for: (1) Violation of Song-Beverly Act – Breach of Express Warranty, (2) Violation of Song-Beverly Act – Breach of Implied Warranty, and (3) Negligent Repair. The first two causes of action are alleged against Defendant MBUSA, and the third cause of action is alleged against Envision Motors Holdings, LLC, d/b/a Mercedes-Benz of West Covina.

MBUSA filed and served the instant demurrer on 06/26/2023.

PROCEDURAL ANALYSIS
Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b): Ok

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. (Code Civ. Proc., §430.41(a)(4).)

Here, Defendant’s counsel, Bassi, stated as follows in her declaration:

I reached out to Plaintiff’s counsel via on June 26, 2023 for an extension to respond to the Complaint. I did not receive an extension then emailed Plaintiff’s counsel regarding the deficiencies in the Complaint. I then received an email from Plaintiff's counsel claiming that MBUSA's "Answer is overdue and we will seek an entry of default." However, I responded correcting the record as to the responsive pleading past due, and again asked for an extension so that the parties could meet and confer. I did not receive a response back. Attached hereto as Exhivit A is a true and accurate copy of this email exchange.

(Decl. Bassi ¶2.)

Bassi mentions how she attached Exhibit A, but no Exhibit A is attached. Therefore, it is unclear if Defendant met and conferred. Further, it appears as if the demurrer could potentially be untimely if Bassi is saying that Plaintiff alleged MBUSA’s Answer is overdue, and that Defendant is seeking an entry of default. Ultimately, however, this does not appear to be an issue since Plaintiff filed a First Amended Complaint (FAC).

ANALYSIS
Defendant’s demurrer was filed and served via electronic transmission on 06/26/2023. On 06/27/2023, Plaintiff filed a First Amended Complaint. Based on the proof of service of summons, it appears that the Summons and First Amended Complaint were served on Envision Motors Holdings LLC, d/b/a Mercedes-Benz of West Covina and Mercedes-Benz USA, LLC on 06/28/2023 via personal service.

Under CCP §472(a):

A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.

(CCP §472(a).)

The Opposition for this demurrer would have been due on 07/24/2023. The FAC was filed on 06/27/2023 and served on 06/28/2023. Therefore, Plaintiff’s FAC was appropriately amended once without leave of the Court, and the instant demurrer is moot.

TENTATIVE RULING
Defendant’s demurrer to Plaintiff’s Complaint is overruled as moot in light of Plaintiff’s timely filing of the FAC.

The parties are also reminded of their obligations under CCP §430.41(a), “…If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.”