Judge: Gary I. Micon, Case: 23CHCV01650, Date: 2024-04-04 Tentative Ruling

Case Number: 23CHCV01650    Hearing Date: April 4, 2024    Dept: F43

Dept. F43

Date: 4-4-24

Case # 23CHCV01650, Luis Fernando Sanchez vs. General Motors LLC

Trial Date: N/A

 

DEMURRER TO FIRST AMENDED COMPLAINT WITH MOTION TO STRIKE

 

MOVING PARTY: Defendant General Motors LLC

RESPONDING PARTY: No response has been filed

 

RELIEF REQUESTED

Demurrer to the First Amended Complaint

·         1st – 3rd Causes of Action for Violations of the Song-Beverly Act

·         4th Cause of Action: Fraud – Fraudulent Inducement – Concealment

 

Motion to Strike

·         Claim for Punitive Damages [FAC, p. 30, Paragraph 6 of the Prayer for Relief]

 

RULING: Demurrer is sustained with leave to amend for the First, Second, and Third Causes of Action. Demurrer is moot for the Fourth Cause of Action. Motion to strike is granted.

 

SUMMARY OF ACTION

On May 15, 2020, Plaintiff Luis Fernando Sanchez (Plaintiff) purchased a 2019 GMC Sierra. (FAC, 4.) Plaintiff alleges that he received a new and full certified pre-owned warranty from Defendant General Motors LLC as part of the purchase, which Plaintiff argues means that the vehicle is considered a “new motor” under the Song-Beverly Act. (FAC, 4.) Plaintiff alleges that there were transmission problems with the vehicle that could not be repaired within a reasonable number of attempts. (FAC, ¶¶ 4, 21.)

 

On June 7, 2023, Plaintiff filed his initial complaint. On October 16, 2023, Plaintiff filed a First Amended Complaint (FAC) with four causes of action for (1) Violation of Song-Beverly Act – Breach of Express Warranty; (2) Violation of Song-Beverly Act – Breach of Implied Warranty; (3) Violation of the Song-Beverly Act Section 1793.2; and (4) Fraud – Fraudulent Inducement – Concealment.

 

Defendant filed its demurer with motion to strike on November 15, 2023. In its demurrer, Defendant demurs to all four of Plaintiff’s causes of action. In the motion to strike, Defendant moves for Plaintiff’s request for punitive damages to be stricken. Plaintiff has filed no opposition to Defendant’s demurrer or motion to strike, but on March 20, 2024, Plaintiff filed a request for dismissal for his Fourth Cause of Action for Fraud – Fraudulent Inducement – Concealment. The request for dismissal was entered that same day.

 

ANALYSIS

Defendant brings a demurrer to Plaintiff’s First through Third Causes of Action on the basis that they fail to set forth facts sufficient to constitute causes of action against Defendant. Defendant also demurs to the Fourth Cause of Action for Fraud – Fraudulent Inducement – Concealment, but Plaintiff filed a request for dismissal for this cause of action on March 20, 2024.

 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452.) 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 applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

            First through Third Causes of Action

Defendant demurs to Plaintiff’s First through Third Causes of Action for violations of the Song-Beverly Act on the basis that Plaintiff has not pled that he purchased a new vehicle.

 

Defendant argues, pursuant to Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, that Plaintiff is not able to maintain causes of action under the Song-Beverly Act because Plaintiff purchased the vehicle used. In Rodriguez, the Court of Appeal found that the phrase “other motor vehicle sold with a manufacturer’s new car warranty” from Civ. Code § 1793.22(e)(2) does not cover pre-owned vehicles with some balance remaining on the manufacturer’s express warranty, which was the situation in that case. (Id. at 209.)

 

Defendant argues that this applies to the present case because Plaintiff has not alleged facts demonstrating that he purchased a “new motor vehicle” with a “new car warranty” within the meaning of Song-Beverly. Defendant argues that, at most, Plaintiff purchased a vehicle with a remaining balance of the original New Vehicle Limited Warranty, meaning that under Rodriguez, Plaintiff could not maintain his Song-Beverly Act causes of action.

 

However, what distinguishes Rodriguez from Plaintiff’s case is that Plaintiff has alleged that “the Subject Vehicle was a certified pre-owned (“CPO”) purchased as a CPO vehicle with an accompanying GENERAL MOTORS LLC’s new and full CPO warranty and therefore constitutes a “new motor vehicle” vehicle under the Act.” (FAC, ¶ 4.) What is unclear from what Plaintiff has alleged is whether Plaintiff is alleging that Defendant issued a new warranty when Plaintiff purchased the used vehicle, or whether Plaintiff is alleging that the vehicle was accompanied by the existing warranty from when the vehicle was new. Plaintiff has not attached the warranty to either his original complaint or the FAC, so it is not evident whether Rodriguez would apply.

 

This makes Plaintiff’s FAC uncertain because Plaintiff has not sufficiently pled the terms of the alleged warranty. Defendant’s demurrer is granted for Plaintiff’s first three causes of action on the basis that they are uncertain.

 

Defendant has also demurred to Plaintiff’s Second Cause of Action for Breach of Implied Warrant on the basis that manufacturers cannot be liable for breaches of implied warranty of used vehicles. In Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 398, the Court of Appeal held that “plaintiff’s implied warranty claim fails as a matter of law, because in the sale of used consumer goods, liability for breach of implied warranty lies with distributors and retailers, not the manufacturer, where there is no evidence the manufacturer played any role in the sale of the used car to plaintiff.” Where the manufacturer sells directly to public or issues express warranties for the sale of used vehicles, it is the retailer and therefore has obligations under Civ. Code § 1795.5. (Id. at 399 (citing Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334).)

 

Once again, it is unclear in this case what role Defendant played in the sale of the used vehicle to Plaintiff. If Defendant partnered with the dealership to sell the vehicle by offering an express warranty as part of the sales package (see Kiluk, 43 Cal. App.5th at 340), then Defendant may be liable. Plaintiff’s pleadings are uncertain in this respect, so the Court also sustains the demurrer to the Second Cause of Action on this basis.

 

Defendant’s demurrer to Plaintiff’s First, Second, and Third Causes of Action are sustained with leave to amend on the basis that they are uncertain.

 

            Fourth Cause of Action for Fraud – Fraudulent Inducement – Concealment

Defendant demurred to Plaintiff’s Fourth Cause of Action. However, Plaintiff has since filed a request for dismissal for this cause of action, which renders Defendant’s demurrer to this cause of action moot.

 

Motion to Strike

Defendant has moved to strike Plaintiff’s request for punitive damages on the basis that Plaintiff’s FAC fails to state facts sufficient to support punitive damages for any of the causes of action.

 

This Court may strike from the complaint any irrelevant, false, or improper matter. Under CCP § 435, “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” Under CCP § 436(a), “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . [s]trike out any irrelevant, false, or improper matter inserted in any pleading.”

 

Punitive damages are governed by Civ. Code § 3294: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code § 3294(a).)

 

No punitive damages are available under the Song-Beverly Act. Recovery under that statute is limited to a refund of the purchase price paid and payable (or replacement of the subject vehicle), plus a civil penalty, where applicable, not to exceed two times Plaintiff’s actual damages (Civ. Code § 1794.)

 

Plaintiff has requested that his fraud cause of action be dismissed, which was the main basis for Plaintiff’s request for punitive damages. Because punitive damages are not allowable under the Song-Beverly Act, punitive damages are not available for any of Plaintiff’s other causes of action. Defendant’s motion to strike Plaintiff’s request for punitive damages is granted.

 

Conclusion

Defendant’s demurrer is sustained with leave to amend for Plaintiff’s First through Third Causes of Action. The demurrer is moot for Plaintiff’s Fourth Cause of Action.

 

Defendant’s motion to strike Plaintiff’s claim for punitive damages is granted.

 

Plaintiff is given 30 days to file an amended complaint.

 

Moving party to give notice to all parties.