Judge: Gregory Keosian, Case: 22STCV22269, Date: 2023-01-18 Tentative Ruling
Case Number: 22STCV22269 Hearing Date: January 18, 2023 Dept: 61
Defendant Ford Motor Company’s Demurrer to the First Amended
Complaint is OVERRULED, and the Motion to Strike Portions of the First Amended
Complaint is GRANTED as to the prayer for prayers for replacement, restitution,
reimbursement, rescission, exemplary damages, and prejudgment interest, with 30
days leave to amend.
I.
DEMURRER
A demurrer should be sustained only where the defects appear
on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§
430.30, et seq.) In particular, as is
relevant here, a court should sustain a demurrer if a complaint does not allege
facts that are legally sufficient to constitute a cause of action. (See
id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We
treat the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. . . . Further, we give
the complaint a reasonable interpretation, reading it as a whole and its parts
in their context.” (Id. at p.
318; see also Hahn. v. Mirda (2007)
147 Cal.App.4th 740, 747 [“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. [Citation.]”)
“In determining whether the complaint is sufficient as
against the demurrer … if on consideration of all the facts stated it appears
the plaintiff is entitled to any relief at the hands of the court against the
defendants the complaint will be held good although the facts may not be
clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)
“A demurrer
for uncertainty is strictly construed, even where a complaint is in some
respects uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612,
616.) Such demurrers “are disfavored,
and are granted only if the pleading is so incomprehensible that a defendant
cannot reasonably respond.” (Mahan v.
Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)
Defendant Ford
Motor Company (Defendant) demurrers to the complaint filed by Plaintiff Bryan
Bergman (Plaintiff) on the grounds that his state-law warranty claim fails for
lack of privity with Defendant, that his federal Magnuson-Moss claim fails for
failure of his state-law claim, and that this latter claim also fails for
failure to proceed through Ford’s informal dispute resolution process.
The
first argument as to privity fails. Privity of contract — generally meaning the
plaintiff’s purchase of the good from the defendant — is “a prerequisite in California for recovery on a theory of
breach of implied warranties of fitness and merchantability.” (Blanco v.
Baxter Healthcare Corp. (2008) 158 Cal.App.4th 1039, 1058.) This case,
however, includes no claim for breach of implied warranties, but one for breach
of express warranty, to which the privity requirement does not hold. (See
Seely v. White Motor Co. (1965) 63 Cal.2d 9, 14; Rodrigues v. Campbell
Industries (1978) 87 Cal.App.3d 494, 500; Cardinal Health 301, Inc. v.
Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 143.) This is “because
it is deemed fair to impose responsibility on one who makes affirmative claims
as to the merits of the product, upon which the remote consumer presumably
relies.” (Cardinal Health 301, supra, 169 Cal.App.4th
at p. 143–144.) Plaintiff’s state-law claim for breach of express warranty does
not fail for lack of privity.
Moreover, the federal claim is not infirm for failure to
abide by Defendant’s informal dispute policy. Per the Magnuson-Moss statute, a
consumer “may not commence a civil action” if:
(A) a
warrantor establishes such a procedure [which meets the rules of the Federal
Trade Commission for such procedures],
(B) such procedure, and its implementation,
meets the requirements of such rules, and
(C) he incorporates in a written warranty a
requirement that the consumer resort to such procedure before pursuing any
legal remedy under this section respecting such warranty[.]
(15 U.S.C. § 2310, subd. (a)(3).)
Defendant makes no showing of entitlement to relief under
the above statute because it does not show by reference to the pleadings or to
judicially noticeable materials that the requirements have been met. Defendant
asks this court to take judicial notice of the existence of the website for its
BBB Auto Line procedure, but the existence of the website does not show the
existence of a process of which plaintiffs may avail themselves, let alone that
such a process complies with FTC rules, or that the written warranty on which
the suit is based requires resort to that procedure before a civil action be
brought. As Defendant has not shown the existence of a compliant process or a
requirement that it be used, it has not shown why the claim should be
dismissed.
Accordingly, the demurrer is OVERRULED.
II.
MOTION TO
STRIKE
Any
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. (Code Civ. Proc., § 435(b)(1)).
The notice of motion to strike a portion of a pleading shall 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. (California Rules of Court Rule
3.1322.)
The grounds for a motion to
strike shall appear on the face of the challenged pleading or form any matter
of which the court is required to take judicial notice. (Code Civ. Proc., §
437(a)). The court then may strike out any irrelevant, false, or improper matter
inserted in any pleading and strike out 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.) When the defect which justifies
striking a complaint is capable of cure, the court should allow leave to amend.
(Perlman v. Municipal Court (1979) 99
Cal.App.3d 568, 575.)
Defendant moves to strike
Plaintiff’s prayer for replacement, restitution, reimbursement, rescission, and
exemplary damages, on the grounds that such relief is not available on
Plaintiff’s breach of warranty claims. “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, unless special circumstances show proximate damages of a
different amount.” (Orichian v. BMW of North America, LLC (2014) 226
Cal.App.4th 1322, 1331.) Plaintiff in opposition offers no argument as to why
replacement, restitution, reimbursement, rescission, or exemplary damages are
available in light of this authority.
Defendant further argues that no
prejudgment interest may be sought by Plaintiff in this action. Prejudgment
interest may be sought where damages are “certain, or capable of being
made certain by calculation.” (Civ. Code § 3287, subd. (a).) The damages
available to Plaintiff here are the difference in value between the goods
accepted and their value as warranted, plus incidental and consequential
damages proximately resulting from the breach of warranty. Plaintiff’s
incidental and consequential damages are necessarily incurred after purchase of
the vehicle and out of Defendant’s knowledge. (See Warren v. Kia Motors
America, Inc. (2018) 30 Cal.App.5th 24, 44–45 [disallowing
prejudgment interest in Song Beverly action].)
Accordingly the motion to strike is GRANTED as to the
prayers for replacement, restitution, reimbursement, rescission, exemplary
damages, and prejudgment interest, with leave to amend.