Judge: John J. Kralik, Case: 22BBCV00147, Date: 2023-01-06 Tentative Ruling

Case Number: 22BBCV00147    Hearing Date: January 6, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Cesar Nuno (“Plaintiff”) alleges that on December 13, 2020, he purchased a 2017 Land Rover Discovery vehicle.  He alleges that Defendant CarMax Auto Superstores California, LLC (“Dealer”) provided an express warranty on the vehicle for a period of 30-days after the sale.  He alleges that the vehicle was delivered to him with serious defects and nonconformities.  Plaintiff alleges the vehicle’s engine was defective as to the following components: cam shaft, cam sensor engine, and timing chain.  He alleges that defects did not manifest until July 2021 and that the defects rendered the vehicle inoperable.  (FAC, ¶¶22-23.)  Plaintiff then alleges that the foregoing defects and nonconformities to the warranty manifested themselves within the applicable implied and express warranty periods. (Id., ¶24.) 

The first amended complaint (“FAC”), filed July 28, 2022, alleges a single cause of action for violation of the Song-Beverly Consumer Warranty Act (“Act”).

B.     Demurrer on Calendar

On September 30, 2022, Defendants CarMax Auto Superstores, Inc., successor in interest of CarMax Auto Superstores California, LLC (“CarMax”) and Ally Financial (“Ally”) filed a demurrer to the FAC.

The Court is not in receipt of an opposition brief.

DISCUSSION

“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 [263 Cal.Rptr. 64].)”  (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.) 

            Defendants CarMax and Ally demur to the entirety of the complaint and the sole cause of action for violation of the Act for failure to state sufficient facts to constitute a cause of action. 

            In its prior ruling, the Court sustained Defendants’ demurrer to the initial complaint, finding that Plaintiff had not alleged facts regarding the length of the warranty period, the nature of the defects and nonconformities, and whether Plaintiff made attempts to repair the vehicle. 

Defendants argue that while Plaintiff has now alleged some facts regarding the length of the warranty period and the nature of the nonconformities, Plaintiff’s claims are outside the warranty period.  According to the FAC, Plaintiff purchased the vehicle on December 13, 2020, there was a 30-day warranty period following the sale, the nonconformities did not manifest until July 2021, and the defects manifested themselves during the warranty periods.  The allegations appear to be contradictory.  While Plaintiff alleges there was a 30-day warranty (i.e., until January 13, 2021), he alleges that the defects did not manifest until July 2021 but that the defects were within the warranty period.  Taking the July 2021 manifestation date as true, Plaintiff’s claim under the warranty would have expired.  These contradictory allegations should be clarified upon amendment. 

Next, Plaintiff has still not alleged any facts showing that he presented the vehicle for repair pursuant to the warranty.  Plaintiff has not alleged facts showing that the car was presented for repairs and that a representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element).  (See Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.)  This is an essential element of this cause of action regarding violation of the Act.  The Court previously raised this as an issue in its ruling on the demurrer to the initial complaint.  However, upon amendment, Plaintiff has failed to cure this defect.  The Court will allow one final attempt at amendment for Plaintiff to address each of the elements of violation of the Act. 

Finally, Defendants argue that Ally is not liable under Plaintiff’s bond claim because if Plaintiff has failed to state a claim against CarMax, then the claim as to Ally also fails.  As discussed above, the Court will allow leave to amend the complaint as to both Defendants.

CONCLUSION AND ORDER

            Defendants CarMax Auto Superstores California, LLC and Ally Financial’s demurrer to the first amended complaint is sustained with 20 days leave to amend.  

Defendants shall provide notice of this order.