Judge: Joseph Lipner, Case: 24STCV19058, Date: 2024-11-12 Tentative Ruling

Case Number: 24STCV19058    Hearing Date: November 12, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Promenade Imports, LLC dba Infiniti of Valencia (“Infiniti of Valencia”) demurs to the second cause of action in the Complaint filed by Plaintiff Benjamin Gutshall (“Plaintiff”).

The Court SUSTAINS the demurrer.

In order to determine whether amendment is futile, the Court requests argument from Plaintiff explaining (1) what facts Plaintiff can allege that would cure the failure to allege an implied warranty by Infiniti of Valencia, which appears to also require the existence of an express warranty by Infiniti of Valencia; and (2) whether allegations of latency at the time of sale would be inconsistent with Plaintiff’s allegations about the nature of the defect.

Background

This is a Song-Beverly action. The following facts are taken from the allegations of the Complaint, which the Court accepts as true for the purposes of the demurrer.

On June 27, 2022, Plaintiff purchased a used 2022 GMC Yukon (the “Vehicle”) from Infiniti of Valencia.

Plaintiff alleges that the Vehicle came with the original manufacturer’s warranty, wherein Defendant General Motors, LLC (“GM”) is alleged to have promise to undertake to preserve or maintain the utility or performance of the Vehicle. Plaintiff does not allege that Infiniti of Valencia ever provided an express warranty for the Vehicle.

On December 27, 2022, the Vehicle was taken to the dealer for regular maintenance and to address two manufacturer recalls.

On May 9, 2023, the Vehicle was taken to the dealer because it failed to start following an over-the-air program event (apparently, a remote update to software). Roadside assistance was required to jump-start the Vehicle because the battery would not hold a charge.

Plaintiff alleges that the Vehicle was taken to the dealer a total of five times in 2023 and 2024 to address a no-start/battery issue. The battery was replaced three times in connection with this issue.

Plaintiff filed this action on July 31, 2024. The Complaint raises claims for (1) violation of Song-Beverly Consumer Warranty Act; and (2) breach of implied warranties pursuant to Song-Beverly Act.

On August 12, 2024, Plaintiff added Infinity of Valencia as a Defendant by Doe amendment.

On September 18, 2024, Plaintiff’s counsel agreed to dismiss the first claim against Infiniti of Valencia following meet-and-confer efforts.

On September 23, 2024, Infinity of Valencia demurred to the second claim. Plaintiff filed an opposition and Infinity of Valencia filed a reply.

Legal Standard

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

(b) The person who filed the pleading does not have the legal capacity to sue.

(c) There is another action pending between the same parties on the same cause of action.

(d) There is a defect or misjoinder of parties.

(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

(h) No certificate was filed as required by Section 411.35.”

(Code Civ. Proc., § 430.10.)

As a general matter, 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 pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Discussion

“Unless disclaimed in the manner prescribed by this chapter, every sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer’s and the retail seller’s implied warranty that the goods are merchantable. The retail seller shall have a right of indemnity against the manufacturer in the amount of any liability under this section.” (Civ. Code, § 1792.)

“ ‘Implied warranty of merchantability’ or ‘implied warranty that goods are merchantable’ means that the consumer goods meet each of the following: [¶] (1) Pass without objection in the trade under the contract description. [¶] (2) Are fit for the ordinary purposes for which such goods are used. [¶] (3) Are adequately contained, packaged, and labeled. [¶] (4) Conform to the promises or affirmations of fact made on the container or label.” (Civ. Code, § 1791.1, subd. (a).)

“ ‘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.” (Civ. Code, § 1791, subd. (a) [emphasis added].)

“Notwithstanding the provisions of subdivision (a) of Section 1791 defining consumer goods to mean ‘new’ goods, the obligation of a distributor or retail seller of used consumer goods in a sale in which an express warranty is given shall be the same as that imposed on manufacturers under this chapter except:

(a) It shall be the obligation of the distributor or retail seller making express warranties with respect to used consumer goods (and not the original manufacturer, distributor, or retail seller making express warranties with respect to such goods when new) to maintain sufficient service and repair facilities within this state to carry out the terms of such express warranties. ….

(c) The duration of the implied warranty of merchantability and where present the implied warranty of fitness with respect to used consumer goods sold in this state, where the sale is accompanied by an express warranty, shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable, but in no event shall such implied warranties have a duration of less than 30 days nor more than three months following the sale of used consumer goods to a retail buyer. Where no duration for an express warranty is stated with respect to such goods, or parts thereof, the duration of the implied warranties shall be the maximum period prescribed above.”

(Civ. Code, § 1795.5.)

            Here, Plaintiff alleges that the Vehicle was purchased in used condition. Because the Vehicle was not new, it does not qualify as consumer goods and cannot generally be the subject of an implied warranty of merchantability.

Plaintiff does not allege that Infiniti of Valencia issued an express warranty with the Vehicle. Thus, section 1795.5 does not imply a warranty of merchantability either.

Plaintiff argues that Civil Code, section 1792.3, subd. (a) prevents waiver of an implied warranty of merchantability unless the goods are sold ‘as is’ or ‘with all faults.’ However, this case does not involve a waiver issue, because Plaintiff has not alleged that there was an implied warranty in place to be waived.

Further, even if a warranty of merchantability were implied, it would have a maximum duration of three months. Plaintiff first took the Vehicle in for maintenance on December 27, 2022 – more than three months after the June 27, 2022 purchase of the Vehicle. Further, the maintenance issues raised on December 27, 2022 did not include the no-start/battery problem. Plaintiff first took the Vehicle in to address the no-start/battery problem on May 9, 2023. Thus, even assuming for the sake of argument that there was an implied warranty of merchantability, Plaintiff has not alleged that the issues arose within the warranty period.

The Court therefore sustains the demurrer to this claim.

Plaintiff contends that he can amend the Complaint to cure the defects by alleging that the defects were latent. Plaintiff contends that if the defects were latent, the fact that Plaintiff first notified the dealer outside of three-month period for implied warranties would not defeat his claim. (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304, 1310 [“The implied warranty of merchantability may be breached by a latent defect undiscoverable at the time of sale” and the argument “that latent defects must be discovered and reported to the seller within the specified time—has no support in the text of the statute.”];

The Court is concerned that this amendment would be futile for two reasons. First, Plaintiff says nothing about his ability to assert that there was an implied warranty in this case that applies to Infiniti of Valencia’s sale of a used car.  As noted above, an implied warranty for a retailer’s sale of such a car requires the existence of an express warranty also.  It is not clear to the Court whether Plaintiff can allege in good faith that there was an express warranty by Infiniti of Valencia that would carry with it an implied warranty. 

Second, Plaintiff has alleged that no-start/battery defect began after a wireless software update to the car. The defect would thus not be latent at the time of sale. When “a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings”, “the policy against sham pleading permits the court to take judicial notice of the prior pleadings and requires that the pleader explain the inconsistency. If he fails to do so the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint.” (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384.)

The Court requests argument from Plaintiff explaining (1) what facts Plaintiff can allege that would cure the failure to allege an implied warranty; and (2) whether allegations of latency at the time of sale would violate the sham pleading doctrine.