Judge: Keri G. Katz, Case: 37-2022-00029877-CU-BT-CTL, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - August 24, 2023

08/25/2023  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Business Tort Demurrer / Motion to Strike 37-2022-00029877-CU-BT-CTL MCGILL VS CARMAX AUTO SUPERSTORES INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 03/28/2023

Demurrer Defendant CarMax Auto Superstores, Inc.'s demurrer to the Plaintiff's first amended complaint is OVERRULED.

Based on CarMax's reply, CarMax demurrers only to the first cause of action for violation of the Consumer Legal Remedies Act. CarMax's demurrer to this cause of action is based on the notice and opportunity to cure provisions of CC § 1782. Pursuant to this section: (a) Thirty days or more prior to the commencement of an action for damages pursuant to this title, the consumer shall do the following: (1) Notify the person alleged to have employed or committed methods, acts, or practices declared unlawful by Section 1770 of the particular alleged violations of Section 1770.

(2) Demand that the person correct, repair, replace, or otherwise rectify the goods or services alleged to be in violation of Section 1770.

The notice shall be in writing and shall be sent by certified or registered mail, return receipt requested, to the place where the transaction occurred or to the person's principal place of business within California.

(b) Except as provided in subdivision (c), no action for damages may be maintained under Section 1780 if an appropriate correction, repair, replacement, or other remedy is given, or agreed to be given within a reasonable time, to the consumer within 30 days after receipt of the notice.

Preliminarily, CC § 1782(c) refers to CC § 1781 [Consumer's class action; conditions; notices; judgment] which is not applicable in this case.

CarMax relies on Plaintiff having sent a CC § 1782(a) notification letter to CarMax on December 13, 2021, and on the allegations of the first amended complaint that '[l]icense plates were eventually provided to Plaintiff in December 2021' [FAC ¶ 13] and 'Plaintiff ultimately recovered the Subject Vehicle in January 2022' [FAC ¶ 14]. CarMax argues that, because CarMax timely remedied the alleged CLRA violation(s) in Plaintiff's CC § 1782(a) notice, Plaintiff's CLRA cause of action is barred by CC § 1782(b).

However, the CC § 1782(a) notice that CarMax relies on is not before the court. The notice is not attached as an exhibit to Plaintiff's first amended complaint, and CarMax neither seeks judicial notice of Calendar No.: Event ID:  TENTATIVE RULINGS

2955994  6 CASE NUMBER: CASE TITLE:  MCGILL VS CARMAX AUTO SUPERSTORES INC [IMAGED]  37-2022-00029877-CU-BT-CTL the notice nor provides grounds for judicial notice of the CC § 1782(a) notice. Without Plaintiff's CC § 1782(a) notice properly before the court, there is no basis for a finding that Plaintiff's claims are barred by CC § 1782(b). Also, even if the notice were properly before the court, resolution of the issue of whether CarMax timely remedied the alleged CLRA violation(s) involves factual issues not properly resolved on demurrer.

In light of this ruling the court does not reach the other issues CarMax raises, including those related to injunctive relief.

Motion to Strike Defendant CarMax's motion to strike portions of Plaintiff's first amended complaint is DENIED.

Attorney's Fees. CarMax's motion is premised on the failure to the Consumer Legal Remedies Act (CLRA) cause of action. For the reasons set forth in this court's ruling on CarMax's demurrer to Plaintiff's first amended complaint, the CLRA cause of action remains viable. CC § 1780(e) allows for the award of attorney's fees to a prevailing plaintiff in a CLRA cause of action.

Punitive Damages. The CLRA cause of action remains viable and allows for the imposition of punitive damages. CC § 1780(a)(4). The concealment cause of action also remains viable. A finding of fraud based on concealment will support the award of punitive damages. CC § 3294. As to the other issue CarMax raises, the court finds the allegations sufficient to support the award of punitive damages against corporate employer CarMax [FAC ¶ 40] based on the criteria of CC § 3294(b). The further specificity CarMax seeks is more properly the subject of discovery. See, Committee On Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197. See also, Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.

CarMax shall answer within 10 days of this ruling.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Calendar No.: Event ID:  TENTATIVE RULINGS

2955994  6