Judge: Kevin C. Brazile, Case: 22STCV18021, Date: 2023-03-15 Tentative Ruling

Case Number: 22STCV18021    Hearing Date: March 15, 2023    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Hearing Date:                         Wednesday, March 15, 2023

Case Name:                            Jazmyn Martinez v. American Honda Motor Co., Inc.

Case No.:                                22STCV18021

Motion:                                  Demurrer with Motion to Strike

Moving Party:                         Defendant American Honda Motor Co., Inc.

Responding Party:                  Plaintiff Jazmyn Martinez

Notice:                                    OK

Ruling:                                    The Demurrer to the first, second, third, fourth, and sixth SUSTAINED with leave to amend.

                                                The Motion to Strike is GRANTED in part, DENIED in part, and MOOT in part.

Defendant to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

BACKGROUND

            On June 1, 2022, Plaintiff Jazmyn Martinez (“Plaintiff”) filed this lemon law action against Defendant American Honda Motor Co., Inc. (“Honda”/ “Defendant”). On November 22, 2022, Plaintiff filed a First Amended Complaint (“FAC”) alleging causes of action for violations of the Song-Beverly Act (1793.2(d), 1793.2(b), 1793.2(a)(3)), breach of implied warranty of merchantability, violation of Consumer Legal Remedies Act, and violation of the Magnuson-Moss Warranty Act.

            On December 22, 2022, Honda filed a demurrer to the FAC arguing that the first, second, third, and fourth causes of action fail to state facts sufficient to constitute a cause of action because the Subject Vehicle is used and Plaintiff fails to plead how it qualifies as a “new motor vehicle” such that is qualifies under the Song-Beverly Act. Honda argues that the sixth cause of action fails because Plaintiff fails to allege a state law warranty claim under the Song-Beverly Act.

DISCUSSION

Applicable Law

            When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)  “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. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.)  It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.”  (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.) 

Application to Facts

Request for Judicial Notice

            Plaintiff requests that the Court take judicial notice of (1) the legislative history for the 2007 addition of section 1795.8 of the California Civil Code, and (2) the ruling in Sobita Dhital v. Nissan North America, Inc. No. A162817, 2022 WL 14772909 (Cal. Ct. App. Oct. 26, 2022).  The unopposed request is granted, pursuant to Evidence Code sections 452 and 453. 

First, Second, Third, and Fourth Causes of Action: Song-Beverly Act

            The first, second, and third causes of action all arise under the Song-Beverly Act (the “Act”).  Honda demurs to these causes of action stating that Plaintiff fails to allege that the Subject Vehicle was a “new motor vehicle” for purposes of the Act.

            Under the Song-Beverly Act (“the Act”), remedies are available for the buyers of “new motor vehicles,” which includes “a dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer’s new car warranty.” (Civ. Code § 1793.2(e)(2)). If a new motor vehicle does not conform to the warranty, “the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer.” (Civ. Code § 1793.2(d)(1)).¿¿ 

            Honda argues that, pursuant to Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, 221, in order to state a cause of action under the Act for violation of the refund-or-replace provision, a plaintiff must plead facts demonstrating that the vehicle purchased is a “new motor vehicle.” Honda argues that Plaintiff’s claims fail because Plaintiff does not establish that the subject vehicle was a “new motor vehicle.”

In Rodriguez, a 2022 Court of Appeals decision, the plaintiff purchased a two-year old vehicle with over 55,000 miles on it from a used car dealership. (Rodriguez, supra, 77 Cal.App.5th at 215.) The vehicle was originally sold with a five-year/100,000 mile limited powertrain warranty. (Ibid.) However, when plaintiff brought a claim under the Act, the Court of Appeals found that plaintiff’s vehicle did not fit into the narrow category of “new motor vehicle,” despite having a remaining balance on the warranty. (Id. at 220-222.) The court stated that the phrase “other motor vehicle sold with a manufacturer’s new car warranty” refers to “vehicles that have never been previously sold to a consumer and come with full express warranties” and not situations where the warranty arose from the initial sale and plaintiff only purchased the vehicle with a balance remaining on the warranty.  (Id. at 220-221.)   

The California Supreme Court has granted review of Rodriguez and, when doing so, stated that the Court of Appeal opinion “may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court [citation], to choose between sides of any such conflict.”

In contrast, the court in Jensen v. BMW of North America, Inc. (1995) 5 Cal.App.4th 112, held that a used vehicle sold with a remaining balance on the manufacturer’s warranty constituted a “new motor vehicle” under the Act when the vehicle was leased by a manufacturer-affiliated dealer who issued a full new car warranty along with the lease. (Jensen, supra 5 Cal.App.4th at 119.) Courts have stated that Jensen applies to a distinct set of facts. Rodriguez distinguished Jensen by focusing on the granting of a full, new express warranty. (Rodriguez, supra 77 Cal.Ap.5th at 223.)

Here, the FAC only alleges that “On or about July 28, 2020, Plaintiff entered into a warranty contract with Defendant regarding a 2018 Honda Accord vehicle…which was manufactured and or distributed by Defendant.” (FAC ¶ 7.) Honda argues that, because the FAC does not state how much warranty was left on the Vehicle, whether the Vehicle was a dealer demonstrator, or whether the Vehicle was sold with a new warranty that the FAC cannot state a claim under the Act because she does not allege how her Vehicle qualifies as a “new motor vehicle” under the Act.

Here, the Court does not have to determine if either Rodriguez or Jensen applies because the FAC offers no facts showing that the Vehicle is a “new motor vehicle” under Civ. Code § 1793.2(e)(2) as defined by either Rodriguez or Jensen. As the 2018 vehicle was purchased in 2020, it is clearly not “new” under the plain language of the statute. Nor does the complaint allege that the vehicle is dealer-owned, a ‘demonstrator,’ or a motor vehicle sold with a manufacturer’s new car warranty. The complaint does not allege that the vehicle was never owned by a consumer, as in Rodriguez, or that, if the vehicle was previously owned, then Plaintiff was given a full, new express warranty, as in Jensen. Instead, the Complaint simply alleges that a vague written warranty was entered into and breached. These conclusory allegations do not sufficiently indicate that the “refund or replace” provisions apply.

Defendant’s demurrer to the first, second, third, and fourth causes of action is sustained.

Sixth Cause of Action: Magnuson-Moss Warranty Act

            Honda argues that because Plaintiff fails to state a warranty claim under state law, this necessarily constitutes a failure to state a claim under Magnuson-Moss, citing to Daugherty v. American Honda Motor Co. Inc. (2006) 144 Cal.App.4th 824, 833.

            Plaintiff does not dispute this argument.

            Thus, the demurrer to the sixth cause of action is sustained.

            Leave to Amend

It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)  Here, it is not clear that Plaintiff is incapable of alleging facts that would indicate that Plaintiff could make a claim under the Song-Beverly Act. Therefore, the demurrer to the first, second, third, and fourth causes of action are SUSTAINED with leave to amend.

            Motion to Strike

            The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike 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. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)¿¿¿¿¿

Defendant moves to strike various paragraphs alleging that Honda had a duty to repurchase the Vehicle under the Song-Beverly Act because Plaintiff’s Vehicle is not a “new motor vehicle” under the Act, and thus is not subject to these duties. As the demurrer to the first, second, third, fourth, and sixth causes of action was sustained, the motion to strike Paragraphs 15, 17, 18, 19, 20, 22 is MOOT.

            Defendant moves to strike Paragraph 23 (page 4, line 18) because the class action tolling provision is not relevant to Plaintiff’s FAC. Plaintiff does not dispute this argument. Thus, the motion to strike as to Paragraph 23, page 4, lines 12-13 is GRANTED.

            Defendant moves to strike the prayers for punitive damages because Plaintiff has not plead fraud, malice, or oppression under Civil Code section 3294. As the demurrer was sustained as to the first, second, third, and fourth causes of action, the motion to strike is MOOT as to Paragraphs 32, 39, 42, Page 13, lines 20-21, and Page 14, lines 2-5(f). However, the fifth cause of action contains sufficient allegations that Defendant “concealed and failed to disclose the defective nature of the Vehicle.” (See FAC ¶¶ 54-60.) Thus, the motion to strike the punitive damages allegations and the duty allegations are proper. The motion to strike as to Paragraphs 58, 59, and Page 13, line 22(d) is DENIED.

CONCLUSION

            The Demurrer to the first, second, third, fourth, and sixth SUSTAINED with leave to amend.

            The Motion to Strike is GRANTED in part, DENIED in part, and MOOT in part.

            Defendant to give notice.

            If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.