Judge Lee W. Tsao, Case Number: 23NWCV00472, Date: 2023-11-14 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00472, Date: 2023-11-14 Tentative Ruling

Case Number: 23NWCV00472 Hearing Date: November 29, 2023 Dept: C

GONZALEZ vs HYUNDAI MOTOR AMERICA

CASE NO.: 23NWCV00472

HEARING: 11/29/23 @ 10:30 AM

Defendant’s Motion to Strike is GRANTED in part and DENIED in part with leave to amend.

Moving Party to give NOTICE.

Defendant Hyundai Motor America (Defendant) moves for an order striking Paragraphs 53 and 57 of Plaintiff’s Complaint.

Background

On August 29, 2020, Plaintiff Eric Gonzales entered into a Retail Installment Sales Contract (RISC) to finance his purchase of a 2020 Hyundai Elantra from Norm Reeves Hyundai Superstore (Dealership). Plaintiff contends that the vehicle was defective and attempts to repair the vehicle failed to cure the defects. On February 14, 2023, Plaintiff filed a Complaint against Defendant alleging: (1) breach of express warranty; (2) breach of implied warranty of merchantability; and (3) violation of the Song-Beverly Act Section 1793.2(b).

Legal Standard

Motions to strike are used to reach defects or objections to pleadings which are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (CCP §§ 435, 436 & 437.) A motion to strike lies only where the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (CCP § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (CCP § 437.)

Discussion

Here, Defendant seeks to strike Paragraphs 53 and 57 from Plaintiff’s Third Cause of Action for Violation of the Civil Code § 1793.2(b). Plaintiff alleges that Defendant violated Civil Code § 1793.2(b) for failing to service or repair his vehicle to conform with the warranty within 30 days after being delivered for service. Plaintiff seeks replacement or reimbursement (¶ 53) and civil penalties (¶ 57). Defendant also seeks to strike Plaintiff’s claim for diminution of value in Plaintiff’s Prayer for Relief Paragraph 3.

Defendant argues that replacement and reimbursement are not an available remedy for violation of Civil Code § 1793.2(b). “Gavaldon contends that [Civil Code § 1794] subdivision (b) signifies that anyone injured under subdivision (a) may obtain the replacement/restitution remedy. But the statute on its face does not so read. The right to replacement or restitution is qualified by the phrase ‘as set forth in subdivision (d) of section 1793.2.’ It is most reasonable to assume that this qualification means that the remedy is subject to the provisions set forth in section 1793.2, subdivision (d) (section 1793.2(d)), otherwise the reference to section 1793.2(d) would be superfluous.” (Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246.) Thus, replacement and reimbursement are not available remedies for violations of Civil Code § 1793.2(b). Plaintiff argues that he is entitled to replacement or reimbursement under separate causes of action, however, Plaintiff has alleged reimbursement and replacement under his First and Second Causes of Action. Thus, the Court concludes that Paragraph 53 relates to Plaintiff’s Third Cause of Action. Thus, Defendant’s Motion to Strike Paragraph 53 is granted.

Defendant argues that civil penalties are not an available remedy for violation of Civil Code § 1793.2(b). “If the buyer establishes that the failure to comply was willful, the judgment may include … a civil penalty ….” (Civil Code § 1794(c).) Defendant argues that the phrase “the failure” must refer to a claim in 1794(b). However, it is evident that the failure refers to subdivision (a) which provides “[a]ny buyer of a consumer goods who is damaged by a failure to comply with any obligation under this chapter ….” (Civil Code § 1794(a).) Thus, Defendant’s Motion to Strike Paragraph 57 is denied.

Defendant argues that diminution of value is not a remedy to violation of Civil Code § 1793.2(b). Civil Code § 1794(b)(2) allows for recovery of diminution in value pursuant to Commercial Code § 2714(2) which provides “[t]he 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 ….” Thus, the claim for diminution of value is set at the time of purchase and, thus, is improper for a claim for delayed repair under Civil Code § 1793.2(b). However, Defendant’s Motion is limited as to a claim for diminution as to Plaintiff’s Third Cause of Action only. Thus, Defendant’s Motion to Strike Plaintiff’s prayer for damages as to diminution of value is granted as to Plaintiff’s Third Cause of Action only.

Plaintiff’s request for leave to amend is granted because Plaintiff has not yet amended his Complaint.

Accordingly, Defendant’s Motion to Strike is GRANTED in part and DENIED in part as set forth above with leave to amend. Paragraph 53 is struck from the Complaint and Plaintiff’s claim for diminution of value is struck as to Plaintiff’s Third Cause of Action only. Plaintiff is granted 30 days leave to amend.