Judge Loren G. Freestone, Case Number: 37-2023-00010449-CU-BC-CTL, Date: 2024-06-21 Tentative Ruling

Judge: Loren G. Freestone, Case: 37-2023-00010449-CU-BC-CTL, Date: 2024-06-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 20, 2024

06/21/2024 10:30:00 AM C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2023-00010449-CU-BC-CTL AQUINO VS FORD MOTOR COMPANY [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendants Ford Motor Company (Ford) and North County Ford Vista (NCFV)'s motion for judgment on the pleadings as to the complaint filed by Plaintiff Trinh Aquino is GRANTED IN PART and DENIED IN PART.

Breach of Implied Warranty Aquino's fourth cause of action is for breach of the implied warranty of merchantability under the Song-Beverly Consumer Warranty Act. It is alleged against Ford.

Ford moves for judgment on the pleadings on the ground the claim is barred by the statute of limitations.

To successfully assert a statute of limitations defense by way of a pleading challenge, 'the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.' (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232.) The statute of limitations for breach of the implied warranty is four years. (Mexia v. Rinker Boat Co. (2009) 174 Cal.App.4th 1297, 1306.) The cause of action accrues, and the statute of limitations begins to run, 'at the earliest, upon tender of delivery.' (Ibid.) However, the duration of implied warranties under Song-Beverly is up to one year. (See Mexia, supra, 174 Cal.App.4th at p. 1304, 1309.) 'To say that a warranty exists is to say that a cause of action can arise for its breach. Defining the time period during which the implied warranty exists, therefore, also defines the time period during which the warranty can be breached. Thus, by giving the implied warranty a limited prospective existence beyond the time of delivery, the Legislature created the possibility that the implied warranty could be breached after delivery. . . . [T]his is a change from the Uniform Commercial Code, under which the implied warranty could be breached only at the time of delivery.' (Id. at p. 1309.) As such, a consumer potentially has up to five years after delivery to file a claim for breach of the implied warranty under Song-Beverly. However, Emergency Rule 9 tolled the statute of limitations from April 6, 2020 until October 1, 2020, thus adding an additional 178 days. (See Roe v. Doe (2023) 98 Cal.App.5th 965, 973; LaCour v. Marshalls of California, LLC (2023) 94 Cal.App.5th 1172, 1184–1189.) Calendar No.: Event ID: TENTATIVE RULINGS

3088650 38 CASE NUMBER: CASE TITLE: AQUINO VS FORD MOTOR COMPANY [IMAGED] 37-2023-00010449-CU-BC-CTL Here, Aquino allegedly purchased the subject vehicle on November 22, 2017. The complaint was filed on March 13, 2023. The complaint was therefore filed 5 years and 111 days after delivery of the vehicle.

As Aquino potentially had up to 5 years and 178 days after delivery to file suit (depending on the date of the breach, which is not alleged), it is not clear from the face of the complaint that the claim is barred by the statute of limitations.

As the claim is timely with the benefit of Emergency Rule 9, it is unnecessary to address the parties' arguments regarding other potential grounds for tolling the statute of limitations.

It is not clear from the face of the complaint that the implied warranty claim is untimely. The motion for judgment on the pleadings as to the fourth cause of action is therefore denied.

Negligent Repair Aquino's fifth cause of action is for negligent repair. It is alleged against NCFV.

NCFV moves for judgment on the pleadings on the ground the claim is barred by the economic loss rule.

The economic loss rule generally provides that 'there is no recovery in tort for negligently inflected 'purely economic losses,' meaning financial harm unaccompanied by physical or property damage.' (Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 922.) 'The economic loss rule has been applied in various contexts.' (Ibid.) In one reoccurring set of circumstances, 'the rule functions to bar claims in negligence for pure economic losses in deference to a contract between litigating parties.' (Sheen, supra, 12 Cal.5th at p. 922.) 'Because it involves parties who are in contractual privity, this strand of the economic loss rule is sometimes referred to as the 'contractual economic loss rule,' 'contractual rule,' or 'consensual paradigm.'' (Id. at p. 923.) 'Not all tort claims for monetary losses between contractual parties are barred by the economic loss rule. But such claims are barred when they arise from-or are not independent of-the parties' underlying contracts.' (Ibid.) In the lemon law context specifically, Mega RV Corp. v. HWH Corp. (2014) 225 Cal.App.4th 1318 is instructive.

In Mega RV, the plaintiffs (the Ertzes) purchased an allegedly defective Country Coach motor home.

After an authorized warranty repair center (Mega RV) unsuccessfully attempted to repair the motor home, the Ertzes sued both Country Coach and Mega RV under Song-Beverly. Mega RV then cross-complained against the manufacturer of the allegedly defective component parts (HWH) for indemnity. HWH responded with its own cross-complaint for equitable indemnity. HWH's cross-complaint alleged that Mega RV was 'negligent in the way [it] . . . diagnosed the causes and conditions in the motor home, and effectuated and failed to effectuate repairs to the motor home.' The trial court entered judgment in favor of HWH on its cross-complaint pursuant to the tort of another rule, 'based on Mega RV's negligence with regard to a service that it performed on the motor home owned by the plaintiffs.' On appeal, HWH defended the judgment 'on the notion that Mega RV (the 'other' party) was negligent (the 'tort') in its servicing of the Ertzes' motor home, thereby causing HWH to incur damages (its attorney fees in [the] action).' The court of appeal rejected HWH's position 'as a matter of law because there was no tort in [the] case.' The court explained, in pertinent part: 'There was no tort committed by any defendant vis-à-vis the Ertzes. The Ertzes never sued Mega RV or any other party for negligence (or any other tort), and never alleged they suffered any personal injury or damages to other property (besides the portions of the motor home that were alleged to be defective) as a result of the alleged defects in the motor home. It appears doubtful that a cause of action could be stated in tort under these circumstances, as a claim based on negligence or even strict liability will not lie where the wrong resulted only in economic loss rather than actual damage to person or property. . . . HWH's pleading of the case as one sounding in tort for purposes of indemnity did not Calendar No.: Event ID: TENTATIVE RULINGS

3088650 38 CASE NUMBER: CASE TITLE: AQUINO VS FORD MOTOR COMPANY [IMAGED] 37-2023-00010449-CU-BC-CTL change the essential nature of this warranty dispute.' (Mega RV, supra, 225 Cal.App.4th at p. 1338.) Here, unlike Mega RV, Aquino is attempting to sue NCFV for negligence. But as Mega RV makes clear would have been the case had the Ertzes attempted to sue Mega RV in tort, such a claim is not viable under the circumstances. The repairs are not independent of the contract (i.e., the warranty), but rather arise from it. And whereas Aquino alleges that NCFV's negligent repairs were 'a proximate cause of Plaintiff's damages,' the only damages alleged in the complaint are economic (e.g., the difference in value between a non-defective vehicle and the still allegedly defective vehicle). The economic loss rule thus bars this claim.

Aquino relies on Jimenez v. Superior Court (2002) 29 Cal.4th 473 for the proposition that 'the economic loss rule does not necessarily bar recovery in tort for damage that a defective product (e.g., a window) causes to other portions of a larger product (e.g., a house) into which the former has been incorporated.' (Id. at p. 483.) Aquino argues that the complaint 'does not affirmatively disclose that the damages are only economic losses such as prospective economic advantage, and not other damages such as property damage (i.e., to the car itself).' But as was the case in Mega RV, Aquino does not allege any such damage to the vehicle itself. (See Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578 ['Doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist'].) As currently pled, the negligent repair cause of action is barred by the economic loss rule. The motion for judgment on the pleadings as to the third cause of action is therefore granted.

Conclusion The motion for judgment on the pleadings as to the fourth cause of action is denied.

The motion for judgment on the pleadings as to the fifth cause of action is granted.

Aquino requested leave to amend but did not proffer any new facts. As such, the court will hear as to what additional facts Aquino can allege, and how those facts may impact the application of the economic loss rule.

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