Judge: Melvin D. Sandvig, Case: 23CHCV03526, Date: 2024-03-13 Tentative Ruling

Case Number: 23CHCV03526    Hearing Date: March 13, 2024    Dept: F47

Dept. F47

Date: 3/13/24

Case #23CHCV03526

 

DEMURRER & MOTION TO STRIKE TO THE ORIGINAL COMPLAINT

 

Demurrer & Motion to Strike filed on 12/18/23.

 

MOVING PARTY: Defendant General Motors LLC

RESPONDING PARTY: Plaintiff Elya Braden

NOTICE: ok

 

Demurrer is to the 4th and 5th causes of action:

            1.  Violation of Song-Beverly Act – Breach of Express Warranty

            2.  Violation of Song-Beverly Act – Breach of Implied Warranty

            3.  Violation of Song-Beverly Act – Civil Code 1793.2

            4.  Fraud

            5.  Violation of Business & Professions Code 17200

            6.  Negligent Repair

 

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking the prayer for punitive damages (Prayer, Item f, p.20:24).

 

RULING: The demurrer and motion to strike are placed off calendar. 

 

This action arises from Plaintiff Elya Braden’s (Plaintiff) purchase of a 2020 Chevrolet Bolt (the Vehicle).  On 11/17/23, Plaintiff filed this action against Defendant General Motors LLC (General Motors) and Defendant Paradise Chevrolet for: (1) Violation of Song-Beverly Act – Breach of Express Warranty; (2) Violation of Song-Beverly Act – Breach of Implied Warranty; (3) Violation of Song-Beverly Act – Civil Code 1793.2; (4) Fraud; (5) Violation of Business & Professions Code 17200 and (6) Negligent Repair. 

 

After meet and confer efforts failed to resolve the issues General Motors had with Plaintiff’s complaint, on 12/18/23, General Motors filed and served the instant demurrer to the 4th and 5th causes of action and motion to strike the prayer for punitive damages.  Plaintiff did not oppose the demurrer or motion to strike; however, on 3/1/24, 8 court days before the hearing, Plaintiff filed a First Amended Complaint which was served on defendants on 2/29/24, 9 court days before the hearing.     

 

CCP 472(a) provides:

 

“A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.”

 

Oppositions to the demurrer and motion to strike were due to be filed and served on or before 2/29/24, 9 court days before the 3/13/24 hearing date. 

 

Since the First Amended Complaint was served 9 court days before the hearing date, defendants, including General Motors, were not prejudiced by the filing one day late on 3/1/24.  As such, the Court finds the demurrer and motion to strike to be moot due to the filing and service of the First Amended Complaint.