Judge Nathan R. Scott, Case Del Real v. Kia Motors America 2022-10-14 Tentative Ruling

Judge: Nathan R. Scott, Case: Del Real v. Kia Motors America, Date: 2022-10-14 Tentative Ruling

Case Management Conference

The CMC is vacated.

Motion for Judgment on the Pleadings

Defendant Kia Motors America Inc.’s motion for judgment on the pleadings is granted without leave to amend. (See Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).)

3^rd cause of action, Song-Beverly Act.

This cause of action remains time-barred on its face. (See 9/27/21 order.)

The SAC addresses the discovery rule only with conclusions, not allegations of fact. (See SAC ¶¶ 69-72).

Class action tolling does not help plaintiff as the Wallis case was dismissed 11/7/16. (See SAC ¶¶ 69-70, 76.)

The SAC fails to allege facts showing the circumstances under which the alleged fraudulent concealment was discovered or facts showing “plaintiff was not at fault for failing to discover it or had no actual or presumptive knowledge of facts sufficient to put [her] on inquiry.” (Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 900; see SAC ¶¶ 9, 69, 70, 76 105.)

The SAC does not allege any promises to repair the alleged defects. (See Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 372 [repair doctrine]; see also SAC ¶¶ 11, 15 [alleging defects in the “powertrain system”, “transmission,” and “Theta II” engine increasing susceptibility to seizure, including “a propensity for excessive connecting rod bearing damage”], 17-20 [alleging repairs].) Even as to the 10/13/17 repair, no facts are alleged as to when defendant promised to make repairs, attempted to make repairs, or the appropriate tolling period. (See Lantzy, supra, 31 Cal.4th at p. 372; see also SAC ¶ 18 [steering repairs].)

As for equitable estoppel/tolling, the SAC also fails to allege facts showing plaintiff could not have discovered the facts giving rise to these claims earlier despite reasonable diligence, or that plaintiff refrained from filing suit in reasonable reliance on defendant’s alleged conduct. (Estate of Bonzi (2013) 216 Cal.App.4th 1085, 1106 [equitable estoppel]; Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641 [plaintiff must “specifically plead facts” showing equitable tolling or estoppel]; see also SAC ¶¶ 69-72.)

5th/6th causes of action, breach of implied warranty /fraudulent concealment. For the same reasons, these cause of action also remains time-barred on their faces.

Plaintiff has not opposed the motion, let alone shown how the defects can be cured by amendment. (See Baughman v. State of California (1995) 38 Cal.App.4th 182, 187 [plaintiff’s burden].)

Defendant shall give notice.