Judge: Nick A. Dourbetas, Case: 22-01294864, Date: 2023-08-11 Tentative Ruling
1. Demurrer to Amended Complaint
2. Motion to Strike Portions of Complaint
3. Motion to Compel Deposition (Oral or Written)
4. Motion to Compel Deposition (Oral or Written)
Defendant Kia Motors America, Inc.’s Demurrer to the First Amended Complaint (“FAC”) is SUSTAINED, without leave to amend. (See Code Civ. Proc., § 430.10, subd. (e).)
The fifth cause of action for breach of implied warranty of merchantability and sixth cause of action for fraud by omission appear time-barred on their face. (See Cal. U. Com. Code, § 2725 [four-year statute of limitations]; Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 215 (Krieger) [section 2725 applies to claims for breach of warranty under the Song-Beverly Act]; Code Civ. Proc., § 388, subd. (d) [three-year statute of limitations for fraud]; see also FAC ¶ 6 [plaintiffs purchased the subject vehicle on 2/17/14], 107-114 [sixth cause of action based on fraud occurring at the time of purchase].)
As an initial matter, the implied warranty of merchantability under the Song-Beverly Act (unlike the implied warranted of merchantability under the UCC) explicitly extends to future performance. Thus, the delayed discovery exception under Commercial Code section 2725(2) applies to a claim for breach of the implied warranty of merchantability brought under Song-Beverly Act. (See Cal. U. Com. Code, § 2725, subd. (2); Civ. Code, § 1791.1, subd. (c) [“The duration of the implied warranty of merchantability ... shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer.”]; see also Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304 [“One innovation of the Song-Beverly Act is an express provision for a duration of the implied warranty of merchantability.”]; id. at pp. 1309-1311 & fn. 10; Krieger, supra, 34 Cal.App.3d at p. 217 [an obligation to repair defects that occur during a future period is the very definition of a warranty of future performance].)
That said, the FAC does not allege sufficient facts in support of delayed discovery, with the requisite specificity. (See Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 803, 808 [elements of delayed discovery, requisite specificity].)
The FAC also fails to state sufficient facts in support of fraudulent concealment or the repair doctrine/equitable estoppel, with the requisite specificity. (See Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641 (Mills) [specificity]; Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 931 [fraudulent concealment, generally]; Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 900 [fraudulent concealment]; Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 133-134 [tolling during repairs generally rests on same legal basis as estoppel]; Estate of Bonzi (2013) 216 Cal.App.4th 1085, 1106 [equitable estoppel]; Mills, supra, 108 Cal.App.4th at p. 655 [same]; see also Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370, 383 [discussing generally, equitable tolling for repairs, equitable estoppel].)
Plaintiffs’ reliance on the class action tolling rule articulated in American Pipe & Construction Co. v. Utah (1974) 414 U.S. 538 (see FAC ¶¶ 72-75) also does not assist them because both of the alleged federal class actions (¶ 73) were filed after the applicable statutes of limitation had already run.
Defendant Kia Motors America, Inc.’s Motion to Strike Portions of the First Amended Complaint (“FAC”) is GRANTED, without leave to amend, as to the punitive damages allegations at paragraph 57, the request for punitive damages in the prayer, and the quoted portions of paragraphs 13, 20-31, 33-41, 46-53 in defendant’s notice of motion at pages 3-13; and is otherwise DENIED.
Punitive damages. The motion is granted as to paragraph 57 of the FAC, and item/paragraph (h) of the prayer for relief at page 25, line 1. Punitive damages are not an available remedy for Song-Beverly claims (see Civil Code, § 1794, subd. (c); see also Gomez v. Volkswagen of America, Inc. (1985) 169 Cal.App.3d 921, 928-929), and defendant has successfully demurred to the only cause of action (fraud) that can support punitive damages.
Civil penalties. The motion is denied as to paragraph 97. Contrary to defendant’s assertions, Civil Code section 1793.2, subdivision (d)(1) does not preclude civil penalties under a claim brought under Civ. Code, § 1793.2, subd. (a)(3). Plaintiff’s claim for statutory penalties is permissible under Civ. Code, § 1794, subds. (a), (c).
Irrelevant allegations. The motion is granted as to the “irrelevant” allegations located in the quoted portions of paragraphs 13, 20-31, 33-41, 46-53 in defendant’s notice of motion at pages 3-13. These allegations are immaterial and irrelevant to plaintiffs’ claims, which arise out of plaintiffs’ purchase of a 2014 Kia Soul with a 1.6 liter engine. (See Code Civ. Proc., § 431.10, subd. (b)(1) [immaterial allegations include “[a]n allegation that is not essential to the statement of a claim or defense”]; see also FAC ¶¶ 6, 9.)
Defendant Kia Motors America, Inc.’s Motion to Compel Deposition of Plaintiff Yolanda S. Recancia is GRANTED.
The Court orders the parties to meet and confer and select a mutually convenient date for Plaintiff’s deposition to occur within the next 30 days.
The Court GRANTS Defendant’s request for monetary sanctions against Plaintiff and/or counsel of record in the amount of $400 to be paid within the next 30 days.
Defendant Kia Motors America, Inc.’s Motion to Compel Deposition of Plaintiff Vernon Recancia is GRANTED.
The Court orders the parties to meet and confer and select a mutually convenient date for Plaintiff’s deposition to occur within the next 30 days.
The Court GRANTS Defendant’s request for monetary sanctions against Plaintiff and/or counsel of record in the amount of $400 to be paid within the next 30 days.
Defendant shall give notice of all the above.