Judge Ralph C. Hofer, Case Number: 23GDCV01397, Date: 2023-09-08 Tentative Ruling

Plaintiff Jimmy Hwang alleges that in January of 2017, plaintiff purchased a 2017 Hyundai Sonata Hybrid vehicle which was manufactured or distributed by defendant Hyundai Motor America. Plaintiff alleges that in connection with the purchase, plaintiff received an express written warranty in which defendant undertook to preserve of maintain the utility or performance of the vehicle or to provide compensation if there is a failure in utility or performance.

After plaintiff took possession of the vehicle, and during the warranty period, the vehicle contained or developed defects which substantially impair the use, safety and/or value of the vehicle, including defects in the engine system, hybrid warning system, as well as noise, vibration and harshness relating to a rattle like noise during cold-starts. Plaintiff alleges that plaintiff provided defendant and its representatives sufficient opportunity to service or repair the vehicle, but defendant and its representatives were unable or failed to service or repair the vehicle within a reasonable number of repair attempts. Plaintiff alleges that despite this fact, defendant has failed to promptly replace the vehicle or make restitution to plaintiff.

The opposition argues that defendant failed to meet and confer in advance of filing its motion to strike. CCP § 435.5 requires that before filing a motion to strike, the moving party must meet and confer:

“(a) Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.

(1) As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.

(2) The parties shall meet and confer at least five days before the date a motion to strike must be filed. If the parties are unable to meet and confer at least five days before the date the motion to strike must be filed, the moving party shall be granted an automatic 30-day extension of time within which to file a motion to strike, by filing and serving, on or before the date a motion to strike must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the motion to strike was previously due, and the moving party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

(A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion to strike, and that the parties did not reach an agreement resolving the objections raised by the motion to strike.

(B) That the party who filed the pleading subject to the motion to strike failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.

The motion is supported by a declaration of counsel for defendant stating, “I reached out to Plaintiff’s counsel via email on June 14, 2023 to meet and confer regarding the deficiencies in the Complaint as outlined in HMA’s Motion to Strike.” [Bassi Decl., para. 2]. No email is attached to the declaration.

It appears that appropriate meet and confer did not take place prior to the filing of the motion. The Court expects counsel to meet and confer concerning the issues raised by the motion prior to the matter being called for hearing, and for defendant’s counsel to submit via eCourt a declaration describing the meet and confer as required under CCP § 435.5(a)(3). The matter will not be heard until the court is satisfied that the parties have met and conferred.

Under CCP section 435, a party may serve and file a motion to strike a part of a pleading. Upon such a motion, a court may “strike out any irrelevant, false, or improper matter inserted in any pleading.” CCP sec. 436(a). In general, allegations made in support of a claim for damages that are not recoverable should be discarded and treated as excess. Stafford v. Schultz (1954) 42 Cal.2d 767, 782.

Defendant Hyundai Motor America (Hyundai) seeks in the notice of its motion an order striking paragraph 29 of the complaint and the prayer for relief insofar as it relates to the second and third causes of action, on the basis that the applicable law does not allow for recovery of the entire purchase price or diminution in value for violations of Civil Code section 1793.2(b) and 1793.2(a)(3).

“29. Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the Vehicle and has exercised a right to cancel the sale. By serving this Complaint, Plaintiff does so again. Accordingly, Plaintiff seeks the remedies provided in California Civil Code section 1794(b)(1), including the entire purchase price. In the alternative, Plaintiff seeks the remedies set forth in California Civil Code section 1794(b)(2), including the diminution in value of the Vehicle resulting from its defects. Plaintiff believes that, at the present time, the Vehicle’s value is de minimis.”

It is not clear which portion of the prayer defendant seeks to strike, as the prayer does not expressly seek the purchase price or diminution in value, but, at best, seeks, “restitution” and “any consequential and incidental damages.” [Prayer, paras. b, d].

“(a) Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.

(b) The measure of the buyer's damages in an action under this section shall include the rights of replacement or reimbursement as set forth in subdivision (d) of Section 1793.2, and the following:

(1) Where the buyer has rightfully rejected or justifiably revoked acceptance of the goods or has exercised any right to cancel the sale, Sections 2711, 2712, and 2713 of the Commercial Code shall apply.

(2) Where the buyer has accepted the goods, Sections 2714 and 2715 of the Commercial Code shall apply, and the measure of damages shall include the cost of repairs necessary to make the goods conform.”

“Where… the buyer…justifiably revokes acceptance then with respect to any goods involved…, the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid,”

This statute expressly permits the recovery of “so much of the price as has been paid,” which here is appropriately alleged as the purchase price. Moreover, Civil Code section 1793.2 itself provides that if the goods cannot be repaired to conform to warranty, the manufacturer “shall either replace” the goods or “reimburse the buyer in an amount equal to the purchase price paid by the buyer…” Civil Code section 1793.2 (e)(1). The motion to strike this language is denied.

“(1) Where the buyer has accepted goods and given notification (subdivision (3) of Section 2607) he or she may recover, as damages for any nonconformity of tender, the loss resulting in the ordinary course of events from the seller's breach as determined in any manner that is reasonable.

(2) The 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, unless special circumstances show proximate damages of a different amount.

The remedy of diminution in value properly seeks the difference between the value of the goods accepted and the value they would have had if they had been as warranted, or consequential damages. The damages are properly alleged, and the motion to strike is denied on this ground.

The paragraph is not stated expressly in connection with the third cause of action for Violation of Subdivision (a)(3) of Civil Code section 1793.2 but incorporated by reference. [Complaint, para. 31]. In any case, as discussed above, the paragraph relies on remedies allowed under Civil Code section 1794 (b), which provides such remedies to “Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter…” Section 1793.2 (a)(3) sets forth an obligation under the chapter. The damages are appropriately sought, and the paragraph is not stricken.

The motion primarily argues that repurchase or restitution is not available where there is a delay in repairing a nonconformity that did not substantially impair the vehicle’s use, value, or safety. However, the Complaint clearly alleges that the defects substantially impair the use, safety, and/or value of the vehicle. [Complaint, paras. 11, 16]. For purposes of ruling on a motion to strike, the allegations of the pleading are assumed to be true. Clauson v. Superior Court (1998 2nd Dist.) 67 Cal.App.4th 1253, 1255. Whether the defects meet this standard will be a matter for resolution by the trier of fact and is not the proper subject of a motion to strike. The motion also argues that diminution in value damages are limited by the statute, and are not sufficiently specifically alleged. The allegation is sufficiently specifically alleged by reference to a specific statutory provision within the Civil Code. The motion to strike is denied.

“(a) Contents of notice A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense.”

In addition, a review of the prayer shows that it seeks relief in general, not directed at specific causes of action, and that it appears to seek appropriate relief in each paragraph with respect to one or more of the preceding causes of action. The motion to strike the prayer is denied.

The opposition indicates that there was no proper meet and confer conducted prior to the filing of this motion. The parties are ordered to engage in the required meet and confer required under CCP § 435.5 prior to the motion being called for hearing, and defendant is ordered to submit the required declaration reporting the meet and confer before the Court will hear the motion.

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers free audio and video appearances. However, ADVANCE REGISTRATION IS REQUIRED.