Judge: Ralph C. Hofer, Case: 24NNCV05317, Date: 2025-03-14 Tentative Ruling
Case Number: 24NNCV05317 Hearing Date: March 14, 2025 Dept: D
TENTATIVE RULING
Calendar: 11
Date: 3/14/2025
Case No: 24 NNCV05317 Trial Date: None Set
Case Name: Murphy v. Porsche Cars North America, Inc., et al.
DEMURRER
MOTION TO STRIKE
Moving Party: Defendant Porsche Cars North America, Inc.
Responding Party: Plaintiff Glen Murphy
RELIEF REQUESTED:
Sustain demurrer to second cause of action of First Amended Complaint
Strike punitive damages
CAUSES OF ACTION: from First Amended Complaint
1) Violation of the Song-Beverly Consumer Warranty Act
2) Violation of the Unruh Civil Rights Act
SUMMARY OF FACTS:
Plaintiff Glenn Murphy alleges that in February of 2023 plaintiff purchased a 2022 Porsche 911, which was warranted by defendants Porsche Cars North America, Inc. and Rusnak Pasadena Porsche, including an express warranty and an implied warranty of fitness.
Plaintiff alleges that the vehicle has suffered from nonconformities to warranty, including ignition lock error, electrical trunk, water leak, and other defects.
Plaintiff alleges that the defects and nonconformities to warranty manifested themselves within the applicable warranty periods. Plaintiff alleges that plaintiff delivered the vehicle to defendant’s authorized facility for repair of these nonconformities on numerous occasions, and that defendant has been unable or refused to conform the subject vehicle to the applicable express and implied warranties after a reasonable number of attempts. Plaintiff alleges that defendants each have an affirmative obligation under the Act to repurchase the vehicle and make restitution, but have intentionally refused to comply with their obligations.
Plaintiff also alleges that in November of 2023, when plaintiff retrieved the subject vehicle from defendant Rusnak Westlake Porsche (Rusnak) following a repair attempt regarding the ignition lock error, defendant Rusnak, acting as the agent, employee and authorized representative of defendant Porsche Cars North America, Inc., attributed the ignition lock error to plaintiff’s disability, which is a form of muscular dystrophy affecting plaintiff’s hands. Plaintiff alleges that Rusnak employee, Steve Ellis, knew the ignition lock error turned on before the vehicle was started or when the vehicle was driving, but nonetheless blamed plaintiff’s disability for the engine lock error. Plaintiff alleges that defendants made a distinction that denied plaintiff full and equal accommodations or services to plaintiff as defendants refused to make further efforts to fix the ignition lock error, with a substantial motivating reason for their conduct being in their perception of plaintiff’s medical condition. Plaintiff alleges that this conduct was a substantial factor in causing plaintiff’s harm, as the ignition lock error, electrical, trunk, water leak and other defects continued to manifest. Plaintiff alleges that the attribution of the defects to plaintiff’s medical condition was offensive and harmful.
The complaint alleges two causes of action, for Violation of the Song-Beverly Consumer Warranty Act and for Violation of the Unruh Civil Rights Act.
ANALYSIS:
Procedural
Untimely
Under CCP §436, the court may “upon motion made pursuant to Section 435, or at any time in its discretion” strike out “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court.”
Under CCP §435, a party may serve and file a notice of motion to strike “within the time allowed to respond to a pleading…”
Under CCP §430.40, the time permitted to demur to a complaint is “within 30 days after service of the complaint…”
CRC Rule 3.110(d) provides:
“The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.”
Here, the First Amended Complaint was served by personal service on November 14, 2024. Thirty days from this date would have been December 14, 2024. The file shows that defendant filed a Declaration of Demurring or Moving Party in Support of Automatic Extension on December 11, 2024, which would have extended the time to respond to January 13, 2025. The demurrer and motion to strike were filed and served on February 3, 2025, 21 days late.
The moving papers indicate that the parties stipulated to an extension to January 27, 2025, and then to February 4, 2025. [Wong Decl., paras. 3, 4]. This pleading is not the initial complaint, but the First Amended Complaint, so no stipulation is permitted without leave of court, and, in any case, the extension was beyond the 15-day extension permitted without leave of court. It does not appear leave of court was obtained in advance of the filing of the demurrer. The court would be warranted in overruling the demurrer and denying the motion to strike as untimely. The court will nevertheless consider the demurrer and motion to strike on their merits based on the stipulation of the parties, but all parties are cautioned that in the future the court may disregard pleadings not filed in conformity with the statutes, rules, and procedures governing this litigation.
Substantive
Demurrer
Second Cause of Action—Violation of California’s Unruh Civil Rights Act, Civil Code section 51, et seq. (Discrimination Based on Disability)
Defendant Porsche Cars North America, Inc. (Porsche) argues that the second cause of action for alleged violation of the Unruh Act is brought against both Porsche and defendant Rusnak Westlake Porsche (Rusnak), based on allegations that a Rusnak employee violated the Unruh Act by wrongfully attributing a defect in the vehicle to plaintiff’s muscular dystrophy and refusing to service the vehicle, but plaintiff fails to allege a facts which would support a conclusion that Porsche acted as the principal or otherwise controlled the conduct of the Rusnak employee.
The cause of action is based on the Unruh Civil Rights Act, Civil Code § 51(b), which provides:
“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services all business establishments of every kind whatsoever.”
The elements of a claim for discrimination have been set forth as follows:
“To prevail on a …discrimination claim under the Unruh Civil Rights Act, [a] plaintiff must establish that (1) [s]he was denied the full and equal accommodations, advantages, facilities, privileges, or services in a business establishment; (2) [her] [protected status] was a motivating factor for this denial; (3) defendants denied plaintiff the full and equal accommodations, advantages, facilities, privileges, or services; and (4) defendants' wrongful conduct caused plaintiff to suffer injury, damage, loss or harm.” Johnson v. Beahm, No. 2:11–cv–0294–MCE–JFM, 2011 WL 5508893, at *4 (E.D.Cal. Nov. 8, 2011) (citing California Civil Jury Instructions (BAJI), No. 7.92 (Spring 2009)).”
Wilkins-Jones v. County of Alameda (USDC N.D. Cal. 2012) 859 F.Supp.2d 1039, 1048.
Defendant Porsche argues that the only two allegations in the pleading connecting Porsche to Rusnak are boilerplate allegations of agency.
The FAC alleges in the General Allegations:
“Each of the defendants in this case acted as the principal, agent, employee or other authorized representative in relation to the other; all defendants acted at all times mentioned in this Complaint within the course and scope of their respective authority and with the full knowledge and consent of the other defendants. Furthermore, plaintiff is informed and believes, and thereon alleges, that all acts of corporate employees as hereinafter alleged were authorized or ratified by an officer, director or managing agent of the corporate employer.”
[FAC, para. 5].
The second cause of action alleges:
“RUSNAK WESTLAKE PORSCHE acted as the principal, agent, employee, and/or authorized representative of PORSCHE CARS NORTH AMERICA, INC.”
[FAC, para. 29].
Defendant argues that these conclusory allegations are not supported by facts, and may be appropriately disregarded so that the pleading both fails to state a claim against moving defendant and is uncertain.
Defendant argues that federal courts have generally determined that dealerships are not agents of manufacturers outside of warranty issues. Defendant relies on federal district court decisions, in which, for example, a federal district court granted a motion to dismiss ADA claims against car manufacturers because the amended complaint, filed by a pro se litigant, did not allege any facts suggesting that the manufacture defendants were owners, lessors, or operators of dealerships. Funches v. Barra (S.D.N.Y. 2016) 2016 WL 2939165, *3.
Plaintiff in opposition points out that in addition to the agency allegations set forth above, the FAC includes allegations, incorporated by reference into the second cause of action, which would further suggest that the basis of the Unruh Act claim arises from warranty issues, and that the moving papers concede there is a recognized relationship between the manufacturer and dealership in that context. The FAC alleges:
“15. Plaintiff delivered the aforementioned subject vehicle to an authorized PORSCHE CARS NORTH AMERICA, INC. service and repair facility for repair of the aforementioned nonconformities on numerous occasions.
16. Defendant has been unable and/or has refused to conform the subject vehicle to the applicable express and implied warranties under the Act after a reasonable number of attempts. Therefore, the aforementioned nonconformities substantially impair the use, value and/or safety of the subject vehicle to plaintiff.”
[FAC, paras. 15, 16].
Plaintiff argues that these allegations support a reasonable inference that the attempts to repair the vehicle, and conduct related to those repair attempts, were performed by a service facility acting under the direction of Porsche.
Plaintiff also relies on California state case law under which it is generally recognized that as to alleging agency at the pleading stage, “An allegation of agency is an allegation of ultimate fact that must be accepted as true for purposes of ruling on a demurrer.” City of Industry v. City of Filmore (2011) 198 Cal.App.4th 191, 212. The Second District in City of Industry, and plaintiff in the opposition here, both cite to Skopp v. Weaver (1976) 16 Cal.3d 432, in which the California Supreme Court observed: “We have already noted, however, that an allegation of agency as such is a statement of ultimate fact. Consequently further allegations explaining how this fact of agency originated become unnecessary.” Skopp, at 439.
Overall, the allegations here are sufficient to allege that the alleged conduct in violation of the Unruh Act was engaged in by an agent of moving defendant Porsche, or was authorized or ratified by that entity. The demurrer to the cause of action is overruled.
Motion to Strike
Defendant Porsche seeks to strike the claim for punitive damages included in the FAC.
Defendant argues that the pleading is improper to the extent it seeks a specific sum of punitive damages. Under Civil Code section 3295(e):
“No claim for exemplary damages shall state an amount or amounts.”
The prayer here prays, “For punitive damages according to proof, but not less than $4,000.” [Prayer, para. E].
The opposition argues that this language is properly included in the FAC, as under the Unruh Act, at Civil Code section 52 (a), the Act provides:
“(a) Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney's fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51, 51.5, or 51.6.”
(Emphasis added).
The argument seems to be that since the figure is in the statutory language, the prayer is proper.
However, the argument is confusing, as the prayer does not seek “any amount...up to a maximum of three times the amount of actual damage,” but “punitive damages…” [Prayer, para. E]. It is not clear that this statutory language is a reference to punitive damages, or to a statutory penalty.
It would appear that if the reference was to permit an award of punitive damages, the statute would expressly so state, as the language of subdivision (b) of Section 52, immediately following subdivision (a), above, expressly permits where there has been a denial of the “right provided by Section 51.7 or 51.9,” there is liability for “actual damages suffered… and, in addition, the following: (1) An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages.” Civil Code section 52(b). It would appear that if subdivision (a) was intended to provide for “exemplary damages,” that provision would have used that term.
The argument creates confusion with respect for what the prayer is intended. It appears that if punitive or exemplary damages are being sought, as opposed to the remedy under Civil Code section 52(a), no amount or amounts should be stated pursuant to Civil Code section 3295(e). If the prayer is for the remedy under Civil Code section 52 (a), the language of the statute should be followed, with no reference to punitive damages.
The motion to strike accordingly is granted, specifically only as to the prayer for punitive damages, not the other challenged language, with leave to amend to clarify the remedy or remedies being sought in connection with the second cause of action.
To the extent the argument is that there are no punitive damages available under the Unruh Act as a matter of law, it would appear that the statute expressly permits an award of exemplary damages in certain circumstances. Hence, the court is not inclined to find as a matter of law at this point in the pleading stage that the Unruh Act does not permit allegations in support of such recovery.
RULING:
The Court notes that the demurrer and motion to strike are untimely, filed and served 21 days late, without advance leave of court. Both parties are cautioned that in the future the Court may refuse to consider pleadings not filed in conformity with the statutes, rules, and procedures governing this litigation.
Defendant Porshe Cars North America, Inc. Demurrer to Plaintiff’s First Amended Complaint—Violation of the Unruh Act is OVERRULED.
Defendant Porshe Cars North America, Inc. Motion to Strike Improper Punitive Damages Demand is GRANTED WITH LEAVE TO AMEND only as to the Prayer of the FAC, paragraph E, on the ground the prayer is made in violation of Civil Code section 3295(e) (“No claim for exemplary damages shall state an amount or amounts.”) If plaintiff intends in the prayer to seek the remedy under Civil Code section 52(a), the prayer must more clearly track the statutory language. If plaintiff intends in the prayer to seek punitive damages, the prayer should be separately stated, and no amount or amounts shall be stated.
Ten days leave to amend.
Plaintiff Glenn Murphy’s UNOPPOSED Request for Judicial Notice is GRANTED.
The parties are ordered to meet and confer in full compliance with CCP §435.5 before any further motion to strike may be filed.
DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE
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