Judge Ralph C. Hofer, Case Number: 25NNCV01179, Date: 2025-05-30 Tentative Ruling

Plaintiff Jhonatan Venture alleges that in February of 2024, plaintiff leased a new Toyota Tundra 4wd from Toyota of Pasadena. The complaint alleges that defendant Toyota Motor Sales U.S.A., Inc. (Toyota) issued to plaintiff express warranties, in which defendant Toyota promised against defects in materials and workmanship and undertook to preserve or maintain the utility or performance of the vehicle or provide compensation if there was a failure in such utility or performance.

Plaintiff alleges that subsequent to plaintiff’s purchase, the vehicle exhibited numerous defects and nonconformities covered by the warranties which substantially impair the use, value, or safety of the vehicle. Plaintiff alleges that defendant or its authorized repair facilities have failed to begin repairs in a reasonable time and complete repairs on the vehicle within thirty days so as to conform the vehicle to the applicable warranties, and defendant has been unable to conform the vehicle to warranty after multiple failed repair attempts and failed inspections.

Here, the complaint was personally served on defendant Toyota on March 7, 2025. Thirty days from this date would have been April 6, 2025, a Sunday, which would have permitted the demurrer to be filed and served the following court day, Monday, April 7, 2025. The demurrer was filed and served on April 8, 2025, one day late. The meet and confer correspondence attached to the moving papers does not show any stipulation by the parties to an extension to plead. Unless the parties agreed to an extension for response, the Court will consider whether the demurrer will be overruled as untimely.

First Cause of Action—Violation of the Song-Beverly Consumer Warranty Act section 1793.2 (d), Second Cause of Action—Violation of the Song-Beverly Consumer Warranty Act section 1793.2 (b), Third Cause of Action—Violation of the Song-Beverly Consumer Warranty Act—Breach of Express Warranty, Fourth Cause of Action—Violation of the Song-Beverly Consumer Warranty Act—Breach of Implied Warranty

Defendant Toyota argues that the Song-Beverly Act causes of action are insufficient, as causes of action based on statute are required to be pleaded with particularity, but here the complaint only parrots the language of the statute.

(1) Except as provided in paragraph (2), if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that amount directly attributable to use by the buyer prior to the discovery of the nonconformity.

(2) If the manufacturer or its representative in this state is unable to service or repair a new motor vehicle, as that term is defined in paragraph (2) of subdivision (e) of Section 1793.22, to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle in accordance with subparagraph (A) or promptly make restitution to the buyer in accordance with subparagraph (B). However, the buyer shall be free to elect restitution in lieu of replacement, and in no event shall the buyer be required by the manufacturer to accept a replacement vehicle.”

The second cause of action is brought under Civil Code section 1793.2 (b), under which every manufacturer of consumer goods sold in this state, and for which the manufacturer has made an express warranty, shall maintain in this state sufficient service and repair facilities, and that

“(b) Where those service and repair facilities are maintained in this state and service or repair of the goods is necessary because they do not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days.”

Under Civil Code § 1794(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.”

With respect to the fourth cause of action for breach of implied warranty, the moving papers appear to rely on CACI 1231, which sets forth the essential factual elements to establish breach of an implied warranty of merchantability, and provides, in pertinent part:

“[Name of plaintiff] [also] claims that [he/she/nonbinary pronoun/it] was harmed by the [product] that [he/she/nonbinary pronoun/it] bought from [name of defendant] because the [product] did not have the quality that a buyer would expect. To establish this claim, [name of plaintiff] must prove all of the following:

2. That, at the time of purchase, [name of defendant] was in the business of selling these goods [or by [his/her/nonbinary pronoun/its] occupation held [himself/herself/nonbinary pronoun/itself] out as having special knowledge or skill regarding these goods];

As an initial matter, the demurrer argues briefly that the complaint is confusing with respect to its allegations against defendant Toyota as a responsible party under the Song-Beverly Act. Specifically, the complaint in its general allegations identifies defendant “Toyota Motor Sales, U.S.A., Inc. (hereinafter TMS),” identifies the subject vehicle purchased from Toyota of Pasadena, and then alleges that, “The vehicle was manufactured and/or distributed, and warranted by MBUSA.” [Complaint, paras. 1, 3, 4]. This allegation at paragraph 4 is evidently a typographical error, and it appears plaintiff through meet and confer was amenable to amending this paragraph. It is not clear why plaintiff did not do so prior to a demurrer being filed on this ground. The demurrer is sustained with leave to amend to name Toyota or “TMS” in paragraph 4.

There is also a brief argument that the caption of the complaint does not identify the named plaintiff. The copy attached to the moving papers has a blank space before “Plaintiff” in the caption, but the copy in the file includes the name “JHONATAN VENTURA, an individual, Plaintiff.” The demurrer on this ground is overruled.

With respect to the sufficiency of the causes of action, the first cause of action identifies “TMS” as a warrantor, service contract seller, service contractor, and service contract administrator as defined by the Act. [Complaint, paras. 17, 18]. These allegations are incorporated into the following causes of action, so the demurrer is not uncertain with respect to the status of defendant.

The demurrer appears to concede that the pleading parrots the language of the statute, which appears to be the case, so that all essential elements of the causes of action are alleged. The argument remains that the causes of action, since based on statute, are not sufficient when they simply parrot the statute, as factual particularity is required. The demurrer relies on Baskin v. Hughes Realty, Inc. (2018) 25 Cal.App.5th 184, 207, in which the Second District, in connection with a disability discrimination claim, stated:

“Generally, “[w]he[n] a party relies for recovery upon a purely statutory liability it is indispensable that he plead facts demonstrating his right to recover under the statute. The complaint must plead every fact which is essential to the cause of action under the statute.” (Green v. Grimes-Stassforth S. Co. (1940) 39 Cal.App.2d 52, 56, 102 P.2d 452 (Green ).)”

Defendant also relies on Hawkins v. TACA International Airlines, S.A. (2014) 223 Cal.App.4th 466, which involved alleged violations of the Labor Code with respect to wage and hour claims, in which the Second District affirmed the sustaining of demurrers brought by an employer’s clients, noting that in the case before it, “simply parroting” the statutory language in the complaint was “insufficient to state a cause of action under the statute.” Hawkins, at 478-479.

While neither of these cases set forth the level of specificity required in connection with a statutory claim under the Song-Beverly Act, and cite to no cases involving that particular statute, it is clear that some level of specificity is required here.

The demurrer argues that the pleading fails to allege what the nonconformities to warranty were, and when those nonconformities manifested. The argument is that it cannot be ascertained if Toyota misrepresented or omitted facts relating to any nonconformity if it is not specified what the nonconformity was—in effect, what was wrong with the vehicle or if the nonconformity was or was not fixed.

Overall, this is the rare complaint under the Song-Beverly Act which does not allege the nonconformity with some measure of specificity, such as that there was a defect in the engine or transmission, or that the vehicle was taken for repairs in response to a rattling or a repair light being illuminated.

The opposition argues that specificity is not required, and that plaintiff need not plead specific issues with the vehicle or pinpoint the exact defects when doing so is not required or possible. Plaintiff cites to CACI No. 3201, which provides, in pertinent part, “[It is not necessary for [name of plaintiff] to prove the cause of a defect in the [new motor vehicle].]” The demurrer does not seek allegations proving the cause of a defect, but the allegation of facts identifying the general nature of the alleged defects and nonconformities. The court does not expect plaintiff to plead in detail the mechanism of causation. The court often sees this circumstance addressed in the pleading by an allegation that there are defects to specific systems within the vehicle, and that defects also include those included or suggested in the records of the repair facility. Here, there is no specific allegation at all of what the alleged problems with the vehicle include. The demurrer is sustained with leave to amend to permit plaintiff to allege the general nature of the alleged nonconformities or defects.

Defendant Toyota also argues that the cause of action for breach of the implied warranty of merchantability fails to allege any injury or damage as a result of the alleged breach, in reliance on Guiterrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1247 (“the buyer of consumer goods must plead he or she was injured or damaged by the alleged breach of the implied warranty of merchantability.”)

To state a claim, there must be allegations showing unlawful, unfair or fraudulent business acts or practices. Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676-677. Pleadings must state with reasonable particularity the facts supporting the statutory elements of the violation, including the particular section of the statutory scheme violated and the particular facts showing that the statute was violated. Khoury v. Maly’s of California, Inc. (1993, 2nd Dist.) 14 Cal.App.4th 612, 619.

The cause of action here incorporates all proceeding paragraphs and alleges that defendant’s acts, practices and omissions constitute unlawful, unfair and fraudulent business acts. [Complaint, paras. 54, 55]. The cause of action itself does not identify a statute, and, as discussed above, to the extent the cause of action is intended to be based on the Song-Beverly Act, the complaint fails to allege claims under the Act with sufficient specificity. Moreover, to the extent unfair or fraudulent acts are relied upon, the complaint alleges that the unfair acts include the manufacture and sale of vehicles with similar defects, again without specifying any defects, and is based on allegations of “misrepresentations and omissions regarding the safety and reliability of its vehicles,” without specific allegations concerning the misrepresentations or any false advertising. [Complaint, paras. 57, 58].

The opposition argues that the assertion of a separate Unfair Business Practices claim is appropriate, as the Song-Beverly Act expressly states, that its remedies, “are cumulative and shall not be construed as restricting any remedy that is otherwise available, and, in particular, shall not be construed to supplant the provisions of the Unfair Practices Act.” Civil Code section 1790.4.

The Court notes that the demurrer is untimely, filed and served one day late. Defendant is 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.

Demurrer is SUSTAINED WITH LEAVE TO AMEND to the First Cause of Action for Violation of the Song-Beverly Consumer Warranty Act section 1793.2 (d), Second Cause of Action for Violation of the Song-Beverly Consumer Warranty Act section 1793.2 (b), Third Cause of Action for Violation of the Song-Beverly Consumer Warranty Act—Breach of Express Warranty, and Fourth Cause of Action for Violation of the Song-Beverly Consumer Warranty Act—Breach of Implied Warranty on the ground the causes of action fail to sufficiently allege the nature of any alleged defect or nonconformity upon which the causes of action are based.

Demurrer is SUSTAINED WITH LEAVE TO AMEND to the Fifth Cause of Action for Violation of Business & Professions Code section 17200 on the ground the cause of action fails to clearly identify a statute on which it is based, or to allege with specificity required when alleging a statutory claim, the nature of any alleged unfair or fraudulent business practices. To the extent the cause of action is intended to be based on the Song-Beverly Act, the cause of action must sufficiently allege the nature of any alleged defect or nonconformity, as discussed above.

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