Judge: Robert B. Broadbelt, Case: 20STCV16716, Date: 2022-10-28 Tentative Ruling

Case Number: 20STCV16716    Hearing Date: October 28, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Kia Motors America, Inc.

RESPONDING PARTY:       Plaintiff Tamara Renee Hemphill

(1)   Demurrer to First Amended Complaint

(2)   Motion to Strike Portions of Plaintiff’s First Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with the demurrer and motion to strike.   

BACKGROUND

Plaintiff Tamara Renee Hemphill (“Plaintiff”) filed this lemon law action against Kia Motors America, Inc. (“Defendant”) on May 1, 2020.  Plaintiff filed the operative First Amended Complaint against Defendant on February 22, 2022, alleging seven causes of action for (1) violation of subdivision (d) of Civil Code section 1793.2; (2) violation of subdivision (b) of Civil Code section 1793.2; (3) violation of subdivision (a)(3) of Civil Code section 1793.2; (4) breach of express written warranty; (5) breach of the implied warranty of merchantability; (6) fraud by omission; and (7) violation of Consumer Legal Remedies Act.

Defendant moves the court for an order (1) sustaining its demurrer to Plaintiff’s third, fifth, sixth, and seventh causes of action without leave to amend, and (2) striking various allegations and Plaintiff’s requests for punitive damages and prejudgment interest.  The court notes that, although Defendant addresses the fifth cause of action before addressing the third, sixth, and seventh causes of action, the court rules on the demurrer to Plaintiff’s causes of action in numerical order.  

DEMURRER

The court overrules Defendant’s demurrer to Plaintiff’s third cause of action for violation of subdivision (a)(3) of Civil Code section 1793.2 because (1) the court previously ruled that this cause of action was sufficiently pleaded, and (2) the First Amended Complaint states facts sufficient to constitute a cause of action.  (February 2, 2022 Order, p. 6:14-15; Code Civ. Proc., § 430.10, subd. (e).)

The court sustains Defendant’s demurrer to Plaintiff’s fifth cause of action for breach of the implied warranty of merchantability because it appears “clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred” by the four-year statute of limitations since (1) Plaintiff alleges that she purchased the vehicle on December 19, 2015; (2) a cause of action for breach of implied warranty “accrues when the breach occurs [i.e., when tender of delivery is made], regardless of the aggrieved party’s lack of knowledge of the breach;” and (3) therefore Plaintiff’s cause of action accrued on December 19, 2015 and was required to be filed no later than December 19, 2019, rendering Plaintiff’s May 1, 2020 Complaint untimely.  (Code Civ. Proc., § 430.10, subd.(e); Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881; Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1306.)

The court overrules Defendant’s demurrer to Plaintiff’s sixth cause of action for fraud by omission on the ground of the bar of the statute of limitations because (1) the court previously overruled Defendant’s demurrer to this cause of action on this ground, and (2) it does not appear affirmatively that, on the face of the complaint, this cause of action is necessarily barred since Plaintiff sufficiently alleges that she discovered Defendant’s wrongful conduct in March of 2020 (FAC ¶ 21) and filed this action within three years of her discovery “of the facts constituting the fraud or mistake.”  (February 2, 2022 Order, p. 6:2-3; Code Civ. Proc., §§ 430.10, subd. (e), 338, subd. (d); Lockley, supra, 91 Cal.App.4th at p. 881.)

The court sustains Defendant’s demurrer to Plaintiff’s sixth cause of action for fraud by omission because it does not state facts sufficient to constitute a cause of action since Plaintiff (1) does not allege “harm above and beyond a broken contractual promise” based on the alleged breach of warranties, and (2) instead alleges “purely economic loss due to disappointed expectations,” rendering this cause of action barred by the economic loss rule.  (Code Civ. Proc., § 430.10, subd. (e); Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988.)

The court overrules Defendant’s demurrer to Plaintiff’s seventh cause of action for violation of the Consumer Legal Remedies Act on the ground of the bar of the statute of limitations because (1) the court previously overruled Defendant’s demurrer to this cause of action on the ground of the bar of the statute of limitations, finding that Plaintiff pleaded facts establishing that the delayed discovery rule applied, and (2) it does not appear affirmatively that, on the face of the complaint, this cause of action is necessarily barred.  (February 2, 2022 Order, p. 6:2-3; Code Civ. Proc., § 430.10, subd. (e); Lockley, supra, 91 Cal.App.4th at p. 881.)

The court sustains Defendant’s demurrer to Plaintiff’s seventh cause of action for violation of the Consumer Legal Remedies Act because it does not state facts sufficient to constitute a cause of action since this claim is barred by the economic loss rule for the same reasons set forth in connection with the sixth cause of action, as this cause of action is supported by substantially identical allegations as alleged in connection with the fraud by omission cause of action.  (Code Civ. Proc., § 430.10, subd. (e); Robinson Helicopter Co., Inc., supra, 34 Cal.4th at p. 988.)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 48 Cal.App.4th 268, 290.)¿ To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)¿ The court finds that Plaintiff has not met her burden of establishing that she can amend her complaint to render it sufficient and therefore sustains Defendant’s demurrer to the fifth, sixth, and seventh causes of action without leave to amend.

MOTION TO STRIKE

Defendant moves to strike the following from Plaintiff’s First Amended Complaint: (1) paragraphs 31, 105, 84, 91, 94, 98; (2) Plaintiff’s prayer for a civil penalty pursuant to Civil Code section 1794; (3) Plaintiff’s prayer for punitive damages; and (4) Plaintiff’s prayer for prejudgment interest.

The court grants Defendant’s motion to strike paragraph 31 because (1) a ruling by the trial court denying Defendant’s motion for summary adjudication is irrelevant, and (2) Plaintiff references “Exhibit 1,” but does not attach any exhibits to the First Amended Complaint.  (Code Civ. Proc., § 436, subd. (a).)

The court grants Defendant’s motion to strike Plaintiff’s prayer for punitive damages, because the court has sustained Defendant’s demurrer to Plaintiff’s sixth cause of action, which is the only cause of action that may support a claim for punitive damages.  (Code Civ. Proc., § 436; FAC p. 22:28 [stating that Plaintiff seeks only injunctive relief as to her seventh cause of action].)

The court denies Defendant’s motion to strike paragraph 105, because this allegation is made in connection with the sixth cause of action for fraud by omission, which the court has sustained.  This cause of action and the supporting allegations, including paragraph 105, have therefore been removed from the First Amended Complaint.

The court denies Defendant’s motion to strike Plaintiff’s request for civil penalties and the allegations made in support of Plaintiff’s request (FAC ¶¶ 84, 91, 94, 98) because the court finds that Plaintiff has stated sufficient facts establishing that Defendant’s failure to comply was willful.  (Code Civ. Proc., § 436, subd. (a); Civ. Code, § 1794, subd. (c), (e).)

The court denies Defendant’s motion to strike Plaintiff’s prayer for prejudgment interest because it is not an improper request.  (Code Civ. Proc., § 436.)

ORDER

The court sustains defendant Kia America, Inc.’s demurrer to plaintiff Tamara Renee Hemphill’s fifth, sixth, and seventh causes of action without leave to amend.  (Code Civ. Proc., § 430.10, subd. (e).)

The court overrules defendant Kia America, Inc.’s demurrer to plaintiff Tamara Renee Hemphill’s third cause of action.

The court grants defendant Kia America, Inc.’s motion to strike paragraph 31 of the First Amended Complaint and prayer for punitive damages without leave to amend.  (Code Civ. Proc., § 436.)

The court denies defendant Kia America, Inc.’s motion to strike plaintiff Tamara Renee Hemphill’s request for civil penalties and prejudgment interest.

IT IS SO ORDERED.

DATED:  October 28, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court