Judge Robert B. Broadbelt, Case Number: 23STCV30716, Date: 2024-12-09 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 23STCV30716, Date: 2024-12-09 Tentative Ruling

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

Plaintiff Ashchyan Transport, Inc. (“Plaintiff”) filed this action against In & Out Truck Repair, Inc. and Cummins, Inc. on December 15, 2023.

Defendant Cummins, Inc. (“Defendant”) now moves the court for an order sustaining its demurrer to the fourth cause of action for breach of the implied warranty of merchantability.

The court overrules Defendant’s demurrer to the fourth cause of action for breach of the implied warranty of merchantability because (1) it states facts sufficient to constitute a cause of action, and (2) it is not ambiguous and unintelligible and therefore is not uncertain. (Code Civ. Proc., § 430.10, subds. (e), (f).)

First, the court finds that Plaintiff has alleged facts sufficient to establish the elements of a breach of the implied warranty of merchantability since Plaintiff has alleged that (1) Plaintiff ordered replacement Cummins engine parts (Compl., ¶ 53), (2) the replacement engine parts were manufactured by Defendant (Compl., ¶ 57), (3) the replacement engine parts were not of the same quality as those generally acceptable in the trade, were not fit for the ordinary purposes for which such goods are used, and did not conform to the quality established by the usage of trade (Compl., ¶ 58), and (4) Plaintiff has been harmed by this breach based on the catastrophic failure of the engine parts (Compl., ¶¶ 56, 60). (Com. Code, § 2314, subds. (2)(a), (2)(c).)

Second, the court finds that this cause of action is not necessarily barred by the statute of limitations on the face of the Complaint. (Raja Development Co., Inc. v. Napa Sanitary District (2022) 85 Cal.App.5th 85, 92 [“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred”] [internal quotation marks and citation omitted].)

The court acknowledges, as Defendant raises in its demurrer, that the report attached to the Complaint states that the date of an unspecified warranty began on May 2, 2017. (Compl., Ex. 1 [“Warranty Start 5/2/2017”].) However, this report does not establish that the date of tender of delivery of the replacement engine parts that are the subject of this action was May 2, 2017, such that this action, filed on December 15, 2023, is barred by the statute of limitations.[1] (Ibid.; Com. Code, § 2725 [“A breach of warranty occurs when tender of delivery is made,” unless a warranty explicitly extends to future performance and discovery of the breach must await the time of that performance].)

Thus, the court finds that Defendant has not shown that this cause of action is barred on the face of the Complaint. (Raja Development Co., Inc., supra, 85 Cal.App.5th at p. 92.)

The court overrules defendant Cummins, Inc.’s demurrer to plaintiff Ashchyan Transport, Inc.’s fourth cause of action for breach of the implied warranty of merchantability.

The court orders defendant Cummins, Inc. to file an answer to plaintiff Ashchyan Transport, Inc.’s Complaint within 10 days of the date of this order.

The court orders plaintiff Ashchyan Transport, Inc. to give notice of this ruling.

[1] The court notes that the report itself suggests that the replacement engine parts might have been delivered in 2023. Specifically, the court notes that (1) the Complaint alleges that “[s]hortly []after” the engine rebuild was completed—i.e., using the replacement engine parts manufactured by Defendant—the truck experienced a catastrophic failure (Compl., ¶¶ 10-12, 54-57), and (2) the report, which is alleged to have investigated the cause of the catastrophic engine failure (Compl., ¶¶ 13-14), states the “Failure Date” to be August 29, 2023 (Compl., Ex. 1). Thus, to the extent the failure date in the report concerns the engine failure that occurred “shortly” after the engine rebuild using the replacement engine parts manufactured by Defendant was completed, the report appears to indicate that the delivery and rebuild of the engine occurred in 2023.

ashchyan transport, inc. ; Plaintiff, vs. in & out truck repair, inc. , et al.; Defendants.	Case No.:	23STCV30716

	Hearing Date:	December 9, 2024

	Time:	10:00 a.m.

	[tentative] Order RE: defendant’s demurrer to complaint