Judge: Ronald F. Frank, Case: 24TRCV00788, Date: 2024-09-11 Tentative Ruling
Case Number: 24TRCV00788 Hearing Date: September 11, 2024 Dept: 8
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HEARING DATE: September 11, 2024¿¿
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CASE NUMBER: 24TRCV00788
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CASE NAME: Olga Odell v. American
Honda Motor Company, Inc., et al.
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MOVING PARTY: Defendant, American Honda Motor Co., Inc.
RESPONDING PARTY: Plaintiff, Olga Odell
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TRIAL DATE: Not
Set.
MOTION:¿ (1) Demurrer
Tentative Rulings: (1) SUSTAIN. Leave
to amend to be discussed
I. BACKGROUND¿¿
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A. Factual¿¿
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On March 6,
2024, Plaintiff, Olga Odell (“Plaintiff”) filed a complaint against Defendants,
American Honda Motor Co., Inc., and DOES 1 through 10. On June 24, 2024,
Plaintiff filed a First Amended Complaint (“FAC”) alleging causes of action (1)
Violation of Civil Code section 1793.2(d); (2) Violation of Civil Code section
1793.2(b); (3) Violation of Civil Code section 1793.2(a)(3); and (4) Breach of
the Implied Warranty of Merchantability (Civil Code §§ 1791.1, 1794, 1795.5).
Defendant,
American Honda Motor Co., Inc. (“AHM”) now files a demurrer to the FAC on
statute of limitations grounds.
B. Procedural¿¿
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On July 30, 2024, AHM filed its Demurrer. On August
28, 2024, Plaintiff filed an opposition brief. On September 4, 2024, AHM filed
a reply brief.
II. ANALYSIS
A.
Legal Standard
A demurrer can be used only to challenge
defects that appear on the face of the pleading under attack or from matters
outside the pleading that are judicially noticeable. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only
allege facts sufficient to state a cause of action; each evidentiary fact that
might eventually form part of the plaintiff’s proof need not be alleged.” (C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For
the purpose of testing the sufficiency of the cause of action, the demurrer
admits the truth of all material facts properly pleaded. (Aubry v. Tri-City
Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit
contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab
Co. (1967) 67 Cal.2d 695, 713.)¿¿¿
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A pleading is uncertain if it is
ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer
for uncertainty may lie if the failure to label the parties and claims renders
the complaint so confusing defendant cannot tell what he or she is supposed to
respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d
135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed,
even where a complaint is in some respects uncertain, because ambiguities can
be clarified under modern discovery procedures.” (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿
B. Discussion
AHM demurs to Plaintiff’s FAC on the grounds that it argues Plaintiff’s
first, second, third, and fourth causes of action fail to state sufficient
grounds to constitute a viable claim against AHM, and that the Song-Beverly
claims are barred by the applicable statute.
i.
Meet and Confer Requirement
The
declaration of Leanna L. H. Vault, Esq., (“Vault Decl.”) is offered in support
of counsel’s compliance with Code of Civil Procedure section 430.41. Vault
declares that on July 15, 2024, she sent counsel for Plaintiff a substantive
meet and confer letter outlining the grounds in which AHM intended to file a demurrer
and requesting counsel for Plaintiff provide availability to telephonically
meet and confer. (Vault Decl., ¶ 2.) On July 24, 2024, Vault notes that she met
and conferred telephonically with counsel for Plaintiff, Daniel Law, regarding
the demurrer, but that the parties were unable to come to an agreement
regarding the grounds in which AHM brought the demurrer. (Vault Decl., ¶ 3.)
Thus, this Court finds that the meet and confer requirements have been met.
ii.
Breach of Express Warranty – First, Second, and Third Causes of
Action.
Statute of Limitations
AHM
first argues that each of Plaintiff’s Express Warranty, Song-Beverly claims are
time barred. The statute of limitations for breach of express warranty is four
years. (Code Civ Proc., § 337, Comm. Code § 2725, Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3rd 205,
213-24 (“Krieger”).) “A breach of
warranty occurs when tender of delivery is made, except that where a warranty
explicitly extends to future performance of the goods and discovery of the
breach must await the time of such performance the cause of action accrues when
the breach is or should have been discovered.” (Comm. Code § 2725(b).) While the Song-Beverly
Act supplements rather than supersedes the provisions of the UCC, the same
four-year statute of limitations applies to claims brought under either
statute. (Krieger, supra,. 234 Cal.App.3rd at 213-24.) The discovery rule of Section 2725(2) also
applies to claims under the SBA, such that a cause of action accrues not on the
date of sale, but rather when the plaintiff discovers or should have discovered
that the warrantor or its authorized repair facility was unable to fix the
warranty-covered defects after a reasonable number of attempts. (Id. at 218.) Further, for purposes of a
lemon law claim under the Song-Beverly Act, specifically, a manufacturer’s
express warranty period is tolled or extended under only three circumstances:
(1) the car is in the shop for warranty repairs, (2) there are delays in
warranty repairs beyond the control of the buyer, and (3) upon notice from the
buyer, given within 60 days of completion of warranty repairs, that those
repairs did not solve the problem. (Nunez v. FCA (2021) 61 Cal.App.5th
385.)
Here, Plaintiff alleges
that she purchased the 2014 Honda CR-V on November 9, 2014. Plaintiff did not
file her complaint until March 6, 2024, and did not file this FAC until June 24,
2024. As such, AHM argues that on its face, all four causes of action are time-barred. The
FAC attaches the Honda warranty, which includes a 5-year or 60,000-mile
warranty on the powertrain, whichever comes first, and which per page 10 of the
warranty booklet includes the engine and internal parts of the transmission.
The FAC alleges four (4) specific repair history events in paragraphs 22
through 25, each of which mention powertrain concerns at 63,810, 82,997, 93,105,
and 98,738 miles respectively. None of
these events were alleged to have occurred within the first 3 years after sale,
and the 2019 repair date occurred more than four years before this lawsuit was
filed. However, what neither party addresses in their statute of limitations
arguments is the apparent fact that Plaintiff brought the subject vehicle to
its first repair presentation after the 60,000-mile warranty had elapsed
(discussed in more detail below.)
In their opposition to
the demurrer, Plaintiffs argue that the Song-Beverly Act statute of limitations
does not begin to run from the date of the sale of the subject vehicle, but
instead, is tolled. The Court agrees. California’s
discovery rule delays the start of the statute of limitations until the
plaintiff discovers, or is on inquiry notice (i.e., has reason to discover)
facts supporting a cause of action. (Fox v. Ethicon Endo-Surgery, Inc.
(2005) 35 Cal.4th 797, 807.) “The discovery rule only delays accrual
until the plaintiff has, or should have, inquiry notice of the cause of action.
The discovery rule does not encourage dilatory tactics because plaintiffs are
charged with presumptive knowledge of an injury if they have “ ‘ “information or
circumstances to put [them] on inquiry ” ’ ” or if they have “ ‘ “the
opportunity to obtain knowledge from sources open to [their] investigation.” (Id.
at 808; fn. 2 provides: “At common law, the term “injury,” as used in
determining the date of accrual of a cause of action, “means both ‘a person's
physical condition and its “negligent cause.” ’ ” ”(emphasis in
original).) The discovery rule applies to Lemon Law claims. (Krieger,
supra, 234 Cal.App.3rd at p. 218.)
“In
order to rely on the discovery rule for delayed accrual of a cause of action,
‘[a] plaintiff whose complaint shows on its face that his claim would be barred
without the benefit of the discovery rule must specifically plead facts to show
(1) the time and manner of discovery and (2) the inability to have made earlier
discovery despite reasonable diligence.’ ” (Fox, supra, 35 Cal.4th at
808, citing (McKelvey v. Boeing North American, Inc. (1999) 74
Cal.App.4th 151, 160 (superseded on limited grounds by Code Civ. Proc. §
340.8(c))(emphasis in original).) Time and manner in a Lemon Law
case means a date and mileage on the subject vehicle’s odometer, since
warranties for motor vehicles invariably are limited by a specified number of
years and/or mileage. “When a plaintiff
reasonably should have discovered facts for purposes of the accrual of a case
of action or application of the delayed discovery rule is generally a question
of fact, properly decided as a matter of law only if the evidence (or, in this case,
the allegations in the complaint and facts properly subject to judicial notice)
can support only one reasonable conclusion.” (Broberg v. Guardian Life Ins.
Co. of America (2009) 171 Cal.App.4th 912, 921.) In this Court’s
view, Plaintiff has failed to allege (as Fox and McKelvey
require) the specific facts to show the time and manner of discovery and the
inability to have earlier discovered the elements of their cause of
action. The FAC does not state the date
or mileage on the odometer when Plaintiff alleges she first discovered that her
CRV manifested a warranty-covered defect, but the inference from the FAC is
that such discovery occurred in 2019 with over 60,000 miles on the odometer. The warranty is alleged to be a limited, not
full warranty, which means under the Magnuson-Moss Act the warrantor is entitled
to limit the duration of coverage to less than the product’s lifetime.
Here,
Defendant AHM argues that the alleged Song-Beverly causes of action occurred at
the time of the sale of the Subject Vehicle, on or about November 9, 2014, and
that Plaintiff did not file this action until 9-1/2 years later on March 6,
2024. Defendant’s argument ignores the discovery rule, the allegations of two
powertrain complaints within the first 5 years (but not 60,000 miles) after
sale, and the vague conclusionary allegation that Plaintiff did not discover
Defendant’s wrongful conduct until “shortly before filing this complaint . . . .”
Plaintiff included vague and conclusionary statements in her FAC that
the discovery rule, Class Action Tolling, and the Repair Doctrine delayed the
accrual of their Song-Beverly causes of action. The Class Action tolling
allegations in paragraph 31 contends that the filing of Conti v. American
Honda, Case No. 2:19-cv-2160 on March 22, 2019 tolled the statute of limitations
here. However, the FAC contains
absolutely no details whatsoever as to whether a class was or was not
certified, when or if certification was denied (which would end the tolling
period), what type of class action was alleged there, as to what claimed defect
or defect, whether Plaintiff opted out, and how that other lawsuit’s pendency
bears on the allegations in this case.
The “class action tolling” allegations are thus insufficient to enable
Plaintiff to claim when the claimed tolling period may have ended. However, Plaintiff has provided at least some
factual allegations as to the discovery rule and repair doctrine, as discussed
below.
The
FAC alleges that AHM’s Song-Beverly violations occurred, not at the time of the
sale, but as AHM’s alleged violations continued while Plaintiff continued to
experience symptoms of the defects despite Defendant’s representations that the
various defects were repaired. (FAC, ¶ 27.) Plaintiff further as alleges that
she discovered Defendant’s wrongful conduct alleged in the FAC “shortly before”
filing the Complaint in March of 2024. (FAC, ¶ 28.) According to the FAC, the
first repair attempt took place on July 16, 2019. (FAC, ¶ 22.) This repair
attempt alone would not toll the statute of limitations as it occurred over
four (4) years before Plaintiff filed her complaint and was not allegedly
reported by Plaintiff to have been unsuccessful within 60 days of the end of
the express warranty period. The FAC
also asserts that further repair attempts included January 29, 2021, March 25,
2022, and October 5, 2022. (FAC, ¶¶ 23-25.) Thus, while Plaintiff’s original
repair and alleged discovery of a warranty-covered powertrain defect took place
on July 19, 2019 (within the 5-year warranty period), Plaintiff’s allegations also
include other or “continuing” repairs until October 5, 2022. But the FAC fails to allege when Plaintiff discovered
that the July 2019 repair had failed to cure the clamed defect. Further, as discussed above, Plaintiff’s
original and first repair did not allegedly take place until over 60,000 miles
had been driven, at 63,810 miles, and thus, the express written warranty period
may have already elapsed. If so, the
statute of limitations could not be further tolled by the subsequent and
continuing repairs on the vehicle. Plaintiff does not allege any facts that
claim the repairs took place prior to the vehicle being driven 60,000 miles, or
that tolling that may have taken place prior to the July 16, 2019 date and
prior to driving over 60,000 miles on the subject vehicle.
As
such, Plaintiff’s first, second, and third causes of action, based on the
express written warranty are all time barred. The demurrer to the first through
third causes of action are SUSTAINED.
The Court will inquire of Plaintiff at the hearing whether leave to
amend is being sought and if so what allegations counsel asserts could be made
to address this apparently fatal flaw.
iii.
Breach of the Implied Warranty of
Merchantability
AHM
also argues that Plaintiff’s fourth cause of action is time-barred. The duration of the implied warranty of merchantability and
where present the implied warranty of fitness shall be coextensive in duration
with an express warranty which accompanies the consumer goods, provided the
duration of the express warranty is reasonable; but in no event shall such
implied warranty have a duration of less than 60 days nor more than one year
following the sale of new consumer goods to a retail buyer. Where no duration
for an express warranty is stated with respect to consumer goods, or parts
thereof, the duration of the implied warranty shall be the maximum period
prescribed above.” (Civ. Code § 1791.1, subd. (c).) Thus, Plaintiff would have
been required to bring her implied warranty claim on or before November 9, 2015
(one year after purchase), or within two years after discovery of the breach.
As noted above, the Court does not believe that Plaintiff has sufficiently
alleged that a breach occurred as the warranty period was over when Plaintiff
first took the subject vehicle to be repaired. Thus, the demurrer is SUSTAINED
as the fourth cause of action too.
III.
CONCLUSION¿¿
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For the foregoing reasons, AHM’s
demurrer is SUSTAINED. The Court’s tentative ruling is to sustain the demurrer
without leave to amend. However, the Court will allow oral argument as to what
Plaintiff contends could be contained in a further amended pleading to address the
defects discussed in this tentative ruling.
AHM is ordered to provide
notice.
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