Judge Serena R. Murillo, Case Number: 23STCV05995, Date: 2023-11-06 Tentative Ruling

This is a Song-Beverly action relating to a 2019 Chevrolet Silverado (the “Vehicle”). On March 17, 2023, Plaintiff, Charles Wilder, filed a Complaint against Defendant, General Motors, LLC, after Defendant failed to repair the transmission of the Vehicle, among other parts, pursuant to a Chevrolet Limited Warranty for the Vehicle. On April 24, 2023, Plaintiff filed the First Amended Complaint (“FAC”). In the FAC, Plaintiff asserts causes of action for (1) Breach of Implied Warranty of Merchantability under The Song-Beverly Act, (2) Breach of Express Warranty under The Song-Beverly Act, (3) Breach of Express Warranty under California Commercial Code § 2-313, (4) Violation of The Magnuson-Moss Warranty Act, and (5) Violation of Civil Code § 1750 et seq., The Consumers Legal Remedies Act (“CLRA”). Plaintiff prays for punitive damages.

Defendant now demurs to the Fifth Cause of Action for Violation of the CLRA and seeks an order striking punitive damages from the FAC.

Plaintiff filed an Opposition to the Demurrer only.[1] The Motion to Strike is unopposed.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “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.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Defense counsel has complied with the meet and confer requirement. (See Declaration of Cameron Major, ¶ 2.)

Defendant demurs to the Fifth Cause of Action for Violation of the CLRA for two reasons: (1) Plaintiff did not provide proper notice as required by Civil Code section 1782, and (2) the FAC did not set forth facts sufficient to constitute a cause of action for violation of the CLRA.[2]

Pursuant to section 1782, subdivision (a), of the CLRA, at least 30 days prior to the commencement of an action for damages, the consumer shall “(1) Notify the person alleged to have employed or committed methods, acts, or practices declared unlawful by Section 1770 of the particular alleged violations of Sections 1770” and “(2) Demand that the person correct, repair, replace, or otherwise rectify the goods or services alleged to be in violation of Section 1770.” (Civ. Code, § 1782, subd. (a)(1)-(2).)

Defendant argues the Fifth Cause of Action fails because neither a letter nor notice was sent to Defendant prior to the filing of Plaintiff’s initial Complaint. Nor was the letter or notice attached to the Complaint. Defendant’s argument lacks merit. “A demurrer tests the pleadings alone ... and will be sustained only where the pleading is defective on its face.” (City of Atascadero, supra, 68 Cal.App.4th at p. 459.) Defendant improperly raises extrinsic matters to challenge the legal sufficiency of the Fifth Cause of Action.

The FAC alleges that “Plaintiff provided the proper statutory notice required by The CLRA. Despite the passage of this 30 day statutory notice, Defendants have failed to provide an appropriate remedy.” (FAC, ¶ 64.) The Fifth cause of Action is not subject to demurrer on these grounds.

The CLRA is set forth in Civil Code section 1750 et seq. “The CLRA makes unlawful, ... ‘[27 distinct] unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer.’ ” (Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 639.) To establish a claim for violation of the CLRA, a plaintiff must prove (1) that the plaintiff acquired, or sought to acquire, by purchase or lease, the product or service for personal, family, or household purposes; (2) that the defendant engaged in a prohibited practice under section 1770; (3) that the plaintiff was harmed; and (4) that the plaintiff’s harm resulted from defendant’s conduct. (CACI No. 4700.) The plaintiff’s harm resulted from defendant’s conduct if the plaintiff relied on the defendant’s representation. (CACI No. 4700; Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, 1022, disapproved of on other grounds in Raceway Ford Cases (2016) 2 Cal.5th 161, 180.) To prove reliance, plaintiff need only prove that the representation was a substantial factor in the plaintiff’s decision to buy or lease the goods. If the defendant’s representation of fact was material, reliance may be inferred. A fact is material if a reasonable consumer would consider it important in deciding whether to buy or lease the goods or services. (CACI No. 4700; (Collins v. eMachines, Inc. (2011) 202 Cal.App.4th 249, 256.)

Defendant argues the Fifth Cause of Action is premised on misrepresentations which require Plaintiff to plead with specificity similar to that for a cause of action alleging fraud.[3] This argument fails. The Court of Appeal addressed this very issue in Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234. After reviewing the pertinent case law, the court in Gutierrez concluded that “causes of action under the CLRA ... must be stated with reasonable particularity, which is a more lenient pleading standard than is applied to common law fraud claims.” (Gutierrez, 19 Cal.App.5th at p. 1261.)

Here, the CLRA claim is stated with reasonable particularity. The FAC alleges that Plaintiff “purchased a 2019 Chevrolet Silverado ... for personal, family, and/or household purposes” (FAC, ¶ 5); that “Defendant’s actions violated the CLRA by mispresenting the subject vehicle as being free from defects” and “by representing that any defect that did occur during the warranty would be repaired” (FAC, ¶ 62); that Defendants “failed to conform the Vehicle to the applicable warranties because said defects ... continue to exist even after a reasonable number of attempts to repair was given” (FAC, ¶ 13); that Plaintiff has been damaged in the form of general, special and actual damages in an amount within the jurisdiction of this Court” (FAC, ¶ 52). The FAC also identifies three[4] of the twenty-seven unfair methods. (See FAC, ¶ 61.) Each of the four elements of a CLRA claim are pled. Further, two reasonable inferences may be drawn from these allegations: (1) representing that the vehicle was free from defects and that any defect occurring during the warranty period are material to Plaintiff’s decision to purchase the vehicle, and (2) Plaintiff relied on these representations. The FAC is sufficiently pled.

Plaintiff does not oppose the motion to strike. The motion is therefore Granted.

The Motion to Strike is GRANTED. Plaintiff is ordered to file within 10 days a Second Amended Complaint striking reference to and the prayer for punitive damages.

Defendant General Motors, LLC is ordered to file and serve its Answer within ten days of service to the Second Amended Complaint.

[1] In the Opposition, Plaintiff requests, in the alternative, a stay of all proceedings, including the hearing for this Demurrer, pending the California Supreme Court’s decision in Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, review granted, 512 P.3d 654. However, Defendant demurs to the Fifth Cause of Action for violation of the CLRA. Rodriguez does not concern CLRA claims. As such, Rodriguez is inapplicable to the disposition of the Demurrer. The request is DENIED.

[2] In the notice of motion, Defendant states as a third basis for the Demurrer that the Fifth Cause of Action is uncertain, ambiguous, and unintelligible. However, Defendant does not provide argument or otherwise demonstrate how the Fifth Cause of Action is subject to demurrer on these grounds. As such, the Court does not address this argument further.

[3] In support of this argument, Defendant cites cases that are inapposite. (See Demurrer, p. 10:9-12.) None of the cases concern or otherwise discuss a CLRA claim.

[4] (5) Representing the goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have, or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have.

(7) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are another.

(14) Representing that a transaction confers or involves rights, remedies, or obligations that it does not have or involve or that are prohibited by law. (Civ. Code, § 1770, subd. (a)(5), (7), and (14).)