Judge: Stephen Morgan, Case: 22AVCV00590, Date: 2023-03-21 Tentative Ruling
Department A14 Tentative Rulings
If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG.
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Case Number: 22AVCV00590 Hearing Date: March 21, 2023 Dept: A14
I. Background
This is a Lemon Law action. Plaintiffs Dalia S. Maldonado (“Maldonado”) and Erick Cabrera (“Cabrera” and collectively “Plaintiffs”) allege that on or about October 10, 2014, they entered a warranty contract with Defendant General Motors, LLC (“Defendant”) regarding a 2014 Chevrolet Cruze vehicle with vehicle identification number 1G1PB5SGXE7448480 (the “Subject Vehicle”), which was manufactured and/or distributed by Defendant. Plaintiffs state they received a warranty contract which included:
·
bumper to bumper warranty,
·
powertrain warranty,
·
emissions warranty,
·
etc.
Plaintiff contends that Defendant did not disclose that the Subject Vehicle had a Cooling System Defect and Defendant undertook to preserve or maintain the utility or performance of the Subject Vehicle or to provide compensation if there is a failure in utility or performance for a specified period of time. Plaintiff further presents: the used the Subject Vehicle for family or household purposes; defects and nonconformities to the warranty manifested themselves within applicable express warranty period, including the engine and cooling system, among other defects; Defendant had a duty promptly offer to repurchase or replace the Subject Vehicle at the time if it failed to conform the Subject Vehicle to the terms of the express warranty after a reasonable number of repair attempts; and Defendant failed to either promptly replace the Subject Vehicle or to promptly make restitution in accordance with the Song-Beverly Act.
On August 19, 2022, Plaintiffs their Complaint.
The operative pleading is the First Amended Complaint (“FAC”), filed on November 21, 2022. The FAC alleges five causes of action for: (1) Violation of Civ. Code § 1793.2(d); (2) Violation of Civ. Code § 1793.2(b); (3) Violation of Civ. Code § 1793.2(a)(3); (4) Breach of the Implied Warranty of Merchantability; and (5) Fraudulent Inducement – Concealment.
On December 20, 2022, Defendant filed a Demurrer with a Motion to Strike to the FAC.
On February 14, 2023, Plaintiffs filed their Opposition to the Demurrer and Motion to Strike.
On February 21, 2023, Defendant filed its Replies.
On February 28, 2023, a hearing was held on the matter. The Court inquired as to whether the parties wanted to stipulate to staying the action until Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (“Rodriguez”) is heard and ruled upon by the California Supreme Court. The parties declined. The Court continued the Demurrer and Motion to Strike to March 21, 2023.
No new filings are presented.
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II. Legal Standard
Standard for Demurrer – A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v.¿Mirda¿(2007) 147 Cal. App. 4th 740, 747.) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal. App. 4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.¿ (CCP § 430.30(a).)¿A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ (SKF Farms v. Superior Court¿(1984) 153 Cal. App. 3d 902, 905.)¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.¿¿(Id.)¿¿The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.¿ (Hahn,¿supra,¿147 Cal.App.4th at 747.)¿¿¿¿¿ ¿¿¿¿¿
A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿ Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer.¿¿(Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)¿ Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.¿¿(Vance v. Villa Park¿Mobilehome¿Estates¿(1995) 36 Cal.App.4th 698, 709.)¿ A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿¿¿¿¿¿ ¿¿¿¿¿¿
Pursuant to¿Code Civ. Proc.¿§430.10(e), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action.¿ It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003) 31 Cal.4th 1074, 1082,¿as modified (Dec. 23, 2003).)¿¿¿¿¿¿
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Standard for Motion to Strike – The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)¿¿¿¿
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Meet and Confer Requirement¿– Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer.¿ (Cal. Code Civ.¿Proc. §430.41 and §435.5.)¿ The Court notes that counsel for Defendant, Ryan Kay (“Kay”), conferred telephonically with Plaintiff’s counsel; however, no agreement was reached. (Decl. Kay ¶ 2.)
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III. Discussion
Application –
i. Demurrer
Defendant demurs as to the Fifth Cause of Action (Fraudulent Inducement – Concealment) only.
First, Defendant argues that the three-year statute of limitations for fraud bars Plaintiffs’ claim. Defendant highlights that, based on the alleged date of the purchase of the Subject Vehicle, Plaintiffs had to file their claim no later than October 10, 2017 and that Plaintiffs did not do this, instead filing their Complaint in August 2022.
Defendant next refutes each of Plaintiffs’ reasonings, presented in the FAC, as to why tolling does not apply:
·
Plaintiffs cannot invoke the delayed discovery
rule because they affirmatively state that the alleged “[d]efects and
nonconformities to warranty manifested themselves with the applicable express
warranty period.” (FAC ¶ 12) and the delayed discovery rule tolls the
applicable statute of limitations only if a plaintiff is unable to discover
their cause of action with reasonable diligence, and to rely upon it, the
plaintiff must plead “facts showing that [they were] not negligent in failing
to make the discovery sooner and that [they] had no actual or presumptive
knowledge of facts sufficient to put [them] on inquiry.” (Hobart v. Hobart
Estate Co. (1945) 26 Cal.2d 412, 437.)
·
Plaintiffs cannot evoke repair doctrine tolling
as Plaintiffs do not plead any facts or law elaborating on this alleged rule or
how it is applicable to Plaintiffs’ specific claims, repair doctrine has only
been examined in breach of warranty claims, and Plaintiffs have not pled any
facts that would allow this Court to infer that the vehicle was under repair
for a cumulative total of five years.
·
Plaintiffs’ FAC contains no allegations
regarding any representations by GM, either at the time of sale or
subsequently, that would allow the court to find that equitable tolling could
apply. That is, “[t]he theory for tolling a statute of limitations for
intentional concealment is that the defendant’s false representations prevent
the plaintiff from bringing the action before the period of limitations has
run,” and therefore “an extension of the limitations period under this theory
thus requires something more than a mere continuation of the prior
nondisclosure which prevents the plaintiff from bringing a timely action[]” (Trantafello
v. Medical Center of Tarzana (1986) 182 Cal.App.3d 315, 321 fn. 4) and,
under this legal standard, Plaintiffs’ FAC is completely devoid of any factual
allegations that would allow the Court to infer that Defendant, in any way,
acted to prevent Plaintiffs from bringing this action before the limitations
period had run. Further, as to third-party dealerships, courts have held that
“repair center assurances that issues have been resolved do not alone serve to
show that a car owner could not have discovered a defect if there are signs of continued
problems.” (See Vanella v. Ford Motor Co., Case No. 3:19-cv-07956-WHO, 6-7
(N.D. Cal. Feb. 24, 2020).)
· Class action tolling from American Pipe & Const. Co. v. Utah (1974) 414 U.S. 538 (“American Pipe”) does not apply here because Plaintiffs are relying on a class action to which they are not and would not have been a party.
If an action is brought more than three years after commission of the fraud, the plaintiff has the burden of pleading and proving that they did not make the discovery until within three years prior to the filing of his complaint. (See Hobart, supra, 26 Cal.2d 412, 437.)
Plaintiffs argue that, under Cal. Code Civ. Proc. § 338(d), the running of the statute of limitations does not appear “clearly and affirmatively” on the face of the FAC because the statute of limitations did not begin to run as of the date the Subject vehicle was purchased. Plaintiffs emphasize that the application of Cal. Code Civ. Proc. § 338(d) accrues once a plaintiff discovers the fraud and, here, the wrongful conduct began on or about October 10, 2014, when they purchased Subject Vehicle and continued throughout the various repair visits to Defendant’s authorized repair facilities.
Plaintiffs alleged they entered a warranty contract with Defendant on or about October 10, 2014 (FAC ¶ 6), that defects and nonconformities to warranty manifested themselves within the applicable express warranty period (FAC ¶ 12), Plaintiffs sought repair of the alleged defects starting on or about March 21, 2015 (FAC ¶ 39), and had the defects been disclosed Plaintiffs would not have purchased the subject vehicle (FAC ¶ 30.) The fraud alleged is specifically pled to be: “Defendant General Motors, LLC committed fraud by allowing the Vehicle to be sold to Plaintiffs without disclosing that the Vehicle and its cooling system were defective and susceptible to sudden and premature failure.” (FAC ¶ 87.) On the face of the FAC, Plaintiffs are bringing this action over three years after the commission of the fraud.
The FAC also contains contradictory material facts. That is, Plaintiffs allege that that defects and nonconformities to warranty manifested themselves within the applicable express warranty period (FAC ¶ 12) and Plaintiffs provide various dates of when they took the Subject Vehicle in for repairs from May 30, 2015 to October 03, 2020 (FAC ¶¶ 39-47), but simultaneously, Plaintiffs also plead that “[they] discovered Defendant’s wrongful conduct alleged herein shortly before the filing of the complaint, as the Vehicle continued to exhibit symptoms of the defects following Defendant’s unsuccessful attempts to repair them.” (FAC ¶ 49.) The California Supreme Court stated: “[A]lthough a plaintiff may plead inconsistent counts or causes of action in his complaint [citation] even where, as here, it be verified, if there are no contradictory or antagonistic facts [citations], we are in accord with the view … that the rule was not ‘intended to sanction the statement in a verified complaint of certain facts as constituting a transaction in one count or cause of action, and in another count or cause of action a statement of contradictory or antagonistic facts as constituting the same transaction. In short, the rule does not permit the pleader to blow both hot and cold in the same complaint on the subject of facts of which he purports to speak with knowledge under oath.’” (Faulkner v. California Toll Bridge Authority (1953) 40 Cal.2d 317, 328; see also Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1381–1382 [“A plaintiff may plead inconsistent counts or causes of action in a verified complaint, but this rule does not entitle a party to describe the same transaction as including contradictory or antagonistic facts,” and “[i]n such circumstances, we may accept as true the more specific allegations.”].)
Cal. Code Civ. Proc. § 338(d) reads: “An action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” Plaintiffs’ argument is that the process of bringing the Subject Vehicle to repair shops shows that the fraud continued throughout the repair visits and, only after the last visit in 2020, was the fraud discovered. This argument is distinct from the pleadings which focus only on the sale of the Subject Vehicle in the Fifth Cause of Action. (See FAC ¶¶ 86-97.) That aside, Plaintiffs fail to address the case law surrounding Cal. Code Civ. Proc. § 3389(d). Specifically, case law provides that Cal. Code Civ. Proc.’s delayed discovery rule is interpreted to require the plaintiff to investigate if there are circumstances that would arouse the suspicions of a reasonably prudent person. "The statute of limitations begins to run when the plaintiff has information which would put a reasonable person on inquiry." (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1374.) In other words, “an exception to the general rule for defining the accrual of a cause of action -- indeed the 'most important' one -- is the discovery rule. [Citation.] It may be expressed by the Legislature or implied by the courts. [Citation.] It postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citations.]” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) "Under Jolly [v. Eli Lilly & Co. (1988) 44 Cal.3d 1103], which relies on decisions such as Gutierrez [v. Mofid (1985) 39 Cal.3d 892, 218] and Sanchez [v. South Hoover Hospital (1976) 18 Cal.3d 93], the plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof--when, simply put, he at least 'suspects . . . that someone has done something wrong' to him [citation], 'wrong' being used, not in any technical sense, but rather in accordance with its 'lay understanding' [citation]. He has reason to discover the cause of action when he has reason at least to suspect a factual basis for its elements. [Citation.] He has reason to suspect when he has ‘“‘“notice or information of circumstances to put a reasonable person on inquiry”’”’ [citation]; he need not know the ‘specific “facts” necessary to establish’ the cause of action; rather, he may seek to learn such facts through the ‘process contemplated by pretrial discovery’; but, within the applicable limitations period, he must indeed seek to learn the facts necessary to bring the cause of action in the first place--he ‘cannot wait for’ them ‘to find’ him and ‘sit on’ his ‘rights’; he ‘must go find’ them himself if he can and ‘file suit’ if he does [citation]." (Norgart v. Upjohn Co., supra, at pp. 397-398, fns. omitted.)
Plaintiffs filed suit on August 19, 2022. Plaintiffs allege that they brought in the Subject Vehicle to Defendant’s authorized repair facility first on or about May 30, 2015 (FAC ¶ 40), then three times in 2017 (FAC ¶¶ 41-43), then again in 2019, and finally twice in 2020. Plaintiffs also allege that there were four recalls related to Subject Vehicle by January 11, 2019. Applying the aforementioned principles, Plaintiffs substantial evidence indicates that Plaintiffs should have known of the fraud before August 19, 2019. That is, by August 19, 2019, Plaintiffs had brought the Subject Vehicle in to for repairs, allegedly at Defendant’s authorized repair facility, five (5) times and should have been discovered or had reason to discover the fraud.
The Court notes that the COVID-19 Emergency Rules for tolling, Specifically Emergency Rule 9, tolled civil actions only from April 6, 2020, until October 1, 2020 and is inapplicable to this case. (See California Courts, Emergency Rules Related to COVID-19 < https://www.courts.ca.gov/documents/appendix-i.pdf> [as of March 13, 2023].)
Plaintiffs allege further tolling of their action by equitable tolling, the discovery rule, the fraudulent concealment rules, equitable estoppel, the repair rule, and/or class action tolling (e.g., the American Pipe rule). (FAC ¶ 38.) The Court has addressed the discovery rule, ante.
Regarding equitable tolling, no facts are alleged to support the theory. (See FAC ¶ 38 [only paragraph mentioning equitable tolling]. See also Leasequip, Inc. v. Dapeer (2002) 103 Cal.App.4th 394, 406-07 [“Although courts frequently discuss ‘equitable tolling,’ the concepts of equitable estoppel and tolling are distinct. . .”].)
It appears that Plaintiffs are attempting to combine equitable estoppel and the repair doctrine as Plaintiffs mention estoppel in this section of the pleadings. (See FAC ¶ 61.) Plaintiffs allege that “[t]he statute of limitations is tolled by various unsuccessful attempts to repair the vehicle” (FAC ¶ 57) and “the limitations period for warranty claims is tolled against a defendant whenever that defendant claims that the defect is susceptible to repair and attempts to repair the defect” (FAC ¶ 58). Plaintiffs’ Opposition reiterates the repair doctrine applies. However, the authorities cited in Plaintiff's opposition (Opposition at p. 6 [Aced v. Hobbs–Sesack Plumbing Co. (1961) 55 Cal.2d 573, 585; A&B Painting & Drywall, Inc. v. Sup. Ct. (2002) 25 Cal.App.4th 349, 355; Cardinal Health 301, Inc, v. Tyco Electronics, Corp. (2008) 169 Cal.App.4th 116, 133–34 suggest the rule applies to the tolling of the statute of limitations for breach of warranty claims and, as such, it is unclear that such tolling can apply to fraud claims.
Finally, as to class action tolling, Plaintiffs allege that the rule from American Pipe applies. Plaintiffs’ pleadings do not explain how Plaintiffs are a class action member or even mention a case. The pleadings, regarding American Pipe, state only:
Under the tolling rule articulated in Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974) (“American Pipe”), the filing of a class action lawsuit in federal court tolls the statute of limitations for the claims of unnamed class members until the class certification issue is resolved. In applying American Pipe tolling to California cases, the California Supreme Court summarized the tolling rule derived from American Pipe and stated that the statute of limitations is tolled from the time of commencement of the suit to the time of denial of certification for all purported members of the class. Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 1119 (1988). Tolling lasts from the day a class claim is asserted until the day the suit is conclusively not a class action. Falk v. Children's Hosp. Los Angeles, 237 Cal. App. 4th 1454, 1464 (2015)
(FAC ¶ 50.)
Plaintiffs’ Opposition does not include an argument about class action tolling.
For clarity, the Court notes that Plaintiffs are not entitled to tolling under American Pipe. (See Jolly v. Eli Lilly and Company (1988) 44 Cal.3d 1103, 1126 ["For the reasons previously stated, we hold the American Pipe tolling rule…is unavailable to plaintiff. Specifically, we find that plaintiff and other similarly situated plaintiffs seeking personal injury damages in DES cases may not rely on the Sindell class action suit…to toll the statute of limitations pursuant to American Pipe."] and Clemens v. Daimler Chrysler Corp. (9th Cir. 2008) 534 F.3d 1017, 1025 (“Accordingly, the weight of authority and California's interest in managing its own judicial system counsel us not to import the doctrine of cross-jurisdictional tolling into California law. The rule of American Pipe-which allows tolling within the federal court system in federal question class actions-does not mandate cross-jurisdictional tolling as a matter of state procedure. We therefore conclude that the filing of the Illinois action did not toll the statute, and Clemens's Civil Code fraud claim is barred by the three-year statute of limitations.”)
Plaintiffs have not met their burden to show that did not make the discovery until within three years prior to the filing of their original Complaint.
Defendant’s Reply does not change
the Court’s analysis.
Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy¿(1976), 18 Cal.3d 335, 348.) While under California law leave to amend is liberally granted, “leave to amend should not be granted where, in all probability, amendment would be futile.” (Vaillette v. Fireman's Fund Ins. Co. (1993), 18 Cal. App. 4th 680, 685). “A trial court does not abuse its discretion when it sustains a demurrer without¿leave to amend¿if either (a) the facts and the nature of the claims are clear and no liability exists, or (b) it is probable from the nature of the defects and previous unsuccessful attempts to plead that the plaintiff cannot state a claim.” (Cantu v. Resolution Trust Corp.¿(1992)¿4 Cal.App.4th 857, 889.)¿
Here, it is not possible for the deficiencies in the FAC to be rectified due to the applicable statute of limitations.
ii. Motion to Strike
Defendant moves the Court to strike punitive damages from Plaintiff’s FAC. Defendant presents that the Song-Beverly Act, subject of Plaintiffs’ First through Fourth Causes of Action, does not allow punitive damages. Instead, allowing only a recovery limited to the purchase price paid and payable (or replacement of the vehicle) and, in special circumstances, a civil penalty not to exceed two times Plaintiff’s actual damages. Defendant argues that the civil penalty is discretionary, not automatic, citing Suman v. Superior Court (1995) 39 Cal.App.4th 1309, 1315: “[I]f the trier of fact finds the defendant willfully violated its legal obligations to plaintiff, it has discretion under [Civil Code section 1794,] subdivision (c) to award a penalty against the defendant. Subdivision (c) applies to suits concerning any type of ‘consumer goods,’ as that term is defined in section 1791 of the Act.” Defendant further cites Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228 (“Troensegaard”) to show that Plaintiffs cannot demand both a civil penalty under the Song-Beverly Act and punitive damages: “[H]ad the Legislature, by Civil Code sections 3294 (permitting punitive damages) and 1794 (permitting a civil penalty [under Song-Beverly]), intended a double recovery of punitive and penal damages for the same willful, oppressive, malicious, and oppressive acts, it would in some appropriate manner have said so. And we believe that by seeking a “civil penalty” and also attorney’s fees and all reasonable expenses as allowed by Civil Code section 1794, plaintiff had in effect elected to waive punitive damages under section 3294.”
Next, Defendant presents that punitive damages could only be recovered if Plaintiffs had a viable claim in its Fifth Cause of Action (Fraudulent Inducement – Concealment). Defendant incorporates its Demurrer and presents Cal. Civ. Code § 3294 requires that Plaintiff must allege facts to support a claim of malice, oppression, and/or fraud and Plaintiff’s current FAC fails to allege facts showing that Defendant intended to cause injury to Plaintiffs, engaged in despicable conduct with a willful and conscious disregard of the rights or safety of others, subjected Plaintiffs to cruel and unjust hardships in conscious disregard of Plaintiffs’ rights, or intentionally misrepresented, deceived, or concealed a material fact known to Defendant with the intention of depriving Plaintiffs of property or legal rights or otherwise causing injury.
Plaintiffs argue that Defendant’s
Demurrer is meritless and, therefore, Defendant’s Motion to Strike fails as
well. Plaintiffs next argue that they have alleged malice through the
following: (1) the Cooling System Defect (engine coolant leak from the water
pump, water pump weep reservoir, and/or water pump shaft seal) poses a safety
hazard, and is unreasonably dangerous to consumers because it can cause reduced
cooling performance, engine overheating, coolant odor, reduced engine power,
stalling, and/or total engine failure (FAC ¶¶ 22-24); (2) Defendant knew prior
to Plaintiff’s acquisition of the Subject Vehicle that 2014 Chevy Cruze
vehicles, including Subject Vehicle, contained the Cooling System Defect (FAC
¶¶ 27-36); (3) Defendant acquired its knowledge of the defect through
sources not available to consumers (FAC ¶ 93); and ) despite Defendant knowing about the defect and its dangerous consequences, Defendant nevertheless concealed the defective nature of the Subject Vehicle from Plaintiffs prior to the date of purchase and thereafter (FAC ¶¶ 29, 61, 89, 92-93.) Finally, Plaintiffs argue Song-Beverly provides for the recovery of punitive damages in cases of willful breach and, at the pleading stage, a plaintiff may simultaneously seek to recover both punitive damages and statutory penalties.
Defendant’s Reply reiterates that Plaintiffs have not alleged facts sufficient to state a claim for fraud, Plaintiffs have not alleged viable claims to support punitive damages, and punitive damages are not available under Plaintiffs other claims.
The Court has addressed the Demurrer, ante. To the extent necessary, the Court incorporates its analysis here.
The remaining questions regarding punitive damages before the Court are: (1) Can punitive damages be awarded in Song-Beverly claims, and (2) if so, have Plaintiffs sufficiently alleged facts sufficient to sustain a request for punitive damages?
First, the Court addresses Plaintiffs’ cited cases. Plaintiff cites, apart from Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253 (“Clauson”), only to federal cases to support their argument that punitive damages can be awarded in conjunction with a civil penalty. Plaintiffs cited cases – Brilliant v. Tiffin Motor Homes, Inc. (N.D. Cal. July 07, 2010) 2010 U.S.Dist.LEXIS 67408/2010 WL 2721531; Clark v. LG Elecs. U.S.A., Inc. (S.D. Cal. Oct. 29, 2013) 2013 U.S. Dist. LEXIS 155179/2013 WL 5816410 – all cite to Romo v. FFG Ins. Co. (C.D. Cal. 2005) 397 F.Supp.2d 1237 (also cited by Plaintiffs). Plaintiffs mischaracterize these federal cases. Romo v. FFG Ins. Co. (C.D. Cal. 2005) 397 F.Supp.2d 1237 (“Romo”) reads, in pertinent part:
The Song-Beverly Act authorizes civil penalties of up to two times the amount of actual damages for violations. Cal. Civ. Code § 1794(c). While these civil penalties are not punitive damages per se, the California courts have, on numerous occasions, analogized the two because both are intended to punish and deter defendants rather than compensate plaintiffs. See, e.g., Suman v. Superior Court, 39 Cal. App. 4th 1309, 1317, 46 Cal. Rptr. 2d 507 (1995); Kwan v. Mercedes-Benz of N. Am., Inc., 23 Cal. App. 4th 174, 184, 28 Cal. Rptr. 2d 371 (1994); Troensegaard v. Silvercrest Indus., Inc., 175 Cal. App 3d 218, 226-28, 220 Cal. Rptr. 712 (1985); see also Doran v. Embassy Suites Hotel, 2002 U.S. Dist. LEXIS 16116, *10-11 (N.D. Cal. Aug. 22, 2002); Gibson v. Chrysler Corp., 1998 U.S. Dist. LEXIS 11343, *7-8 (N.D. Cal. July 20, 1998). This Court similarly believes that the Song-Beverly civil penalties are akin to punitive damages and ought to be treated the same for the purposes of this analysis.
(Romo, supra, 397 F.Supp.2d at 1240.)
Romo does not hold that civil penalties and punitive damages may be awarded in conjunction as Plaintiffs seek to argue. It holds that should the Song-Beverly Consumer Warranty Act apply in a Magnuson-Moss Warranty Act action, its civil penalty provision could be considered as akin to punitive damages. (See also Tuscany Invs. LLC v. Daimler Trucks North Am. LLC (N.D. Cal. August 18, 2015) 2015 U.S. Dist. LEXIS 109842/2015 WL 4941699 at 11 [summarizing Romo]).
Clauson, too, is distinguished. The issue in Clauson was whether plaintiffs could recover the statutory penalties for unlawful wiretapping pursuant to Cal. Pen. Code § 637.2(a) and punitive damages as permitted by Cal. Civ. Code § 3294 when pleading common law violation of privacy and statutory wiretapping theories. (See Clauson, supra, 67 Cal.App.4th at 1255.) Here, Plaintiffs are proceeding only under Cal. Civ. Code § 1793.2, the Song-Beverly Act.
As such, Plaintiffs’ arguments are unavailing.
A recent case citing to both Troensegaard and Clauson holds:
California courts have held that if a defendant is liable for a statutory penalty or multiple damages under a statute, the award is punitive in nature, and the award penalizes essentially the same conduct as an award of punitive damages. The plaintiff cannot recover punitive damages in addition to that recovery but must elect its remedy. (Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal. App. 3d 218, 226–228 [220 Cal. Rptr. 712] [civil penalty under Civ. Code, § 1794]; Marshall v. Brown (1983) 141 Cal. App. 3d 408, 419 [190 Cal. Rptr. 392] [treble damages under Lab. Code, § 1054]; see Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1256 [79 Cal. Rptr. 2d 747] [stating that the plaintiffs must elect between statutory penalties or treble damages under Pen. Code, § 637.2, subd. (a) and punitive damages]; Turnbull & Turnbull v. ARA Transportation, Inc. (1990) 219 Cal. App. 3d 811, 826 [268 Cal. Rptr. 856] [treble damages under Bus. & Prof. Code, § 17082].) To impose both a statutory penalty or multiple damages award and punitive damages in those circumstances would be duplicative. (Troensegaard, supra, at pp. 227–228; Marshall, supra, at p. 419.) We presume that the Legislature did not intend to allow such a double recovery absent a specific indication to the contrary. (Troensegaard, supra, at p. 228; see Hale v. Morgan (1978) 22 Cal.3d 388, 405 [149 Cal. Rptr. 375, 584 P.2d 512] [narrowly construing Civ. Code, § 789.3 with regard to the amount of a civil penalty]; People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 313–314 [58 Cal. Rptr. 2d 855, 926 P.2d 1042] [discussing Hale].)
(Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720at 759-60.)
Plaintiff cannot recover punitive damages in addition to the civil penalty provided by the Song-Beverly Act. Plaintiffs have elected to proceed with causes of actions arising from the Song-Beverly Act. Thus, Plaintiffs have elected their remedy – the civil penalty.
Accordingly, the Motion to Strike is GRANTED.
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IV. Conclusion
Defendant General Motors, LLC’s Demurrer to Plaintiff Dalia S. Maldonado and Erick Cabrera’s Fifth Cause of Action (Fraudulent Inducement – Concealment) is SUSTAINED without leave to amend.
Defendant General Motors, LLC’s Motion to Strike Punitive Damages from the First Amended Complaint is GRANTED.