Judge Upinder S. Kalra, Case 21STCV38391 2022-09-21 Tentative Ruling

1. An order sustaining the demurrer as the entire complaint based on uncertainty and to the individual causes of action one through five

2. An order striking portions of the Complaint that refer to damages, specifically in the second and third causes of action

2. Demurrer is OVERRULED, as to the first, third, fourth, and fifth causes of action

On October 19, 2021, Plaintiff Ora Shenassa (“Plaintiff”) filed a complaint against Defendant Hyundai Motor America (“Defendant.”) The complaint alleged five causes of action based on violations under Song-Beverly and breach of warranties. Plaintiff alleges that she purchased the Subject Vehicle that was manufactured by Defendant. During the warranty period, the Vehicle contained or developed defects that Defendant could not and did not sufficiently repair.

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. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶7:8. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed (Code Civ. Proc., §§ 430.30, 430.70). 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 147 Cal.App.4th at 747.

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.) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

Defendant demurs on various grounds, including that the entire complaint is uncertain, and the five causes of action fail to constitute causes of action.

First, Defendant asserts that Plaintiff’s complaint fails because it does not plead facts with the required specificity for statutory claims, citing to Covenant Care, Inc., v. Superior Court (2004) 32 al.4^th 771, 790. However, as Plaintiff argues, Defendant fails to provide any authority that this pleading requirement applies to a Song-Beverly action. Moreover, Covenant dealt with the Elder Abuse Act and requirements for seeking punitive damages.

Additionally, “demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.) Here, the demurrer is not uncertain because the pleading contains sufficient facts that allow Defendant to reasonably respond. Plaintiff’s complaint indicates that she purchased a vehicle, it contained defects, the Defendant’s representative failed to fix those defects, and Defendant did not comply with the obligations under Song-Beverly. (Complaint ¶ 8-11, 18-19, 23-24, 26-28, and 30-33.)

The Demurrer to the complaint on the grounds that the complaint is uncertain is OVERRULED.

Defendant contends that the first cause of action fails because it is does not allege the vehicle was sold with a new warranty.

Except as provided in paragraph (2), if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that amount directly attributable to use by the buyer prior to the discovery of the nonconformity.

The SBA obligates a manufacturer or its representative to service or repair a new car to conform with applicable express warranties within a reasonable number of attempts. (Civ. Code, § 1793.2(d)(2).)¿If the manufacturer fails to do so, it must either replace the car or make restitution to the buyer. (Id.) A used vehicle sold during the period of a transferrable new vehicle warranty is a new vehicle for purposes of the Song-Beverly Act. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 123.)

Defendant contends that under Rodriguez v. FCA US, LLC, (Apr. 7, 2022) 77 Cal.App.5th 209, which held that used cars do not receive a new warranty and therefore cannot bring claims under Song-Beverly, Plaintiff is unable to bring any express warranty claims. However, as Plaintiff argues, the California Supreme Court has granted petition; therefore, Rodriguez can be cited for persuasive value and “for limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict.” (Rodriguez v. FCA US (Cal. 2022) 512 P.3d 654.) Therefore, because the Court has discretion, Jensen, which allows for used vehicles to be considered a new vehicle under Song-Beverly, is controlling. After reviewing the complaint, Plaintiff has sufficiently alleged the requirements under § 1793.2(d). Here, the complaint states that Plaintiff purchased the vehicle (Comp. ¶ 8), it was under warranty (Comp. ¶ 9), it contained or developed various defects, (Comp. ¶ 10), and Defendants were unable to repair the vehicle after a reasonable number of attempts. (Comp. ¶ 11.)

Defendant contends that the Complaint fails as it is vague and does not allege the damages that resulted in the delay in repair or when the damages were incurred. Plaintiff argues that the Complaint alleges three various legal theories for the second cause of action: repair exceeded 30 days in total, Defendant did not repair in a reasonable time, and Plaintiff revoked acceptance of the vehicle.

Where those service and repair facilities are maintained in this state and service or repair of the goods is necessary because they do not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days. Delay caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay

A review of the Complaint indicates that Plaintiff did not sufficiently plead the second cause of action because there are no facts to support the conclusory allegation that the car was not repaired within 30 days. The complaint, while it does not need to plead every fact, it does need to plead the ultimate facts. Here, Plaintiff did not provide sufficient information about when the car was with Defendant and for how long. (Comp. ¶ 18.)

Defendant contends that this cause of action does not have the specific allegations, and merely states conclusory allegations.

Civ. Code section 1793.2(a)(3) requires manufacturers of consumer goods for which the manufacturer has made an express warranty to make available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.

A review of the complaint indicates that Plaintiff has sufficiently pled the third cause of action. The complaint states that Plaintiff brought the Subject Vehicle into be repaired as it contained various defects. (Comp. ¶ 10.) However, the repairs did not conform to the warranty. (Comp. ¶ 11.) Further, the complaint also alleges that Defendant did not make available replacement parts during the warranty period. (Comp. ¶ 23.)

Defendant argues that the fourth and fifth causes of action are barred under Rodriguez. Specifically, Defendant argues that the complaint does not allege that the vehicle was purchased with a “new” warranty, as required under Rodriguez.

(1) A written statement arising out of a sale to the consumer of a consumer good pursuant to which the manufacturer, distributor, or retailer undertakes to preserve or maintain the utility or performance of the consumer good or provide compensation if there is a failure in utility or performance; or

(2) In the event of any sample or model, that the whole of the goods conforms to such sample or model.

As stated above, the Court has discretion to determine and choose between two sides of a conflict. Here, the conflict is whether a used car is entitled to protections under SBA. Thus, Complaint sufficiently alleges that the Plaintiff received the car with a warranty, the car was defective, Defendant attempted to repair the car, but failed to do so. (Comp. ¶ 26.)

Therefore, because the complaint sufficiently alleges a breach of warranty, the fourth cause of action is OVERRULED.

Defendant contends that complaint fails to allege that Defendant was a distributor of the used vehicle, as required under California Civil Code § 1795.5(a).

(a) “Implied warranty of merchantability” or “implied warranty that goods are merchantable” means that the consumer goods meet each of the following:

(4) Conform to the promises or affirmations of fact made on the container or label.

“Notwithstanding the provisions of subdivision (a) of Section 1791 defining consumer goods to mean “new” goods, the obligation of a distributor or retail seller of used consumer goods in a sale in which an express warranty is given shall be the same as that imposed on manufacturers under this chapter except:

(a) It shall be the obligation of the distributor or retail seller making express warranties with respect to used consumer goods (and not the original manufacturer, distributor, or retail seller making express warranties with respect to such goods when new) to maintain sufficient service and repair facilities within this state to carry out the terms of such express warranties.”

The complaint sufficiently alleges a breach of implied warranty of merchantability because the complaint alleges that the vehicle suffered from various defects. “In asserting a warranty claim, ‘[i]t is not enough to allege that a product line contains a defect or that a product is at risk for manifesting this defect; rather, the plaintiffs must allege that their product actually exhibited the alleged defect.’” (McGee v. Mercedes-Benz USA, LLC (S.D. Cal., Mar. 30, 2020, No. 19CV513-MMA (WVG)) 2020 WL 1530921, at *6.)“In generic terms, the elements of any cause of action are wrongdoing, causation and harm….Under the circumstances of this case, which involves the sale of a used automobile, the element of wrongdoing is established by pleading and proving (1) the plaintiff bought a used automobile from the defendant, (2) at the time of purchase, the defendant was in the business of selling automobiles to retail buyers, (3) the defendant made express warranties with respect to the used automobile, and (4) the automobile was not fit for ordinary purposes for which the goods are used.” (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1246, as modified on denial of reh'g (Feb. 22, 2018).)

The complaint states that Plaintiff purchased the vehicle from the defendant (Comp. ¶ 8), Defendant distributes, manufactures, and sells vehicles, (Comp. ¶ 4), the purchase of vehicle came with warranties (Comp. ¶ 9, 30-31), and the vehicle was not fit for ordinary purposes (Comp. ¶ 10, 32.) The alleged defects were of the type that “created a substantial safety hazard.” (Guiterrez, supra, 19 Cal.App.5th at p. 1248.) Jolting and jerking type motions would render a car unsafe and potential safety hazard. (Comp. ¶ 11.) Additionally, as to Civil Code § 1795.5, Plaintiff alleges that Defendant distributes the vehicles. This is sufficient.

Therefore, because the Complaint sufficiently alleges a breach of implied warranty of merchantability, the Demurrer as to the Fifth Cause of Action is OVERRULED.

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect. (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.) The Plaintiff has the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“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). It is likely that Plaintiff will be able to amend the defect in the second cause of action. Plaintiff is likely to be able to provide further facts, such as dates, to satisfy this cause of action.

1. Paragraphs 29 and 30[1] and Prayer for Relief for Restitution and Diminution in Value

Defendant moves to strike portions of the complaint under the second cause of action that seek damages under Civil Code § 1793.2(b). However, as the Court is sustaining the second cause of action, the request to strike these portions of the complaint is MOOT.

2. Paragraphs 32-33[2] and Prayer for Relief for replace or restitution and related damages

Defendant moves to strike portions of the complaint under the third cause of action that seek “actual damages.” Plaintiff argues that because a party can recover the purchase price for a violation under Civil Code § 1793.2(b), a party can recover under Civil Code § 1793.2(a)(3). Specifically, under Civil Code § 1794(a), a buyer “who is damaged by a failure to comply with any obligation under this chapter…may bring an action for damages and other legal and equitable relief.

Here, the complaint alleges that under Civil Code § 1794, Plaintiff is entitled to damages in the form of civil penalties. (Comp. ¶ 24.)

The Motion to Strike is MOOT, as to the first request, and DENIED, as to the second request.

2. Demurrer is OVERRULED, as to the first, third, fourth, and fifth causes of action

[1] These paragraphs correspond to the fifth cause of action, not the second. However, Defendant seeks to strike portions of the complaint that seek damages for violations under the second cause of action.

[2] Like above, the paragraphs are incorrectly cited. Paragraphs 32 and 33 refer to the fifth cause of action. However, Defendant requests