Judge: Upinder S. Kalra, Case: 21STCV38391, Date: 2023-03-02 Tentative Ruling

Case Number: 21STCV38391    Hearing Date: March 2, 2023    Dept: 51

Tentative Ruling


Judge Upinder S. Kalra, Department 51


HEARING DATE:   March 2, 2023                                    


CASE NAME:           Ora Shenassa v. Hyundai Motor America


CASE NO.:                21STCV38391




MOVING PARTY: Defendant Hyundai Motor America


RESPONDING PARTY(S): Plaintiff Ora Shenassa




1.      An order sustaining the demurrer as the second and fifth causes of action.

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



1.      Demurrer is OVERRULED, as to the 5th cause of action.

2.      Demurrer is SUSTAINED, as to the 2nd cause 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.


On June 16, 2022, Defendant filed a Demurrer with a Motion to Strike, which was SUSTAINED, in part.


On November 30, 2022, Plaintiff filed a First Amended Complaint.


On February 2, 2023, Defendant filed the current Demurrer with Motion to Strike. Plaintiff’s Opposition was filed on February 16, 2023. Defendant’s Reply was filed on February 23, 2023.






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.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. …. 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.)


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 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.)


Meet and Confer:


Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). The Declaration of Sasha Bassi indicates that Defendant’s counsel contacted Plaintiffs’ counsel “regarding the deficiencies in the complaint…but no substantive discussion was had and therefore no resolution reached.” (Dec. Bassi ¶ 2.)




Defendant demurs to the second and fifth cause of action fail on various grounds.


1.      Second Cause of Action: Violation of § 1793.2(b)

Defendant contends that Plaintiff failed to add allegations regarding how long the car was in repair, despite this Court sustaining this cause of action for failure to provide fats that the car wa not repair within 30 days. Plaintiff does not allege how many days the service visits lasted and allege the same allegations. Moreover, Plaintiff does not allege any damages that were incurred as a result o the alleged delay.


Plaintiff argues that the second cause of action is sufficient plead. Specifically, Plaintiff argues that the vehicle’s repair history is provided, which indicates Plaintiff brought in the vehicle on five separate visits. (FAC ¶¶ 11-16.) Plaintiff also argues that the theory of liability due to Defendant’s failure to commence service within a reasonable amount of time was alleged. (FAC ¶ 26.) The repair visits support this second theory of liability. (Opp. 4: 6-8.)  Plaintiff also raises a theory that they rejected and revoked acceptance of the vehicle and exercised a right to cancel (FAC ¶ 28.) Therefor, because there are multiple legal theories and Defendant did not address these theories, the demurrer cannot be sustained.


Civil Code section 1793.2(b) provides:


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 FAC indicates that although Plaintiff has now set forth the facts outlining the vehicle’s repair history, Plaintiff still did not sufficiently plead the second cause of action.

First, there are no facts alleged that Defendant failed to commence repairs within a reasonable time. Second, , there are no facts to support the conclusory allegation that Defendant failed to repair the vehicle so as to conform to the applicable warranties within 30 days. To be clear, the repair history of the vehicle does not indicate or allege that the vehicle was not repaired within 30 days. In a footnote in Ramos, the Court of Appeal stated the following:


“Plaintiff's car was in the shop for a total of 44 days during the period between April 2014 and October 2015, but no single repair visit extended for 30 days. We have not been asked to decide whether the 30 days of failure to complete repairs must be 30 consecutive days. For purposes of this appeal, we assume plaintiff proved the 30-day failure to repair requirement without deciding the question.”


Ramos v. Mercedes-Benz USA, LLC (2020) 55 Cal.App.5th 220, 226 n.2. (as modified (Oct. 1, 2020).)


However, here, the FAC does not indicate how long the car was in the shop. The FAC states that the vehicle was brought in on April 7, 2021, May 17, 2021, June 14, 2021, June 17, 2021, and August 17, 2021. (FAC ¶ 11-16.) However, nowhere in the FAC does Plaintiff indicate the length of time the vehicle was in the shop at each date. Without these dates, the Court cannot assume a violation. For example, Plaintiff could have brought the vehicle in and picked it up the same day. Accordingly, Plaintiff has failed to sufficiently plead a cause of action based on Civil Code section 1793.2(b).


Demurrer as to the Second Cause of Action is SUSTAINED, without leave to amend.

2.      Fifth Cause of Action: Breach of Implied Warranty of Merchantability

Defendant argues that this cause of action is untimely. There is a four-year statute of limitations with an implied warranty, which starts with delivery and lapses four years later. Here, Plaintiff received the vehicle in June 2016 and therefore, the statute ran in June 2020. Plaintiff did not bring this action until October 2021. Additionally, there is no tolling of the statute of limitations. First, no discovery rule applies to the implied warranty claim. Second, equitable tolling, the fraudulent concealment rule, equitable estoppel, the repair rule, and class-action tolling do not apply. Plaintiff does not identify any other proceeding for equitable tolling, does not allege any facts that imply fraudulent concealment, does not allege repairs, and does not plead any class action tolling.


Plaintiff argues that the cause of action is timely. Specifically, Plaintiff relies on Mexia for the claim that the four year statute of limitation does not apply if the discovery was not within the one-year warranty period if the defect was a latent defect. (Opp. 5: 7-11, citing to Mexia v. Rinker Boat Co., (2009) 174 Cal. App. 4th 1297, 1304 (Mexia).) Since the vehicle contained a latent defect, the implied warranty does not accrue until discovery of said latent defect. (Opp. 6: 2-8.)


Civil Code § 1791.1 states:


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

(1) Pass without objection in the trade under the contract description.

(2) Are fit for the ordinary purposes for which such goods are used.

(3) Are adequately contained, packaged, and labeled.

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


After a review of the complaint, the Court finds that the cause of action is sufficiently pleaded. The Court of Appeal in Mexia, when referencing Civil Code § 1791.1(c), stated:


The duration provision provides, in essence, that the duration of the implied warranty of merchantability shall be the same as the duration of any reasonable express warranty that accompanies the product, but in no event shorter than 60 days or longer than one year. There is nothing that suggests a requirement that the purchaser discover and report to the seller a latent defect within that time period.


(Mexia, supra, 174 Cal.App.4th at pg. 1310)


Here, liberally construing the pleadings, while Plaintiff leased the car in 2016 and later purchased it in 2020, the latent defects were not discovered until Plaintiff brought  the subject vehicle in for repairs in 2021. Under Defendant’s rational even though Plaintiff did not discover any latent defects until  after  the four year statute of limitations ran, they would be unable to proceed under this cause of action. But Mexia provides, there is no reasonable time provision in the Song-Beverly Act that requires a party to invoke the [Song–Beverly] Act or lose rights granted by that statutory scheme.” (Mexia, supra, 174 Cal.App.4th at pg. 1308.) Even more, the policies behind the Song-Beverly Act are to “expand consumer protection and remedies.” (Id. at 1311.) Accordingly, to follow Defendant’s construction would eviscerate the holding of Mexia and undermine the policy of the Song Beverly Act.



            Demurer as to the Fifth Cause of Action is OVERRULED.


Leave to Amend:


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). Plaintiff was already given the chance to provide further facts, such as dates, to fix the defects in the original complaint. The Court will add that even though Plaintiff was specifically directed by the Court in the Order sustaining the Demurrer to the initial Complaint to plead these facts, failed to do so. This information is within Plaintiff’s knowledge as evidence by the fact Plaintiff did provide dates the vehicle was presented for repair. The Court can infer that this failure to add these additional facts in the FAC is because no such facts exist to support this cause of action.  As such, leave to amend is denied.

Therefore, Leave to Amend is DENIED.


Motion to Strike:


Defendant moves to strike the following portions of the FAC:


·         Paragraphs 28-29 and the Prayer for Relief insofar as it relates to the second cause of action

Defendant moves to strike portions of the FAC 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.


The Motion to Strike is MOOT.




For the foregoing reasons, the Court decides the pending motion as follows:


Demurrer is SUSTAINED, without leave to amend, as to the Second Cause of Action.

Demurrer is OVERRULED, as to the Fifth Cause of Action.

Motion to Strike is MOOT


Moving party is to give notice.




Dated:             March 2, 2023             __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court