Judge: Virginia Keeny, Case: 24STCV17551, Date: 2025-03-19 Tentative Ruling
Case Number: 24STCV17551 Hearing Date: March 19, 2025 Dept: 45
TRACY ROY MCKINLEY V. CARMAX AUTO
SUPERSTORES CALIFORNIA, LLC
DEMURRER TO COMPLAINT; MOTION TO STRIKE
Date of Hearing: March 19, 2025 Trial Date: Not set
Department: 45 Case
No.: 24STCV17551
Moving
Party: Defendant Carmax Auto
Superstores, Inc. (successor-in-interest to Carmax Auto Superstores California,
LLC)
Responding
Party: Plaintiff Tracy Roy McKinley
BACKGROUND
This action arises from the alleged purchase of a defective
2014 BMW 335 (the “Subject Vehicle”). On July 15, 2024, Plaintiff Tracy Roy
McKinley (“Plaintiff”) filed a complaint against Defendant Carmax Auto
Superstores, Inc. (successor-in-interest to Carmax Auto Superstores California,
LLC) (“Defendant”) alleging causes of action for: (1) violation of subdivision
(D) of Civil Code section 1793.2; (2) violation of subdivision (B) of Civil
Code section 1793.2; (3) violation of subdivision (A)(3) of Civil Code section
1793.2; (4) breach of express written warranty; (5) breach of the implied
warranty of merchantability; and (6) violation of the Song-Beverly Act section
1793.22—Tanner Consumer Protection Act.
On September 3, 2024, Defendant filed the instant demurrer
to each cause of action in the complaint, as well as a motion to strike. Defendant
demurs to each cause of action in the complaint on the grounds that: (1) the
causes of action are all uncertain; and (2) the complaint fails to state facts
sufficient to constitute a cause of action.
On February 27, 2025, Plaintiff filed respective oppositions
to the demurrer and motion to strike.
On March 12, 2025, Defendant filed reply briefs as to the
demurrer and motion to strike.
[Tentative] Ruling
The Court SUSTAINS IN PART and OVERRULES IN PART the
demurrer of Defendant.
The Court OVERRULES the demurrer to the first, second,
third, fourth, and fifth causes of action in the complaint.
The Court SUSTAINS the demurrer to the sixth cause of action
in the complaint with 20 days leave to amend.
The motion to strike is DENIED.
LEGAL
STANDARD
A party
may demur to a complaint on the grounds that it “does not state facts sufficient
to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A
demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th
740, 747.)
When
considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT
Mobile, Inc.
(2010) 185 Cal.App.4th 1068, 1078.) “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.” (SKF Farms v.
Superior Court (1984) 153 Cal.App.3d 902, 905.) “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 p.
747.)¿On demurrer, a court does “not accept contentions, deductions or
conclusions of fact or law.” (Simonyan v. Nationwide Insurance Company of America (2022) 78 Cal.App.5th
889, 895.)
Although
courts construe pleadings liberally, sufficient facts must be alleged to
support the allegations pled to survive a demurrer. (Rakestraw v. California
Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.) Where a demurrer is
sustained, leave to amend must be allowed where there is a reasonable
possibility of successful amendment. (Goodman v. Kennedy (1976) 18
Cal.3d 335, 349.) The burden is on the party who filed the pleading subject to
demurrer to show the court that a pleading can be amended successfully. (Ibid.)
“Any
party, within the time allowed to respond to a pleading may serve and file a
notice of motion to strike the whole or any part thereof.” (Code Civ. Proc. §
435(b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter
inserted in any pleading.” (Code Civ. Proc. § 436(a).) A court may “[s]trike
out 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.” (Code Civ. Proc. §
436(b).)
DEMURRER
Meet
and Confer Requirement
Before filing a demurrer or motion to strike, the
moving party must meet and confer in person, by video conference, or by
telephone with the party who filed the pleading to attempt to reach an
agreement that would resolve the objections to the pleading. (CCP §§ 430.41(a),
435.5.) “Any determination by the court that the meet and confer process was
insufficient shall not be grounds to overrule or sustain a demurrer” or to
grant or deny a motion to strike. (CCP §§ 430.41(a)(4), 435.5.)
The meet and confer requirement has not been
satisfied. Defendant’s counsel attests to meeting and conferring with counsel
for Plaintiff via written letter prior to filing the demurrer and motion to
strike. (Zamost Decls., ¶ 2.) Defendant has not complied with CCP §§ 430.41(a)
and 435.5. However, the Court will still assess the merits of the demurrer and
motion to strike. The parties are reminded to comply with the requirements of
the Code of Civil Procedure.
Pertinent
Allegations of the Complaint
The
Court finds it necessary to set forth the pertinent allegations of the complaint.
Plaintiff alleges the following: on or about July 10, 2020, Plaintiff purchased
the Subject Vehicle, which was manufactured and/or distributed by Defendant.
(Compl., ¶ 7.) In connection with the purchase, Plaintiff received an express
written warranty in which Defendant undertook to preserve or maintain the
utility or performance of the Subject Vehicle or provide compensation if there
is a failure in utility or performance for a specified period of time. (Compl.,
¶ 8.) The warranty provided that in the event of a defect developed with the
Subject Vehicle during the warranty period, Plaintiff could deliver the Subject
Vehicle for repair services to Defendant’s representative and the Subject
Vehicle would be repaired. (Compl., ¶ 8.)
During
the warranty period, the Subject Vehicle contained or developed defects
including, but not limited to, defects related to the engine, defects causing
the car to not start, defects causing engine oil leaks, defects requiring
replacement of valve cover gaskets, defects requiring reinstallation of the
cabin air filter, defects causing the oil pan gasket to wear, and defects
related to the vehicle’s electrical systems. (Compl., ¶ 9.) Defendant and its
representatives have been unable to service or repair the Subject Vehicle to
conform to the applicable express warranties after a reasonable number of
opportunities. (Compl., ¶ 10.) Despite such fact, Defendant failed to promptly
replace the Subject Vehicle or make restitution to Plaintiff. (Compl., ¶ 10.)
Plaintiff alleges that he has been damaged by Defendant’s actions. (Compl., ¶
11.)
The
Uncertainty Argument
Initially,
the Court does not find that the complaint is uncertain because it is not so
unclear that Defendant has not beem apprised of the issues that must be met. (See
Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 605 [“[a] special demurrer
should not be sustained when the allegations of the complaint are sufficiently
clear to apprise the defendant of the issues which he is to meet.”].) Moreover, given that the Subject Vehicle is
alleged to have been manufactured and/or distributed by Defendant, any ambiguous
facts would be “presumptively within the knowledge of the demurring party.” (Ibid.)
Thus,
the Court OVERRULES the demurrer of Defendant to each cause of action in the
complaint on the grounds of uncertainty.
The
First Through Fourth Causes of Action are Sufficiently Alleged
Defendant
contends that the first four causes of action in the complaint fail because:
(1) there are no allegations of the duration of the purported express warranty;
(2) there are no allegations as to the number of repair attempts as to the
Subject Vehicle; (3) there are no allegations as to the dates Plaintiff
presented the Subject Vehicle for repairs; and (4) Plaintiff does not
meaningfully plead what “failure” arose in the Subject Vehicle. Thus, Defendant
asserts that the first four causes of action fail to state facts sufficient to
constitute claims for violation of the Song-Beverly Act as it concerns express
warranties.
Plaintiff
contends that the first four cases of action in the complaint are sufficiently
alleged.
Civ.
Code § 1793.2 “sets forth the remedies to be afforded to consumers by any
automobile manufacturer which is unable to service or repair a new motor
vehicle . . . to conform to the applicable express warranties after a
reasonable number of repair attempts.” (Silvio v. Ford Motor Co. (2003)
109 Cal.App.4th 1205, 1207.) “The statute requires the manufacturer to afford
the specified remedies of restitution or replacement if that manufacturer is
unable to repair the vehicle after a reasonable number of attempts.” (Id.
at p. 1208 [emphasis in original].) “The statute does not require the manufacturer
to make restitution or replace a vehicle if it has had only one opportunity to
repair that vehicle.” (Ibid.) Concerning express warranties, “[t]he
general rule is that an express warranty does not cover repairs made after the
applicable time or mileage periods have elapsed.” (Daugherty v. American
Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 830.)
Initially,
the Court finds that Plaintiff’s citation to Hedvat v. BMW of N. Am. (2021)
2021 Cal.Super. LEXIS 153519 is inapposite as such superior court case
concerned the sufficiency of an arbitration agreement.
The
Court informs Defendant that, on demurrer, the Court can make inferences based
on the facts alleged in the complaint. (Miyahara v. Wells Fargo Bank, N.A. (2024)
99 Cal.App.5th 687, 702-03.) Here,
Plaintiff has alleged that the purported defects arose during the express
warranty period. (Compl., ¶ 9.) The Court therefore rejects Defendant’s
argument that Plaintiff failed to plead when the defects arose. Based on the
allegations, it is apparent that the purported defects arose during the
applicable warranty period. Thus, the duration of the express warranty is
irrelevant here as Plaintiff has clearly alleged that the purported defects
occurred during the express warranty period.
Moreover,
Defendant presents no applicable legal authority which stands for the
proposition that Plaintiff must plead the duration of the express warranty or
state the dates the Subject Vehicle was presented for repairs. (Dem. at p.
3:23-24.) The Court informs Defendant that “[c]ontentions are waived when a
party fails to support them with reasoned argument and citations to authority.”
(Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210,
1215.)
Further,
as to Defendant’s argument that Plaintiff has failed to allege that the Subject
Vehicle was presented for at least two repairs regarding the same issue (Dem.
at p. 4:3-11), Plaintiff has alleged that the Subject Vehicle was unable to be
serviced or repaired “after a reasonable number of opportunities.” (Compl., ¶
10.) Thus, the Court can infer that Plaintiff presented the Subject Vehicle for
repairs on at least two occasions.
The
Court also rejects Defendant’s argument that Plaintiff has failed to specify
the purported defects. (Dem. at p. 4:12-17.) Here, the complaint sets forth the
numerous defects allegedly present in the Subject Vehicle. (Compl., ¶ 9.)
The
Court finds that the first, second, third, and fourth causes of action are
sufficiently alleged. As such, the Court OVERRULES Defendant’s demurrer to the
first, second, third, and fourth causes of action in the complaint.
The
Fifth Cause of Action for Breach of the Implied Warranty of Merchantability is
Sufficiently Alleged
“‘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.” (Civ. Code, § 1791.1,
subd. (a).) “[T]he implied warranty of merchantability arises by operation of
law and provides for a minimum level of quality.” (Isip v. Mercedes-Benz
USA, LLC (2007) 155 Cal.App.4th 19, 26.) “The Song-Beverly Consumer Warranty
Act provides a right of action for a buyer to recover damages and other relief
where there has been a breach of the implied warranty of merchantability.” (Id.
at p. 25.)
The
Court finds that the fifth cause of action for breach of the implied warranty
of merchantability is sufficiently alleged. (Compl., ¶¶ 28-32.) Plaintiff has
alleged the required elements to state such cause of action under Civ. Code §
1791.1.
The
Court therefore OVERRULES the demurrer of Defendant to the fifth cause of
action in the complaint.
The
Sixth Cause of Action for Violation of the Tanner Consumer Protection Act Under
Civ. Code § 1793.22 is Insufficiently Alleged
Defendant
contends that the sixth cause of action is insufficiently alleged because the
Tanner Consumer Protection Act governs warranties related to new motor vehicle
warranties from manufacturers. (Dem. at p. 6:24-26.) Plaintiff asserts that the
Tanner Consumer Protection Act can apply to used vehicles with the original new
motor vehicle warranty from the manufacturer. (Opp’n at p. 6:21-23.)
Under
the Tanner Consumer Protection Act, only new motor vehicles are subject to its
protections. (Park City Services, Inc. v. Ford Motor Co., Inc. (2006)
144 Cal.App.4th 295, 305 (Park City Services).)
Under
the Tanner Consumer Protection Act:
“New motor vehicle means a new motor vehicle that is bought or
used primarily for personal, family, or household purposes. New motor vehicle
also means a new motor vehicle with a gross vehicle weight under 10,000 pounds
that is bought or used primarily for business purposes by a person,
including a partnership, limited liability company, corporation, association,
or any other legal entity, to which not more than five motor vehicles are
registered in this state.”
(Park
City Services, supra, 144 Cal.App.4th 295, 305 [emphasis in
original, internal quotations omitted].)
A
new motor vehicle also includes a “motor vehicle sold with a manufacturer’s new
car warranty . . . .” (Civ. Code, § 1793.22, subd. (e)(2).)
Initially,
the Court notes that Defendant presents no legal authority in support of its
argument as to the sixth cause of action in either the moving or reply papers.
However, upon review of the complaint, the Court finds that the sixth cause of
action is insufficiently alleged. (Compl., ¶¶ 33-46.) Here, the allegations
arise from the purchase of a used vehicle. (Compl., ¶ 7.) Additionally,
Plaintiff does not allege that the Subject Vehicle was sold with the
manufacturer’s new car warranty. Thus, Plaintiff has failed to allege facts
showing that the Subject Vehicle is a new motor vehicle within the meaning of
Civ. Code § 1793.22.
The
Court therefore SUSTAINS the demurrer of Defendant to the sixth cause of action
for violation of the Song-Beverly Act section 1793.22—Tanner Consumer
Protection Act with 20 days leave to amend.
MOTION TO STRIKE
Defendant
moves to strike allegations concerning civil penalties from the complaint.
Defendant contends that, because Plaintiff has failed to plead sufficient facts
for an express warranty claim, he cannot recover a civil penalty against
Defendant. In opposition to the motion to strike, Plaintiff asserts that the
complaint alleges sufficient facts to support a claim for civil penalties.
“[C]ourts
refuse to impose civil penalties against a party who acted with a good faith
reasonable belief in the legality of his or her actions.” (Kwan v.
Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 185.) “[A]
violation is not willful if the defendants’ failure to replace or refund was
the result of a good faith and reasonable belief the facts imposing the
statutory obligation were not present.” (Ibid.)
Given
that the Court has found that the first four causes of action concerning
express warranties are sufficient, the basis for the motion to strike fails.
Moreover, Plaintiff has alleged that Defendant’s failure to comply with its
obligations under the Song-Beverly Act was willful. (Compl., ¶¶ 13, 20, 23, 27,
46.)
The
motion to strike is therefore DENIED.
CONCLUSION
Based on the foregoing, the Court SUSTAINS IN PART and
OVERRULES IN PART the demurrer of Defendant.
The Court OVERRULES the demurrer to the first, second,
third, fourth, and fifth causes of action in the complaint.
The Court SUSTAINS the demurrer to the sixth cause of action
in the complaint with 20 days leave to amend.
The motion to strike is DENIED.
Moving party is ordered to give notice.