Defendant?s demurrers to the first through fifth causes of action of Plaintiff?s Amended Second Amended Complaint (ASAC) are sustained with twenty days leave to amend. The demurrer to the sixth cause of action is sustained without leave to amend.
A. Statutes of limitation bar Plaintiff?s claims.
Statutes of limitation appear to bar each of the six causes of action. The complaint facially discloses the problem: Plaintiff purchased the truck on April 17, 2004, but did not file suit until April 4, 2014.
First, Plaintiff?s fraud-based claims (first through fourth causes of action) and her CLRA claim (fifth cause of action) all have three-year limitations periods. (See Code Civ. Proc. ?338; Civ. Code 1783.) Because the ASAC facially discloses the limitations issue, for purposes of tolling any statute, Plaintiff bears the burden to plead facts showing (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. (See Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)
The rule is well settled: ?the limitations period begins once the plaintiff ?? ?has notice or information of circumstances to put a reasonable person on inquiry ?? ?? (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896-897, quoting Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101 (italics added by the Gutierrez court).) A plaintiff need not be aware of the specific ?facts? necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.? (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111.)
Plaintiff has not done this. Plaintiff claims that her date of discovery is November 1, 2013. (ASAC, at ? 75.) But she now alleges that the problems with her truck began ?on or around June 1, 2004,? less than two months after purchase. (ASAC, at ?24.) She also pleads no less than four separate trips to a dealer for repairs in 2004, 2005, and 2007, sometimes for what appears to be a repeat fix of the same problem; and each of which pre-dates the expiration of her five-year warranty in April of 2009. (See ASAC, at ?26.) She pleads two further trips to the dealership for repairs in 2009 subsequent to the expiration of the warranty but before the January, 2010 filing of the multidistrict Custom Underground litigation which Plaintiff claims should toll her limitations period. (Id.)
Given that, it is difficult to see how she has pleaded facts showing that she could not have made earlier discovery or that she exercised reasonable diligence. Absent such allegations, she cannot benefit from equitable tolling because, as facially disclosed in the ASAC, her limitations period had expired before tolling would have commenced assuming the 2004 and 2005 repairs put her on notice. (Forman v. Chicago Title Ins. Co. (1995) 32 Cal.App.4th 998, 1006 [holding that tolling ?cannot revive a statute which has already run out?].)
Indeed, even if accrual were delayed until November 20, 2007 (the final 2007 repair and the fourth repair overall) and tolling began on January 8, 2010, Plaintiff?s claims would still be time-barred. Her statute would have run for 25 months and three weeks between November 20, 2007 and the January 8, 2010 filing of Custom Underground. It would have run again roughly 11 months and two weeks between her April 20, 2013 opt-out of Custom Underground and her April 4, 2014 filing of the complaint in this action. (And this presumes that she was not aware of her claim prior to her actual opt-out; if she were, the limitations period would have run even longer.) Thus, under the most conservative estimates, the total exceeds the 36-months limitations period for the first through fifth causes of action, which are the only ones where the discovery rule applies.
As to the sixth cause of action for breach of express warranty under the Song-Beverly Act, plaintiff has failed to oppose the demurrer. Accordingly, the demurrer is sustained without leave to amend as to that cause of action.
B The economic loss rule separately bars the first, second, third and fourth causes of action.
Causes of action one through four are also barred by the economic loss rule. This rule prohibits plaintiff from recovering in tort unless the defect causes damage to property other than the product itself; if the only damage is to the product itself, the remedy lies in the warranty and contract law. (See Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988.) Robinson recognizes an exception to this rule that is ?narrow in scope?: Where a defendant makes affirmative misrepresentations upon which plaintiff relies and which expose plaintiff to liability for personal damage independent of economic loss, the economic loss rule will not bar the tort claim. (Id. at 993 [noting that its holding is limited to claims that would be subject to fraud?s heightened pleading standards].)
Here, Plaintiff alleges that she might face ?potential personal injuries? and ?potential future lawsuits? from third parties who might be injured in accidents due to the defects in her truck. (See ASAC at ?? 206, 231, 256, 304.) But she alleges that she does not drive the truck anymore (see ASAC at ? 24) and she alleges no facts to support her conclusion that she might face ?potential personal injuries? or ?potential future lawsuits.? Nor, for the reasons described in the next section, does Plaintiff plead the requisite facts to establish fraud in any event. The economic loss rule therefore bars these claims as pleaded.
C. Plaintiff fails to state facts sufficient to constitute a cause of action for the first through fourth causes of action.
Plaintiff?s first through fourth causes of action still fail to plead fraud with the required specificity. Plaintiff has added paragraphs to the ASAC to allege that the dealership told her that the truck was repaired each time it was returned to her. She also alleges, as before, that the misrepresentations consist of sales brochures and advertisements. Neither is sufficient. As indicated in ruling on the prior demurrer, the sales brochures and other advertisements, and the language quoted by plaintiff in paragraphs 153-164 of the ASAC, are puffery and are not actionable misrepresentations. (See Osborne v. Subaru of America, Inc. (1998) 198 Cal.App.3d 646, 660 fn.8, citing Hauter v. Zogarts (1975) 14 Cal.3d 104, 111-117.) And representations of employees at a dealership are not representations of an agent of Defendant itself. (See Avalon Painting Co. v. Alert Lumber Co. (1965) 234 Cal.App.2d 178, 184, citing Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256; Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 134 [tolling and estoppel both rely on representations by defendant that repairs will be made; third party representations do not involve reliance on defendant].)
D. Leave to amend.
Plaintiff asks leave to amend. Although it appears that may be futile, the Court is reluctant to conclude so at this time. Plaintiff may have one final chance to amend to cure the problems with the first five causes of action in her pleading. Accordingly, the demurrers to the first through sixth causes of action are sustained and plaintiff shall have twenty days leave to amend the first five causes of action. The demurrer to the sixth cause of action is sustained without leave to amend.
E. Request for Judicial Notice
Defendant requests that the Court take judicial notice of the complaints and orders in this case, and this request is granted. (Evid. Code ? 452(d).)
Defendant also requests that the Court take judicial notice of complaints in two other proceedings in the Superior Courts of Solano and Tulare counties. The request is denied as these records are not relevant to the Court?s ruling.