Case Number: 19STCV41676    Hearing Date: February 18, 2020    Dept: 73

2/18/20

Dept. 73

Rafael Ongkeko, Judge presiding

MALIK YOUNG VS HYUNDAI MOTOR AMERICA (19STCV41676)

Counsel for Plaintiff/opposing party:  Knight (Gregory Lehrmann)

Counsel for Defendant/moving party:  Soheyl Tahsildoost

DEMURRER TO PLAINTIFF’S COMPLAINT AND MOTION TO STRIKE PLAINTIFF’S COMPLAINT (filed 12/23/19)

TENTATIVE RULING

Defendant Hyundai Motor America’s demurrer to Plaintiff Malik Young’s complaint is OVERRULED in its entirety.

Defendant Hyundai Motor America’s motion to strike is DENIED.

Defendant shall file and serve its answer within 10 days.

Note to counsel:  To avoid another appearance on 3/19/20, if the parties agree, the court is prepared to advance the Case Management Conference to this date and set the matter for trial (approximately late Jan. or early Feb. 2021).

Discussion

In this lemon law case, Defendant filed its demurrer to Plaintiff’s complaint on grounds that 1) the complaint combines multiple causes of action in a single cause of action, rendering it uncertain and unintelligible, and 2) the complaint seeks damages that it contends are not allowed under Civil Code § 1793.2(b) of the Song-Beverly Act

Defendant filed a motion to strike consistent with the above grounds for its demurrer, as to 1) paragraphs 30-41, on the basis that Plaintiff’s claim for breach of implied warranty of “fitness” is not properly alleged or drawn in conformity with the laws of this state; and 2) paragraphs 42-55, in their entirety, on the basis that the applicable law does not allow for recovery of replacement or restitution and related damages, including civil penalties, for violations of Civil Code Section 1793.2(b).

Demurrer

Plaintiff’s Second Cause of Action for Breach of Implied Warranty

Plaintiff’s opposition clarifies, though not in so many words, that its second cause of action is for breach of implied warranty of merchantability alone.  Any confusion or uncertainty regarding the fitness allegation can be clarified through discovery.  The court cannot find, on demurrer, that the “fitness” allegations are improper simply from the title of the cause of action.

Plaintiff’s Third Cause of Action for Violation of the Song-Beverly Act Section 1793.2

Civ. Code § 1793.2(b) provides that, unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired to conform to the applicable warranties within 30 days.

Here, Defendant contends that Plaintiff is not entitled to the damages it seeks pursuant to the third cause of action as Plaintiff is not entitled to remedies of restitution or replacement under Civil Code § 1794 for a violation of 1793.2(b). Civil Code § 1794 allows a buyer who is damaged under an implied or express warranty to bring an action for the recovery of damages and other legal and equitable relief. (Cal. Civ. Code § 1794.)

Defendant argues that a plaintiff pursuing an action under Song-Beverly seeking replacement or restitution has the burden to prove that 1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); 2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and 3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element). (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 152.)

In opposition, Plaintiff contends that it met its burden in the complaint by pleading facts to meet the Donlen elements to bring an action seeking replacement or restitution. In the complaint, Plaintiff alleged that 1) the vehicle was accompanied by warranties and the engine and electrical system did not conform to the warranties, 2) Plaintiff delivered the vehicle to Defendant’s authorized service representatives, and 3) Defendant and its authorized service representatives failed to tender the vehicle back to Plaintiff in conformance with its warranties after multiple repair attempts. Further, over thirty days passed since Plaintiff’s delivery of the vehicle to the service representative. (Complaint, ¶¶ 46-48.) Thus, Plaintiff properly the elements for the third cause of action.

Defendant further contends that under the third cause of action, Plaintiff’s requested relief of civil penalties or replacement pursuant to Civil Code § 1794 are not appropriate remedies. However, Civil Code § 1794(b) states: “The measure of the buyer’s damages in an action under this section shall include the rights of replacement or reimbursement as set forth in subdivision (d) of Section 1793.2…” Civil Code § 1793.2(d)(1) states: “…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.”

Additionally, Civil Code § 1794(c) provides that if the buyer establishes that the failure to comply was willful, the judgment may include a civil penalty which shall not exceed two times the amount of actual damages. Thus, Plaintiff’s requested relief for this cause of action is appropriate.

Defendant’s demurrer to the third cause of action is overruled.

Motion to Strike

Defendant’s motion to strike tracks its demurrer by challenging the following portions of Plaintiff’s complaint: 1) paragraphs 30-41 under the Second Cause of Action, on the basis that Plaintiff’s claim for breach of implied warranty of “fitness” is not properly alleged or drawn in conformity with the laws of this state; and 2) paragraphs 42-55 under the Third Cause of Action, in their entirety, on the basis that the applicable law does not allow for recovery of replacement or restitution and related damages, including civil penalties, for violations of Civil Code Section 1793.2(b).

Consistent with the rulings above as to the second and third causes of action, Defendant’s motion to strike the above paragraphs is denied.

Unless waived notice of ruling by Plaintiff.