Motion Strike

Cal. Super. - 6th Dist.July 18, 2017

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Robert Weinberg vs General Motors, LLC Hearing Start Time: 9:00 AM 17CV313189 Hearing Type: Motion: Strike Date of Hearing: 10/24/2017 Comments: Jacob Cutler appears for Plaintiffand Molly Mrowka appears on behalf of the Defendant. Pro Tem Court reporter is Cammi Bowen Heard By: Stoelker, James L Location: Department 13 Courtroom Reporter: - No Record Transcribed Courtroom Clerk: Robert Gutierrez Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - Tentative ruling is contested by Plaintiff. Motion is argued. The Tentative Ruling is adopted. See below. Case Name: Robert Weinberg v. General Motors, LLC Case No.: 17-CV-313189 Currently before the Court are the demurrer and motion to strike by defendant General Motors, LLC( Defendant ). Factual and Procedural Background This is a lemon law action initiated by plaintiff Robert Weinberg ( Plaintiff) against Defendant. At all times, Defendant was engaged in the business of designing, manufacturing, constructing, assembling, marketing, distributing, and selling automobiles and other motor vehicles and motor vehicle components in Santa Clara County. (Complaint, 4.) In or around July 2009, Plaintiff purchased a 2010 Chevrolet Equinox vehicle ( Vehicle), which was manufactured and or distributed by Defendant. (Id. at 7.) In connection with the purchase, Plaintiff received an express warranty in which Defendant undertook to preserve or maintain the utility or performance of the Vehicle or to provide compensation if there is a failure in in utility or performance for a specified period of time. (Id. at 8.) The warranty provided that in the event a defect developed with the Vehicle during the warranty period, Plaintiff could deliver the Vehicle for repair services to Defendant s representative and the Vehicle would be repaired. (Ibid.) Primed: 10/24/2017 10/24/2017 Motion: Sm'ke - 17CV313189 Page 1 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER During the warranty period, the Vehicle contained or developed numerous defects including, but not limited to, those relating to: the engine; oil consumption and levels; the cylinder head; the radio control assembly; the power steering system; the Powertrain Control Module; the Transmission Control Module; the valve covers; the air conditioning system; the catalyst system; the exhaust manifold; and the catalytic converter. (Complaint, 9 and 31.) Despite having numerous opportunities to do so, Defendant and its representatives were unable to service or repair the Vehicle in conformance with the applicable express warranties, and failed to promptly replace the Vehicle or make restitution to Plaintiff. (Id. at 10, 13, 17, 20, 25, 27.) In failing to repair the aforementioned defects and by virtue of their mere presence, Defendant also breached the terms of the written warranty and the implied warranty of merchantability. (Id. at 10-11, 17-18, 25-27, 29- 32, 37-38.) Finally, Defendant allegedly committed fraud by allowing the Vehicle to be sold to Plaintiff without disclosing that the Vehicle and its 2.4L engine was defective and susceptible to sudden and premature failure. (Complaint, 47.) Prior to the sale of the Vehicle, Defendant was aware and know that the 2.4L engine installed on the Vehicle was defective, but failed to disclose this fact to Plaintiff at the time of sale and thereafter. (Id. at 48 and 52.) Plaintiffalleges that Defendant knew or should have known ofthe various engine defects in the Vehicle due to pre-production and post-production testing data, early consumer complaints about the engine defect made directly to Defendant and its network of dealers, aggregate warranty data compiled from the network of dealers, testing by Defendant in response to these complaints, as well as warranty repair and part replacements data received by Defendant from its network of dealers. (Id. at 49-50.) Plaintiff asserts that Defendant was aware of these defects since 2009, but concealed and failed to disclose them. (Id. at 51 and 54.) Had Plaintiff known ofthe Vehicle s defects, he would not have purchased it. (Id. at 55.) Based on the foregoing, on July 18, 2017, Plaintiff filed a complaint against Defendant, alleging causes of action for: (1) violation of Civil Code 1793.2, subdivision (d); (2) violation of Civil Code 1793.2, subdivision (b); (3) violation of Civil Code 1793.2, subdivision (a)(3); (4) breach of express warranty; (5) breach of the implied warranty of merchantability; (6) violation of the Magnuson-Moss Warranty Act; and (7) fraud by omission. Defendant filed the instant demurrer and motion to strike on August 17, 2017. On October 11, 2017, Plaintiff filed papers in opposition to the matters. Defendant filed reply papers in support of its demurrer and motion to strike on October 17, 2017. Discussion I. Demurrer Defendant demurs to each and every cause of action of the complaint on the ground of failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., 430.10, subd. (e).) A. Request forJudicial Notice Primed: 10/24/2017 10/24/2017 Motion: Sm'ke - 17CV313189 PageZ of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER In connection with his opposition, Plaintiff asks the Court to take judicial notice of (1) a 2010 Chevrolet Limited Warranty and Owner Assistance Information manual ( Manual ); (2) a website printout of technical service bulletin #14159C, regarding a special coverage adjustment due to excessive engine oil consumption ( Service Bulletin ); (3) and the second amended complaint filed in the case of Parenteau v. General Motors, LLC (United States District Court, Central District of California, Case No. 14-4961) (Parenteau). The Manual and Service Bulletin do not fall under any of the categories ofjudicially noticeable documents set forth in Evidence Code section 452. (See Evid. Code, 452.) Consequently, they are not proper subjects of judicial notice. The second amended complaint filed in Parenteau is a proper subject forjudicial notice under Evidence Code section 452, subdivision (d) because it is necessary and relevant to the disposition of the demurrer, with Plaintiff citing to it in support of his assertion that the applicable statute of limitations has been tolled pursuant to the doctrine outlined in American Pipe & Construction Co. v. Utah (1974) 414 US. 538 (American Pipe). (See Evid. Code, 452, subd. (d) [judicial notice may be taken of records of any court of record of the United States]; see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [the court may properly take judicial notice of court records if those records are deemed to be necessary and relevant to the disposition of the motion].) Accordingly, Plaintiffs request forjudicial notice is GRANTED IN PART and DENIED IN PART. The request is GRANTED as to the second amended complaint filed in Parenteau. The request is DENIED in all other respects. B. Legal Standard The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, [a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine ofjudicial notice. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code Civ. Proc., 430.30, subd. (a).) It is not the ordinary function of a demurrer to test the truth of the [] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant s conduct. [ ] Thus, [] the facts alleged in the pleading are deemed to be true, however improbable they may be. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) However, while [a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact. (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120.) C. Seventh Cause of Action Defendant asserts that the seventh cause of action for fraud by omission fails to allege facts sufficient to constitute a cause of action because: (1) the claim is time-barred; (2) Plaintiff s allegations fail to establish a fraud by omission cause of action; (3) Plaintiff s concealment allegations are insufficient as a matter of law; Primed: 10/24/2017 10/24/2017 Motion: Sm'ke - 17CV313189 Page?! of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER (4) any alleged fraud lacks the requisite specificity; (5) concealment cannot be based on nonactionable puffery; and (6) the fraud claim is barred by the economic loss rule. Each of these arguments will be addressed in turn. 1. Economic Loss Rule Defendant contends the fraud cause of action is precluded by the economic loss rule, which requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise. (Robinson Helicopter Co. v. Dana Corp. (2004) 34 Cal. 4th 979, 988 (Robinson).) According to Defendant, the fraud claim is barred because Plaintiffs allegations concern the merchantable quality of the Vehicle and its inability to repair the Vehicle, and do not include damages independent of economic loss. However, the California Supreme Court has permitted recovery of tort damages in certain types of contract cases where the duty giving rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm, such as where the contract was fraudulently induced. (Erlich v. Menezes (1999) 21 Cal. 4th 543, 552 (Erlich); see also Robinson, supra, 34 Cal. 4th at p. 990.) Here, Plaintiff brings a fraud cause of action, alleging he would not have bought the Vehicle but for Defendant s concealment of its defective nature. (Complaint, 51-55.) Accordingly, Plaintiff has alleged the contract was fraudulently induced and, therefore, the economic loss rule does not apply. Defendant contends that the California Supreme Court in Robinson limited the fraudulent inducement exception to instances concerning a defendant s affirmative misrepresentation. Defendant misunderstands that decision, which merely carved out an additional exception to the economic loss rule and did not purport to limit the circumstances in which tort damages may be available in contract cases, as set out in Erlich. (See Robinson, supra, at pp. 990-991.) Therefore, the economic loss rule does not bar the seventh cause of action. 2. Statute of Limitations Defendant next argues that the seventh cause of action is time-barred. Defendant contends that based on the July 2009 date of sale, Plaintiff needed to bring his action for fraud by July 2012, in order for it to be timely. Defendant points out that Plaintiffdid not file his original complaint until July 18, 2017, approximately five years later. Defendant further asserts that Plaintiff having failed to adequately plead facts establishing that the statute of limitations was tolled, the cause of action as alleged is clearly time-barred. In his opposition, Plaintiff insists that his fraud claim is timely for several reasons, specifically: (1) the face of the pleadings does not disclose a statute of limitations defense; (2) due to the discovery rule, the fraud claim has not even accrued yet; (3) the Parenteau class action operates to toll the claim; and (4) the claim is tolled by Defendant s own fraudulent concealment. A court may sustain a demurrer on the ground of failure to state sufficient facts if the complaint shows on its face the statute [of limitations] bars the action. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) A demurrer is not sustainable if there is only a possibility the cause of action is time- barred; the statute of limitations defense must be clearly and affirmatively apparent from the allegations in the pleading. (Id. at pp. 1315-16.) When evaluating whether a claim is time-barred, a court must determine Primed: 10/24/2017 10/24/2017 Motion: Sm'ke - 17CV313189 Page4 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER (1) which statute of limitations applies and (2) when the claim accrued. (Id. at p. 1316.) The cause of action at issue is a claim for fraud. The statute of limitations for any cause of action based on fraud is three years from the date of the discovery, by the aggrieved party, of the facts constituting the fraud. (Code Civ. Proc., 338, subd. (d); Britton v. Girardi (2015) 235 Cal.App.4th 721, 734 [the cause of action is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud].) Here, Defendant misunderstands the application of the statute of limitations under Code of Civil Procedure section 338, subdivision (d). As indicated above, Defendant s argument regarding accrual of the statute of limitations is based on the facts that (1) the seventh cause of action is based on fraudulent omissions that allegedly occurred at the time of the sale of the Vehicle in July 2009, and (2) Plaintiff did not file this action until July 18, 2017, almost eight years later. However, these facts do not demonstrate that the cause of action for fraud by omission accrued as of the date of sale. Under Code of Civil Procedure section 338, subdivision (d), the cause of action accrues once the plaintiff discovers the facts constituting the fraud. (Code Civ. Proc., 338, subd. (d).) The fact that the alleged omissions occurred on the date of sale does not demonstrate that Plaintiff discovered the facts constituting the fraud on that date. (See Broberg v. Guardian Life Ins. Co. of America (2009) 171 Cal.App.4th 912, 921 [When a plaintiff reasonably should have discovered facts for purposes of the accrual of a case of action is generally a question of fact, properly decided as a matter of law only if the evidence (or, in this case, the allegations in the complaint and facts properly subject to judicial notice) can support only one reasonable conclusion. ].) In this case, the allegations of the complaint do not disclose when Plaintiff discovered the facts constituting fraud. Consequently, the statute of limitations defense is not clearly and affirmatively apparent from the allegations of the complaint. 3. Elements of the Claim Defendant also contends that Plaintiff fails to plead sufficient facts supporting each element of his claim for fraud by omission. As a general rule, each element in a fraud cause of action must be pleaded with specificity. (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 645 (Lazar); Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.) The essential elements of a fraud cause of action based on concealment or nondisclosure are: (1) the defendant had a duty to disclose the concealed or suppressed fact to the plaintiff; (2) the defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, and (3) the plaintiff was damaged as a result. (Jones v. ConocoPhillips (2011) 198 Cal.App.4th 1187, 1198.) Defendant asserts that it owed no duty of disclosure to Plaintiff because it was not in a fiduciary relationship with him and there are no facts demonstrating that it had exclusive knowledge, actively concealed the purportedly known defect, or made affirmative misrepresentations. With respect to the issue of duty, the last of Defendant s four assertions is easily disposed of because the seventh cause of action is not based on any affirmative misrepresentations of fact. Consequently, to the extent that Defendant s demurrer is based on the contention that the fraud claim is insufficiently pleaded because Plaintiff fails to plead that any actual representation was made to him by Defendant, it is without merit. Primed: 10/24/2017 10/24/2017 Motion: Sm'ke - 17CV313189 Page 5 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Defendant s remaining arguments regarding duty also lack merit. There are four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336; see also Smith v. Ford Motor Co. (N.D. Cal. 2010) 749 F.Supp.2d 980, 987, 993.) Despite Defendant s assertions to the contrary, Plaintiff has sufficiently alleged that the second circumstances of the four set forth above applies. Specifically, Plaintiff alleges that Defendant had exclusive knowledge of material facts not known to him, such as the existence of the alleged engine and oil consumption defects with the Vehicle. (Complaint, 48-55.) Thus, Plaintiff has demonstrated that he was owed a duty to disclose by Defendant. Defendant also argues, unpersuasively, that Plaintiff failed to sufficiently plead the element of intent to defraud, a necessary component a fraud claim. (See Lazar, supra, 12 Cal.4th at p. 638 [stating the elements of fraud].) |ntent is a fact and thus the averment that a representation, or nondisclosure of a material fact, was made with the intent to deceive the plaintiff, or any other general allegation with similar purport, is sufficient for pleading purposes. (Woodruf v. Howes (1981) 88 Cal. 184, 190; Wennerholm v. Stanford University School of Medicine (1942) 20 Cal.3d 713, 716.) In the complaint, Plaintiffalleges that in failing to disclose the defects in the Vehicle s 2.4L engine, [Defendant] has knowingly and intentionally concealed material facts and breached its duty not to do so. (Complaint, 54.) This is sufficient to plead this element. As for Defendant s assertion that Plaintiff failed to plead specific facts demonstrating how, when, where, to whom and by what means the fraud was made and failed to meet the particularity requirement for fraud, such an argument fails to take into account the differences between a fraud claim based on affirmative misrepresentations and a fraud claim based on concealment or nondisclosure. Though the particularity requirement generally mandates that a plaintiff plead facts establishing the aforementioned items, it is much more difficult to apply this rule in a case of non-disclosure because, as one court explained, [h]ow does one show how and by what means something didn t happen, or when it never happened, or where it never happened? (Alfaro v. Community Housing |mp. System & Planning Ass n., Inc. (2009) 171 Cal.App.4th 1356, 1384.) One of the purposes of the specificity requirement is to provide notice to the defendant, to furnish the defendant with certain definite charged which can be intelligently met. (Committee on Children s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216, internal quotations omitted.) However, when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy, even under strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party . (Id. at p. 217.) Such is the circumstance here, when Defendant is alleged to possess exclusive and superior knowledge regarding the engine defects in Plaintiff s Vehicle and those like it. In this vein, the Court agrees with Plaintiff that he has alleged most of the elements of this claim with the requisite specificity. Nevertheless, at a bare minimum, Plaintiff should be required to specifically allege where he purchased the Vehicle, i.e., at which dealership. This is information that is undoubtedly within Plaintiff s possession and should be alleged. Thus, on this basis alone, the claim is insufficiently specific. The Court cannot address Defendant s remaining argument concerning non-actionable puffery as there are no specific representations pleaded in the complaint (as this is a claim for fraud based on nondisclosure and concealment); thus, the Court cannot evaluate whether those specific representations constitute non- Primsd: 10/24/2017 10/24/2017 Motion: Sm'ke - 17CV313189 Page 6 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER actionable puffery. 4. Conclusion In light of the foregoing, the demurrer to the seventh cause of action is SUSTAINED, with 10 days leave to amend. D. First Through Sixth Causes of Action Defendant asserts that Plaintiff s Song-Beverly Act and Magnuson Moss Act claims fail to allege facts sufficient to constitute a cause of action because: (1) the Song-Beverly Act only applies to goods purchased in California; and (2) the claims are time-barred. 1. Goods Purchased in California Defendant argues that the first through fifth causes of action fail because the Song-Beverly Act only applies to goods purchased in California and Plaintiff does not allege in what state [he] purchased the Vehicle. (Mem. Ps. & As., p. 8:13-16.) Defendant concludes that because the complaint does not allege where the purchase was made, Plaintiff fails to allege facts sufficient to state a claim under the Song-Beverly Act. Additionally, Defendant asserts that the disposition of the Song-Beverly Act claims determines the disposition of the Magnuson Moss Act claim, so the sixth cause of action fails as well. Defendant s argument is not well-taken. Defendant does not cite any legal authority providing that a plaintiff must affirmatively plead facts showing where the subject good was purchased in order to state a claim under the Song-Beverly Act. The only case cited by Defendant in support of its argument Marcus v. Apple Inc (N.D. Cal., Jan. 8, 2015, No. C 14-03824 WHA) 2015 WL 151489, at *8 (Marcus) does not stand for such a proposition. |n Marcus, plaintiffs Uriel Marcus and Benedict Verceles filed a putative class action complaint against defendant Apple |nc., alleging violations of the Song Beverly Act. (Marcus, supra, 2015 WL 151489, at *1-2.) The complaint did not allege in what state Marcus or Verceles purchased their computers. (Id. at *8.) In sworn affidavits Marcus stated that his computer was purchased online from Apple in California and Verceles stated that he purchased his computer in Texas. (|bid.) The district court concluded that because the complaint did not state where the purchases were made and the affidavits confirmed that Verceles purchased his computer in Texas, Verceles ha[d] no claim under the Act. (|bid.) The court did not conclude that either Marcus or Verceles failed to state a claim simply because the complaint did not state where the purchases were made. Consequently, Defendant s argument lacks merit. 2. Statute of Limitations Defendant contends that the Song-Beverly Act and Magnuson Moss Act claims are barred by the applicable four-year statute of limitations under set forth in Commercial Code section 2725. Defendant contends that the four-year statute of limitations begins to accrue when tender of delivery is made, not upon discovery of any alleged breach. Defendant contends that the future performance exception set forth in Commercial Primed: 10/24/2017 10/24/2017 Motion: Sm'ke - 17CV313189 Page7 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Code section 2725 does not apply because there are no factual allegations in the complaint indicating that any express warranty extended beyond four years. (Mem. Ps. & As., p. 4:11-14.) In opposition, Plaintiff asserts that his claims did not begin to accrue until he discovered the alleged the alleged breaches. Plaintiff contends that the future performance exception set forth in Commercial Code section 2725 applies because his Vehicle had a 3/year/36,000 mile express bumper to bumper warranty; 5/year/1000,000 mile express powertrain warranty, which covers the engine; and the 10-year/120,000 mile extended warranty, which covers excessive oil consumption . (Opp n., p. 10:14-17.) Plaintiff contends that he could not have discovered the alleged breaches until the alleged defects manifested after the expiration of these express warranties. Plaintiff also argues that these express warranties have not expired because the alleged defects have not been repaired, and therefore the applicable limitations period remains unbounded. (Opp n., p. 12:8-14.) Finally, Plaintiff asserts that his claims are tolled by the doctrine of fraudulent concealment and so-called American Pipe tolling. An action for damages under the Song-Beverly Act is governed by the four-year limitations period for breach of warranty in sales contracts set forth in Uniform Commercial Code section 2725. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 132; Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 213-215.) Commercial Code section 2725, subdivision (1) states that [a]n action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. Commercial Code section 2725, subdivision (2) further provides that [a] cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered. (Com. Code, 2725, subd. (2).) Furthermore, under the Song-Beverly Act, the duration of the implied warranties of merchantability and fitness is coextensive with a manufacturer s express warranty. (Civ. Code, 1791.1, subd. (c).) However, in no event will the duration of the implied warranties be less than 60 days or more than 1 year following the sale of new consumer goods to a retail buyer. (|bid.) As an initial matter, Plaintiff fails to establish that the future performance exception articulated in Commercial Code section 2725 applies. Plaintiff s argument that the exception applies is based on his contention that the Vehicle had a 3/year/36,000 mile express bumper to bumper warranty; 5/year/1000,000 mile express powertrain warranty, which covers the engine; and the 10-year/120,000 mile extended warranty, which covers excessive oil consumption . (Opp n., p. 10:14-17.) However, the complaint does not contain any such allegation. Instead, Plaintiffs assertion is supported only by the Manual and Service Bulletin attached to Plaintiff s request forjudicial notice. As previously stated, those documents are not proper subjects ofjudicial notice. Accordingly, Plaintiff s contention that the future performance exception applies lacks merit. (See Carrau v. Marvin Lumber and Cedar Co. (2001) 93 Cal.App.4th 281, 292 [the exception is narrow and does not occur in the usual case, even though all warranties in a sense apply to the future performance of goods ]; see also Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 130-32 [the majority view is that the exception must be narrowly construed, and that it applies only when the seller has expressly agreed to warrant its product for a specific and defined period of time, and [c]ourts have consistently held [an implied warranty] is not a warranty that explicitly extends to future performance of the goods ]; Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 215 17 [the promise of future performance was the promise that the vehicle would perform during the specified warranty time-period (Le, 36 months or the first 36,000 miles, whichever occurs first) and, thus, the cause of action Primed: 10/24/2017 10/24/2017 Motion: Sm'ke - 17CV313189 Page 8 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER did not accrue at the date of sale, but at the time during the warranty period that the defect was discovered].) Because there are no facts alleged in the complaint demonstrating that the future performance exception applies, the Song-Beverly Act claims based on the express warranty accrued when tender of delivery was made, allegedly in July 2009. (Com. Code, 2725, subd. (2).) The Song-Beverly Act claims based on the implied warranty accrued, at the latest, in July 2010. (See Mexia v. Rinker Boat Company (2009) 174 Cal.App.4th 1297, 1305 [ [i]n the case ofa latent defect, a product is rendered unmerchantable, and the warranty of merchantability is breached, by the existence of the unseen defect, not by its subsequent discovery] [emphasis added]; see also id. at p. 1309 [ [t]o say that a warranty exists is to say that a cause of action can arise for its breach [. . .] [d]efining the time period during which the implied warranty exists, therefore, also defines the time period during which the warranty can be breached]; see also Atkinson v. Elk Corp. of Texas ( Atkinson ) (2006) 142 Cal.App.4th 212, 230-232 [the plaintiff s cause of action under the implied warranty of merchantability was barred as a matter of law because the suit was filed more than 5 years after the expiration of the 1-year warranty period].) Thus, the statute of limitations had expired for all of the Song- Beverly Act claims by July 2014, absent tolling. The statute of limitations on Plaintiff s Magnuson-Moss Act claim also expired by July 2014, absent tolling. (In re Sony Grand WEGA KDF-E A10/A20 Rear Projection HDTV TV Litig. (S.D. Cal. 2010) 758 F.Supp.2d 1077, 1101 [as for claims brought under the Magnuson-Moss Act, which provides for a federal cause of action for state law express and implied warranty claims, the [Act] does not expand the rights under those claims, and dismissal of the state law claims requires the same disposition with respect to an associate [Act] claim. ].) Plaintiff contends that the statute of limitations on his claims was tolled by the filing of the Parenteau class action in federal court pursuant to the doctrine outlined in American Pipe, supra. In American Pipe, the court ruled that the commencement of a class action tolls the limitation period for similar individual actions of each member of the purported class until certification is denied. This doctrine has been held to have limited application in California; whether it applies in state court is decided on a case-by-case basis as to whether claims asserted in the class action have placed the defendant on notice of the claims at issue in the individual action and whether it serves to further the economy and efficiency of litigation. (San Francisco Unified School District v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1337, internal citation omitted.) According to Plaintiff, the Parenteau class action was initially filed on June 25, 2014, and dismissed on September 17, 2015. Consequently, Plaintiff contends that the statute of limitations on his claims was tolled during that time, rendering the claims timely. While Plaintiff requested that the Court take judicial notice of the second amended complaint in the Parentaeu class action, there are no facts pleaded in that pleading or in the complaint indicating how the Parentaue action affects the timeliness of the claims. That is, although the Court has taken judicial notice of the Parenteau pleading, there is nothing within that document that reveals when the action was initially filed, certified, or ultimately dismissed, as Plaintiff claims, such that the Court can determine when the statute of limitations for the claims was purportedly tolled. Mere mention of these facts in Plaintiff s opposing brief is insufficient to establish that that the filing of the Parenteau class action tolled the applicable limitations period. Thus, Plaintiff failed to plead facts demonstrating that his claims are timely based on the American Pipe tolling doctrine. Furthermore, Plaintiff has not adequately pled fraudulent concealment because he did not allege specific facts regarding the alleged acts of concealment. The doctrine of fraudulent concealment operates such that the defendant s fraud in concealing a cause of action against him tolls the applicable statute of limitations. Primed: 10/24/2017 10/24/2017 Motion: Sm'ke - 17CV313189 Page 9 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER (Regents of University of California v. Super. Ct. (1999) 20 Cal. 4th 509, 533.) Because fraud is the basis of the estoppel, the same pleading and proof is required in the fraud cases (i.e., the plaintiff must show the substantive elements of fraud and an excuse for late discovery of the facts). (See Snapp & Associates |ns. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884, 890-891.) When a plaintiff relies on a theory of fraudulent concealment, delayed accrual, equitable tolling, or estoppel to save a cause of action that otherwise appears on its face to be time-barred, he or she must specifically plead facts which, if proved, would support the theory. (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641.) Plaintiff asserts that paragraphs 47-49 of the complaint plead facts sufficient to demonstrate that the doctrine of fraudulent concealment applies. However, those paragraphs to do not contain any facts demonstrating that Defendant actively concealed the alleged defects. Accordingly, the demurrer to the first through sixth causes of action is SUSTAINED, with 10 days leave to amend. ||. Motion to Strike With its motion to strike, Defendant moves to eliminate Plaintiff s request for punitive damages, arguing that Plaintiff has not sufficiently pleaded a fraud cause of action capable of supporting such damages and punitive damages are not recoverable under the Song-Beverly Consumer Warranty Act and Magnuson Moss Act. Defendant s first argument is tied to the assertions made in its demurrer that Plaintiff failed to state a claim for fraud. Because the seventh cause of action fails to state a claim, Defendant contends that it cannot support Plaintiff s request for punitive damages. This contention is well taken. A properly pleaded fraud claim will by itself support the recovery of punitive damages (Stevens v. Super. Ct. (1986) 180 Cal.App.3d 605, 610); it therefore follows that a plaintiff cannot recover punitive damages based on a fraud claim if said claim is not properly pleaded. Because Plaintiff s seventh cause of action does not survive demurrer, it may not serve as a basis for the request for punitive damages. Next, Plaintiff also seeks to recover punitive damages in connection with his claims under the Song-Beverly Act and, by extension, the Magnuson Moss Act. Defendant argues that neither of the foregoing statutes permit the recovery of punitive damages and, instead, a Song-Beverly Act plaintiff is only permitted to recover a refund of the purchase price/replacement of the subject vehicle and a civil penalty. The Court finds Defendant s arguments persuasive, despite Plaintiff s citation to several unpublished federal decisions which hold to the contrary. Under the Song-Beverly Consumer Warranty Act (Civ. Code 1790, et seq.), a plaintiff is expressly permitted to recover actual damages plus a civil penalty of up to two times those actual damages if the statutory violations are willful or if a manufacturer breaches an express warranty by refusing to make restitution after reasonable repair attempts fail. (Civ. Code, 1794, subds. (c) and (e).) This civil penalty is distinct from punitive damages under California law, and a plaintiff may not recover both forms of relief for the same conduct. (Troensegaard v. Silvercrest |ndust. (1985) 175 Cal.App.3d 218, 228 (Troensegaard); Johnson v. Ford Motor Co. (2005) 135 Cal.App.4th 137, 148 [distinguishing between civil penalties under the Song-Beverly Act and punitive damages awarded for fraudulent conduct]; Romo v. FFG Ins. Co. (CD. Cal. 2005) 397 F.Supp.2d 1237, 1240 [The Song Beverly Act authorizes civil penalties of up to two times the amount of actual damages for violations. [Citation.] While these civil penalties are not punitive damages per se, the California courts Primed: 10/24/2017 10/24/2017 Motion: Sm'ke - 17CV313189 Page 10 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER have, on numerous occasions, analogized the two because both are intended to punish and deter defendants rather than compensate plaintiffs. ].) As the court opined in Troensegaard: We are of the opinion that had the Legislature, by Civil Code sections 3294 (permitting punitive damages) and 1794 (permitting a civil penalty), intended a double recovery of punitive and penal damages for the same willful, oppressive, malicious, and oppressive acts, it would in some appropriate manner have said so. And we believe that by seeking a civil penalty and also attorney s fees and all reasonable expenses as allowed by Civil Code section 1794, plaintiff had in effect elected to waive punitive damages under section 3294. (Troensegaard, supra, 175 Cal.App.3d at p. 228.) In the complaint, Plaintiff seeks a civil penalty in the amount of two times [his] actual damages pursuant to Civil Code section 1794, subdivision (c) or (e) and reasonable attorneys fees pursuant to Civil Code section 1794, subdivision (d). (Complaint, Prayer for Relief, (c) and (e).) By seeking a civil penalty and attorney s fees as allowed by Civil Code section 1794, Plaintiff has elected to waive punitive damages under Civil Code section 3294. (See Troensegaard, supra, 175 Cal.App.3d at p. 228.) As for the claim brought under the Magnuson-Moss Act (the Act), which provides for a federal cause of action for state law express and implied warranty claims, the [Act] does not expand the rights under those claims, and dismissal of the state law claims requires the same disposition with respect to an associate [Act] claim. (In re Sony Grand WEGA KDF-E A10/A20 Rear Projection HDTV TV Litig. (S.D. Cal. 2010) 758 F.Supp.2d 1077, 1101.) The Act does not provide an independent basis for recovery of punitive damages. (See Kelly v. Fleetwood Enter. (9th Cir. 2004) 377 F.3d 1034.) Accordingly, the motion to strike the request for punitive damages is GRANTED, with 10 days leave to amend. Primed: 10/24/2017 10/24/2017 Motion: Sm'ke - 17CV313189 Page 11 of 11