Demurrer_to_amended_complaintDemurrerCal. Super. - 4th Dist.September 18, 201910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Soheyl Tahsildoost (Bar No. 271294) THETA LAW FIRM, LLP 15901 Hawthorne Blvd., Suite 270 Lawndale, CA 90260 Telephone: (424) 297-3103 Facsimile: (424) 286-2244 Attorneys for defendant Hyundai Motor America SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE Date: February 21, 2020 Time: 10:00 AM Complaint Filed: September 18, 2019 Trial Date: TBD DANIEL BARNETT, an individual, ) Case No.: 30-2019-01098921-CU-BC-CJC ) Plaintiff, ) DEFENDANT HYUNDAI MOTOR ) AMERICA’S NOTICE OF DEMURRER Vv. ) AND DEMURRER TO PLAINTIFF’S FIRST ) AMENDED COMPLAINT HYUNDAI MOTOR AMERICA, a ) corporation, and DOES 1 through 10, ) inclusive, ) RES NO.: 73192960 ) Dept: C-21 Defendants. ) Judge: Hon. Deborah Servino ) ) ) ) ) ) ) TO THE COURT AND TO PLAINTIFF AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on February 21, 2020, at 10:00 a.m., or as soon thereafter as the matter may be heard in Department C-21 of the above-titled court located at 700 W Civic Center Drive, Santa Ana, CA 92701, there will be a hearing on defendant Hyundai Motor America’s (“HMA”) demurrer to Plaintiff’s First Amended Complaint (“FAC”) on the following grounds: 1. Plaintiff’s FAC combines multiple causes of action in a single cause of action, thereby rendering the FAC uncertain and unintelligible. (Code Civ. Proc., § 430.10 (e) and (f).) 1 DEFENDANT HYUNDAI MOTOR AMERICA’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Plaintiff’s FAC seeks damages that applicable law for violations of Civil Code Section 1793.2(b) does not allow for, such as recovery of replacement or restitution and related damages, including civil penalties. (Code Civ. Proc., § 430.10 (e) and (f).) This demurrer is based on this notice, the attached memorandum of points and authorities, the declaration of Soheyl Tahsildoost, all pleadings, documents and records on file herein, together with such oral and documentary evidence as may be presented at the hearing. Pursuant to Local Rule 382, those tentative rulings which are posted on the Internet may be viewed at www.occourts.org. In addition, tentative rulings on unlimited civil cases may be obtained by calling the clerk of the courtroom where the case is assigned, or the Clerk’s Office if the case is a limited civil action, after 3:00 p.m. on the court day before the scheduled hearing. Dated: December 23, 2019 THETA LAW FIRM, LLP le SOHEYL TAHSILDOOST Attorneys for Defendant Hyundai Motor America 2 DEFENDANT HYUNDAI MOTOR AMERICA’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES Defendant Hyundai Motor America (“HMA”) submits the following memorandum of points and authorities in support of its demurrer to Plaintiff’s First Amended FAC (“FAC”). 1. INTRODUCTION This is a simple “lemon law” case brought by Plaintiff Daniel Barnett (Plaintiff) concerning Plaintiff’s 2017 Hyundai Elantra VIN SNPD84LFOHHO050301 (the “vehicle”), which was purchased from Glendale Hyundai. (FAC, 9 4.) On September 18, 2019, Plaintiff filed this action asserting a single cause of action for violation of the Song-Beverly Consumer Warranty Act (“Act”). Plaintiff thereafter filed his FAC on or about September 30, 2019. Plaintiff granted HMA an extension to respond to the FAC to December 23, 2019. Defendant HMA brings the instant demurrer to Plaintiff’s FAC because Plaintiff’s consumer warranty cause of action is uncertain as it improperly combines at least two causes of action into a single, vague cause of action and these separate claims must be pled separately. In addition, reference to a violation for failure to conform vehicle to warranty within 30 days seemingly under Civil Code Section 1793.2(b) is not a separate actionable cause of action under the Act, or, at a minimum, does not provide for restitution as recoverable damages. These defects in Plaintiff’s FAC cannot be cured. Therefore, HMA requests that this Court sustain its demurrer to Plaintiff’s Complaint without leave to amend. Counsel for HMA met and conferred in good faith, but was unable to resolve the issues raised in this demurrer. (Tahsildoost Declaration, 9 2.) 2, AUTHORITY IN SUPPORT OF DEMURRER Code of Civil Procedure section 430.10 provides that a party against whom a FAC has been filed may object by demurrer to pleadings on any one or more of the following grounds: (e) The pleading does not state facts sufficient to constitute a cause of action. ® The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. 3 DEFENDANT HYUNDAI MOTOR AMERICA’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Furthermore, both general and special demurrers will lie where a complaint combines multiple separate causes of action. (See Robinson v. Godfrey (1926) 78 Cal. App.284, 286-288; Winchell v. Strawbridge, et. al. (1928) 204 Cal. 97, 100-101.) Plaintiffs single cause of action for the alleged violation of the Act, in contravention of settled principles of pleading, is actually at least two separate causes of action improperly pled as a single cause of action and is therefore uncertain. Plaintiff’s FAC refers to (1) breach of express warranty, (2) breach of implied warranty of merchantability, and (3) a vague and unintelligible reference to Civil Code 1793.2(b) violation, but all of these separate claims under the Act are grouped into one cause of action in Plaintiff’s FAC. Furthermore, Plaintiff seeks restitution for the HMA’s alleged violation of not conforming Plaintiff’s vehicle to the applicable warranties within thirty (30) days even though Civil Code Section 1793.2(b) is not an actionable, or at the minimum, does not allow for restitution. (See FAC, 9 13, 17; Civil Code Section 1793.2(b)). As such, since Plaintiff’s FAC is uncertain under Code of Civil Procedure section 430.10, HMA’s demurrer must be sustained without leave to amend. 3. PLAINTIFE’S FAC FAILS AS A MATTER OF LAW BECAUSE IT COMBINES MULTIPLE CAUSES OF ACTION THAT MUST BE PLED SEPARATELY Plaintiffs FAC must fail because it improperly combines two causes of action, making the cause of action uncertain. Plaintiff has failed to state sufficient facts to sustain a cause of action since Plaintiff has apparently combined two causes of action into a single cause of action: (1) breach of express warranty and (2) breach of implied warranty. A “cause of action” is seen as a separate and distinct wrongful act that provides for a separate theory of liability. (Lilienthal & Fowler v. Super. Ct. (Karr) (1993) 12 Cal.App.4th 1848, 1853.) Each of the causes of action identified above is a separate and distinct wrongful act that provides for a separate theory of liability because (a) each one arises from a different legal obligation or claim of right and (b) has its own set of elements that require different facts to prove. Therefore, these causes of action must be pled separately and HMA’s demurrer must be sustained. I 4 DEFENDANT HYUNDAI MOTOR AMERICA’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Each claim arises from a distinct legal obligations/claims of right A critical distinction between the two causes of action identified is that each of them arises from a separate claim of right or legal obligation. Case law has stated that a hallmark of a cause of action is that it arises from a specific right or legal obligation. (Merlino v. West Coast Macaroni Mfg. Co. (1949) 90 Cal.App.2d 106, 115.) With respect to the implied warranty of merchantability, it arises by operation of law and looks to whether the consumer product in question, here a motor vehicle, meets a minimum level of quality. (Isip v. Mercedes Benz, LLC (2007) 155 Cal.App.4th 19, 26.) The implied warranty of merchantability is specifically meant to deal with latent defects that exist in the vehicle when it is delivered to the plaintiff. As such, the legal obligation of the defendant is to provide a certain minimum level of quality in the vehicle that it be free from a latent defect at the time of the sale. The corresponding claim of right for the plaintiff arises when a latent defect exists at the time of the sale, thereby falling below the minimum level of quality that is considered to be merchantable. By contrast, a breach of express warranty claim arises due to the defendant’s failure to repair and/or replace a subject vehicle after a reasonable number of attempts. (See Civil Code Section 1793.2.) Therefore, the breach of the express warranty must necessarily occur after the plaintiff has taken possession of the vehicle and provided the defendant several opportunities to repair the defect. The corresponding obligation is not that the vehicle will never experience a defect but that the vehicle will be repaired within a reasonable number of attempts if such a defect arises. In fact, the defect that forms the basis of a breach of express warranty claim need not be present at the time of delivery. Case law has stated the implied warranty of merchantability has different procedures than an express warranty and that, under the Song-Beverly Act, an opportunity to replace or repair the vehicle is not necessary to a breach of implied warranty of merchantability claim. (Mocek v. Alfa Leisure, Inc. (2003) 114 CalApp.4th 402, 406-407; See also Music Acceptance Corp. v. Lofing (195) 32Cal. App.4th 610.) Therefore, each one arises from separate and distinct wrongful acts and must be pled separately. 5 DEFENDANT HYUNDAI MOTOR AMERICA’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Each claim has different elements and requires different facts Each cause of action has its own set of distinct elements that must be proven. For a breach of implied warranty of merchantability claim require a plaintiff to prove (1) the plaintiff purchased a consumer good from defendant; (2) at the time of the purchase, defendant was in the business of selling or manufacturing said consumer goods; and (3) that the consumer good was not of the same quality as those generally acceptable in the trade; or was not fit for the ordinary purposes for which the goods are used; or was not adequately contained, packaged and labeled; or did not measure up to the promises or facts stated on the container or label. (California Civil Jury Instructions “CACI” No. 3210 — Breach of Implied Warranty of Merchantability.) In contrast, for a breach of express warranty claim under the Song-Beverly Act, a plaintiff must prove (1) plaintiff purchased or leased a new motor vehicle from defendant; (2) that defendant provided a written warranty to plaintiff in connection with the purchase or lease; (3) the vehicle had a defect that was covered by the written warranty; (4) that the defect covered by the warranty substantially impaired the vehicle’s use, value or safety to a reasonable person in plaintiff’s position; (5) that plaintiff delivered the vehicle to defendant or its authorized repair facility for repair of the covered defect; and (6) that defendant failed to repair the covered defect within a reasonable number of attempts. (CACI No. 3201 — Violation of Civil Code Section 1793.2(d) — New Motor Vehicle.) Furthermore, each of the elements listed for each of these causes of action requires different facts to prove. For example, as discussed above, a claim for breach of implied warranty of merchantability looks at conduct of the manufacturer prior to the sale of the vehicle and so there would need to be facts that demonstrate a latent defect existed in the vehicle that was present at the time the vehicle was sold. In contrast, the breach of express warranty need not have any defect when the vehicle was sold, but instead requires there be a failure to repair or replace a vehicle that has been subjected to a reasonable number of attempts. Thus, these are distinct claims and must be pled separately. Therefore, since the Plaintiff’s FAC refers to two distinct causes of actions but combines the two, the Plaintiff’s FAC should be deemed uncertain and its defects incurable. 6 DEFENDANT HYUNDAI MOTOR AMERICA’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. PLAINTIFF’S FAC INAPPROPRIATELY SEEKS DAMAGES UNDER SECTION 1793.2(b) Plaintiff’s FAC references that repairs were not commenced within thirty days, which is a vague and indirect reference to Civil Code section 1793.2(b), a section which concerns a single repair lasting more than 30 days. (Civ. Code section 1793.2(b)). Even assuming that Plaintiff’s claim under Civil Code Section 1793.2(b) is actionable as to HMA, Plaintiff is not entitled to the damages they seek. Plaintiff is not entitled to remedies of restitution or replacement under Civil Code Section 1794 simply for a violation of 1793.2(b). 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.) As a matter of law "the replacement/restitution remedy applies only if the conditions of [Civil Code] section 1793.2(d) are met." (Gavaldon v. Daimler Chrysler Corp. (2004) 32 Cal.4th 1246, 1263.) The remedies of replacement or reimbursement under Civil Code section 1793.2(d) only kick in after a manufacturer “does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts.” (Emphasis added.) See Civil Code section 1793.2(d). The plaintiff in Gavaldon argued anyone “injured” under Civil Code section 1794(a) may seek restitution or reimbursement. The unanimous California Supreme Court squarely rejected this argument holding “the right to replacement or restitution is qualified by the phrase ‘as set forth in subdivision (d) of section 1793.2.” It is most reasonable to assume that this qualification means that the remedy is subject to the provisions set forth in section 1793.2, subdivision (d) (section 1793.2(d)), otherwise the reference to Section 1793.2(d) would be superfluous.” (Id. at 1262.) The replacement/restitution remedy only applies if the 7 DEFENDANT HYUNDAI MOTOR AMERICA’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 requirement of failure to repair after a reasonable number of repair attempts is met. (Id. at 1262- 1263.) Thus, Plaintiff is not entitled to any restitution or replacement remedy pursuant to a violation of Section 1793.2(b), nor is Plaintiff entitled to the civil penalties or other commercial code remedies that can be awarded on a violation of Section 1793.2(d). As such, HMA’s demurrer as to Plaintiff’s alleged violation under Civil Code Section 1793.2(b) and the damages sought in the FAC should be sustained without leave to amend. Bi PLAINTIFF SHOULD NOT BE GRANTED LEAVE TO AMEND Leave to amend should be denied where the plaintiff cannot make a sufficient offer of proof demonstrating that the FAC can be cured through a truthful amendment. (See Taxpayers Jor Improving Pub. Safety v. Schwarzenegger (2009) 172 19 Cal.App.4th 749, 781; see also Vaillette v. Fireman's Fund Insurance Co. (1993) 18 Cal. App.4th 680, 685 [leave to amend should not be granted when “in all probability, amendment would be futile”].) As explained above, Plaintiff should not be offered leave to amend for Plaintiff’s claim under Section 1793.2(b) since the Plaintiffs FAC inappropriately combines multiple causes of actions which require sufficient facts and each contain different elements to be pleaded. In addition, Plaintiff also cannot collect the requested damages on their 1793.2(b) claim since as Plaintiff is not entitled to any restitution or replacement remedy pursuant to a violation of Section 1793.2(b), nor is Plaintiff entitled to the civil penalties or other commercial code remedies that can be awarded on a violation of Section 1793.2(d). Such deficiencies indicate that it would be futile to allow Plaintiff to amend Plaintiff’s FAC and as such, any leave to amend should be denied. 11 1 11 1 11 1 8 DEFENDANT HYUNDAI MOTOR AMERICA’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. CONCLUSION For all the reasons set forth above, HMA requests this Court sustain its demurrer without leave to amend. Dated: December 23, 2019 THETA LAW FIRM, LLP / / , : ¢ Cia SOHEYL TAHSILDOOST Attorneys for Defendant Hyundai Motor America 9 DEFENDANT HYUNDAI MOTOR AMERICA’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE (Code Civ. Proc., § 1013a(3) Revised 5-1-88) I am over the age of 18, not a party to this action, and employed in the county where this mailing occurred. My business address is 15901 Hawthorne Blvd., Suite 270, Lawndale, CA 90260. On December 23, 2019, I served the following documents described as DEFENDANT HYUNDAI MOTOR AMERICA’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S FAC on interested parties in this action by placing original/true copies thereof in sealed envelopes addressed as follows: Sergio Cardenas Neale & Fhima, LLP 34188 Pacific Coast Highway Dana Point, CA 92629 Phone: (949) 661-1007 Fax: (949) 661-3619 SergioCardenas@nealethima.com X BY MAIL: I deposited such envelope in the mail at Lawndale, California. The envelope was mailed with proper postage thereon fully prepaid. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Said mailing is deposited with the United States Postal Service on that same day in the ordinary course of business and there is delivery service by United States mail at the place so addressed. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [] BY PERSONAL SERVICE: I delivered such envelope by hand to the individual(s) listed on the above service list. [1] BY ELECTRONIC TRANSMISSION: I caused to be electronically transmitted such document referenced above to the individual(s) listed on the above service list. [] BY FACSIMILE TRANSMISSION: I transmitted the facsimile to the individual(s) listed on the above service list at the facsimile number listed thereon. The telephone number on the facsimile machine I used is (424) 286-2244. The facsimile machine I used complied with Rule 2.306 and no error was reported by the machine. Pursuant to Rule 2.306, I caused the machine to print a transmission record of the transmission, a copy of which is attached to this declaration. [1] BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the person at the above-address. | placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on December 23, 2019 at Lawndale, California. SE Steven Correa 10 DEFENDANT HYUNDAI MOTOR AMERICA’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
