DEMURRER TO SECOND AMENDED CROSS-COMPLAINT; MOTION TO STRIKE
Twice, Plaintiff Hybrid Battery Inc. has attempted to file a Request for Dismissal with Prejudice of the Entire Action. (ROAs 334 and 335.) The first attempt was on 05/28/2026 and the second attempt was on 06/10/2026. Based on these filings, it appears that the motion for summary judgment should be vacated and/or deemed moot.
At the hearing, the parties shall be prepared to discuss whether Plaintiff Hybrid Battery Inc.’s operative Complaint should be dismissed.
111 OFF CALENDAR
112 SeaNet Company, Inc. DEMURRER TO SECOND AMENDED CROSS- v. Perley, 2024- COMPLAINT BY CROSS-DEFENDANTS SEANET & 01398295 HARRY’S MARINE – SUSTAINED IN PART WITH LEAVE TO AMEND, AND SUSTAINED IN PART WITHOUT LEAVE TO AMEND
MOTION TO STRIKE BY CROSS-DEFENDANTS SEANET & HARRY’S MARINE – GRANTED
DEMURRER TO SECOND AMENDED CROSS- COMPLAINT BY CROSS-DEFENDANT VOLVO PENTA OF THE AMERICAS - SUSTAINED IN PART WITH LEAVE TO AMEND, AND SUSTAINED IN PART WITHOUT LEAVE TO AMEND
MOTION TO STRIKE BY CROSS-DEFENDANT VOLVO PENTA OF THE AMERICAS – GRANTED
The underlying complaint alleges a breach of contract by Perley, the buyer of a yacht, to maintain the yacht under a use agreement. Perley filed a cross-complaint against the seller of the yacht (SeaNet), the manufacturer of the yacht’s engine (Volvo), and the engine repair facility (Harry’s Marine) for various claims involving breach of contract, breach of warranty, fraud, and statutory violations. The second amended complaint (SACC) is the operative pleading here. SeaNet and Harry’s filed a
demurrer to the SACC, and a motion to strike the SACC’s request for punitive damages. Volvo filed a separate demurrer and a separate motion to strike.
The court denies the request for judicial notice of the bill of sale (attached as ex. 6 to the RJN). This is not a proper matter for judicial notice under Evid. Code section 452, subds. (a), (d), (g), or (h). Therefore, the argument that Perley lacks standing to pursue any of the cross-claims fails on demurrer.
First Cause of Action: Fraudulent Concealment Against SeaNet This claim is barred by the statute of limitations (CCP 338(d).) The claim arose no later than April 21, 2021, when Volvo Penta told Perley that “commercial use” by SeaNet had invalidated the warranty. Demurrer SUSTAINED without leave to amend.
Second Cause of Action: Fraudulent Concealment Against Harry’s Marine The SACC fails to allege causation and damages. Perley does not allege that Harry’s alleged failure to disclose that non-factory approved installation methods would void the manufacturer’s express warranty for leisure use or violate the Volvo Penta warranties, which is the damage alleged, caused that damage. In opposition to the demurrer, Perley proposes to amend the crosscomplaint to add: he only learned through discovery that Harry’s was aware when it proposed to tack weld the exhaust riders that the unconventional repair was necessary to address what Harry’s believed was a defect in the new design Volvo exhaust riser assembly installed by Harry’s; he only learned through discovery that in Harry’s opinion the exhaust riser design was defective; he only learned through discovery that Harry’s concealed from Perley that due to the defective exhaust design even tack welding the exhaust mixing elbow could result in the exhaust hose failing with dangerous consequences; he only learned through discovery that Volvo Penta did not conceive, specify, or direct Harry’s to tack weld the exhaust but merely consented to Harry’s proposed technique; that despite Harry’s repair efforts the exhaust defect ultimately caused further exhaust
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hose failure; that after retaining counsel in May 2024, Perley discovered Harry’s deception as to the dangerous condition caused by the exhaust defect; and that Harry’s intentionally concealed from Perley the dangerous condition of the yacht due to the exhaust defect. (ROA 248, Declaration of Julie S. Pearson, ¶ 3(a)-(f), (h).) These proposed allegations do not address the deficiency of the current allegations for the second cause of action for fraudulent concealment as to the alleged concealment. Instead, they appear to seek to add a new claim as to what was concealed, i.e., the dangerous condition of the Absolute 58 due to the exhaust defect. Demurrer SUSTAINED, without leave to amend.
Third Cause of Action: Breach of Contract Against SeaNet Perley claims that SeaNet breached the contract by failing to provide him with a warranty for the engines. The SACC alleges, however, that SeaNet did provide a manufacturer express warranty for the Volvo Penta D8- ISP800 engines, i.e., a 5-Year/2000 Hour Major Component coverage for the D8-IPS800 engines, as well as a Volvo Penta 3 Year Engine Extended Warranty, i.e., a 3-Year/480 Hour Factory Protection Extended Engine Warranty. Therefore, Perley’s own allegations indicate there was no breach. Any allegations that could cure these defects would necessarily be inconsistent with the allegations in the SACC. Therefore, demurrer SUSTAINED without leave to amend.
Fifth Cause of Action for Breach of Contract Against Volvo The SACC fails to identify specific warranty terms that were allegedly breached, so this claim fails. But the deficiency may be cured by amendment. The demurrer will be SUSTAINED with 20 days leave to amend.
Sixth Cause of Action for Breach of Express Warranty Against Volvo This claim lacks sufficient factual allegations as Perley does not allege specifically that he notified Volvo within a “reasonable time” or specify the particular warranty provisions that apply to any alleged defect he claims. The deficiency may be cured by amendment. The
demurrer will be SUSTAINED with 20 days leave to amend. As they are currently pled, the court cannot say the fifth and sixth causes of action are duplicative. If Perley chooses to amend one or both of the claims, the court may revisit this argument by Volvo.
Seventh Cause of Action for Breach of Implied Warranty Against SeaNet This claim is barred by the statute of limitations. (Comm. Code, § 2725.) This claim alleges that SeaNet knew at the time of Perley’s purchase of the yacht that he intended to use it for a particular purpose; that SeaNet represented it had specialized skill and judgment to select and furnish a yacht equipped and suitable for Perley’s particular purpose upon which Perley relied; that SeaNet knew Perley relied on its skill and judgment in purchasing the yacht; that SeaNet failed to provide a product which was fit for the intended use and the ordinary purposes for which such goods are used; and that as a direct and proximate result of SeaNet’s failure to perform the terms of the implied warranties, Perley suffered damages. (SACC, ¶¶ 89-93.)
The SACC alleges that following the execution of the Purchase Agreement and Guarantee in March 2017, the yacht was delivered and remained in Florida for about 12 months. (SACC, ¶¶ 15, 21, 29.) The SACC does not allege the implied warranty explicitly extended to future performance of goods. Thus, the breach of warranty occurred when tender of delivery was made, i.e., 2017, and the claim is untimely. Demurrer SUSTAINED without leave to amend.
Eighth Cause of Action for Unfair Competition Against All Defendants The UCL claim alleges the same acts as the other causes of action. The demurrers to the eighth cause of action are SUSTAINED with leave to amend. The court will give Perley one last chance to state a cause of action under the UCL that meets the requirements of the statute and is not time-barred.
Ninth Cause of action for Violation of the CLRA Against All Defendants
A claim for violation of the CLRA must be brought within 3 years of the date of the commission of the unfair or deceptive act, method, or practice. (Civ. Code, 1783.) The transactions which are alleged to violate the CLRA are SeaNet’s sale of the yacht to Perley, Volvo’s provision of express warranties, and Harry’s Marine’s provision of repair services. The limitations period expired before the cross-complaint was filed. Demurrer SUSTAINED without leave to amend.
Tenth Cause of Action for Declaratory Relief Against Volvo Demurrer SUSTAINED without leave to amend. The complaint seeks redress for past wrongs, not a declaration of future rights.
Motions to Strike The motions to strike are granted. The court has sustained without leave to amend all causes of action for which punitive damages are claimed.
Moving parties to give notice. 113 De La Torre v. Peterson MOTION FOR TERMINATING SANCTIONS Brothers, 2024- 01398380 The court’s ruling is dependent on whether Plaintiff complied with the court’s previous order on or before June 12, 2026.
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