PETER ALBERTS vs FORD MOTOR COMPANY, et al.

2025CUBC040660: PETER ALBERTS vs FORD MOTOR COMPANY, et al.

I. Judicial Notice

The Court takes judicial notice of the Department of Consumer Affairs website that lists the manufacturers who have elected to opt-in to the lemon law procedures, visited on June 19, 2026, at https://dca.ca.gov/acp/accepted_manufacturers.shtml. (Evid. Code, § 452, subd. (h).)

II.

Background

This action arises out of Plaintiff’s purchase of an alleged defective 2019 Ford F-250 on October 11, 2018.

The original Complaint was filed almost 6 and a half years later, on March 18, 2025, alleging claims for (1) Violation of Civil Code § 1793.2(d); (2) Violation of Civil Code § 1793.2(b); (3) Violation of Civil Code § 1793.2(a)(3); (4) Violation of Civil Code §§ 1791.1, 1794, 1795.5; (5) Negligent Repair, and (6) Fraudulent Inducement-Concealment.

After the filing of a demurrer to the original Complaint, Plaintiff filed a First Amended Complaint on July 31, 2025. Defendant Ford Motor Company demurred to the first, second, third, fourth, and sixth causes of action. On November 18, 2025, the Court sustained the demurrer as to all claims on statute of limitations grounds and granted leave to amend. Plaintiff thereafter filed a Second Amended Complaint on March 13, 2026, drawing the current demurrer, which was filed on April 21, 2026. Plaintiff’s opposition was filed on May 4, 2026. The reply was filed on June 15, 2026. No trial date has been set.

III.

Discussion

A. Legal Standard: Demurrer

The limited role of a demurrer is to test the legal sufficiency of a complaint. It is long settled that a demurrer admits all material facts properly pleaded, but not contentions, deductions, or conclusions of law or fact. A court may also consider matters that may be judicially noticed. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 976, 994; Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (quoting Serrano v. Priest (1971) 5 Cal.3d 584, 591.) The complaint is given a reasonable interpretation, and is read as a whole, reading its parts in their context. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)

It is an abuse of discretion to deny leave to amend if there is any reasonable possibility that any defects in the complaint can be cured by amendment. But the burden is on the plaintiff to show how the complaint can be amended and how such an amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

2025CUBC040660: PETER ALBERTS vs FORD MOTOR COMPANY, et al.

B. Application

1. Statute of Repose (Code Civ. Proc., § 871.21)

Under Code of Civil Procedure section 871.21 (effective Jan. 1, 2025), an action under the Song-Beverly Act must be filed no later than: (1) one year after expiration of the express warranty, and (2) six years after the vehicle’s original delivery to the buyer, whichever occurs first, unless limited tolling applies. (Code Civ. Proc., § 871.21, subds. (a)-(b).)

“[W]hile a statute of limitations normally sets the time within which proceedings must be commenced once a cause of action accrues, the statute of repose limits the time within which an action may be brought and is not related to accrual. Indeed, “the injury need not have occurred, much less have been discovered. Unlike an ordinary statute of limitations which begins running upon accrual of the claim, [the] period contained in a statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted.” (54 C.J.S.

Limitations of Actions, § 4, pp. 20–21.) A statute of repose thus is harsher than a statute of limitations in that it cuts off a right of action after a specified period of time, irrespective of accrual or even notice that a legal right has been invaded. (Ibid.).” (Giest v. Sequoia Ventures, Inc. (2000) 83 Cal.App.4th 300, 305.” “Whereas statutes of limitations affect a remedy, statutes of repose extinguish a right of action after the period has elapsed.” (PGA West Residential Assn., Inc. v. Hulven Internat., Inc. (2017) 14 Cal.App.5th 156, 177, as modified (Aug. 23, 2017).) “And unlike a procedural statute of limitations, substantive statutes of repose are generally not subject to statutory or equitable tolling.” (Id. at p. 178 [italics in opinion].)

The procedures in Code of Civil Procedure sections 871.20 to 871.27 apply only if the manufacturer elects to participate in the new framework established by Assembly Bill No. 1755. (Code Civ. Proc., § 871.20, subd. (a).) Senate Bill No. 26 (2023–2024 Reg. Sess.) created the opt-in mechanism. Manufacturers must notify the Department of Consumer Affairs of their decision. (Code Civ. Proc., § 871.29, subd. (a)(1).) Once elected, the new procedures apply for an irrevocable five-year term. (Id., subd. (a)(2).) Section 871.29 was added to the Code of Civil Procedure by Senate Bill 26 and became effective April 2, 2025.

Code of Civil Procedure section 871.30 was also added to the Code of Civil Procedure by Senate Bill 26. It provides that, if a manufacturer elects to be governed by Chapter 12 (Code of Civil Procedure sections 871.20 through 871.30) within 30 days of its enactment, such election will pertain to all of its motor vehicles sold in the year 2025 and in all prior years[.]” (Code Civ. Proc., § 871.30, subd. (a) [boldfacing added]; see also id., subd. (c) [“Unless a manufacturer has made the election described in subdivision (a), Sections 871.20 to 871.28, inclusive, shall not apply to an action described in subdivision (a) of Section 871.20, including actions already filed between January 1, 2025, and the effective date of the act adding this section, with respect to all of its vehicles sold new in the year 2025 and in all prior years.” (boldfacing added)].).

Section 871.30 became effective April 2, 2025, so such election must have been made by May 2, 2025.

The one-year and six-year deadlines set forth in section 871.21, subdivision (b), apply only to certain claims: “Notwithstanding any other law, this chapter applies to an action, brought against a manufacturer who has elected under Section 871.29 to proceed under this chapter, seeking

2025CUBC040660: PETER ALBERTS vs FORD MOTOR COMPANY, et al.

restitution or replacement of a motor vehicle pursuant to subdivision (b) or (d) of Section 1793.2, Section 1793.22, or Section 1794 of the Civil Code, or for civil penalties pursuant to subdivision (c) of Section 1794 of the Civil Code, where the request for restitution or replacement is based on noncompliance with the applicable express warranty.” (Code Civ. Proc., § 871.20, subd. (a).)

If a manufacturer chooses not to opt in, then the sections 871.20 to 871.28, inclusive, will not apply to an action described in section 871.20, subdivision (a). (Code Civ. Proc., § 871.29, subd. (b).)

2. Retroactive Application of Section 871.21

It is a fundamental principle that statutes are generally presumed to operative prospectively unless the Legislature expresses a different intention. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208; see also Code Civ. Proc., § 3 [“No part of it is retroactive, unless expressly so declared.”].) But even if retroactive application is clearly intended, due process considerations may prevent such retroactive application. (City of Modesto v. National Med, Inc. (2005) 128 Cal.App.4th 518, 527 [“Although a statute is generally presumed to operate prospectively only, when retroactive application is clearly intended, that legislative intent must be carried out unless due process considerations prevent it.” (citing Preston v.

State Bd. of Equalization (2001) 25 Cal.4th 197, 221-222].) “The general presumption against retroactive application of statutes is subordinate to the transcendent canon statutory construction that the design of the Legislature be given effect.” (Plotkin v. Sajahtera, Inc. (2003) 106 Cal.App.4th 953, 960 [internal quotation marks omitted].)

Here, the Legislature intended that section 871.21 apply retroactively if, and only if, a manufacturer elects to be governed by the procedures set forth in Code of Civil Procedure sections 871.20 through 871.30. (Code Civ. Proc., § 871.30, subds. (a), (c).) In this case, defendant Ford Motor Company elected on April 25, 2025, to be governed by sections 871.20 through 871.30, as indicated on the Department of Consumers Affairs website, of which the Court has taken judicial notice.

Plaintiff argues that application of section 871.21 violates due process because it retroactively extinguishes accrued Song-Beverly claims without affording a reasonable opportunity to commence suit. “Retroactive application of a statute may be unconstitutional if it is an ex post facto law, if it impairs the obligation of a contract or if it deprives a person of a substantive right without due process of law.” (Plotkin, supra, 106 Cal.App.4th at p. 962.) This matter does not involve criminal legislative or substantial contract rights.

Thus, “the constitutional question is one of due process only, as guaranteed by article I, section 7 of the California Constitution and the Fourteenth Amendment of the United States Constitution. Those provisions ensure that ‘vested’ rights cannot be retroactively impaired without sufficient justification or in an irrational or arbitrary manner.” (Id.) “Retroactive application of a law is unconstitutional if it deprives a person of a vested right without due process of law.” (Bouley v. Long Beach Memorial Medical Center (2005) 127 Cal.App.4th 601, 609 [italics in original].)

Nearly 100 years ago, the California Supreme Court distinguished between statutes that retroactively affect common law rights and those that affect rights based on statutes, stating that

2025CUBC040660: PETER ALBERTS vs FORD MOTOR COMPANY, et al.

the former types of rights were “vested” and the latter were not. (Callet v. Alioto (1930) 210 Cal. 65, 67-68; see also Plotkin, supra, 106 Cal.App.4th at p. 962 [quoting Callet] and id. at p. 963 [cased cited therein]; Bouley, supra, 127 Cal.App.4th at p. 610, fn. 5 [“It is sometimes said that rights created by statute are not vested, but that common law rights are.” (citing Callet)].) “The justification for this rule is that all statutory remedies are pursued with full realization that the Legislature may abolish the right to recover at any time.” (Callet, supra, 210 Cal. at pp. 67-68.; see also Younger v. Superior Court (1978) 21 Cal.3d 102, 109 [quoting Callet].) Due process analysis is not required unless there is a deprivation of a vested right. (Bouley, supra, 127 Cal.App.4th at p. 609 [“No due process analysis is required unless there is such a deprivation.”].)

Here, it cannot reasonably be argued that the Song-Beverly Act codifies a pre-existing common law right. (See generally Callet, supra, 210 Cal. at pp. 66-70 [analysis of particular section of California Vehicle Act determined that right to recovery also existed under the common law in the absence of statute]; cf. Bouley, supra, 127 Cal.App.4th 601, 609-610, fn. 5 [“Because the wrongful death cause of action is purely a creature of statute, under this analysis any rights respondents had under the old version of the statute were not vested rights.”].) Song-Beverly was enacted in 1970. (Civ. Code, § 1790, added by Stats. 1970, ch. 1333, § 1.) It, like the wrongful death statute, is purely a “creature of statute.”

Plaintiff relies primarily on Rosefield Packing Co. v. Superior Court in and for City and County of San Francisco (1935) 4 Cal.2d 120. In Rosefield, the issue involved the constitutionality of a change to Code of Civil Procedure section 583, which, at the time, required dismissal of an action five years after the filing of an answer. The change to section 583 required dismissal five years after the filing of the complaint. The Supreme Court summarized the applicable principles as follows: The question of constitutionality may be determined upon settled principles.

The retrospective application of a statute may be unconstitutional if it is ex post facto, that is, applying to criminal matters; or if it deprives a person of a vested right; or if it impairs the obligation of a contract. But a statute which merely effects a change in civil procedure may have a valid retrospective application. See Los Angeles v. Oliver, 102 Cal. App. 299, 283 P. 298; San Bernardino County v. Ind. Acc. Com., 217 Cal. 618, 20 P.(2d) 673. In accordance with this principle it has been specifically held that the Legislature may shorten or extend the period of the statute of limitations, or similar time statutes relating to procedure, and that the changed period may be made applicable to pending proceedings.

Davis & McMillan v. Ind. Acc. Com., 198 Cal. 631, 246 P. 1046, 46 A. L. R. 1095; Steinbauer v. Bondesen, 125 Cal. App. 419, 14 P.(2d) 106; Kozisek v. Brigham, 169 Minn. 57, 210 N. W. 622, 49 A. L. R. 1260. There is, of course, one important qualification to the rule; where the change in remedy, as, for example, the shortening of a time limit provision, is made retroactive, there must be a reasonable time permitted for the party affected to avail himself of his remedy before the statute takes effect.

If the statute operates immediately to cut off the existing remedy, or within so short a time as to give the party no reasonable opportunity to exercise his remedy, then the retroactive application of it is unconstitutional as to such party. Coleman v. Superior Court, 135 Cal. App. 74, 26 P.(2d) 673.

2025CUBC040660: PETER ALBERTS vs FORD MOTOR COMPANY, et al.

(Rosefield Packing Co. v. Superior Court in and for City and County of San Francisco (1935) 4 Cal.2d 120, 122-123.)

The statutory change in Rosefield went into effect on August 21, 1933. The five-year period from the filing of the complaint, after the statutory amendment, ended August 17, 1934. The Supreme Court held that the plaintiff had nearly an entire year to bring his case to trial, finding that this was a reasonable time. (Id. at p. 123.)

Ultimately, Rosefield is not helpful to Plaintiff’s case because the decision did not discuss whether vested rights or statutory rights were at stake.

In sum, in enacting Code of Civil Procedure section 871.21, the Legislature stated its intent that the statute of repose apply retroactively in cases in which the manufacturer has elected to be governed by the procedures set forth in sections 871.20 through 871.30, as defendant Ford Motor Company has here. The Legislature’s clear intent must be carried out in the absence of a due process violation. (Plotkin, supra, 106 Cal.App.4th at p. 960.) Given that this case involves retroactive application of a statute of repose that affected Plaintiff’s statutory rights and not vested common law rights, the due process analysis is not required.

Accordingly, the Court rejects Plaintiff’s due process argument and finds that the six-year statute of repose applies unless applicable tolling applies. The Court rejects any contention by Plaintiff that the statute of repose does not apply to the claim for failure to provide literature and parts or the claim for breach of implied warranty, as those claims are still part of an action that seeks restitution or replacement and meets the requirements set forth above. (Code Civ. Proc., § 871.20, subd. (a).)

3. Tolling

a. Tolling Under Section 871.21(c)

Code of Civil Procedure section 871.21, subdivision (c), limits tolling to three circumstances: (1) when a buyer participates in a qualified third-party dispute resolution process; (2) the period during which the vehicle is out of service due to repairs of warranty nonconformity repairs; and (3) cases in which a buyer sends a notice prior to filing suit. (Code Civ. Proc., § 871.21, subd. (c)(1)-(3); see also Civ. Code, § 1793.22, subd. (c).)

The SAC does not sufficiently allege tolling occurred under any of these three exceptions.

b. COVID Tolling Under Emergency Rule 9

Plaintiff alleges in the SAC and argues here that Emergency Rule 9 tolls applicable statutes of limitations. (SAC, ¶ 50.) The relevant version of Emergency Rule 9 provides: “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.” (Cal. Rules of Court, appen. I., emergency rule 9, as amended effective May 29, 2020.) Subdivision (c), which provided that the rule would sunset on June 30, 2022, stated, in part, as follows: “This sunset does not nullify the effect of the tolling of the statutes of limitation and repose under the rule.” (Cal. Rules of Court, appen. I, emergency rule 9, as amended effect March 11, 2022.) The Advisory Committee

2025CUBC040660: PETER ALBERTS vs FORD MOTOR COMPANY, et al.

Comment pertaining to subdivision (c) states that, depending on the specific facts of a case and the applicable statute of limitations or repose, the effect of the tolling may continue beyond the rule’s sunset date.

Defendant contends Emergency Rule 9 cannot toll section 871.21 because section 871.21 did not exist during the 2020 tolling period. The Court is not persuaded. Section 871.21’s status as a statute of repose is significant. Unlike an ordinary statute of limitations, its six-year period runs from the vehicle’s original delivery, without regard to the date on which Plaintiff’s Song-Beverly causes of action accrued. Plaintiff therefore need not establish that his claims accrued before or during the Emergency Rule 9 period to obtain tolling of the repose period. The relevant question is whether, assuming section 871.21 applies retroactively, the six-year repose period is treated as having been running during that period.

Here, Emergency Rule 9 tolled section 871.21’s six-year repose period for 178 days. The period that otherwise would have expired on October 11, 2024, was consequently extended to April 7, 2025. Because Plaintiff commenced this action on March 18, 2025, the action was timely filed under section 871.21, subdivision (b). Accordingly, the demurrer to the first through third causes of action on statute-of-repose grounds is OVERRULED.

4. Independent Grounds for Sustaining the Demurrer as to the Implied Warranty of Merchantability Claim (Civ. Code, § 1791.1)

Even if Plaintiff’s fourth cause of action were to survive the six-year statute of repose due to tolling under Emergency Rule 9, it is barred by the statute of limitations that applies to warranty claims under the Song-Beverly Act before the enactment of section 871.21.

The Song–Beverly Act does not include its own statute of limitations.” (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1305.) “California courts have held that the statute of limitations for an action for breach of warranty under the Song–Beverly Act is governed by the same statute that governs the statute of limitations for warranties arising under the Uniform Commercial Code: section 2725 of the Uniform Commercial Code.” (Id. at pp. 1305-1306.) “The statute of limitations for breaches of the implied warranty of merchantability is four years.” (Montoya v. Ford Motor Co. (2020) 46 Cal.App.5th 493, 495.)

Plaintiffs’ implied warranty claim is based on the existence of a latent defect. (SAC, ¶ 69.) “The implied warranty of merchantability may be breached by a latent defect undiscoverable at the time of sale.” (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304.) “In the case of a 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.” (Id. at p. 1305.)

Plaintiff argues in his Opposition that the cause of action does not accrue until a latent defect is discovered, asserting that the implied warranty extends to a future performance of the goods. Plaintiff is incorrect.

2025CUBC040660: PETER ALBERTS vs FORD MOTOR COMPANY, et al.

“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.” (Id., subd. (2).) “The scope of the ‘future performance’ exception has been the subject of numerous, and sometimes conflicting, decisions throughout the country.” (Cardinal Health 301, Inc. v.

Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 130.) “But 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.” (Ibid. [emphasis in original].) “Because an implied warranty is one that arises by operation of law rather than by an express agreement of the parties, courts have consistently held it is not a warranty that explicitly extends to future performance of the goods[.]” (Id. at p. 134 [internal quotation marks and punctuation omitted].)

The effect of this is that the discovery rule does not apply to implied warranty claims. (See also Mandani v. Volkswagen Group of America, Inc.1 (N.D. Cal., July 13, 2020, No. 17-CV-07287-HSG) 2020 WL 3961975, at *3 [“Accordingly, because more than four years elapsed between Madani's April 2013 purchase of the car and the December 2017 initiation of the present action, the claim for breach of implied warranty under the Song-Beverly Act is time-barred.”]; see also Mangiapane v. Ford Motor Company (N.D.

Cal., Oct. 16, 2019, No. 19-CV-02014-HSG) 2019 WL 5199534, at *3 [“Because Plaintiff's cause of action against Tuttle-Click is for breach of an implied warranty, the future performance exception is inapplicable to her claim.”].)

Here, Plaintiff acquired the subject vehicle on October 11, 2018, but filed his lawsuit on March 18, 2025. Given that the discovery rule does not apply to implied warranty claims, Plaintiff’s implied warranty claims was time-barred as of October 11, 2022, before any applicable tolling. Adding 178 days due to Covid tolling, the limitations period ended Friday, April 7, 2023, nearly two years before the effective date of the six-year statute of repose. Accordingly, the demurrer to the fourth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

5. The Fifth Cause of Action for Negligent Repair

“The elements of a cause of action for negligence are duty, breach, causation, and damages.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.)

A repair facility’s conduct in repairing a vehicle is tested by the rules “ordinarily applicable to garage repairmen under like circumstances.” Thus, a repair facility’s duty is to use ordinary care once it undertakes to perform repairs and will be liable for any acts or omission in breach of that duty that proximately cause harm to the plaintiff. (Pearson Ford Co. v. Ford Motor Co. (1969) 273 Cal.App.2d 269, 275; see also Hinckley v. La Mesa R.V. Center, Inc. (1984) 158 Cal.App.3d 630, 637 [defining “negligence”].)

“Duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Melton, supra, 183 Cal.App.4th at p. 529 [internal quotation marks omitted].)

1 “Although not binding, unpublished federal district court cases are citable as persuasive authority.”

(Aleman v. AirTouch Cellular (2012) 209 Cal.App.4th 556, 576 fn. 8.)

2025CUBC040660: PETER ALBERTS vs FORD MOTOR COMPANY, et al.

“[T]he existence of a duty is a question of law for the court.” (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.)

“[I]n actions arising from the sale or purchase of a defective product, plaintiffs seeking economic losses must be able to demonstrate that either physical damage to property (other than the defective product itself) or personal injury accompanied such losses; if they cannot, then they would be precluded from any tort recovery in strict liability or negligence. (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 780; see also Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1044 [“[N]egligent performance of a contract gives rise to contract damages only.”].)

Here, Plaintiff does not specifically allege damage to property or physical injury as a result of the Defendant Envision Ford’s alleged negligence. Nor does he allege the existence of a contract for the performance of services or a special duty. (See generally SAC, ¶¶ 11-33, 71-75.) Accordingly, the demurrer to the fifth cause of action is SUSTAINED WITH LEAVE TO AMEND.

6. The Sixth Cause of Action for Fraudulent Concealment

a. Statute of Limitations

The statute of limitations for fraud is three years. (Code Civ. Proc., § 338, subd. (d).) A cause of action for fraud accrues when the aggrieved party discovers the facts constituting the fraud. (Id.)

Here, Plaintiff filed suit on March 18, 2025, more than six years and five months years after purchasing the subject vehicle. His fraud claim is barred by the statute of limitations unless it accrued within the three-year period preceding the filing of the original Complaint, or after March 18, 2022. Plaintiff alleges various bases for the tolling of the limitations period in an effort to plead accrual within the preceding three-year period.

b. Tolling

Plaintiff generally alleges that the statute of limitations was tolled under various theories:

To the extent there are any statutes of limitation applicable to Plaintiff’s claims- including, without limitation, the express warranty, implied warranty, and negligent repair– the running of the limitation periods have been tolled by, inter alia, the following doctrines or rules: equitable tolling, the discovery rule, the fraudulent concealment rules, equitable estoppel, the repair rule, and/or class action tolling (e.g., the American Pipe rule).

Plaintiff discovered Defendants’ wrongful conduct alleged herein shortly before the filing of the complaint, as the Vehicle continued to exhibit symptoms of defects following Ford’s unsuccessful attempts to repair them. However, Ford failed to promptly provide restitution pursuant to the Song-Beverly Consumer Warranty Act.

2025CUBC040660: PETER ALBERTS vs FORD MOTOR COMPANY, et al.

(SAC, ¶¶ 34-35.)

In some cases, Plaintiff has made additional allegations supporting several of his theories. However, the SAC fails to state a fraud claim under these theories for lack of pleading specificity, to include equitable tolling, the delayed discovery rule, the fraudulent concealment doctrine or equitable estoppel doctrine, the repair rule, or class action tolling.

c. COVID Tolling

Plaintiff’s specific allegation of Covid tolling states: Separately, Plaintiffs’ claims were tolled by Judicial Council of California, App’x. I, Emergency Rules Related to COVID-19. (Cal. Rules of Court, App’x. I, Emergency Rules Related to COVID-19 (https://www.courts.ca.gov/documents/appendix-i.pdf) [as of August 1, 2023].) This allows for tolling of the statute of limitations from April 6, 2020, until October 1, 2020. (SAC, ¶ 64.)

The effect of COVID tolling was addressed above in connection with the discussion of the statute of repose. Although COVID tolling in this case prevents the sustaining of Defendant’s demurrer as to the Song-Beverly Act claims, its effect cannot be determined with regard to tolling of Plaintiff’s fraudulent concealment claim because Plaintiff’s allegations regarding delayed discovery and the repair rule are insufficient. Accordingly, Covid tolling is insufficiently pled insofar as it related to the fraudulent concealment claim.

In sum, the fraudulent concealment claim is barred by the three-year statute of limitations, as the SAC fails to state facts sufficient to show discovery within the three years preceding the filing of the original Complaint. Plaintiff’s conclusory allegation that he discovered Defendant’s concealment “shortly before the filing of the complaint” is insufficient. Hence, the demurrer to this claim is SUSTAINED WITH LEAVE TO AMEND.

The Court declines to reach Plaintiffs arguments in light of this ruling.

IV.

Disposition

The demurrer is OVERRULED as to the first, second, and third causes of action; SUSTAINED WITHOUT LEAVE TO AMEND as to the fourth cause of action; and SUSTAINED WITH LEAVE TO AMEND as to the fifth and sixth causes of action.

Plaintiff will have a final chance to amend his complaint. (Code Civ. Proc. § 430.41, subd. (e)(1).)

Counsel for Defendants is to give notice of the Court’s ruling.

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