Plaintiff N.B.S Diamonds, Inc. dba Scarselli Diamonds’ motion for leave to file a second amended complaint
manner that ensures that Defendants have sufficient notice under the code pursuant to the new hearing date. Further, for the court’s convenience, Plaintiff is also ordered to file a redlined version of the proposed revised second amended complaint that shows the changes from the first amended complaint to the second amended complaint with the amended notice.
Opposition and reply papers may be filed pursuant to the code based on the new hearing date.
Plaintiff to give notice.
Case Management Conference
The Case Management Conference is continued to January 28, 2027, at 1:30 p.m. in this department.
Plaintiff to give notice.
Review Hearing re: Bankruptcy
The Review Hearing re: Bankruptcy is continued to January 28, 2027, at 1:30 p.m. in this department.
Plaintiff to give notice.
6 Fuery v. McCabe Off calendar.
7 Bischoff v. Defendant General Motors, LLC’s motion to strike portions of the General Motors, complaint by Plaintiffs Doug Bischoff and Paige Bischoff is GRANTED with LLC 20 days leave to amend.
A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. Code Civ. Proc. § 436. “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. Code Civ. Proc. § 431.10(b). Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. (Perkins v. Superior Court (1981) 117 Cal. App. 3d 1, 6).
Defendant General Motors moves to strike allegations related to civil penalties on the grounds that Plaintiffs failed to allege facts to establish that Plaintiff complied with Code of Civil Procedure section 871.24.
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Code of Civil Procedure Section 871.24 requires that “at least 30 days prior to the commencement of an action seeking civil penalties under subdivision (c) of Section 1794 of the Civil Code, the consumer shall do all of the following:
1) Notify the manufacturer of the consumer's name, the accurate Vehicle Identification Number (“VIN”) of the motor vehicle, and a
brief summary of the repair history and problems with the motor vehicle. 2) Demand that the manufacturer repurchase or replace the motor vehicle.”
(Code Civ. Proc., § 871.24, subd. (a)). “At the time that the notice submitted pursuant to subdivision (a) is sent, the consumer shall have possession of the motor vehicle.” (Code Civ. Proc., § 871.24, subd. (c)).
“The notice required by subdivision (a) shall be in writing and shall be sent either by email to the email address prominently displayed on the manufacturer's website for this purpose or by certified or registered mail, return receipt requested, to the address provided by the manufacturer in the owner's manual or warranty booklet. The notice information on the manufacturer's website, owner's manual, and warranty booklet shall be provided in both English and Spanish.” (Code Civ. Proc., § 871.24, subd. (d).)
“An action seeking restitution or replacement under Section 871.20 may be commenced without compliance with subdivision (a). In that event, the consumer shall have possession of the motor vehicle at the time of the filing of the complaint, and shall not seek civil penalties, whether by amendment of the complaint or otherwise. If, however, notice is provided pursuant to subdivision (a) and the manufacturer fails to comply with their obligations under subdivision (e), the consumer may commence an action for restitution or replacement, including, but not limited to, civil penalties under subdivision (c) of Section 1794 of the Civil Code.” (Code Civ. Proc., § 871.24, subd. (h).)
Here, Defendant argues that Plaintiffs failed to allege that they provided timely written notice that complied with section 871.24(a) and were in possession of the vehicle on the date the notice was sent.
Plaintiffs argue that these specific allegations need not be alleged and that minor deviations in the notice does not disqualify consumers from seeking civil penalties. (Code Civ. Proc., § 871.24, subd. (b).) Plaintiffs argue that Defendant has written records of the notice and any argument that notice is insufficient is based on evidence and not the pleadings.
The court agrees with Defendant that Plaintiffs’ allegations are insufficient to allege a claim for civil penalties. Plaintiffs failed to allege that Plaintiffs complied with section 871.24 before seeking civil penalties and/or that any purported notice was a “minor deviation.” Without compliance with section 871.24(a) or 871.24(b), section 871.24 precludes Plaintiffs from obtaining civil penalties.
For this reason, the motion is GRANTED with 20 days leave to amend.
Defendant to give notice.
Case Management Conference
The Case Management Conference is continued to August 27, 2026, at 9:00 a.m. in this department.
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