Aida Setka vs Subaru of America, Inc. et al

Plaintiff relies on Ford Motor Warranty Cases (2025) 17 Cal.5th 1122 to argue “warranty performance is not arbitrable through the form Sales Contract proffered by [Dealership].” (Opposition at p. 2:8-10). That opinion is distinguishable. Ford Motor Warranty Cases involved an attempt by an automobile manufacturer to compel arbitration based on a sales contract between a buyer and a dealership to which the manufacturer was not a party. The Supreme Court rejected the manufacturer’s attempt to compel arbitration on a third party equitable estoppel theory. (Id. at p. 1126). By contrast, here the entity petitioning to compel arbitration is a party to the contract containing the arbitration provision. The RISC is an agreement Plaintiff entered into with Dealership. As the dealership and a party to the agreement, Dealership may compel arbitration of Plaintiff’s claims.

The court does not reach the defendant Dealership’s arguments about lack of waiver and lack of unconscionability. Plaintiff forfeited any argument about waiver and unconscionability by not addressing Dealership’s arguments on those points.

C. THIS ACTION IS STAYED IN ITS ENTIRETY Dealership requests a stay of the entire action. As Dealership notes, Plaintiff has sued two entities, Ford Motor Company and Dealership, for different causes of action. Dealership argues “[p]roceeding against both defendants in separate forums carries an extremely high risk of rendering inconsistent rulings and rendering arbitration as to [Dealership] ineffective.” (Reply at p. 8:25-27). Plaintiff has not offered any arguments opposing a stay to the entire action. A stay of these proceedings is proper under Code of Civil Procedure § 1281.4 and 9 U.S.C. § 3. The court STAYS this action in its entirety pending the outcome of arbitration.

IV. CONCLUSION Based on the foregoing, Defendant’s petition to compel arbitration is GRANTED. This action is STAYED in its entirety pending the outcome of arbitration. The Court will prepare the formal Order.

Calendar Lines # 7-8 Case Name Aida Setka vs Subaru of America, Inc. et al Case No. 25 CV469153 Motion to Strike (Line # 7) and Demurrer (Line #8) Before the court is (1) defendants’ demurrer to first amended complaint for violation of statutory obligations (Line #8); and (2) defendant Subaru of America, Inc.’s motion to strike first amended complaint (Line # 7). Pursuant to California Rule of Court 3.1308, the court issues its tentative ruling as follows. The Court addresses the Demurrer (Line #8) first and then the Motion to Strike (Line # 7). The Background portion is addressed in the Demurrer analysis.

DEMURRER (LINE #8) I. BACKGROUND On or about March 8, 2021, plaintiff Aida Setka (“Setka”) entered into a warranty contract with defendant Subaru of America, Inc. (“Subaru”) regarding a 2021 Subaru Crosstrek vehicle (“Subject Vehicle”) manufactured and/or distributed by defendant Subaru. (First Amended Complaint (“FAC”), ¶¶7 – 8 and Exh. A). Plaintiff Setka 12

purchased the Subject Vehicle from defendant Subaru’s authorized retail dealership, defendant Capitol Subaru (“Capitol”). (FAC, ¶9).

Defects and nonconformities manifested themselves within the applicable express warranty period including, but not limited to, engine defects, electrical defects, among other defects and non-conformities. (FAC, ¶23).

Plaintiff Setka alleges defendant Subaru concealed a known defect from her. (FAC, ¶77). The 2.0L engine and/or its related components installed in the Subject Vehicle suffer from one or more defects that can result in the loss of power, stalling, engine running rough, engine misfires, failure or replacement of the engine (“Engine Defect”). (FAC, ¶78). Prior to sale of the Subject Vehicle, defendant Subaru knew or should have known about the Engine Defect through its exclusive knowledge of non-public, internal data including pre-release test data, early consumer complaints to defendant Subaru’s dealers, dealership repair orders, testing conducted in response to complaints, and other internal sources of information possessed exclusively by defendant Subaru and its agents. (FAC, ¶¶82, 84, 87, 88, 89, 90).

Nevertheless, defendant Subaru and its agents actively concealed the Engine Defect and failed to disclose this defect to plaintiff at the time of her purchase of the Subject Vehicle or thereafter. (Id. See also FAC, ¶¶93 and 97, 99, 100). Defendant Subaru either refused to acknowledge the existence of the defects or performed superficial and ineffectual repairs that masked the symptoms of the Engine Defect. (FAC, ¶84). If plaintiff knew about these defects at the time of sale, plaintiff would not have purchased the Subject Vehicle. (FAC, ¶85).

On February 4, 2026, plaintiff Setka filed a complaint against defendants Subaru and Capitol asserting causes of action for: (1) Violation of Subdivision (d) of Civil Code Section 1793.2 [against defendant Subaru] (2) Violation of Subdivision (b) of Civil Code Section 1793.2 [against defendant Subaru] (3) Violation of Subdivision (a)(3) of Civil Code Section 1793.2 [against defendant Subaru] (4) Breach of the Implied Warranty of Merchantability [against defendant Subaru] (5) Negligent Repair [against defendant Capitol] (6) Fraudulent Inducement – Concealment [against defendant Subaru]

On March 10, 2026, defendants Subaru and Capitol filed the two motions now before the court, a demurrer to the fifth and sixth causes of action of plaintiff Setka’s complaint and a motion to strike plaintiff Setka’s prayer for punitive damages.

II. LEGAL STANDARD & ANALYSIS

A. NEGLIGENT REPAIR In relevant part, plaintiff Setka’s fifth cause of action for negligent repair, which is directed at defendant Capitol only, alleges, plaintiff Setka delivered the Subject Vehicle to defendant Capitol for substantial repair on at least one occasion. (FAC, ¶72). Defendant Capitol breached its duty to properly store, prepare, and repair the Subject Vehicle in accordance with industry standards. (FAC, ¶¶73 – 74). Defendant Capitol’s negligence was a proximate cause of plaintiff’s damages. (FAC, ¶75).

Defendant Capitol demurs to this fifth cause of action by citing Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 12, where the court wrote, “Allegations of damages without allegations of fact to support them are

but conclusions of law, which are not admitted by demurrer.” Defendant Capitol contends plaintiff Setka has not identified any fact(s) to support her allegation that defendant’s negligence caused her damages.

In opposition, plaintiff Setka argues, “The general rule is that the measure of damages for tortious injury to personal property is the difference between the market value of the property immediately before and immediately after the injury, or the reasonable cost of repair if that cost be less than the diminution in value.” (Pacific Gas & Electric Co. v. Mounteer (1977) 66 Cal.App.3d 809, 812).

While the court accepts this general rule, the court agrees with defendant Capitol that plaintiff Setka has not alleged that the negligent storage, preparation, or repair of the Subject Vehicle resulted in a reduction in the market value of the Subject Vehicle or that plaintiff Setka incurred cost to repair the negligent storage, preparation, or repair performed by defendant Capitol.

At paragraphs 13 – 16 of the FAC, plaintiff Setka alleges she presented the Subject Vehicle for repair at a Subaru authorized repair facility. Even if the court reads paragraph 72 together with paragraphs 13 – 16 to infer that plaintiff Setka presented the Subject Vehicle to defendant Capitol for repair, there are no allegations that plaintiff incurred any costs in connection with those repairs.

To the extent plaintiff Setka contends defendant Capitol’s negligent repair of the Subject Vehicle resulted in a reduction in its market value, plaintiff Setka has made no such allegation in the FAC nor will the court infer such a fact. At paragraphs 13 – 16 of the FAC, plaintiff Setka generally alleges the multiple repairs performed on the Subject Vehicle were ineffective. The inference the court draws from these allegations it that the Subject Vehicle suffered from an underlying defect which were not cured by these specific repair attempts. Thus, the court would agree with defendant Capitol that any diminution in value is the result of the underlying defect and plaintiff Setka has not sufficiently alleged the negligent repair caused any diminution in the market value of the Subject Vehicle distinct from the underlying defect.

Plaintiff argues additionally that she need not plead facts that are necessarily in the control of defendant Capitol and within its records. However, the court does not agree with plaintiff Setka’s insinuation or assertion that facts concerning plaintiff’s damages are “necessarily” within defendant Capitol’s control.

Accordingly, defendant Capitol’s demurrer to the fifth cause of action in plaintiff Setka’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for negligent repair and on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is SUSTAINED with 10 days’ leave to amend.

B. FRAUDULEN INDUCEMENT - CONCEALMENT The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would have acted differently if the concealed or suppressed fact was known; and (5) the plaintiff sustained damage as a result of the concealment or suppression of the material fact. (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 40 (Rattagan)).

1. Statute of Limitations Initially, defendant Subaru demurs to the sixth cause of action for fraudulent inducement-concealment on the ground that it is barred by the applicable statute of limitations. 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 on statute of limitations grounds if there is only a possibility that the cause of action is time-barred; the defense must be clearly and affirmatively apparent from the allegations of the pleading [and matters of which the court may properly take judicial notice]. (Id., at pp. 1315-1316).1 When evaluating whether a claim is time-barred, the court must determine: (1) which statute of limitations applies, and (2) when the claim accrued. (Id., at p. 1316).

The limitations period for a claim predicated 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); see Britton v. Girardi (2015) 235 Cal.App.4th 721, 734).

Defendant Subaru apparently argues the claim for fraud accrued on the date plaintiff entered into a warranty contract with defendant Subaru for the Subject Vehicle, March 8, 2021, and that the statute of limitations expired on March 8, 2024 and since plaintiff did not commence this action until June 24, 2025, plaintiff’s fraud claim is barred. However, this completely ignores the express language in the statute of limitations for fraud which states that the cause of action accrues on the date of discovery of the facts constituting the fraud. Defendant Subaru contends plaintiff is bound by her allegation that the Subject Vehicle contained or developed defects during the warranty period. Even so, the accrual does not commence upon the development of the defects. Rather, the cause of action accrues upon plaintiff’s discovery of the factual basis for fraud.

Plaintiff specifically pleads she “discovered Defendant’s wrongful conduct ... after the Vehicle continued to exhibit symptoms of defects following Defendant’s unsuccessful attempts to repair them.” (FAC, ¶46). When read in conjunction with paragraphs 13 – 16 of the FAC which allege four repair attempts made between August 23, 2024 and April 21, 2025, the court finds such allegations sufficiently plead a delayed discovery of fraud until April 21, 2025. “When a plaintiff reasonably should have discovered facts for purposes of the accrual of a case of action or application of the delayed discovery rule is generally a question of fact, properly decided as a matter of law only if the evidence (or, in in this case, the allegations in the complaint and facts properly subject to judicial notice) can support only one reasonably conclusion.” (Broberg v.

The Guardian Life Ins. Co. of America (2009) 171 Cal.App.4th 912, 921).

Here, there are no allegations in the complaint which establish, as a matter of law, that plaintiff discovered or should have discovered defendant Subaru’s alleged fraudulent acts more than three years before she filed the instant action. Consequently, as plaintiff maintains, the viability of the statute of limitations defense is not clearly and affirmatively apparent from the allegations of the FAC and, therefore, defendant Subaru’s demurrer to the sixth cause of action on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] i.e., it is barred by the applicable statute of limitations, is OVERRULED.

2. Specificity (a) Fact It is not entirely clear, but defendant Subaru apparently contends plaintiff Setka has not alleged the concealment of a material fact because the purported fact (existence of an engine defect) is an allegation made upon information and belief. “Plaintiff may allege on information and belief any matters that are not within his personal knowledge, if he

1 See also Heshejin v. Rostami (2020) 54 Cal.App.5th 984, 992-993: “‘[A] demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.’” (Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191 [213 Cal. Rptr. 3d 850]; accord, Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 [151 Cal. Rptr. 3d 827, 292 P.3d 871] [application on demurrer of affirmative defense of statute of limitations based on facts alleged in a complaint is a legal question subject to de novo review]; Favila v.

Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 224 [115 Cal. Rptr. 3d 274] [“‘It must appear clearly and affirmatively that, upon the face of the complaint [and matters of which the court may properly take judicial notice], the right of action is necessarily barred.’”]). 15

has information leading him to believe that the allegations are true.” (Pridonoff v. Balokovich (1951) 36 Cal.2d 788, 792). In Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158 – 1159, the court wrote, a “[p]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true, and thus a pleading made on information and belief is insufficient if it ‘merely assert[s] the facts so alleged without alleging such information that “lead[s] [the plaintiff] to believe that the allegations are true.” ’ ”

Here, plaintiff Setka’s allegation, on information and belief, concerning the existence of the Engine Defect is based upon her factual allegations that she experienced various symptoms she personally experienced with the Subject Vehicle and the multiple repair attempts she made which lead her to believe in the existence of the Engine Defect. Thus, the court is not persuaded by defendant Subaru’s argument that the sixth cause of action’s requirement of a material fact is too “vague” and “inconclusive.”

(b) Intent to Defraud Defendant Subaru argues next that in order to allege an intent to defraud, the defendant must have actual or constructive knowledge of the concealed fact but plaintiff has not alleged any facts establishing defendant Subaru had knowledge of the defect. Such allegations of knowledge and factual allegations about how defendant Subaru acquired such knowledge are found at paragraphs 82, 84, 87, 88, 89, and 90. The court finds such allegations sufficiently allege the factual detail to support the more general allegation of defendant Subaru’s knowledge of the alleged defect.

(c) Actual Damages Finally, defendant Subaru contends plaintiff Setka has not sufficiently alleged any damage resulting from the fraud. The court disagrees. At paragraphs 85 and 96, plaintiff Setka alleges she would not have purchased the Subject Vehicle had she known about the undisclosed defects at the time of sale.

III. CONCLUSION Based on the foregoing, Defendant Subaru’s demurrer to the sixth cause of action in plaintiff Setka’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for fraudulent inducement-concealment and on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED.

The Court will prepare the formal Order.

MOTION TO STRIKE (LINE #7) In light of the court’s ruling above with regard to the sixth cause of action, defendant Subaru’s motion to strike the prayer for punitive damages from plaintiff Setka’s FAC is DENIED. The Court will prepare the formal Order.

Calendar Lines # 9 Case Name Creditors Adjustment Bureau, Inc. vs Jam General Contractors Inc. dba J A M General Contracts Inc., et al. Case No. 25 CV479068 Motion to Strike Before the court is plaintiff’s motion to strike answer. Pursuant to California Rule of Court 3.1308, the court issues its tentative ruling as follows.

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