Derek Garner vs FCA US, LLC et al

(2014) 225 Cal.App.4th 1530, 1534 [“Presentation of extrinsic evidence is . . . not proper on a motion for judgment on the pleadings.”], internal quotation marks and citation omitted.)

B. Discussion

a. First and Second Causes of Action: Civil Code section 1793.2, subdivisions (b) and (d)

Code of Civil Procedure sections 871.20 and 871.21 went into effect on January 1, 2025. “An action covered by Section 871.20 shall be commenced within one year after the expiration of the applicable express warranty.” (Code Civ. Proc., § 871.21, subd. (a).) Alternatively, “an action covered by Section 871.20 shall not be brought later than six years after the date of original delivery of the motor vehicle.” (Code Civ. Proc., § 871.21, subd. (b).)

Garner appears to contend that Code of Civil Procedure section 871.21 did not become operative until July 1, 2025. (Garner’s Opposition to Defendants’ Demurrer (“Opposition”), pp. 4:14-5:26.) However, contrary to Garner’s contention, it became effective on January 1, 2025. (See Code Civ. Proc., § 871.21.) It was therefore operative when Garner filed this action on January 17, 2025.

Furthermore, the opt-in requirement for manufacturers was not yet in effect when Garner filed this action. It became effective on April 2, 2025 (i.e., after Garner filed this action on January 17, 2025). (See Code Civ. Proc., §§ 871.20, 871.29, 871.30.) Thus, Defendants did not need to opt-in for Code of Civil Procedure section 871.21 to be operative when Garner filed this action.

Garner’s first and second causes of action explicitly fall under the scope of Code of Civil Procedure section 871.20. (Code Civ. Pro. § 871.20 [“[T]his chapter applies to an action, brought against a manufacturer who has elected under Section 871.29 to proceed under this chapter, seeking restitution or replacement of a motor vehicle pursuant to subdivision (b) or (d) of Section 1793.2 . . . of the Civil Code, or for civil penalties pursuant to subdivision (c) of Section 1794 of the Civil Code . . .”].)

Therefore, the applicable time limit for filing suit was six years from the original delivery date. (Code Civ. Pro. § 871.21.) Here, Garner purchased the Subject Vehicle in December 2017. (Complaint, ¶ 7.) Garner needed to initiate the action by December 2023. Garner did not initiate this action until January 2025. Thus, on its face, the limitations period outlined in Code of Civil Procedure sections 871.20 and 871.21 bars the complaint’s first and second cause of actions.

Garner argues that retroactive application of Code of Civil procedure section 871.21 constitutes a due process violation. (Opposition, pp. 3:21-4:13.) Where “a 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.” (Rosefield Packing Co. v.

Superior Court in and for City and County of San Francisco (1935) 4 Cal.2d 120, 122-123 (Rosefield), internal citation omitted.) “In California, statutes of limitations, being procedural, are normally retroactively applied to accrued causes of action; but the court must inquire

whether, in a given case, that retrospective application may violate due process by in effect eliminating the plaintiff’s right.” (Aronson v. Superior Court (1987) 191 Cal.App.3d 294, 297.)

Although Garner relies extensively on Rosefied, supra, that case ultimately does not help him. The California Supreme Court in Rosefield held that a year was “no doubt” a reasonable time but noted that “[m]uch shorter periods have been upheld. [Citations.]” (Rosefield, supra, 4 Cal.2d at p. 123.) Our high court then cited Kozisek v. Brigham (1926) 169 Minn. 57, 60-61. Kozisek involved a three-month window for filing suit. The Supreme Court of Minnesota said the following:

“But the question remains whether the three months allowed by the statute under consideration was so short as to be an unconstitutional deprivation of existing rights. That result does not follow merely from the fact that there may be grounds for considering the change a harsh one. Harshness alone does not invalidate a statute. While citizens and others subject to law cannot be presumed to know it, it remains that ignorance of the law does not excuse noncompliance. We cannot say that the legislature was beyond its power in saying that three months was time enough for those having causes of action to become advised of the new limitation and commence actions before it became effective.”

(Kozisek v. Brigham (1926) 169 Minn. 57, 60-61.)

Here, Garner was given a reasonable time. AB 1755, enacting Code of Civil Procedure section 871.20 et seq., became law on September 29, 2024, but did not go into effect until January 1, 2025. Litigants were given a window of more than three months to file claims that would otherwise expire, like Garner’s. Garner was thus given a reasonable amount of time to bring his restitution and replacement claims and did not do so. His due process rights have not been violated.

Moreover, to violate due process, Rosefield logically requires that the “change in remedy” must cut off an existing remedy. Causes of action under the Song-Beverly Act have a four-year statute of limitations which accrues, at the earliest, upon tender of delivery. (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1306 (Mexia).) Four years after December 1, 2017, was December 1, 2021. (Complaint ¶ 7.) Garner filed the complaint in January 2025. Thus, unless the statute of limitations was tolled, Code of Civil Procedure section 871.21 did not cut off Garner’s existing remedy.

Garner argues that under the delayed discovery rule, “when a warranty explicitly extends to future performance of the goods, the breach of warranty is tolled until the breach is discovered. [Citations.]” (Opposition, p. 6:2-10.) “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.” (Com.

Code, § 2725, subd. (2).) “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’ [Citation.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 (Fox).) 8

The complaint alleges that any statute of limitations applicable to Garner’s causes of action have been tolled by the discovery rule and that Garner discovered Defendants’ wrongful conduct “shortly before the filing of the complaint,” as the Subject Vehicle “continued to exhibit symptoms of defects following FCA’s unsuccessful attempts to repair them.” (Complaint, ¶¶ 36-37.) These allegations fail to explain when and how Garner discovered Defendants’ allegedly wrongful conduct—the generic allegation that Garner did so “shortly before” filing the complaint is insufficient.

The Court notes that the complaint also references the repair rule, class action tolling, equitable tolling, fraudulent concealment, and equitable estoppel. (Complaint, ¶ 36.) Garner’s opposition to Defendants’ JOP motion, however, only discusses the discovery rule. (Opposition, pp. 5:27-7:4.) Moreover, the Court notes that the complaint does not plead facts sufficient to support the application of any of these other doctrines.1

The Court GRANTS Defendants’ JOP motion as to the complaint’s first and second causes of action with 10 days’ leave to amend. Normally, it is a plaintiff’s burden to demonstrate that an amendment could cure a defect identified on demurrer. (See Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) Garner has not met that burden. Nevertheless, because this is the first pleading challenge to be ruled on by the Court, the Court will grant leave to amend.

1 The Song-Beverly “repair doctrine” is codified in Civil Code section 1795.6, subdivision (b) and states that the warranty period shall not be deemed expired if “the warranty repairs or service performed upon the nonconforming goods did not remedy the nonconformity for which such repairs or service was performed and the buyer notified the manufacturer or seller of this failure within 60 days after the repairs or service was completed.” (Civ. Code, 1795.6, subd. (b).) The complaint is devoid of allegations that Garner notified the manufacturer or seller of their failure to fix any issues within 60 days of completion of repairs or services.

Under the class action tolling doctrine, the commencement of a class action tolls the limitations period for similar individual actions of each member of the purported class until certification is denied. (Am. Pipe & Const. Co. v. Utah (1974) 414 U.S. 538, 554.) The complaint identifies no class action that could potentially toll any applicable statute of limitations here. As to the doctrines of equitable tolling, fraudulent concealment, and equitable estoppel, when a plaintiff relies on any of these theories “to save a cause of action that otherwise appears on its face to be time-barred, he or she must specifically plead facts which, if proved, would support the theory. [Citation.]” (Mills v.

Forestex Co. (2003) 108 Cal.App.4th 625, 641.) For reasons the Court has already discussed, the complaint does not allege facts to support application of these theories here. (See Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 900 [“As for the belated discovery, the complaint must allege (1) when the fraud was discovered; (2) the circumstances under which it was discovered; and (3) that the plaintiff was not at fault for failing to discover it or had no actual or presumptive knowledge of facts sufficient to put him on inquiry. [Citation.]”]; Mitchell v.

State Dept. of Public Health (2016) 1 Cal.App.5th 1000, 1008 [equitable tolling requires “a showing of the three elements: (1) timely notice, (2) lack of prejudice to the defendant, and (3) reasonable and good faith conduct on the part of the plaintiff. [Citations.]”].)

On reply, Defendants make the new argument that Garner cannot invoke “equitable tolling” under PGA West Residential Assn., Inc. v. Hulven Internat., Inc. (2017) 14 Cal.App.5th 156, 178. (Reply in Support of Defendants’ Demurrer, pp. 6:12-7:11.) The Court need not and does not consider this new argument on reply. “This court will not consider points raised for the first time in a reply brief for the obvious reason that opposing counsel has not been given the opportunity to address those points . . .” (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500, internal citations omitted.)

b. Third Cause of Action: Civil Code section 1793.2, subd. (a)(3)

“Every manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall: . . . [m]ake available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.” (Civil Code, §1793.2, subd. (a)(3).)

The Court agrees with Defendants that the complaint does not allege facts sufficient to support its third cause of action. The complaint alleges that “Defendant FCA failed to make available to its authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.” (Complaint, ¶ 51.) These boilerplate allegations do little more than repeat parts of the language of Civil Code section 1793.2, subdivision (a)(3). Statutory causes of action must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) The complaint does not, for example, allege when FCA attempted to repair the Subject Vehicle.

The Court GRANTS Defendants’ JOP motion as to the complaint’s third cause of action with 10 days’ leave to amend.

c. Fourth Cause of Action: Breach of the Implied Warranty of Merchantability

The complaint’s fourth cause of action alleges that FCA breached the implied warranty of merchantability because the Subject Vehicle did not comply with the requirements of Civil Code section 1791.1, subdivision (a). (Complaint, ¶¶ 53-57.) The statute of limitations period for this cause of action is four years. (Com. Code, § 2725, subd. (1); see also Mexia, supra, 174 Cal.App.4th at p. 1301, 1306.) The 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. . . .” (Com. Code, § 2725, subd. (2).) The “duration provision” of the Song-Beverly Act provides that: “[t]he duration of the implied warranty of merchantability and where present the implied warranty of fitness shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer.” (Civ.

Code §1791.1, subd. (c).)

The complaint alleges that Garner and FCA entered into a warranty contract in December 2017. (Complaint, ¶ 7.) The complaint was not filed until January 2025, over seven years later, making apparent on its face a statute of limitations defense to the complaint’s fourth cause of action. (See Com. Code, § 2725, subd. (2).)

The Court is not persuaded by Garner’s argument under Mexia. (Opposition, pp. 8:15- 10:22.) The Court of Appeal in Mexia analyzed the construction and application of the duration provision for warranty coverage under Civil Code section 1791.1 and held that the “implied warranty of merchantability may be breached by a latent defect undiscoverable at the time of sale. [Citation.]” (Mexia, supra, 174 Cal.App.4th at p. 1304.) If a product is sold with a latent defect, the implied warranty is breached “by the existence of the unseen defect, not by its subsequent discovery.” (Id. at p. 1305.) A logical reading of Mexia and its holdings on

application of the duration provision in concert with the statute of limitations is that latent defects which exist in the first year after tender of delivery, even if they do not manifest until after the first year, can be a basis for a breach of implied warranty claim so long as the claim is filed within four years of the date of sale. (Id. at pp. 1305-1307.) The Court notes that the Court of Appeal’s discussion in Mexia was primarily concerned with the duration of the warranty at issue, rather than the statute of limitations, ultimately concluding that the plaintiff’s claim was filed within the statute of limitations because the plaintiff had filed suit less than four years after the plaintiff purchased a defective boat. (Ibid.)

In considering the holding of Mexia, in concert which the express language of Commercial Code section 2725, subdivision (2), the Court finds that the statute of limitations bars the complaint’s fourth cause of action. Garner purchased the Subject Vehicle in December 2017 and did not file suit until over seven years later.

Moreover, assuming that under Mexia the discovery rule did apply to the circumstances alleged in the complaint, the complaint fails to allege facts sufficient to invoke the discovery rule. (See Fox, supra, 35 Cal.4th at pp. 807-809.) As the Court has already discussed, the complaint alleges that any statute of limitations applicable to Garner’s causes of action has been tolled by the discovery rule and that Garner discovered Defendants’ wrongful conduct “shortly before the filing of the complaint,” as the Subject Vehicle “continued to exhibit symptoms of defects following FCA’s unsuccessful attempts to repair them.” (Complaint, ¶¶ 36-37.) These conclusory allegations are insufficient.

The Court GRANTS Defendants’ JOP motion as to the complaint’s fourth cause of action with 10 days’ leave to amend.

d. Fifth Cause of Action: Negligent Repair

The Court disagrees with Defendants that the complaint fails to allege facts sufficient to support its fifth cause of action. “The elements of a negligence cause of action are duty, breach, causation, and damages.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318, internal citation omitted.) The complaint alleges that Garner delivered the Subject Vehicle to Normandin for substantial repair on at least one occasion; Normandin owed a duty to Garner to use ordinary care and skill in repairing the Subject Vehicle; Normandin breached its duty by failing to properly repair the Subject Vehicle in accordance with industry standards; and Garner suffered damages as a result. (Complaint, ¶¶ 58-62.) Negligence may be pled generally. (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 154-155.)

The Court DENIES Defendants’ JOP motion as to the complaint’s fifth cause of action.

e. Sixth Cause of Action: Fraudulent Inducement

i. Statute of Limitations

Neither party disputes that a cause of action for fraud has a three-year statute of limitations. (See Code Civ. Proc., § 338, subd. (d).) The cause of action “is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or

mistake.” (Ibid.) Garner argues that he did not discover any alleged wrongful conduct until shortly before filing the complaint. (Opposition, pp. 10:23-11:1.)

The Court reiterates that it finds the complaint’s conclusory allegations regarding Garner’s alleged discovery of Defendants’ wrongful conduct insufficient. (See Complaint, ¶¶ 36-37; Fox, supra, 35 Cal.4th at pp. 807-809.) Garner makes no other arguments in response to Defendants’ statute of limitations argument outside of invoking the discovery rule. (Opposition, pp. 10:23-11:1.)

Therefore, the Court GRANTS Defendants’ JOP motion as to the complaint’s sixth cause of action with 10 days’ leave to amend.2

III. MOTION TO STRIKE

Defendants move to strike the complaint’s request for punitive damages. In light of the Court’s rulings above granting leave to amend, Defendants’ motion to strike is MOOT.

IV. CONCLUSION

The Court GRANTS Defendants’ JOP motion as to the complaint’s first, second, third, fourth, and sixth causes of action with 10 days’ leave to amend.

The Court DENIES Defendants’ JOP motion as to the complaint’s fifth cause of action.

Defendants’ motion to strike is MOOT.

The Court will prepare the final order.

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2 For the parties’ future reference, the Court notes that presently it does not find Defendants’ remaining arguments persuasive. The complaint alleges that Garner entered into a warranty contract with FCA, FCA advertised to Garner regarding the Subject Vehicle, the Subject Vehicle exhibit defects, FCA knew of these defects and failed to disclose them, FCA intended to defraud Garner, and Garner would not have purchased the Subject Vehicle had he known of these defects. (Complaint, ¶¶ 7-21, 63-71.)

These allegations are sufficient. (See Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 843-844 (Dhital).) Although the Supreme Court initially granted review in Dhital, it subsequently dismissed review, which means Dhital is precedential authority. (Cal Rules of Court, rule 8.1115(e)(2).) The Court is also not convinced by FCA’s economic loss rule argument. (See Dhital, supra, 84 Cal.App.5th at pp. 833, 837-841.) 12