Legal Document: VARGAS ET AL VS FORD MOTOR COMPANY ET AL

On July 06, 2022 a 66800DEFEN01e45b was filed involving a dispute between Gonzalo Vargas, Karina Vargas, Livier Vargas, and Ford Motor Company, Jim Burke Ford, in the District Court of Kern County.

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1 Michael D. Mortenson, State Bar No. 247758
mmortenson@mortensontaggart.com
2 Craig A. Taggart, State Bar No. 239168
ctaggart@mortensontaggart.com
3 Hannah L. Miller, State Bar No. 333843
hmiller@mortensontaggart.com
4 MORTENSON TAGGART ADAMS LLP
300 Spectrum Center Dr., Suite 1200
5 Irvine, CA 92618
Telephone: (949) 774-2224
6 Facsimile: (949) 774-2545
7 Attorneys for Defendants
FORD MOTOR COMPANY AND
8 JIM BURKE FORD
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF KERN
11
KARINA VARGAS, GONZALO VARGAS, Case No. BCV-22-101682-JEB
12 and LIVIER VARGAS Hon. J. Eric Bradshaw
Dept. J
13 Plaintiffs,
DEFENDANTS FORD MOTOR
14 vs. COMPANY’S AND JIM BURKE FORD’S
NOTICE OF DEMURRER AND
15 FORD MOTOR COMPANY; JIM BURKE DEMURRER TO PLAINTIFFS’ FIRST
FORD; and DOES 1 through 10, inclusive, AMENDED COMPLAINT;
16 MEMORANDUM OF POINTS AND
Defendants. AUTHORITIES
17
[Filed concurrently with Declaration of
18 Hannah Miller and (Proposed) Order]
19
DATE: January 6, 2023
20 TIME: 8:30 a.m.
DEPT.: J
21
Complaint Filed: July 7, 2022
22 FAC Filed: October 19, 2022
23

NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
1 NOTICE OF DEMURRER

2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

3 PLEASE TAKE NOTICE THAT on January 6, 2023 at 8:30 a.m., or as soon thereafter

4 as the matter may be heard in Department J of the above-entitled Court, Defendants Ford Motor

5 Company (“Ford”) and Jim Burke Ford (“Burke Ford”) (collectively, “Defendants”) will and

6 hereby do demur to the First Amended Complaint (“FAC”) filed by Plaintiffs Karina Vargas,

7 Gonzalo Vargas, and Livier Vargas (“Plaintiffs”) on the grounds that all causes of action for

8 violations of the Song-Beverly Act are time-barred and therefore fail to plead facts sufficient to

9 state a cause of action pursuant to Section 430.10(e) of the Code of Civil Procedure; and the

10 fifth cause of action for negligent repair is time-barred, is barred by the economic loss rule, and

11 fails to plead damages, and therefore fails to plead facts sufficient to state a cause of action

12 pursuant to Section 430.10(e) of the Code of Civil Procedure. Defendants request that the Court

13 dismiss each of the causes of action asserted in Plaintiffs’ FAC without leave to amend.

14 Pursuant to Section 430.41 of the Code of Civil Procedure, Defendants’ counsel emailed

15 Plaintiffs’ counsel attempting to meet and confer regarding the grounds for the Demurrer but

16 received no response from Plaintiffs’ counsel. (Declaration of Hannah Miller in Support of

17 Demurrer [“Miller Decl.”], ¶ 4, Ex. C.)

18 Defendants’ Demurrer is based upon this Notice of Demurrer and Demurrer, the attached

19 Memorandum of Points and Authorities, the Declaration of Hannah L. Miller and exhibits

20 attached thereto, the (Proposed) Order, the pleadings, record and files in this action, matters of

21 which the Court may take judicial notice and such matters as may be presented to the Court at

22 the time of the hearing on this Demurrer.

23 DATED: November 22, 2022 MORTENSON TAGGART ADAMS LLP
24
By:
25 Michael D. Mortenson
Craig A. Taggart
26 Hannah L. Miller
Attorneys for Defendants
27 FORD MOTOR COMPANY AND
JIM BURKE FORD
28

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NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
1 DEMURRER

2 Defendants Ford Motor Company (“Ford”) and Jim Burke Ford (“Burke Ford”)

3 (collectively, “Defendants”) generally and specifically demur to the First Amended Complaint

4 (“FAC”) as follows:

5 As to Ford:

6 A. Demurrer to the First Cause of Action (Violation of Subdivision (d) of Civil

7 Code Section 1793.2)

8 1. Ford demurs to the First Cause of Action for Violation of Subdivision (d) of Civil

9 Code Section 1793.2, on the ground that the FAC fails to allege facts sufficient to state a cause

10 of action under Section 430.10(e) of the Code of Civil Procedure.

11 B. Demurrer to the Second Cause of Action (Violation Of Subdivision (b) Of

12 Civil Code Section 1793.2)

13 1. Ford demurs to the Second Cause of Action for Violation of Subdivision (b) of

14 Civil Code Section 1793.2, on the ground that the FAC fails to allege facts sufficient to state a

15 cause of action under Section 430.10(e) of the Code of Civil Procedure.

16 C. Demurrer to the Third Cause of Action (Violation Of Subdivision (a)(3) Of

17 Civil Code Section 1793.2)

18 1. Ford demurs to the Third Cause of Action for Violation Of Subdivision (a)(3) of

19 Civil Code Section 1793.2, on the ground that the FAC fails to allege facts sufficient to state a
20 cause of action under Section 430.10(e) of the Code of Civil Procedure.

21 D. Demurrer to the Fourth Cause of Action (Breach Of The Implied Warranty

22 Of Merchantability)

23 1. Ford demurs to the Fourth Cause of Action for Breach of The Implied Warranty

24 Of Merchantability, on the ground that the FAC fails to allege facts sufficient to state a cause of

25 action under Section 430.10(e) of the Code of Civil Procedure.

26 ///

27 ///

28 ///

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DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
1 As to Jim Burke Ford:

2 D. Demurrer to the Fifth Cause of Action (Negligent Repair)

3 1. Jim Burke Ford demurs to the Fifth Cause of Action for Negligent Repair on the ground

4 that the FAC fails to allege facts sufficient to state a cause of action under Section 430.10(e) of

5 the Code of Civil Procedure.

7 DATED: November 22, 2022 MORTENSON TAGGART ADAMS LLP
8
By:
9 Michael D. Mortenson
Craig A. Taggart
10 Hannah L. Miller
Attorneys for Defendants
11 FORD MOTOR COMPANY AND
JIM BURKE FORD
12

19
20

-2-
DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
TABLE OF CONTENTS
1
Page(s)
2

3 I. INTRODUCTION .........................................................................................................1

II. SUMMARY OF ALLEGATIONS ................................................................................2
4
III. ARGUMENT .................................................................................................................4
5

6 A. Legal Standard ...................................................................................................4
7
B. Each of Plaintiffs’ Causes of Action Are Time-Barred .....................................5
8
1. Plaintiffs’ Breach of Express Warranty Claims Are Barred
9 By The Applicable Four-Year Statute Of Limitations. ..................... 5
10 2. Plaintiffs’ Breach of Implied Warranty Claim Expired
on October 24, 2020. ......................................................................... 6
11
3. Plaintiffs’ Negligent Repair Claim is Barred by the Applicable
12 Three-Year Statute of Limitations. ................................................... 7
13 4. Plaintiffs’ Delayed Discovery Allegations Do Not Save Their
Expired Claims.................................................................................. 7
14
5. Plaintiffs’ Fraudulent Concealment Allegations Do Not
15 Save Their Expired Claims. .............................................................. 9
16
C. Plaintiffs Cannot State Their Negligent Repair Claim As A Matter Of Law ..10
17
1. The Economic Loss Rule Bars Plaintiffs’ Negligent
18 Repair Claim ................................................................................... 10
19 2. The FAC Fails to Plead the Essential Element of Damages ........... 12
20
D. Defendants’ Demurrer Should Be Granted Without Leave to Amend. ...........13
21
IV. CONCLUSION ............................................................................................................13
22

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TABLE OF CONTENTS
TABLE OF AUTHORITIES
1
Page(s)
2

3 Cases

4 Ankeny v. Lockheed Missiles & Space Co.,
88 Cal.App.3d 531 (1979) .........................................................................................................4
5
Blank v. Kirwan
6 39 Cal.3d 311 (1985) .............................................................................................................4, 5
7 Cardinal Health 301, Inc. v. Tyco Elecs. Corp.
8 169 Cal.App.4th 116 (2008) ..................................................................................................1, 6

9 County of Santa Clara v. Atlantic Richfield Co.,
137 Cal.App.4th 292, 318 (2006) ..............................................................................................12
10
Dep’t of Water & Power v. ABB Power T&D Co.,
11 902 F. Supp. 1178 (C.D. Cal. 1995) ........................................................................................10
12 Durell v. Sharp Healthcare,
183 Cal.App.4th 1350, 1358 ......................................................................................................4
13

14 Erlich v. Menezes
21 Cal.4th 543 (1999) ..............................................................................................................11
15
Fox v. Ethicon Endo-Surgery, Inc.
16 35 Cal.4th 797 (2005) ...............................................................................................................8
17 Galvez v. Ford Motor Co.
No. 2:17-cv-02250-KJM-KJN, 2018 WL 4700001 ...................................................................5
18
Guerrero v. Gates
19
442 F.3d 697 (9th Cir. 2006) ...................................................................................................10
20
Hauter v. Zogarts,
21 14 Cal.3d 104, 117 .....................................................................................................................6

22 Hindsman v. General Motors LLC
No. 17-cv-05337-JSC, 2018 WL 2463113 ................................................................................6
23
Jolly v. Eli Lilly & Co.
24
44 Cal.3d 1103 (1988) ...............................................................................................................5
25
Krieger v. Nick Alexander Imports, Inc.
26 234 Cal.App.3d 205 (1991) .......................................................................................................5

27 Lantzy v. Centex Homes
31 Cal.4th 363 (2003) ................................................................................................................8
28

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TABLE OF AUTHORITIES
Montoya v. Ford Motor Co.,
1 46 Cal. App. 5th 493, 495 ..........................................................................................................6
2
Neu v. Terminix Intern., Inc.,
3 Case No. C 07-6472 CW, 2008 WL 962096, *4 .....................................................................11

4 Nguyen v. Nissan North America, Inc.
487 F.Supp.3d 845 (2020) .....................................................................................................6, 7
5
Peregrine Pharmaceuticals, Inc. v. Clinical Supplies Mgmt., Inc.,
6 Case No. SACV 12-1608 JGB (ANx), 2015 WL 13309286, *6 .............................................11
7
Ponderosa Homes, Inc. v. City of San Ramon,
8 23 Cal.App.4th 1761, 1768 ........................................................................................................4

9 Rakestraw v. Cal. Physician’s Service
81 Cal.App.4th 39 (2000) ..........................................................................................................4
10
Rejects Skate Magazine, Inc. v. Acutrack, Inc.,
11 Case No. C 06-2590 CW, 2006 WL 2458759, at *5 ...............................................................11
12 Routh v. Quinn
13 20 Cal.2d 488 (1942) .................................................................................................................5

14 Schifando v. City of LosAngeles,
31 Cal.4th 1074, 1081 ..............................................................................................................13
15
Seely v. White Motor Co.,
16 63 Cal. 2d 9 (1965) ..................................................................................................................10
17 Singh v. Lipworth,
227 Cal.App.4th 813, 828 ........................................................................................................13
18

19 State of California ex rel. Metz v. CCC Information Services, Inc.
149 Cal.App.4th 402 (2007) ......................................................................................................4
20
Vaillette v. Fireman’s Fund Ins. Co.
21 18 Cal.App.4th 680 (1993) ........................................................................................................5
22 Vallejo Development Co. v. Beck Development Co.
24 Cal.App.4th 929 (1994) ........................................................................................................4
23

24 Vepo Design Corp. v. American Economy Ins. Co.,
Case No. CV20-4950-MWF (JEMx), 2021 WL 968961, *5 ...................................................11
25
WA Southwest 2, LLC v. First Am. Title Ins. Co.
26 240 Cal.App.4th 148 (2015) ......................................................................................................9

27 Yulum v. Smart Balance, Inc.
733 F.Supp.2d 1117 (C.D. Cal. 2010) .......................................................................................9
28

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TABLE OF AUTHORITIES
Statutes
1
Cal. Code Civ. Proc. § 338...........................................................................................................7
2

3 Cal. Comm. Code § 2725 .............................................................................................................6

19
20

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TABLE OF AUTHORITIES
MEMORANDUM OF POINTS AND AUTHORITIES
1

2 I. INTRODUCTION
3 Defendants Ford Motor Company (“Ford”) and Jim Burke Ford (collectively,
4 “Defendants”) respectfully request that the Court sustain their demurrer to each of the five
5 causes of action asserted in Plaintiffs Karina Vargas’, Gonzalo Vargas’, and Livier Vargas’
6 (“Plaintiffs”) First Amended Complaint (“FAC”) as each of Plaintiffs’ causes of action are time-
7 barred by the respective limitations periods and the FAC fails to specifically plead facts to show
8 that Plaintiffs’ claims were tolled. None of the FAC’s amendments correct the deficiencies in
9 the Complaint. Plaintiffs’ FAC remains subject to demurrer for several reasons.
10 First, the FAC on its face confirms that each of Plaintiffs’ Song-Beverly causes of action
11 are time-barred by the four-year statute of limitations. The FAC alleges the vehicle was
12 purchased on October 24, 2016 and was delivered with serious defects and nonconformities to
13 warranty, and Plaintiffs did not file suit until almost six years later on July 7, 2022. Because a
14 claim for breach of implied warranty accrues upon tender of delivery (Cardinal Health 301, Inc.
15 v. Tyco Elecs. Corp., 169 Cal.App.4th 116, 134 (2008)), Plaintiffs’ breach of implied warranty
16 claim accrued on the date of purchase and expired on October 24, 2020, over four years before
17 Plaintiffs filed suit in July 2022. Plaintiffs’ bald and conclusory tolling allegations, limited to
18 cursory paragraphs, are insufficient to save Plaintiffs’ claims.
19 So too, the FAC confirms that the express warranty claims are time barred as it alleges
20 that Plaintiffs presented the vehicle twice for battery repairs in 2017, thereby confirming that
21 Plaintiffs were on inquiry notice of their breach of express warranty claims by 2017, five years
22 before Plaintiff filed suit. The FAC pleads no new specific facts from which the Court could
23 plausibly conclude that equitable tolling, the discovery rule, fraudulent concealment tolling,
24 equitable estoppel, the repair rule, and/or class action tolling apply.
25 Second, the FAC confirms on its face that Plaintiffs’ negligent repair cause of action is
26 barred by the respective three-year limitations period. Plaintiffs purchased their vehicle on
27 October 24, 2016 and allege “defects and nonconformities to warranty manifested themselves
28 within the applicable express warranty period” and that they delivered the vehicle to Jim Burke

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TABLE OF AUTHORITIES
1 Ford “on at least one occasion.” While the FAC now purports to allege three repair presentations

2 – two in 2017 and one in 2018 – Plaintiffs missed the mark on the three-year limitations period

3 for their negligent repair claim as well. The FAC identifies “September – November 2018” as

4 the last repair presentation for the alleged battery defect, thereby confirming that Plaintiffs’

5 negligent repair claim accrued, at the latest, on that date and expired three years later between

6 September and November 2021. As with the Song-Beverly claims, there are no facts alleged to

7 establish Plaintiffs’ reasonable diligence for delayed discovery tolling, nor any facts to support

8 their allegation that Ford fraudulently concealed the existence of the alleged defect in Plaintiffs’

9 vehicle.

10 Third, Plaintiffs fail to state a cause of action for negligent repair against Jim Burke Ford

11 because the claim is barred by the economic loss rule. There are no allegations in the FAC of

12 physical damage to property - other than the alleged defective vehicle itself - or that personal injury

13 accompanied such losses, nor any allegations of intentional conduct by Jim Burke Ford. Plaintiffs

14 seek damages for economic losses alone. Plaintiffs’ cause of action is therefore limited to contract,

15 not tort.

16 Fourth, Plaintiffs’ negligent repair claim is legally defective as it fails to plead the

17 essential element of damages. Plaintiffs do not allege that they paid out-of-pocket for any repairs

18 performed by Jim Burke Ford because those repairs were covered under warranty. In the

19 absence of Plaintiffs alleging that they actually paid out of pocket for any repairs, Plaintiffs fail
20 to allege the essential element of damages to state their negligent repair claim.

21 Accordingly, the Court should grant Defendants’ Motion.

22 II. SUMMARY OF ALLEGATIONS

23 On July 7, 2022, Plaintiffs Karina Vargas, Gonzalo Vargas, and Livier Vargas

24 (“Plaintiffs”) initiated this action asserting four causes of action against Ford under the Song-

25 Beverly Consumer Warranty Act (“Act”) for breach of express and implied warranty, and a fifth

26 cause of action for negligent repair against Jim Burke Ford. On September 29, 2022, Defendants

27 filed their Demurrer to Plaintiffs’ original Complaint. (Miller Decl., ⁋ 3.) On October 19, 2022,

28 Plaintiffs filed their FAC before their Opposition to the Demurrer was due. (Id., Ex. B.)

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TABLE OF AUTHORITIES
1 Like the Complaint, the FAC alleges that on October 24, 2016, Plaintiffs purchased a

2 2017 Ford Fusion (“Subject Vehicle” or the “Vehicle”). (FAC, ¶ 17.) It further alleges that

3 “defects and nonconformities to warranty manifested themselves within the applicable express

4 warranty period, including but not limited to, the electrical system; the engine; among other

5 defects and non-conformities.” (Id. at ¶ 22.) Plaintiffs also allege a single tolling allegation that

6 “Plaintiffs discovered Defendants’ wrongful conduct alleged herein on or about October 2021

7 when they requested buyback and/or restitution of the Subject Vehicle from [Ford], as the

8 Vehicle continued to exhibit symptoms of defects following [Ford’s] unsuccessful repair

9 attempts to repair them.” (Id. at ¶ 8.)

10 The only difference between the Complaint and FAC are seven new paragraphs at

11 Paragraphs 10 through 16 identifying three repair presentations, including two repair

12 presentations in 2017 relating to the vehicle not starting (id. at ¶¶ 11-12), and a third presentation

13 relating to the vehicle not starting “at some time in September – November 2018.” The

14 amendments at Paragraph 14 are limited to bald and conclusory allegations regarding Plaintiffs’

15 alleged delayed discovery and fraudulent concealment tolling – namely, that “Plaintiffs were

16 unable to discover Defendant’s wrongful conduct any earlier despite reasonable diligence

17 because Plaintiffs reasonably relied upon Defendant’s authorized repair facility’s

18 representations that the Subject Vehicle was repaired. As such Plaintiffs only discovered

19 Defendant’s wrongful conduct alleged herein when symptoms of the latent defects persisted.”

20 (Id. at ¶ 16.)

21 Finally, as to Plaintiffs’ fifth cause of action for negligent repair, the FAC asserts that

22 Plaintiffs delivered the subject vehicle to Jim Burke Ford “for substantial repair on at least one

23 occasion” (id. at ¶ 56) but identify no repair presentations beyond the November 2018

24 presentation. See id. at ¶¶ 11-12. So too, there are no allegations of physical damage to property

25 other than the vehicle itself or of personal injury accompanied by such losses, and there are no

26 allegations that Plaintiffs paid out-of-pocket for any repairs performed by Jim Burke Ford.

27 ///

28 ///

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TABLE OF AUTHORITIES
1 III. ARGUMENT

2 A. Legal Standard

3 If the pleading does not state facts sufficient to constitute a cause of action, a party

4 against whom a complaint has been filed may object to the pleading with a demurrer. Cal. Code

5 Civ. Proc. § 430.10 (e). A demurrer tests the legal sufficiency of the complaint and each cause

6 of action contained therein. Rakestraw v. Cal. Physician’s Service, 81 Cal.App.4th 39, 42-43

7 (2000) (citation omitted); Durell v. Sharp Healthcare, 183 Cal.App.4th 1350, 1358 (2010)

8 (same). While a court generally accepts as true all material facts properly pled, a court is not

9 required to accept “contentions, deductions or conclusions of fact or law.” Blank v. Kirwan, 39

10 Cal.3d 311, 318 (1985). Conclusory allegations that are not substantiated or supported by

11 precisely stated material facts are properly subject to demurrer. Ankeny v. Lockheed Missiles &

12 Space Co., 88 Cal.App.3d 531, 537 (1979).

13 Where an amended complaint attempts to avoid defects set forth in a prior complaint by

14 ignoring them, the court may examine the prior complaint to ascertain whether the amended

15 complaint is merely a sham. Larson v. UHS of Rancho Springs, Inc., 230 Cal.App.4th 336, 343

16 (2014). “[A]ny inconsistencies with prior pleadings must be explained; if the pleader fails to do

17 so, the court may disregard the inconsistent allegations. [Citation.] Accordingly, a court is ‘not

18 bound to accept as true allegations contrary to factual allegations in former pleading in the same

19 case.’” Id. (citing Vallejo Development Co. v. Beck Development Co., 24 Cal.App.4th 929, 946
20 (1994); State of California ex rel. Metz v. CCC Information Services, Inc., 149 Cal.App.4th 402,

21 412 (2007) [“‘[u]nder the sham pleading doctrine, plaintiffs are precluded from amending

22 complaints to omit harmful allegations, without explanation, from previous complaints to avoid

23 attacks raised in demurrers or motions for summary judgment’ ”].)

24 “When a complaint shows on its face or on the basis of judicially noticeable facts that

25 the cause of action is barred by the applicable statute of limitations, the plaintiff must plead facts

26 which show an excuse, tolling, or some other basis for avoiding the statutory bar.” Ponderosa

27 Homes, Inc. v. City of San Ramon, 23 Cal.App.4th 1761, 1768 (1994). Failure to plead facts

28 that create at least a triable issue of fact on such grounds warrants dismissal of the action. Lantzy

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TABLE OF AUTHORITIES
1 v. Centex Homes, 31 Cal.4th 363, 366-367 (2003) (concluding trial court properly dismissed

2 claims on demurrer where plaintiffs failed to plead facts that would equitably estop defendants

3 from asserting statute of limitations defense).

4 Further, where further amendment would be futile, as here, a court should sustain a

5 demurrer without leave to amend. Vaillette v. Fireman’s Fund Ins. Co., 18 Cal.App.4th 680,

6 685 (1993). A plaintiff bears the burden to show the ability to cure a pleading’s defects on

7 amendment. Blank, 39 Cal.3d at 318-31; Routh v. Quinn, 20 Cal.2d 488, 493 (1942).

8 B. Each of Plaintiffs’ Causes of Action Are Time-Barred

9 1. Plaintiffs’ Breach of Express Warranty Claims Are Barred By The

10 Applicable Four-Year Statute Of Limitations.

11 Plaintiffs’ first, second, and third causes of action for breach of express warranty are

12 subject to demurrer because they are time-barred. A plaintiff can bring a breach of express

13 warranty claim within four years from the claim’s accrual date. See Krieger v. Nick Alexander

14 Imports, Inc., 234 Cal.App.3d 205, 213-214 (1991); Cal. Com. Code, § 2725, subds. (1)-(2).)

15 For express warranties, “Song-Beverly claims accrue when the plaintiff discovers or reasonably

16 should have discovered the breach of warranty, and such claims may accrue before an express

17 warranty expires.” Galvez v. Ford Motor Co., No. 2:17-cv-02250-KJM-KJN, 2018 WL

18 4700001, at *4 (E.D. Cal. Sep. 30, 2018) (citation omitted).

19 Here, the FAC confirms that Plaintiffs’ express warranty claims are time-barred.
20 Plaintiffs allege they purchased the vehicle on October 24, 2016, and the FAC’s amendments

21 allege that Plaintiffs presented the vehicle twice for battery repairs in 2017 (FAC, ¶¶ 11-12),

22 thereby confirming that Plaintiffs were at least on inquiry notice of their express warranty claims

23 by 2017, five years before Plaintiffs filed suit in 2022. See Jolly v. Eli Lilly & Co., 44 Cal.3d

24 1103, 1110 (1988) (“The statute runs once [a plaintiff] is put on inquiry notice; when the

25 circumstances would lead a reasonable person to suspect wrongdoing.”). The FAC alleges that

26 Plaintiffs presented the vehicle a third time for battery repairs “at some point in September –

27 November 2018” (FAC, ¶ 13), but pleads no facts regarding what occurred between the 2017

28 and 2018 repair presentations and identifies no other repair presentations nor what occurred

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TABLE OF AUTHORITIES
1 leading up to “September – November 2018” to explain why the prior repeat battery problems

2 did not put them on inquiry notice before 2018. The FAC includes bald and conclusory

3 allegations of tolling and pleads no specific facts from which the Court could plausibly conclude

4 that delayed discovery or fraudulent concealment tolling apply. Therefore, Plaintiffs’ first,

5 second, and third causes of action for breach of express warranty are therefore facially time-

6 barred and subject to judgment in favor of Ford.

7 2. Plaintiffs’ Breach of Implied Warranty Claim Expired on October 24,

8 2020.

9 Plaintiffs’ second cause of action for breach of implied warranty is also time-barred. In

10 California, implied warranty claims are subject to a four-year statute of limitations. Cal. Comm.

11 Code § 2725; Montoya v. Ford Motor Co., 46 Cal. App. 5th 493, 495 (2020). A claim for breach

12 of implied warranty accrues, and, therefore, the statute of limitations begins to run, upon tender

13 of delivery. “Because an implied warranty is one that arises by operation of law rather than by

14 an express agreement of the parties, courts have consistently held it is not a warranty that

15 “explicitly extends to future performance of the goods . . ..” See Hauter v. Zogarts, 14 Cal.3d

16 104, 117 (Cal. 1975) [same]); Hindsman v. General Motors LLC, No. 17-cv-05337-JSC, 2018

17 WL 2463113, at *14 (N.D. Cal. June 1, 2018) (recognizing that “Section 2725 provides that the

18 cause of action accrues when the breach occurs; that is, in the implied warranty context, when

19 the sale is made”) (emphasis added). “Because an implied warranty is one that arises by
20 operation of law rather than by an express agreement of the parties, courts have consistently

21 held it is not a warranty that explicitly extends to future performance of the goods[.]” Cardinal

22 Health 301, Inc., 169 Cal.App.4th at 134. For this reason, “[t]he delayed discovery doctrine

23 does not apply to implied warranty claims.” Nguyen v. Nissan North America, Inc., 487

24 F.Supp.3d 845, 854 n.3 (2020).

25 Here, the face of the FAC plainly establishes that Plaintiffs’ implied warranty claim is

26 time-barred. Plaintiffs allege that they purchased the vehicle on October 24, 2016, and that “the

27 sale of the Vehicle was accompanied by Defendant [Ford’s] implied warranty of

28 merchantability.” (FAC, ¶ 47.) Based on these allegations, Plaintiffs’ implied warranty cause

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TABLE OF AUTHORITIES
1 of action accrued on October 24, 2016, the date of delivery of delivery, and expired on October

2 23, 2020. Because Plaintiffs did not file suit until July 7, 2022, almost two years after the four-

3 year limitations period expired, Plaintiffs’ fifth cause of action for breach of implied warranty

4 claim is time-barred.

5 3. Plaintiffs’ Negligent Repair Claim is Barred by the Applicable Three-

6 Year Statute of Limitations.

7 Plaintiffs’ negligent repair cause of action is time-barred. The limitations period for

8 Plaintiffs’ negligent repair claim is three years. See Cal. Code Civ. Proc. § 338(c)(1) (the time

9 for commencing an action or injury to goods is three years). The FAC alleges that Plaintiffs

10 purchased their vehicle on October 24, 2016 (FAC, ¶ 17), “defects and nonconformities to

11 warranty manifested themselves within the applicable express warranty period” (id. at ¶ 22) and

12 that they delivered the vehicle to Jim Burke Ford for substantial repair “on at least one occasion.”

13 (Id., at ¶ 52.) Once again, although the FAC now asserts that Plaintiffs did not discover their

14 claims until 2018, Plaintiffs’ negligent repair claim is still time barred. The FAC identifies

15 “some time in September – November 2018” (FAC, ¶ 13) as the last repair presentation for the

16 alleged battery defect, thereby confirming that Plaintiffs’ negligent repair claim accrued, at the

17 latest, between those dates and expired three years later some time between September and

18 November 2021, at least eight months before Plaintiffs filed their suit in July 2022. Plaintiffs’

19 negligent repair claim is therefore time barred.
20 4. Plaintiffs’ Delayed Discovery Allegations Do Not Save Their Expired

21 Claims.

22 None of the FAC’s allegations regarding the alleged tolling establish delayed discovery

23 tolling.1 “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a]

24 plaintiff whose complaint shows on its face that his claim would be barred without the benefit

25 of the discovery rule must specifically plead facts to show (1) the time and manner of

26 discovery and (2) the inability to have made

Case Info

Case No.

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Document Filed Date

November 22, 2022

Case Filing Date

July 06, 2022

County

Status

Pending

Parties

FORD MOTOR COMPANY Defendant
GONZALO VARGAS Plaintiff
JIM BURKE FORD Defendant
KARINA VARGAS Plaintiff
LIVIER VARGAS Plaintiff
Tionna Dolin Attorneys for Plaintiffs
Michael Mortenson Attorneys for Defendants
Craig Taggart Attorneys for Defendants
Hannah Biemann Attorneys for Defendants
Mark Gibson Attorneys for Plaintiffs
David Keithly Attorneys for Defendants
Steven Whang Attorneys for Plaintiffs

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