Preview
Tionna Dolin (SBN 299010)
1 Email: tdolin@slpattorney.com
2 Daniel Law (SBN 308855)
Email: dlaw@slpattorney.com
3 Strategic Legal Practices, APC
1888 Century Park East, 19th Floor
4 Los Angeles, CA 90067
Telephone: (310) 929-4900
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Facsimile: (310) 943-3838
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Attorney for Plaintiffs
7 KARINA VARGAS, GONZALO VARGAS, and LIVIER VARGAS
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF KERN
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KARINA VARGAS, GONZALO Case No. BCV-22-101682
12 VARGAS, and LIVIER VARGAS,
Assigned to: Hon. J Eric Bradshaw
13 Dept.: J
Plaintiff,
14 PLAINTIFF’S OPPOSITION TO
vs. DEFENDANT’S DEMURRER TO
15 PLAINTIFFS’ FIRST AMENDED
FORD MOTOR COMPANY; JIM BURKER COMPLAINT
16 FORD; and DOES 1 through 10, inclusive,
17 Defendants. Action Filed: July 7, 2022
FAC Filed: October 19, 2022
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 I. INTRODUCTION
2 Plaintiffs KARINA VARGAS, GONZALO VARGAS, and LIVIER VARGAS (“Plaintiffs”)
3 claims under the Song Beverly Act are not time barred, as Plaintiffs have adequately plead tolling
4 doctrines in the First Amended Complaint (“FAC”). Further, Plaintiffs’ Negligent Repair claim is
5 also sufficiently plead, and is not time-barred or barred by the Economics Loss Rule (“ELR”).
6 Accordingly, Defendants FORD MOTOR COMPANY and JIM BURKE FORD (“FORD” and “JIM
7 BURKE” respectively; collectively, “Defendants”) demurrer should be overruled in its entirety. In
8 the alternative, should the Court grant in part or whole any portion of Defendants’ demurrer,
9 Plaintiffs request leave to amend to correct any perceived deficiencies. Leave to amend is liberally
10 granted. See Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761,768; Aubry v. Tri-City Hosp. Dist., 2 Cal.
11 4th 962, 971, 831 P.2d 317, 323 (1992); Beckstead v. Superior Court (1971) 21 Cal. App. 3d 780, 782.
12 II. STANDARD ON DEMURRER
13 “‘A demurrer tests the legal sufficiency of the complaint....’ [Citations.] … We give the
14 complaint a reasonable interpretation, reading it as a whole and viewing its parts in context.
15 [Citations.] We deem to be true all material facts properly pled. [Citation.] We must also accept as
16 true those facts that may be implied or inferred from those expressly alleged. [Citation.]” Balikov v.
17 S. California Gas Co., 94 Cal. App. 4th 816, 819, 114 Cal. Rptr. 2d 614, 616 (2001). “To survive a
18 demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary
19 fact that might eventually form part of the plaintiff’s proof need not be alleged.” C.A. v. William S.
20 Hart Union High School Dist. (2012) 53 Cal. 4th 861, 872. “If the complaint states a cause of action
21 under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of
22 the complaint is good against a demurrer.” Quelimane Co. v. Stewart Title Guar. Co., 19 Cal. 4th 26,
23 38, 960 P.2d 513, 519 (1998), as modified (Sept. 23, 1998). Running of a statute must appear "clearly
24 and affirmatively" on the face of the complaint. It is not enough that a complaint might be time-barred.
25 Committee for Green Foothills v. Santa Clara County Bd. of Supervisors, 48 Cal.4th 32, 42 (2010);
26 Roman v. County of Los Angeles, 85 Cal. App. 4th 316, 324-25 (2000); Stueve Bros. Farms, LLC
27 v. Berger Kahn 222 Cal. App. 4th 303, 321 (2013).
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 Finally, the statute of limitations is an affirmative defense, under which Defendants are
2 required to "prove" that Plaintiffs’ claims are time-barred. See CACI 3222-Affirmative Defense—
3 Statute of Limitations (Cal. U. Com. Section 2725). As explained herein, Defendants have fallen far
4 short of this burden. 1
5 III. FACE OF COMPLAINT DOES NOT DISCLOSE A STATUTE OF LIMITATIONS
6 DEFENSE
7 A demurrer lies only where the dates in question are shown on the face of the complaint.
8 If they are not, there is no ground for general or special demurrer. Union Carbide Corp. v. Sup.
9 Ct., 36 Cal.3d 15, 25 (1984). A court may sustain a demurrer on the ground of failure to state
10 sufficient facts if “the complaint shows on its face the statute [of limitations] bars the action.” E-
11 Fab, Inc. v. Accountants, Inc. Services, 153 Cal.App.4th 1308, 1315 (2007). A demurrer is not
12 sustainable if there is only a possibility that the cause of action is time-barred; the statute of
13 limitations defense must be clearly and affirmatively apparent from the allegations in the pleading.
14 Id. at 1315-1316.
15 A. Discovery Rule Tolled Plaintiffs’ Claims
16 Under the Discovery Rule, the action accrues when a plaintiff has notice or information of
17 circumstances sufficient to put a reasonable person on inquiry: i.e., when “the plaintiff suspects or
18 should suspect that his injury was caused by wrongdoing.” Jolly v. Eli Lilly & Co., 44 Cal.3d 1103,
19 1110 (1988). See also Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 807 (2005); Glue-Fold, Inc.
20 v. Slautterback Corp., 82 Cal.App.4th 1018, 1029 (2000); April Enterprises, Inc. v. KTTV, 147
21 Cal.App.3d 805, 832 (1983).
22 It is well-settled that when a warranty explicitly extends to future performance of the goods,
23 the breach of warranty is tolled until the breach is discovered. Krieger v. Nick Alexander Imports,
24 Inc., 234 Cal. App. 3d 205, 215 (1991) (where warranty explicitly extends to future performance of
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Further, Defendants’ statute of limitations defense is not suitable for resolution on demurrer. As the California
26 Supreme Court observed, "[t]here are no hard and fast rules for determining what facts or circumstances will compel
inquiry by the injured party and render him chargeable with knowledge. [Citation.] It is a question for the trier of fact."
27 United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., 1 Cal. 3d 586, 597 (1970). See also Cleveland v. Internet Specialties
West, Inc., 171 Cal. App. 4th 24, 30-31 (2009) (trial court erred in granting summary judgment where facts were disputed
28 as to when plaintiff should have learned facts essential to claims).
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 the goods, the breach of warranty occurs only upon the discovery of the breach); Mexia v. Rinker
2 Boat Co., 174 Cal. App. 4th 1297, 1305 (2009) ("A breach of warranty occurs when tender of delivery
3 is made, except that where a warranty explicitly extends to future performance of the goods and
4 discovery of the breach must await the time of such performance the cause of action accrues when
5 the breach is or should have been discovered."); Mills v. Forestex, 108 Cal. App. 4th 625, 642, 648-
6 49 (2003) ("[A] cause of action for breach of warranty . . . accrues upon discovery of the breach.”) 2
7 Here, Defendant FORD’s express warranties, which "promise to repair defects that occur
8 during a future period[, are] the very definition of express warrant[ies] of future performance."
9 Krieger, supra, 234 Cal. App. 3d at 217. Accordingly, under the delayed discovery rule, Plaintiff’s
10 SBA claims against FORD claims did not accrue until Plaintiffs discovered, or reasonably should
11 have discovered, Defendant FORD’s breaches of warranty.
12 Here, Plaintiffs could not have discovered FORD’s breaches of the warranty until the defects
13 persisted after multiple repair attempts. To demonstrate a breach of warranty under the SBA, a
14 buyer must prove the following factual element, among others: "That [name of defendant] or its
15 authorized repair facility failed to repair the vehicle to match the written warranty after a reasonable
16 number of opportunities to do so[.]" CACI No. 3201. Violation of Civil Code Section 1793.2(d) –
17 New Motor Vehicle—Essential Factual Elements. And see Oregel, supra, 90 Cal. App. 4th at 1101.
18 This means that a buyer cannot know of the breach until after (1) the buyer provides the defendant
19 with a reasonable number of repair attempts and (2) the defect manifests again outside of the
20 warranty period, thereby establishing that the defendant's repairs did not conform the vehicle to
21 warranty. See Donlen v. Ford Motor Co., 217 Cal. App. 4th 138, 148-49 (2013), as modified on
22 denial of reh'g (July 8, 2013) (post-warranty repairs have "a tendency to establish that [a part] was
23 not fully repaired in conformance with the express warranty" during the warranty's existence and are
24 "relevant to establishing [the part] was not repaired to match the warranty while the warranty was in
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Defendants cite Cardinal Health to argue that the delayed discovery rule does not apply to implied warranty
claims. (Mot. at 1:14 and 6:21) Defendants, however, have neglected to inform the Court that Cardinal Health does not
27 apply to implied warranty claims arising under the SBA. It only applies to implied warranty claims arising under the
California Uniform Commercial Code. See Yeager v. Ford Motor Company, 2020 WL 95645, at *3 (N.D. Cal. Jan. 8,
28 2020).
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 effect."). Only after the defects persist outside of the warranty period can a plaintiff suspect that the
2 defendant failed to conform the vehicle to warranty.
3 Here, “Plaintiffs were unable to discover Defendant’s wrongful conduct any earlier despite
4 reasonable diligence because Plaintiffs reasonably relied upon Defendant’s authorized repair
5 facility’s representations that the Subject Vehicle was repaired. As such, Plaintiffs only discovery
6 Defendant’s wrongful conduct alleged herein when symptoms of the latent defects existed.” (FAC,
7 ¶ 14). Plaintiffs’ FAC further alleges multiple repair visits in the Vehicle’s repair history, wherein
8 FORD’s authorized repair facilities supposedly fixed the complained of issues. (Id. ¶s 11-12).
9 The last alleged repair visit was “some time in September – November 2018”, when “the Vehicle
10 was then towed to Defendant’s authorized repair facility” and repairs were performed on the
11 Vehicle. (Id., ¶ 13). Thus, Plaintiffs plead throughout the FAC that 1) Plaintiffs presented the
12 Vehicle to FORD’s authorized repair facilities within the applicable warranty periods; 2) FORD’s
13 authorized repair facilities performed various repairs on the Vehicle supposedly addressing the
14 issues; and 3) the Vehicle still continued to exhibit symptoms of the defects following multiple
15 repair attempts. (Id., ¶¶s 11-14). Due to the persisting defects, Plaintiffs contacted Defendant FORD
16 directly in or around October 2021 requesting prelitigation informal resolution, to which Defendant
17 FORD denied. Indeed, Plaintiffs explicitly plead that “Plaintiffs discovery Defendant’s wrongful
18 conduct alleged herein on or about October 2021 when they requested a buyback and/or restitution
19 of the Subject Vehicle from FMC, as the Vehicle continued to exhibit symptoms of defects
20 following FMC’s unsuccessful repair attempts to repair them. However, FMC failed to provide
21 restitution pursuant to the Song-Beverly Consumer Warranty Act.” (Id., ¶ 8).
22 Accordingly, from the face of the FAC, based upon FORD’s repeated repairs that supposedly
23 addressed the complained of issues, the earliest Plaintiffs could have discovered Defendant FORD’s
24 breach was sometime in September – November 2018 (meaning Plaintiffs’ initial complaint, filed
25 on July 7, 2022, was filed within four years of discovery). Plaintiffs have thus adequately plead facts
26 supporting Discovery Rule tolling of their SBA claims, and FORD’s Motion should be denied.
27 B. Repair Doctrine Tolls Plaintiffs’ Claims
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 California Civil Code section 1793.1(a)(2) permits the tolling of the statute of limitations
2 when various unsuccessful attempts to repair defects clouds a party’s ability to timely bring
3 claims. Aced v. Hobbs–Sesack Plumbing Co., 55 Cal.2d 573, 585 (1961) (“The statute of
4 limitations is tolled where one who has breached a warranty claims that the defect can be
5 repaired and attempts to make repairs.”) See also A&B Painting & Drywall, Inc. v. Sup. Ct., 25
6 Cal.App.4th 349, 355 (2002) (“Tolling during a period of repairs rests upon the same basis as
7 does an estoppel to assert the statute of limitations, i.e., reliance by the plaintiff upon the words
8 or actions of the defendant that repairs will be made.”).
9 The limitations period for warranty claims is tolled against a defendant when the
10 defendant claims the defect is susceptible to being repaired and then makes attempts to repair
11 the defects. Cardinal Health 301, Inc., v. Tyco Electronics, Corp. 169 Cal.App.4th 116, 133–
12 34 (2008). Specifically, courts in this jurisdiction hold “[t]olling during a period of repairs
13 generally rests upon the same legal basis as does an estoppel to assert the statute of limitations,
14 i.e., reliance by the plaintiff on the words or actions of the defendant that repairs will be made”
15 will not foreclose a plaintiff from seeking redress based on a timeliness defenses. In short,
16 Defendant FORD is not entitled now to hide behind the statute of limitations after assuring
17 Plaintiffs that the defects at issue could be repaired and then thereafter attempting to
18 [unsuccessfully] repair the Subject Vehicle.
19 Here, Plaintiffs have alleged multiple repair visits for the Subject Vehicle. (FAC ¶¶s 10-16).
20 Plaintiff further alleged Defendant FORD’s authorized repair facilities conducted repairs on the Subject
21 Vehicle. (Id.) Plaintiff repeatedly pleads throughout the FAC that they presented the Vehicle to
22 Defendant’s authorized repair facilities within the applicable warranty periods, that Defendant
23 performed various repairs on the Vehicle, but that the Vehicle still exhibits symptoms of the
24 defects. (Id.).
25 C. Plaintiffs’ Implied Warranty Claim is Not Time-Barred
26 The Song-Beverly Act (“SBA”) creates an implied warranty on all consumer goods sold in
27 California unless specifically disclaimed. Cal. Code Civ. Proc §§ 1791.3, 1792. The claim must be
28 brought within four years from the time of discovery, but that discovery need not occur within the
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 one-year warranty period if the defect was latent. See Mexia v. Rinker Boat Co., 174 Cal. App. 4th
2 1297, 1304, 95 Cal. Rptr. 3d 285, 290–91 (2009), “The implied warranty of merchantability may be
3 breached by a latent defect undiscoverable at the time of sale.” California state courts generally hold
4 that the Mexia rule applies. See Daniel v. Ford Motor Co., 806 F.3d 1217, 1223 (9th Cir. 2015)
5 holding “While California federal district courts have given Mexia mixed treatment [] we must
6 adhere to state court decisions—not federal court decisions—as the authoritative interpretation of
7 state law.” (citations omitted).
8 Defendants cite Cardinal Health to argue that the delayed discovery rule does not apply
9 to implied warranty claims. (Mot. at 1:14 and 6:21). Defendant, however, has neglected to
10 inform the Court that Cardinal Health does not apply to implied warranty claims arising under
11 the SBA. It only applies to implied warranty claims arising under the California Uniform
12 Commercial Code. See Yeager v. Ford Motor Company, 2020 WL 95645, at *3 (N.D. Cal. Jan.
13 8, 2020) ("The Commercial Code does not write in a prospective existence for the implied
14 warranty of merchantability that it provides (Comm. Code § 2314), so, as Cardinal
15 Health explains, an implied-warranty claim under the Commercial Code accrues at the time of
16 the sale. The Song-Beverly Act, in a departure from the Commercial Code, writes in a
17 prospective existence for implied warranties governed by the Act, allowing for the claim to
18 accrue later, upon discovery. [] Mexia was decided after Cardinal Health and cites Cardinal
19 Health without disapproval. Defendants do not explain why Cardinal Health rather
20 than Mexia applies here. Defendants do not mention Mexia at all. The omission is telling.");
21 Smith v. Ford Motor Co., 2020 WL 609864, at *5 (N.D. Cal. Feb. 4, 2020) ("The Court
22 finds Yeager persuasive because it acknowledges the distinction between implied warranties
23 within the Commercial Code and the Song-Beverly Act. That distinction may allow Song-
24 Beverly Act warranties to extend to the future performance of goods, meaning that the delayed
25 discovery doctrine could apply here."). Accordingly, Cardinal Health is irrelevant here, and it
26 is disingenuous to suggest otherwise.
27 Indeed, Mexia, the seminal California Court of Appeal case concerning the accrual of
28 implied warranty claims under the SBA, expressly states that the discovery rule applies to
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 implied warranty claims: “A breach of [implied] warranty occurs when tender of delivery is
2 made, except that where a warranty explicitly extends to future performance of the goods and
3 discovery of the breach must await the time of such performance the cause of action accrues
4 when the breach is or should have been discovered.” Mexia, at 1305 (emphasis added). Other
5 courts, too, have confirmed that Mexia created a delayed discovery rule for implied warranty
6 claims. See Yeager, supra, 2020 WL 95645, at **2-4 ("The binding California precedent here
7 is Mexia: Plaintiff can [bring an implied warranty claim] more than five years after the purchase
8 on the theory that a latent defect lurked within the vehicle not reasonably discoverable until
9 after the year ran such that the four-year limitations period began only upon discovery.");
10 Deutsch v. Ford Motor Co., 2019 WL 2076713, at *3 (N.D. Cal. May 10, 2019) (under Mexia,
11 "a claim for breach of the implied warranty of merchantability may be based upon a defect not
12 discoverable at the time of sale").
13 In Mexia, the pro-consumer legislation informs “California courts of the need to construe
14 the Song–Beverly Act so as to implement the legislative intent to expand consumer protection
15 and remedies.” Mexia at 1311. Many federal courts have been persuaded by Mexia. See e.g.
16 Kas v. Mercedes-Benz USA, LLC, No. CV 11-1032-GHK PJWX, 2011 WL 5248299, at *2 (C.D.
17 Cal. Oct. 31, 2011) holding, “Here, Plaintiff has alleged the Radiator Defect existed at the time
18 Plaintiff purchased the vehicle. []. Plaintiff has also alleged that the Radiator Defect is latent, in
19 that it does not manifest itself immediately. []. We conclude that Plaintiff has adequately stated
20 a timely claim for purposes of the instant Motion to Dismiss.” (citations to the complaint
21 omitted); and Ehrlich v. BMW of N. Am., LLC, 801 F. Supp. 2d 908, 924 (C.D. Cal. 2010)
22 holding “Mexia directly addressed and rejected the precise argument BMW makes here, holding
23 that, so long as a latent defect existed within the one-year period, its subsequent discovery
24 beyond that time did not defeat an implied warranty claim.”
25 Here, Plaintiffs’ FAC alleges that, “At the time of sale, the subject vehicle contained one or
26 more latent defect(s) set forth above.” (FAC, ¶ 49). Thus, Plaintiff has alleged a latent defect in the
27 Vehicle existing at the time of sale. Further, as explained above, Plaintiff alleges multiple repair
28 visits for the Vehicle, as well as various repairs performed on the Vehicle that supposedly addressed
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 the issues affecting the Vehicle. (Id., ¶¶s 10-16, 22). Thus, Plaintiffs have clearly alleged the Vehicle
2 had a latent defect “at the time of sale”, and has also alleged multiple repair visits supposedly addressing
3 said defects in the Vehicle, supporting Plaintiffs’ tolling argument that the defective nature of the Vehicle
4 could not have been discovered sooner through reasonable means. (Id.,¶ 16).
5 IV. PLAINTIFFS’ NEGLIGENT REPAIR CLAIM IS WELL PLEAD AND NOT
6 BARRED
7 A. Economic Loss Rule Does Not Bar Negligent Repair Claims
8 Defendants do not cite a single case holding that negligent repair claims are barred by the
9 economic loss rule. This is no surprise, given that courts have consistently held directly to the contrary.
10 "California decisional law has long recognized that the economic loss rule does not necessarily bar
11 recovery in tort for damage that a defective product (e.g., a window) causes to other portions of a
12 larger product (e.g., a house) into which the former has been incorporated." Jimenez v. Superior Court,
13 29 Cal. 4th 473, 483-84 (2002) . MY’s reliance on Jimenez to claim that negligent repair claims
14 “cannot survive in the absence of personal injuries or property damage to property other than the
15 subject vehicle” is misplaced. (Def’s MPA, 3:24-45, emphasis added.) A negligent repair claim can
16 be maintained, and the economic loss rule would not bar “recovery in tort for damage that . . .
17 subcomponents cause to the engine as a whole or for damage that the engine caused to the Vehicle . . .”
18 (Sabicer v. Ford Motor Company (2019) 362 F.Supp.3d 837, 841, citing Jimenez.) The concept of
19 recoverable physical injury or property damage includes damage to one part of a product caused by
20 another, defective part. (Jimenez, supra, citing Aas v. Superior Court (2000) 24 Cal.4th 627, 641.)
21 Federal district courts in California have consistently imported the Jimenez component
22 exception into the vehicle defect/negligent repair context, holding that the economic loss rule does
23 not apply to negligent repair claims where subcomponents of a vehicle cause damage to a larger
24 component or where the component causes damage to the vehicle into which it has been incorporated.
25 (See Sabicer v. Ford Motor Company (2019) 362 F.Supp.3d 837, 841, "Plaintiffs allege problems
26 with various subcomponents of the engine, including the rear driveshaft, engine compartment, and
27 turbocharger. [] The economic loss rule would not bar recovery in tort for damage that these
28 subcomponents cause to the engine as a whole or for damage that the engine caused to the Vehicle in
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 which it has been incorporated."); (Velasco v. Ford Motor Co. (S.D. Cal. June 24, 2022) 2022 WL
2 2287258, at 4, "Multiple district courts, including this Court, have recognized the potential
3 applicability of the component exception in cases involving negligent repair claims against parties
4 sought to be joined in breach of warranty cases against manufacturers."); (See also Magana v. Ford
5 Motor Co., 2019 WL 7165920, at *4 (N.D. Cal. Dec. 16, 2019); Nellett v. Ford Motor Co., 2019 WL
6 6302156, at *4 (N.D. Cal. Nov. 25, 2019); White v. Ford Motor Co., 2019 WL 6694735, at *4 (N.D.
7 Cal. Nov. 21, 2019); Madison v. Ford Motor Co., 2019 WL 3562386, at **2-3 (E.D. Cal. Aug. 6,
8 2019); Martin Lopez v. Ford Motor Co., 2019 WL 5444391, at *2 (C.D. Cal. July 18, 2019); Elizabeth
9 Lopez v. Ford Motor Co., 2019 WL 2023725, at *3 (C.D. Cal. May 8, 2019); Krasner v. Ford Motor
10 Co., 2019 WL 1428116, at *4 (E.D. Cal. Mar. 29, 2019); McKeown v. Ford Motor Co., 2019 WL
11 1199468, at *3 (C.D. Cal. Mar. 13, 2019); Ruiz v. FCA US LLC, 2019 WL 4137613, at *2 (C.D. Cal.
12 May 31, 2019); Reyes v. FCA US LLC, 2020 WL 7224286, at *9 (E.D. Cal. Dec. 8, 2020). 3
13 While Defendant cites Robinson Helicopter, Defendant has neglected to inform the Court that
14 Robinson involves the applicability of the economic loss rule to fraud claims, not negligent repair
15 claims. (See Robinson Helicopter Co. v. Dana Corp., 34 Cal. 4th 979, 984 (2004) ("In this case, we
16 decide whether the economic loss rule … applies to claims for intentional misrepresentation or fraud
17 in the performance of a contract.") Thus, Robinson is inapplicable to Plaintiffs’ negligent repair claim.
18 Moreover, under California law, the economic loss rule does not apply to cases involving the
19 negligent performance of services. (See N. Am. Chem. Co. v. Superior Court (1997) 59 Cal. App.
20 4th 764, 777–81, (holding the economic loss rule does not apply in cases involving the negligent
21 performance of services that results in foreseeable economic loss); J'Aire Corp. v. Gregory, 24 Cal.
22 3d 799, 805 (1979) (California Supreme Court holding that a plaintiff could recover in tort for loss
23 of expected economic advantage—without accompanying personal injury or property damage—from
24 a defendant's negligent performance of a contract if there was a “special relationship” between the
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On reply, Defendants may seek to distinguish these cases on the grounds that they occurred in the remand
context. Such an argument would be misguided. "[T]he broader discussion in such cases is relevant insofar as it addresses
27 the principles at issue [on a motion for judgment on the pleadings]." Vanella v. Ford Motor Company, 2020 WL 887975,
at *3 n.4 (N.D. Cal. Feb. 24, 2020). Similarly, here, the cases cited above bear directly on Defendants' economic loss
28 rule argument.
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 parties); N. Am. Chem., supra, 59 Cal. App. 4th at 783 (extending J'Aire to cases where the parties
2 were not in contractual privity); Ott v. Alfa-Laval Agri, Inc., 31 Cal. App. 4th 1439, 1448 (1995)
3 (same); Pisano v. Am. Leasing, 146 Cal. App. 3d 194, 197 (1983) (same).
4 B. Plaintiffs Have Adequately Pled Negligent Repair, Including Damages
5 To state a viable claim for negligent repair, a plaintiff need only allege that the repair facility
6 attempted repairs, and, during those repairs, it failed to act in accordance with relevant industry
7 standards, causing plaintiff damage. (Lytle v. Ford Motor Co. (E.D.Cal. 2018) No. 2:18-cv-1628
8 WBS EFB, 2018 WL 4793800; citing Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072). In
9 the current case, Plaintiffs’ FAC clearly meets this burden for alleging negligent repair as Plaintiffs
10 alleged that Defendant JIM BURKE owed a duty to Plaintiffs to use ordinary care, that Def. JIMI
11 BURKE breached said duty; and said breach caused damage to Plaintiffs. (FAC, ¶¶s 52-55). Holding
12 that Plaintiffs’ pleading is sufficient comports with precedent and with the weight of decisions in
13 similar cases. (See also Wadlow v. Ford Motor Co. (E.D. Cal. Apr. 23, 2019) 2019 WL 1773489, at
14 3; see also McKeown v. Ford Motor Co. (C.D. Cal. Mar. 13, 2019) 2019 WL 1199468, at 2).
15 To adequately plead damages for the negligent repair of a vehicle, plaintiffs need only allege
16 that they "sustained damages due to [the repair facility's] failure to properly store, prepare, diagnose
17 and/or repair the Vehicle in accordance with industry standards." See Viveros v. Ford Motor Co.,
18 2021 WL 5989365, at *7 (S.D. Cal. July 28, 2021). See also Malijen v. Ford Motor Co., 2020 WL
19 5934298, at *4 (C.D. Cal. Aug. 20, 2020). 4 Plaintiffs have clearly done that here, and thus the
20 negligent repair claim if sufficiently plead.
21 V. CONCLUSION
22 Based on the foregoing, Plaintiffs’ request that Defendants’ Demurrer we overruled in its
23 entirety. In the alternative, should the Court grant in part or whole Defendants’ demurrer, Plaintiffs
24 request leave to amend, as further facts (ie. regarding the repair history) can be added. See Vaccaro
25 v. Kaiman (1998) 63 Cal.App.4th 761,768; Aubry v. Tri-City Hosp. Dist., 2 Cal. 4th 962, 971, 831
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Cases that occur in the remand context are relevant to pleading attacks because "the broader discussion in
27 such cases is relevant insofar as it addresses the principles at issue [on a motion for judgment on the pleadings]." Vanella
v. Ford Motor Company, 2020 WL 887975, at *3 n.4 (N.D. Cal. Feb. 24, 2020). Similarly, here, the cases cited above
28 bear directly on Defendant’s damages argument.
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 P.2d 317, 323 (1992); Beckstead v. Superior Court (1971) 21 Cal. App. 3d 780, 782.
2
3 Respectfully submitted,
4 Dated: December 22, 2022 STRATEGIC LEGAL PRACTICES, APC
5 By:
Daniel Law
6 Attorney for Plaintiffs
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
PROOF OF SERVICE
1
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and
3 not a party to the within action. My business address is Strategic Legal Practices, 1888 Century Park
East, 19th Floor, Los Angeles, California 90067.
4
On December 22, 2022, I served the document(s) described as:
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
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on the interested parties in this action by sending [ ] the original [or] [] a true copy thereof
7 [] to interested parties as follows [or] [ ] as stated on the attached service list:
8 Michael D. Mortenson - mmortenson@mortensontaggart.com
Craig A. Taggart - ctaggart@mortensontaggart.com
9 Hannah L. Miller - hmiller@mortensontaggart.com
service@mortensontaggart.com
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MORTENSON TAGGART ADAMS LLP
11 300 Spectrum Center Dr., Suite 1200
Irvine, CA 92618
12 Telephone: (949) 774-2224
Facsimile: (949) 774-2545
13 [ ] BY MAIL (ENCLOSED IN A SEALED ENVELOPE): I deposited the envelope(s) fo
mailing in the ordinary course of business at Los Angeles, California. I am “readily familiar
14 with this firm’s practice of collection and processing correspondence for mailing. Unde
that practice, sealed envelopes are deposited with the U.S. Postal Service that same day i
15 the ordinary course of business with postage thereon fully prepaid at Los Angeles, California
16 [X] BY E-MAIL: I hereby certify that this document was served from Los Angeles, California
by e-email delivery as agreed between the parties on the parties listed herein at their mos
17 known e-mail address or e-mail of record in this action
18
[ ] BY OVERNIGHT DELIVERY: I am “readily familiar” with this firm’s practice o
19 collection and processing correspondence for overnight delivery. Under that practice
overnight packages are enclosed in a sealed envelope with a packing slip attached theret
fully prepaid. The packages are picked up by the carrier at our offices or delivered by ou
20 office to a designated collection site.
21
I declare under penalty of perjury under the laws of the State of California that the foregoing
22 is true and correct. Executed this December 22, 2022, at Los Angeles, California.
23 Respectfully submitted,
24 Dated: December 22, 2022 STRATEGIC LEGAL PRACTICES, APC
25 By:
Daniel Law
26 dlaw@slpattorney.com
27
28
12
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
Preview
Tionna Dolin (SBN 299010) 1 Email: tdolin@slpattorney.com 2 Daniel Law (SBN 308855) Email: dlaw@slpattorney.com 3 Strategic Legal Practices, APC 1888 Century Park East, 19th Floor 4 Los Angeles, CA 90067 Telephone: (310) 929-4900 5 Facsimile: (310) 943-3838 6 Attorney for Plaintiffs 7 KARINA VARGAS, GONZALO VARGAS, and LIVIER VARGAS 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF KERN 10 11 KARINA VARGAS, GONZALO Case No. BCV-22-101682 12 VARGAS, and LIVIER VARGAS, Assigned to: Hon. J Eric Bradshaw 13 Dept.: J Plaintiff, 14 PLAINTIFF’S OPPOSITION TO vs. DEFENDANT’S DEMURRER TO 15 PLAINTIFFS’ FIRST AMENDED FORD MOTOR COMPANY; JIM BURKER COMPLAINT 16 FORD; and DOES 1 through 10, inclusive, 17 Defendants. Action Filed: July 7, 2022 FAC Filed: October 19, 2022 18 19 20 21 22 23 24 25 26 27 28 i PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 I. INTRODUCTION 2 Plaintiffs KARINA VARGAS, GONZALO VARGAS, and LIVIER VARGAS (“Plaintiffs”) 3 claims under the Song Beverly Act are not time barred, as Plaintiffs have adequately plead tolling 4 doctrines in the First Amended Complaint (“FAC”). Further, Plaintiffs’ Negligent Repair claim is 5 also sufficiently plead, and is not time-barred or barred by the Economics Loss Rule (“ELR”). 6 Accordingly, Defendants FORD MOTOR COMPANY and JIM BURKE FORD (“FORD” and “JIM 7 BURKE” respectively; collectively, “Defendants”) demurrer should be overruled in its entirety. In 8 the alternative, should the Court grant in part or whole any portion of Defendants’ demurrer, 9 Plaintiffs request leave to amend to correct any perceived deficiencies. Leave to amend is liberally 10 granted. See Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761,768; Aubry v. Tri-City Hosp. Dist., 2 Cal. 11 4th 962, 971, 831 P.2d 317, 323 (1992); Beckstead v. Superior Court (1971) 21 Cal. App. 3d 780, 782. 12 II. STANDARD ON DEMURRER 13 “‘A demurrer tests the legal sufficiency of the complaint....’ [Citations.] … We give the 14 complaint a reasonable interpretation, reading it as a whole and viewing its parts in context. 15 [Citations.] We deem to be true all material facts properly pled. [Citation.] We must also accept as 16 true those facts that may be implied or inferred from those expressly alleged. [Citation.]” Balikov v. 17 S. California Gas Co., 94 Cal. App. 4th 816, 819, 114 Cal. Rptr. 2d 614, 616 (2001). “To survive a 18 demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary 19 fact that might eventually form part of the plaintiff’s proof need not be alleged.” C.A. v. William S. 20 Hart Union High School Dist. (2012) 53 Cal. 4th 861, 872. “If the complaint states a cause of action 21 under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of 22 the complaint is good against a demurrer.” Quelimane Co. v. Stewart Title Guar. Co., 19 Cal. 4th 26, 23 38, 960 P.2d 513, 519 (1998), as modified (Sept. 23, 1998). Running of a statute must appear "clearly 24 and affirmatively" on the face of the complaint. It is not enough that a complaint might be time-barred. 25 Committee for Green Foothills v. Santa Clara County Bd. of Supervisors, 48 Cal.4th 32, 42 (2010); 26 Roman v. County of Los Angeles, 85 Cal. App. 4th 316, 324-25 (2000); Stueve Bros. Farms, LLC 27 v. Berger Kahn 222 Cal. App. 4th 303, 321 (2013). 28 1 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 Finally, the statute of limitations is an affirmative defense, under which Defendants are 2 required to "prove" that Plaintiffs’ claims are time-barred. See CACI 3222-Affirmative Defense— 3 Statute of Limitations (Cal. U. Com. Section 2725). As explained herein, Defendants have fallen far 4 short of this burden. 1 5 III. FACE OF COMPLAINT DOES NOT DISCLOSE A STATUTE OF LIMITATIONS 6 DEFENSE 7 A demurrer lies only where the dates in question are shown on the face of the complaint. 8 If they are not, there is no ground for general or special demurrer. Union Carbide Corp. v. Sup. 9 Ct., 36 Cal.3d 15, 25 (1984). A court may sustain a demurrer on the ground of failure to state 10 sufficient facts if “the complaint shows on its face the statute [of limitations] bars the action.” E- 11 Fab, Inc. v. Accountants, Inc. Services, 153 Cal.App.4th 1308, 1315 (2007). A demurrer is not 12 sustainable if there is only a possibility that the cause of action is time-barred; the statute of 13 limitations defense must be clearly and affirmatively apparent from the allegations in the pleading. 14 Id. at 1315-1316. 15 A. Discovery Rule Tolled Plaintiffs’ Claims 16 Under the Discovery Rule, the action accrues when a plaintiff has notice or information of 17 circumstances sufficient to put a reasonable person on inquiry: i.e., when “the plaintiff suspects or 18 should suspect that his injury was caused by wrongdoing.” Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 19 1110 (1988). See also Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 807 (2005); Glue-Fold, Inc. 20 v. Slautterback Corp., 82 Cal.App.4th 1018, 1029 (2000); April Enterprises, Inc. v. KTTV, 147 21 Cal.App.3d 805, 832 (1983). 22 It is well-settled that when a warranty explicitly extends to future performance of the goods, 23 the breach of warranty is tolled until the breach is discovered. Krieger v. Nick Alexander Imports, 24 Inc., 234 Cal. App. 3d 205, 215 (1991) (where warranty explicitly extends to future performance of 25 1 Further, Defendants’ statute of limitations defense is not suitable for resolution on demurrer. As the California 26 Supreme Court observed, "[t]here are no hard and fast rules for determining what facts or circumstances will compel inquiry by the injured party and render him chargeable with knowledge. [Citation.] It is a question for the trier of fact." 27 United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., 1 Cal. 3d 586, 597 (1970). See also Cleveland v. Internet Specialties West, Inc., 171 Cal. App. 4th 24, 30-31 (2009) (trial court erred in granting summary judgment where facts were disputed 28 as to when plaintiff should have learned facts essential to claims). 2 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 the goods, the breach of warranty occurs only upon the discovery of the breach); Mexia v. Rinker 2 Boat Co., 174 Cal. App. 4th 1297, 1305 (2009) ("A breach of warranty occurs when tender of delivery 3 is made, except that where a warranty explicitly extends to future performance of the goods and 4 discovery of the breach must await the time of such performance the cause of action accrues when 5 the breach is or should have been discovered."); Mills v. Forestex, 108 Cal. App. 4th 625, 642, 648- 6 49 (2003) ("[A] cause of action for breach of warranty . . . accrues upon discovery of the breach.”) 2 7 Here, Defendant FORD’s express warranties, which "promise to repair defects that occur 8 during a future period[, are] the very definition of express warrant[ies] of future performance." 9 Krieger, supra, 234 Cal. App. 3d at 217. Accordingly, under the delayed discovery rule, Plaintiff’s 10 SBA claims against FORD claims did not accrue until Plaintiffs discovered, or reasonably should 11 have discovered, Defendant FORD’s breaches of warranty. 12 Here, Plaintiffs could not have discovered FORD’s breaches of the warranty until the defects 13 persisted after multiple repair attempts. To demonstrate a breach of warranty under the SBA, a 14 buyer must prove the following factual element, among others: "That [name of defendant] or its 15 authorized repair facility failed to repair the vehicle to match the written warranty after a reasonable 16 number of opportunities to do so[.]" CACI No. 3201. Violation of Civil Code Section 1793.2(d) – 17 New Motor Vehicle—Essential Factual Elements. And see Oregel, supra, 90 Cal. App. 4th at 1101. 18 This means that a buyer cannot know of the breach until after (1) the buyer provides the defendant 19 with a reasonable number of repair attempts and (2) the defect manifests again outside of the 20 warranty period, thereby establishing that the defendant's repairs did not conform the vehicle to 21 warranty. See Donlen v. Ford Motor Co., 217 Cal. App. 4th 138, 148-49 (2013), as modified on 22 denial of reh'g (July 8, 2013) (post-warranty repairs have "a tendency to establish that [a part] was 23 not fully repaired in conformance with the express warranty" during the warranty's existence and are 24 "relevant to establishing [the part] was not repaired to match the warranty while the warranty was in 25 26 2 Defendants cite Cardinal Health to argue that the delayed discovery rule does not apply to implied warranty claims. (Mot. at 1:14 and 6:21) Defendants, however, have neglected to inform the Court that Cardinal Health does not 27 apply to implied warranty claims arising under the SBA. It only applies to implied warranty claims arising under the California Uniform Commercial Code. See Yeager v. Ford Motor Company, 2020 WL 95645, at *3 (N.D. Cal. Jan. 8, 28 2020). 3 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 effect."). Only after the defects persist outside of the warranty period can a plaintiff suspect that the 2 defendant failed to conform the vehicle to warranty. 3 Here, “Plaintiffs were unable to discover Defendant’s wrongful conduct any earlier despite 4 reasonable diligence because Plaintiffs reasonably relied upon Defendant’s authorized repair 5 facility’s representations that the Subject Vehicle was repaired. As such, Plaintiffs only discovery 6 Defendant’s wrongful conduct alleged herein when symptoms of the latent defects existed.” (FAC, 7 ¶ 14). Plaintiffs’ FAC further alleges multiple repair visits in the Vehicle’s repair history, wherein 8 FORD’s authorized repair facilities supposedly fixed the complained of issues. (Id. ¶s 11-12). 9 The last alleged repair visit was “some time in September – November 2018”, when “the Vehicle 10 was then towed to Defendant’s authorized repair facility” and repairs were performed on the 11 Vehicle. (Id., ¶ 13). Thus, Plaintiffs plead throughout the FAC that 1) Plaintiffs presented the 12 Vehicle to FORD’s authorized repair facilities within the applicable warranty periods; 2) FORD’s 13 authorized repair facilities performed various repairs on the Vehicle supposedly addressing the 14 issues; and 3) the Vehicle still continued to exhibit symptoms of the defects following multiple 15 repair attempts. (Id., ¶¶s 11-14). Due to the persisting defects, Plaintiffs contacted Defendant FORD 16 directly in or around October 2021 requesting prelitigation informal resolution, to which Defendant 17 FORD denied. Indeed, Plaintiffs explicitly plead that “Plaintiffs discovery Defendant’s wrongful 18 conduct alleged herein on or about October 2021 when they requested a buyback and/or restitution 19 of the Subject Vehicle from FMC, as the Vehicle continued to exhibit symptoms of defects 20 following FMC’s unsuccessful repair attempts to repair them. However, FMC failed to provide 21 restitution pursuant to the Song-Beverly Consumer Warranty Act.” (Id., ¶ 8). 22 Accordingly, from the face of the FAC, based upon FORD’s repeated repairs that supposedly 23 addressed the complained of issues, the earliest Plaintiffs could have discovered Defendant FORD’s 24 breach was sometime in September – November 2018 (meaning Plaintiffs’ initial complaint, filed 25 on July 7, 2022, was filed within four years of discovery). Plaintiffs have thus adequately plead facts 26 supporting Discovery Rule tolling of their SBA claims, and FORD’s Motion should be denied. 27 B. Repair Doctrine Tolls Plaintiffs’ Claims 28 4 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 California Civil Code section 1793.1(a)(2) permits the tolling of the statute of limitations 2 when various unsuccessful attempts to repair defects clouds a party’s ability to timely bring 3 claims. Aced v. Hobbs–Sesack Plumbing Co., 55 Cal.2d 573, 585 (1961) (“The statute of 4 limitations is tolled where one who has breached a warranty claims that the defect can be 5 repaired and attempts to make repairs.”) See also A&B Painting & Drywall, Inc. v. Sup. Ct., 25 6 Cal.App.4th 349, 355 (2002) (“Tolling during a period of repairs rests upon the same basis as 7 does an estoppel to assert the statute of limitations, i.e., reliance by the plaintiff upon the words 8 or actions of the defendant that repairs will be made.”). 9 The limitations period for warranty claims is tolled against a defendant when the 10 defendant claims the defect is susceptible to being repaired and then makes attempts to repair 11 the defects. Cardinal Health 301, Inc., v. Tyco Electronics, Corp. 169 Cal.App.4th 116, 133– 12 34 (2008). Specifically, courts in this jurisdiction hold “[t]olling during a period of repairs 13 generally rests upon the same legal basis as does an estoppel to assert the statute of limitations, 14 i.e., reliance by the plaintiff on the words or actions of the defendant that repairs will be made” 15 will not foreclose a plaintiff from seeking redress based on a timeliness defenses. In short, 16 Defendant FORD is not entitled now to hide behind the statute of limitations after assuring 17 Plaintiffs that the defects at issue could be repaired and then thereafter attempting to 18 [unsuccessfully] repair the Subject Vehicle. 19 Here, Plaintiffs have alleged multiple repair visits for the Subject Vehicle. (FAC ¶¶s 10-16). 20 Plaintiff further alleged Defendant FORD’s authorized repair facilities conducted repairs on the Subject 21 Vehicle. (Id.) Plaintiff repeatedly pleads throughout the FAC that they presented the Vehicle to 22 Defendant’s authorized repair facilities within the applicable warranty periods, that Defendant 23 performed various repairs on the Vehicle, but that the Vehicle still exhibits symptoms of the 24 defects. (Id.). 25 C. Plaintiffs’ Implied Warranty Claim is Not Time-Barred 26 The Song-Beverly Act (“SBA”) creates an implied warranty on all consumer goods sold in 27 California unless specifically disclaimed. Cal. Code Civ. Proc §§ 1791.3, 1792. The claim must be 28 brought within four years from the time of discovery, but that discovery need not occur within the 5 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 one-year warranty period if the defect was latent. See Mexia v. Rinker Boat Co., 174 Cal. App. 4th 2 1297, 1304, 95 Cal. Rptr. 3d 285, 290–91 (2009), “The implied warranty of merchantability may be 3 breached by a latent defect undiscoverable at the time of sale.” California state courts generally hold 4 that the Mexia rule applies. See Daniel v. Ford Motor Co., 806 F.3d 1217, 1223 (9th Cir. 2015) 5 holding “While California federal district courts have given Mexia mixed treatment [] we must 6 adhere to state court decisions—not federal court decisions—as the authoritative interpretation of 7 state law.” (citations omitted). 8 Defendants cite Cardinal Health to argue that the delayed discovery rule does not apply 9 to implied warranty claims. (Mot. at 1:14 and 6:21). Defendant, however, has neglected to 10 inform the Court that Cardinal Health does not apply to implied warranty claims arising under 11 the SBA. It only applies to implied warranty claims arising under the California Uniform 12 Commercial Code. See Yeager v. Ford Motor Company, 2020 WL 95645, at *3 (N.D. Cal. Jan. 13 8, 2020) ("The Commercial Code does not write in a prospective existence for the implied 14 warranty of merchantability that it provides (Comm. Code § 2314), so, as Cardinal 15 Health explains, an implied-warranty claim under the Commercial Code accrues at the time of 16 the sale. The Song-Beverly Act, in a departure from the Commercial Code, writes in a 17 prospective existence for implied warranties governed by the Act, allowing for the claim to 18 accrue later, upon discovery. [] Mexia was decided after Cardinal Health and cites Cardinal 19 Health without disapproval. Defendants do not explain why Cardinal Health rather 20 than Mexia applies here. Defendants do not mention Mexia at all. The omission is telling."); 21 Smith v. Ford Motor Co., 2020 WL 609864, at *5 (N.D. Cal. Feb. 4, 2020) ("The Court 22 finds Yeager persuasive because it acknowledges the distinction between implied warranties 23 within the Commercial Code and the Song-Beverly Act. That distinction may allow Song- 24 Beverly Act warranties to extend to the future performance of goods, meaning that the delayed 25 discovery doctrine could apply here."). Accordingly, Cardinal Health is irrelevant here, and it 26 is disingenuous to suggest otherwise. 27 Indeed, Mexia, the seminal California Court of Appeal case concerning the accrual of 28 implied warranty claims under the SBA, expressly states that the discovery rule applies to 6 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 implied warranty claims: “A breach of [implied] warranty occurs when tender of delivery is 2 made, except that where a warranty explicitly extends to future performance of the goods and 3 discovery of the breach must await the time of such performance the cause of action accrues 4 when the breach is or should have been discovered.” Mexia, at 1305 (emphasis added). Other 5 courts, too, have confirmed that Mexia created a delayed discovery rule for implied warranty 6 claims. See Yeager, supra, 2020 WL 95645, at **2-4 ("The binding California precedent here 7 is Mexia: Plaintiff can [bring an implied warranty claim] more than five years after the purchase 8 on the theory that a latent defect lurked within the vehicle not reasonably discoverable until 9 after the year ran such that the four-year limitations period began only upon discovery."); 10 Deutsch v. Ford Motor Co., 2019 WL 2076713, at *3 (N.D. Cal. May 10, 2019) (under Mexia, 11 "a claim for breach of the implied warranty of merchantability may be based upon a defect not 12 discoverable at the time of sale"). 13 In Mexia, the pro-consumer legislation informs “California courts of the need to construe 14 the Song–Beverly Act so as to implement the legislative intent to expand consumer protection 15 and remedies.” Mexia at 1311. Many federal courts have been persuaded by Mexia. See e.g. 16 Kas v. Mercedes-Benz USA, LLC, No. CV 11-1032-GHK PJWX, 2011 WL 5248299, at *2 (C.D. 17 Cal. Oct. 31, 2011) holding, “Here, Plaintiff has alleged the Radiator Defect existed at the time 18 Plaintiff purchased the vehicle. []. Plaintiff has also alleged that the Radiator Defect is latent, in 19 that it does not manifest itself immediately. []. We conclude that Plaintiff has adequately stated 20 a timely claim for purposes of the instant Motion to Dismiss.” (citations to the complaint 21 omitted); and Ehrlich v. BMW of N. Am., LLC, 801 F. Supp. 2d 908, 924 (C.D. Cal. 2010) 22 holding “Mexia directly addressed and rejected the precise argument BMW makes here, holding 23 that, so long as a latent defect existed within the one-year period, its subsequent discovery 24 beyond that time did not defeat an implied warranty claim.” 25 Here, Plaintiffs’ FAC alleges that, “At the time of sale, the subject vehicle contained one or 26 more latent defect(s) set forth above.” (FAC, ¶ 49). Thus, Plaintiff has alleged a latent defect in the 27 Vehicle existing at the time of sale. Further, as explained above, Plaintiff alleges multiple repair 28 visits for the Vehicle, as well as various repairs performed on the Vehicle that supposedly addressed 7 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 the issues affecting the Vehicle. (Id., ¶¶s 10-16, 22). Thus, Plaintiffs have clearly alleged the Vehicle 2 had a latent defect “at the time of sale”, and has also alleged multiple repair visits supposedly addressing 3 said defects in the Vehicle, supporting Plaintiffs’ tolling argument that the defective nature of the Vehicle 4 could not have been discovered sooner through reasonable means. (Id.,¶ 16). 5 IV. PLAINTIFFS’ NEGLIGENT REPAIR CLAIM IS WELL PLEAD AND NOT 6 BARRED 7 A. Economic Loss Rule Does Not Bar Negligent Repair Claims 8 Defendants do not cite a single case holding that negligent repair claims are barred by the 9 economic loss rule. This is no surprise, given that courts have consistently held directly to the contrary. 10 "California decisional law has long recognized that the economic loss rule does not necessarily bar 11 recovery in tort for damage that a defective product (e.g., a window) causes to other portions of a 12 larger product (e.g., a house) into which the former has been incorporated." Jimenez v. Superior Court, 13 29 Cal. 4th 473, 483-84 (2002) . MY’s reliance on Jimenez to claim that negligent repair claims 14 “cannot survive in the absence of personal injuries or property damage to property other than the 15 subject vehicle” is misplaced. (Def’s MPA, 3:24-45, emphasis added.) A negligent repair claim can 16 be maintained, and the economic loss rule would not bar “recovery in tort for damage that . . . 17 subcomponents cause to the engine as a whole or for damage that the engine caused to the Vehicle . . .” 18 (Sabicer v. Ford Motor Company (2019) 362 F.Supp.3d 837, 841, citing Jimenez.) The concept of 19 recoverable physical injury or property damage includes damage to one part of a product caused by 20 another, defective part. (Jimenez, supra, citing Aas v. Superior Court (2000) 24 Cal.4th 627, 641.) 21 Federal district courts in California have consistently imported the Jimenez component 22 exception into the vehicle defect/negligent repair context, holding that the economic loss rule does 23 not apply to negligent repair claims where subcomponents of a vehicle cause damage to a larger 24 component or where the component causes damage to the vehicle into which it has been incorporated. 25 (See Sabicer v. Ford Motor Company (2019) 362 F.Supp.3d 837, 841, "Plaintiffs allege problems 26 with various subcomponents of the engine, including the rear driveshaft, engine compartment, and 27 turbocharger. [] The economic loss rule would not bar recovery in tort for damage that these 28 subcomponents cause to the engine as a whole or for damage that the engine caused to the Vehicle in 8 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 which it has been incorporated."); (Velasco v. Ford Motor Co. (S.D. Cal. June 24, 2022) 2022 WL 2 2287258, at 4, "Multiple district courts, including this Court, have recognized the potential 3 applicability of the component exception in cases involving negligent repair claims against parties 4 sought to be joined in breach of warranty cases against manufacturers."); (See also Magana v. Ford 5 Motor Co., 2019 WL 7165920, at *4 (N.D. Cal. Dec. 16, 2019); Nellett v. Ford Motor Co., 2019 WL 6 6302156, at *4 (N.D. Cal. Nov. 25, 2019); White v. Ford Motor Co., 2019 WL 6694735, at *4 (N.D. 7 Cal. Nov. 21, 2019); Madison v. Ford Motor Co., 2019 WL 3562386, at **2-3 (E.D. Cal. Aug. 6, 8 2019); Martin Lopez v. Ford Motor Co., 2019 WL 5444391, at *2 (C.D. Cal. July 18, 2019); Elizabeth 9 Lopez v. Ford Motor Co., 2019 WL 2023725, at *3 (C.D. Cal. May 8, 2019); Krasner v. Ford Motor 10 Co., 2019 WL 1428116, at *4 (E.D. Cal. Mar. 29, 2019); McKeown v. Ford Motor Co., 2019 WL 11 1199468, at *3 (C.D. Cal. Mar. 13, 2019); Ruiz v. FCA US LLC, 2019 WL 4137613, at *2 (C.D. Cal. 12 May 31, 2019); Reyes v. FCA US LLC, 2020 WL 7224286, at *9 (E.D. Cal. Dec. 8, 2020). 3 13 While Defendant cites Robinson Helicopter, Defendant has neglected to inform the Court that 14 Robinson involves the applicability of the economic loss rule to fraud claims, not negligent repair 15 claims. (See Robinson Helicopter Co. v. Dana Corp., 34 Cal. 4th 979, 984 (2004) ("In this case, we 16 decide whether the economic loss rule … applies to claims for intentional misrepresentation or fraud 17 in the performance of a contract.") Thus, Robinson is inapplicable to Plaintiffs’ negligent repair claim. 18 Moreover, under California law, the economic loss rule does not apply to cases involving the 19 negligent performance of services. (See N. Am. Chem. Co. v. Superior Court (1997) 59 Cal. App. 20 4th 764, 777–81, (holding the economic loss rule does not apply in cases involving the negligent 21 performance of services that results in foreseeable economic loss); J'Aire Corp. v. Gregory, 24 Cal. 22 3d 799, 805 (1979) (California Supreme Court holding that a plaintiff could recover in tort for loss 23 of expected economic advantage—without accompanying personal injury or property damage—from 24 a defendant's negligent performance of a contract if there was a “special relationship” between the 25 26 3 On reply, Defendants may seek to distinguish these cases on the grounds that they occurred in the remand context. Such an argument would be misguided. "[T]he broader discussion in such cases is relevant insofar as it addresses 27 the principles at issue [on a motion for judgment on the pleadings]." Vanella v. Ford Motor Company, 2020 WL 887975, at *3 n.4 (N.D. Cal. Feb. 24, 2020). Similarly, here, the cases cited above bear directly on Defendants' economic loss 28 rule argument. 9 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 parties); N. Am. Chem., supra, 59 Cal. App. 4th at 783 (extending J'Aire to cases where the parties 2 were not in contractual privity); Ott v. Alfa-Laval Agri, Inc., 31 Cal. App. 4th 1439, 1448 (1995) 3 (same); Pisano v. Am. Leasing, 146 Cal. App. 3d 194, 197 (1983) (same). 4 B. Plaintiffs Have Adequately Pled Negligent Repair, Including Damages 5 To state a viable claim for negligent repair, a plaintiff need only allege that the repair facility 6 attempted repairs, and, during those repairs, it failed to act in accordance with relevant industry 7 standards, causing plaintiff damage. (Lytle v. Ford Motor Co. (E.D.Cal. 2018) No. 2:18-cv-1628 8 WBS EFB, 2018 WL 4793800; citing Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072). In 9 the current case, Plaintiffs’ FAC clearly meets this burden for alleging negligent repair as Plaintiffs 10 alleged that Defendant JIM BURKE owed a duty to Plaintiffs to use ordinary care, that Def. JIMI 11 BURKE breached said duty; and said breach caused damage to Plaintiffs. (FAC, ¶¶s 52-55). Holding 12 that Plaintiffs’ pleading is sufficient comports with precedent and with the weight of decisions in 13 similar cases. (See also Wadlow v. Ford Motor Co. (E.D. Cal. Apr. 23, 2019) 2019 WL 1773489, at 14 3; see also McKeown v. Ford Motor Co. (C.D. Cal. Mar. 13, 2019) 2019 WL 1199468, at 2). 15 To adequately plead damages for the negligent repair of a vehicle, plaintiffs need only allege 16 that they "sustained damages due to [the repair facility's] failure to properly store, prepare, diagnose 17 and/or repair the Vehicle in accordance with industry standards." See Viveros v. Ford Motor Co., 18 2021 WL 5989365, at *7 (S.D. Cal. July 28, 2021). See also Malijen v. Ford Motor Co., 2020 WL 19 5934298, at *4 (C.D. Cal. Aug. 20, 2020). 4 Plaintiffs have clearly done that here, and thus the 20 negligent repair claim if sufficiently plead. 21 V. CONCLUSION 22 Based on the foregoing, Plaintiffs’ request that Defendants’ Demurrer we overruled in its 23 entirety. In the alternative, should the Court grant in part or whole Defendants’ demurrer, Plaintiffs 24 request leave to amend, as further facts (ie. regarding the repair history) can be added. See Vaccaro 25 v. Kaiman (1998) 63 Cal.App.4th 761,768; Aubry v. Tri-City Hosp. Dist., 2 Cal. 4th 962, 971, 831 26 4 Cases that occur in the remand context are relevant to pleading attacks because "the broader discussion in 27 such cases is relevant insofar as it addresses the principles at issue [on a motion for judgment on the pleadings]." Vanella v. Ford Motor Company, 2020 WL 887975, at *3 n.4 (N.D. Cal. Feb. 24, 2020). Similarly, here, the cases cited above 28 bear directly on Defendant’s damages argument. 10 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 P.2d 317, 323 (1992); Beckstead v. Superior Court (1971) 21 Cal. App. 3d 780, 782. 2 3 Respectfully submitted, 4 Dated: December 22, 2022 STRATEGIC LEGAL PRACTICES, APC 5 By: Daniel Law 6 Attorney for Plaintiffs 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC PROOF OF SERVICE 1 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and 3 not a party to the within action. My business address is Strategic Legal Practices, 1888 Century Park East, 19th Floor, Los Angeles, California 90067. 4 On December 22, 2022, I served the document(s) described as: 5 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 6 on the interested parties in this action by sending [ ] the original [or] [] a true copy thereof 7 [] to interested parties as follows [or] [ ] as stated on the attached service list: 8 Michael D. Mortenson - mmortenson@mortensontaggart.com Craig A. Taggart - ctaggart@mortensontaggart.com 9 Hannah L. Miller - hmiller@mortensontaggart.com service@mortensontaggart.com 10 MORTENSON TAGGART ADAMS LLP 11 300 Spectrum Center Dr., Suite 1200 Irvine, CA 92618 12 Telephone: (949) 774-2224 Facsimile: (949) 774-2545 13 [ ] BY MAIL (ENCLOSED IN A SEALED ENVELOPE): I deposited the envelope(s) fo mailing in the ordinary course of business at Los Angeles, California. I am “readily familiar 14 with this firm’s practice of collection and processing correspondence for mailing. Unde that practice, sealed envelopes are deposited with the U.S. Postal Service that same day i 15 the ordinary course of business with postage thereon fully prepaid at Los Angeles, California 16 [X] BY E-MAIL: I hereby certify that this document was served from Los Angeles, California by e-email delivery as agreed between the parties on the parties listed herein at their mos 17 known e-mail address or e-mail of record in this action 18 [ ] BY OVERNIGHT DELIVERY: I am “readily familiar” with this firm’s practice o 19 collection and processing correspondence for overnight delivery. Under that practice overnight packages are enclosed in a sealed envelope with a packing slip attached theret fully prepaid. The packages are picked up by the carrier at our offices or delivered by ou 20 office to a designated collection site. 21 I declare under penalty of perjury under the laws of the State of California that the foregoing 22 is true and correct. Executed this December 22, 2022, at Los Angeles, California. 23 Respectfully submitted, 24 Dated: December 22, 2022 STRATEGIC LEGAL PRACTICES, APC 25 By: Daniel Law 26 dlaw@slpattorney.com 27 28 12 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC