Demurrer to Amended Complaint
On 3/12/26, Defendant Nicholas Dutra filed and served his memorandum of costs.
Defendant did not attach a Memorandum of Costs Worksheet (Form MC-011). He did attach an “Activities Export” listing various fees presumably incurred.
Plaintiffs argue that the memorandum should be stricken in its entirety because Defendant did not include the Worksheet which they contend is required. There is no legal authority that supports that the Worksheet is required in addition to the verified Memorandum on Form MC-010. (See CRC, Rule 3.1700.) Supporting documentation of the claimed costs is not required until and unless the costs have been put in issue via a motion to strike or tax the costs. (See Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)
Therefore, the motion to strike all costs in their entirety based on Defendant’s failure to file the worksheet is denied.
As for specific costs items, the Court taxes $3,283.40 from Defendant’s claimed filing and motion fees and $2,840.93 representing the costs claimed as “Other.”
Plaintiffs contend that only $620 has been shown as proper filing fees. The Court has reviewed the “Activities Export” attached to Defendant’s memorandum of costs, and finds that there are additional proper filing fees claimed, resulting in a total of $873.90.
The Court agrees that the “Other” category of $2,840.93 should be stricken.
Defendant did not file an opposition and thus fails to meet his burden to show that these costs were reasonable and necessary.
Based on the foregoing, the Court taxes Defendant Nicholas Dutra’s costs in the amount of $6,124.33, and allows $2,792.02.
Plaintiffs shall give notice.
Motion to Tax Costs of Mitchell Zogob and Motion to Tax Costs of Therese Harris and Grace C. Dearmin
Tentative rulings issued by Court 7-13-2026.
105 2025-01468377 Demurrer to Amended Complaint
Wayland vs. Defendant General Motors, LLC’s unopposed demurrer to Plaintiff Mark Wayland’s First General Motors, Amended Complaint is sustained with 15 days leave to amend. LLC A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126
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Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) On demurrer, a complaint must be liberally construed. (CCP § 452; Stevens v.
Superior Court (1999) 75 Cal.App.4th 594, 601.) All material facts properly pleaded, and reasonable inferences, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.)
Defendant contends that all of Plaintiff’s claims are time-barred by the “statute of repose” in Code Civ. Proc., § 871.21, and the statutes of limitations in Cal. U. Com. Code, § 2725 and Code Civ. Proc., § 338(d).
The Court is not persuaded by Defendant’s arguments regarding Code Civ. Proc., § 871.21. In particular, retroactive application of this statute limiting a plaintiff’s time to file suit would seem to violate their due process rights pursuant to Rosefield Packing Co. v. Superior Court (1935) 4 Cal.2d 120, 122-23. There is no indication in the legislative history of § 871.21 that application should be retroactive; it would thus seem that the statute should only be applied prospectively. (See Evangelatos v.
Superior Ct. (1988) 44 Cal. 3d 1188, 1193–94; Quarry v. Doe I, (2012) 53 Cal.4th 945 (“In construing statutes, there is a presumption against retroactive application unless the Legislature plainly has directed otherwise by means of express language of retroactivity or ... other sources that provide a clear and unavoidable implication that the Legislature intended retroactive application.”); Niagara Fire Ins. Co. v. Cole (1965) 235 Cal. App. 2d 40, 42–43 (“a statute shortening the period of limitations cannot be applied retroactively to wipe out an accrued cause of action that is not barred by the then applicable statute of limitations....
Even when applied prospectively, the claimant must be allowed a reasonable time within which to proceed with his cause of action.”) (citation omitted).)
Notwithstanding this, the Court does agree with Defendant that Plaintiff’s allegations are not sufficient to support tolling or application of the delayed discovery rule.
Cal. U. Com. Code, § 2725 provides that the statute of limitations for Plaintiff’s Song- Beverly claims (i.e., “an action for breach of any contract for sale”) is four years. (See Mexia v. Rinker Coat Co., Inc. (2009) 174 Cal.App.4th 1297 [“the statute of limitations for an action for breach of warranty under the Song–Beverly Act is governed by the same statute that governs the statute of limitations for warranties arising under the Uniform Commercial Code: section 2725 of the Uniform Commercial Code . . . ‘(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.... [¶] (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach.
A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered”].)
Where a complaint on its face appears time-barred, the plaintiff must affirmatively “plead around” the statute of limitations defense. (See, e.g., Lewis v. Security-First Nat. Bank of Los Angeles (1943) 58 Cal. App. 2d 827, 829 [The delayed discovery rule is not satisfied by the mere allegation that plaintiff did not discover the fraud prior to a designated date.]) Moreover, the plaintiff must plead those facts with particularity, like he would a fraud cause of action. (Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 227-228 [“plaintiff must state in his complaint when the discovery was made, the circumstances under which it was made, and facts to show that [he] is not at fault for not having made an earlier discovery, and that he had no actual or presumptive knowledge of facts sufficient to put him on inquiry.”])
Plaintiff alleges in the FAC that he purchased the subject vehicle more than ten years ago, on 6/7/15. (FAC, ¶ 6.) Plaintiff alleges a number of times starting from October 11, 2016 to April 23, 2025, during which he presented the vehicle for various repairs. (FAC, ¶¶ 13-17.) Plaintiff alleges that he discovered Defendants’ wrongful conduct shortly before filing the Complaint. (FAC, ¶ 36.)
He alleges that the statute of limitations has been tolled due to equitable tolling, the discovery rule, equitable estoppel, the repair rule, and/or class action tolling. (FAC, ¶ 35.)
The allegations are extremely general and not pled with particularity as required in Weinstock, supra, 224 Cal.App.2d at 227-228. Plaintiff describes his repair attempts for issues with the exhaust pipe, the radio, and the brakes. However, Plaintiff’s primary issue with the vehicle seems to be an engine defect. (FAC, ¶¶ 9, 74.) Plaintiff does not state any facts regarding the circumstances of his discovery of the engine defect and Defendant’s alleged wrongful conduct with respect to the same.
With respect to the fraud cause of action, the statute of limitations is only three years pursuant to Code Civ. Proc. § 338(d).
Plaintiff alleges in a somewhat conclusory fashion that Defendant concealed material facts about the vehicle’s alleged defects, intending to induce Plaintiff to purchase it. (FAC ¶¶ 73- 82.) Plaintiff fails to specifically plead facts to circumvent Defendant’s statute of limitations defense.
Accordingly, based on the foregoing, the Court sustains Defendant’s demurrer in its entirety with leave to amend.
Defendant General Motors, LLC shall give notice.
106 2025-01482732 1. Demurrer to Amended Complaint 2. Case Management Conference Cylinder Enterprises, Inc. The general demurrer by Defendant City of Garden Grove (“Defendant”) to the first and vs. City of Garden second causes of action alleged in the First Amended Complaint (“FAC”) filed by Plaintiff Grove Cylinder Enterprises, Inc. dba Finish Line Towing and Transport (“Plaintiff”) is sustained without leave to amend.
Defendant’s unopposed requests to take judicial notice of Defendant’s municipal codes are granted. (Evid. Code, § 452, subd. (b); Madrigal v. City of Huntington Beach (2007) 147 Cal.App.4th 1375, 1384 [Taking judicial notice of Municipal Code.].)
First cause of action for breach of contract “[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
Plaintiff did not allege sufficient facts to show Defendant breached the agreement. Plaintiff contends that Plaintiff’s addition of paragraph 28 addresses the Court’s ruling on Defendant’s demurrer to the first cause of action as alleged in Plaintiff’s initial complaint. Plaintiff contends section 17.2 is ambiguous as to whether Defendant would pay Plaintiff for all charges incurred at the time of termination.