Galvan-Padilla, Jose De Jesus vs. Nissan North America, Inc.

Case No.: VCU329280 Date: July 28, 2026 Time: 8:30 A.M. Dept. 2-The Honorable Bret D. Hillman Motion: Defendant's Motion to Strike Tentative Ruling: To grant the motion with leave to amend; Plaintiff shall have ten (10) days to file an amended complaint.

Facts In this matter filed December 16, 2025, Plaintiff sues Defendants Nissan North America and Groppetti, Ltd, dba Nissan of Visalia, for: 1. Violation of Song-Beverly Act - Breach Of Express Warranty; 2. Violation of Song-Beverly Act - Breach of Implied Warranty; 3. Violation of The Song Beverly Act Section 1793.2; and 4. Negligent Repair. Plaintiff seeks restitution or replacement of the Vehicle and civil penalties under Civil Code section 1794(c) for alleged intentional failures. (Complaint P.P.32-24, 37, 48.)

Defendant Nissan seeks to strike the following: 1. Complaint Paragraph 33: "By failure of Defendant to remedy the defects as alleged above or to issue a refund or replacement vehicle, Defendant is in breach of its obligations under the Song-Beverly Act."; 2. Complaint Paragraph 64: "Plaintiff is entitled in addition to the amounts recovered, a civil penalty of up to two times the amount of actual damages in that NISSAN NORTH AMERICA, INC. has willfully failed to comply with its responsibilities under the Act."; and 3. Complaint Page 10, prayer for relief P. 5 "For civil penalty in the amount of two times Plaintiff's actual damages."

Nissan argues that Plaintiff cannot seek penalties under Civil Code section 1794(c) because Plaintiff has failed to allege prelitigation notice and demand allegations required under Code of Civil Procedure section 871.24. Nissan seeks judicial notice that Nissan has elected to be governed by the prelitigation notice requirements codified in section 871.24 as well as to the legislation and committee analysis thereof.

In opposition, Plaintiff states "Defendant relies exclusively on the face of the Complaint and identifies only what it contends is a pleading omission. The Motion does not establish that Plaintiff failed to comply with Code of Civil Procedure section 871.24 before commencing this action." Plaintiff seeks leave to amend.

Authority and Analysis Code of Civil Procedure Sec. 871.24 provides that at least thirty days prior to filing suit, a plaintiff shall, while in possession of the motor vehicle at issue: "(1) Notify the manufacturer of the consumer's name, the accurate Vehicle Identification Number ("VIN") of the motor vehicle, and a brief summary of the repair history and problems with the motor vehicle[; and] (2) Demand that the manufacturer repurchase or replace the motor vehicle." (Code Civ. Proc., Sec. 871.24(a).)

While a failure to comply does not prevent a plaintiff from filing the lawsuit under Song Beverly, the recovery of civil penalties is barred. (Code Civ. Proc., Sec. 871.24 (h).) "Minor deviations in the notice submitted pursuant to subdivision (a) shall not disqualify consumers from seeking civil penalties." (Code Civ. Proc., Sec. 871.24 (b).)

When a statute creates a right but attaches specific conditions to exercise that right, those conditions are mandatory. (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 371,)

Code Civ. Proc. Sec.871.24(h) states: "An action seeking restitution or replacement under Section 871.20 may be commenced without compliance with subdivision (a). In that event, the consumer shall have possession of the motor vehicle at the time of the filing of the complaint, and shall not seek civil penalties, whether by amendment of the complaint or otherwise. If, however, notice is provided pursuant to subdivision (a) and the manufacturer fails to comply with their obligations under subdivision (e), the consumer may commence an action for restitution or replacement, including, but not limited to, civil penalties under subdivision (c) of Section 1794 of the Civil Code." (Code Civ. Proc. Sec.871.24(h).)

Here, Plaintiff has not alleged compliance with Code Civ. Proc. Sec.871.24(a) as to notifying Nissan at least thirty days prior to the commencement of this lawsuit with information regarding the consumer's name, the accurate Vehicle Identification Number ("VIN") of the motor vehicle, and a brief summary of the repair history and problems with the motor vehicle and a demand for repurchase or replacement. As such, the Court grants the motion to strike.

However, because the complaint may be amended to cure this deficiency, the Court grants leave to amend. Plaintiff shall file an amended complaint no later than ten (10) days from the date of this hearing.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Garza, Alejandro vs. Gipson Farms, Inc.