Demurrer to affirmative defenses
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9:00 25CV486109 Sonia Bhaskar et.al. See below. 13 vs BMW of North America
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Case Name: Bhaskar, et al. v. BMW of North America, LLC, et al. Case No.: 26CV486109
On February 4, 2026, plaintiffs Sonia Bhaskar and Peter Petersen (collectively, “Plaintiffs”) filed a complaint against defendant BMW of North America, LLC (“Defendant” or “BMW”), asserting causes of action for violation of the Song-Beverly Act—Breach of Express Warranty, violation of the Song-Beverly Act—Breach of Implied Warranty, and violation of the Song-Beverly Act, section 1793.2(b). On March 12, 2026, BMW filed an answer including a general denial and 29 affirmative defenses. Plaintiffs demur to the second through twenty-ninth affirmative defenses.
Second through fourth, tenth, eleventh and fifteenth affirmative defenses
Plaintiffs argue that the second through fourth, tenth, eleventh and fifteenth affirmative defenses “are simply legal conclusions and allege no facts sufficient to constitute a defense.” (Pls.’ memorandum of points and authorities in support of demurrer to answer (“Pls.’ memo”), p.9:10-12.) Ironically, Plaintiffs’ argument points to no specific allegations to support their argument and their assertion that these affirmative defenses are simply legal conclusions is itself a legal conclusion.
Plaintiffs also argue that these affirmative defenses “lacks the specificity required of the Code” (Pls.’ memo, p.9:23); however, the case cited—
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Public Utilities Com. (2010) 187 Cal.App.4th 688, 697 (stating that “[t]he parties are required to support their points with argument, any case authority, and record citations”); see also In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 (stating that “[w]e are not bound to develop appellants’ arguments for them... [t]he absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived”); see also Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1008 (stating that “[w]hen an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”).)
Plaintiffs’ demurrer to the second through fourth, tenth, eleventh and fifteenth affirmative defenses is OVERRULED.
Fifth, sixth, eighth, twelfth through fourteenth, sixteenth through twenty-eighth affirmative defenses
As to the fifth, sixth, eighth, twelfth through fourteenth, sixteenth through twenty-eighth affirmative defenses, Plaintiffs repeats the argument regarding their demurrer to the second through fourth, tenth, eleventh and fifteenth affirmative defenses, likewise arguing that they are “simply legal conclusions and allege no facts sufficient to constitute a defense” and “lacks the specificity required of the Code” without explaining why the allegations of the sixth affirmative defense are inadequate. (See Pls.’ memo, pp. 9:18-28, 10:1-28, 11:1-28, 12:1-28, 13:1-28, 14:1- 28, 15:1-3.)
For identical reasons, Plaintiffs’ demurrer to the fifth, sixth, eighth, twelfth through fourteenth, sixteenth through twenty-eighth affirmative defenses is likewise OVERRULED. (See Utility Consumers' Action Network, supra, 187 Cal.App.4th at p. 697 (stating that “[t]he parties are required to support their points with argument, any case authority, and record citations”); see also In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830 (stating that “[w]e are not bound to develop appellants’ arguments for them... [t]he absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived”); see also City of Ontario v.
We Buy Houses Any Condition, LLC (2024) 103 Cal.App.5th 1212, 1223 (stating same); see also Trinity Risk Management, supra, 59 Cal.App.5th at p. 1008 (stating that “[w]hen an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”); see also Utility Consumers' Action Network, supra, 187 Cal.App.4th at p. 697 (stating that “[t]he parties are required to support their points with argument, any case authority, and record citations”).)
Seventh affirmative defense
As to the seventh affirmative defense, Plaintiffs argue, without citation to any authority that “[t]his affirmative defense is not legally cognizable, and therefore improper.” (Pls.’ memo, p.15:16.) However, as previously stated, Plaintiffs’ failure to cite to any case authority to support this argument is an unacceptable deficiency as the Court may not develop Plaintiffs’ argument for them. (See In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830 (stating that “[w]e are not bound to develop appellants’ arguments for them... [t]he absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived”); see also City of Ontario, supra, 103 Cal.App.5th at p. 1223 (stating same); see also Trinity Risk Management, supra, 59 Cal.App.5th at p. 1008 (stating that “[w]hen an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”).
Plaintiffs also again argue that “this defense is insufficient in that it is simply a legal conclusion and alleges no facts sufficient to constitute a defense” (Pls.’ memo, p.15:17-18); however, as stated above, Plaintiffs do not articulate how the seventh affirmative defense specifically fails to allege the elements of the affirmative defense, and the assertion that the affirmative defense is simply a legal conclusion is itself a legal conclusion. Plaintiffs’ demurrer to the seventh affirmative defense is OVERRULED.
Ninth affirmative defense
Citing Davenport v. Stratton (1944) 24 Cal.2d 232, and Brown v. World Church (1969) 272 Cal.App.2d 684, Plaintiffs argue that the ninth affirmative defense of statute of limitations fails to state facts sufficient to constitute an affirmative defense because it does not specify the applicable statute and subdivision. (See Davenport, supra, 2 Cal.2d at pp.246-251; see also Brown, supra, 272 Cal.App.2d at p. 691 (stating that “[i]t is necessary for defendant who pleads the statute of limitations to specify the applicable section, and, if such section is divided into subdivisions, to specify the particular subdivision or subdivisions thereof.
If he fails to do so the plea is insufficient”).) The ninth affirmative defense alleges that “Plaintiff’s causes of action as alleged in his Complaint are barred by the applicable statutes of limitations, including but not limited to: Civil Code sections 335.1, 337, 338, 338.1, and 340 et. seq.; Civil Code sections 1783 and 1791.1; and/or Commercial Code section 2725.” (Def.’s answer to complaint, ninth affirmative defense.) Code of Civil Procedure sections 335.1 and 338.1 and Civil Code section 1783 do not have subdivisions.
Thus, the ninth affirmative defense adequately states facts sufficient to constitute an affirmative defense as to those statutes of limitations, and a plaintiff may not demur to a portion of an affirmative defense. (See PH II, Inc. v. Super. Ct. (Ibershof) (1995) 33 Cal.App.4th 1680, 1681 (stating that “a party may not demur to a portion of a cause of action”); see also Ellena v. Department of Ins. (2014) 230 Cal.App.4th 198, 217 (stating same); see also Munoz v. Patel (2022) 81 Cal.App.5th 761, 780, fn. 9 (stating that “[o]rdinarily, a general demurrer does not lie as to a portion of a cause of action, and if any part of a cause of action is properly pleaded, the demurrer will be overruled”).)
Plaintiffs’ demurrer to the ninth affirmative defense is OVERRULED.
Twenty-ninth affirmative defense
Plaintiffs demur to the twenty-ninth affirmative defense of “reservation of defenses,” arguing that “[a] party cannot reserve the right to assert future defenses without actually pleading them.” (Pls.’ memo, p.15:22.) That is because “[a] party who fails to plead affirmative defenses waives them.” (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 813; see also Department of Finance v. City of Merced (2019) 33 Cal.App.5th 286, 294 (stating same).) In opposition, Defendant asserts that “BMW NA’s reservation of the right to assert additional defenses based on information obtained through discovery is proper at this early stage of litigation, where discovery has not yet occurred...
Plaintiffs have identified no prejudice arising from this reservation, and it does not render the Answer defective.” (Def.’s opposition to demurrer (“Opposition”), p.4:15-17.) However, as stated above, Defendant is incorrect; it may not plead a right to assert future defenses because its failure to plead those defenses waives them.
Plaintiffs’ demurrer to the twenty-ninth affirmative defense is SUSTAINED without leave to amend.
Defendant shall prepare and submit a proposed final order consistent with this tentative ruling.
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