RENTERIA ENCINAS VS VOLKSWAGEN GROUP OF AMERICA, INC.

1. CASE # CASE NAME HEARING NAME HEARING RE: DEMURRER ON 1ST AMENDED COMPLAINT FOR BREACH OF CONTRACT/WARRANTY (OVER RENTERIA ENCINAS VS $25,000) OF LEVI JAZIEL RENTERIA CVPS2306340 VOLKSWAGEN GROUP OF ENCINAS BY BN DEALERSHIP II, A AMERICA, INC. CALIFORNIA LIMITED LIABILITY COMPANY, GREAT AMERICAN INSURANCE COMPANY, AN OHIO CORPORATION Tentative Ruling: Sustained and overruled in part.

Sustained with leave to amend as to 1st, 3rd, 6th, 7th, and 8th causes of action. Overruled as to 9th cause of action. Plaintiff granted one final opportunity to amend and file a second amended complaint within 5 days of this order becoming final.

Moving Defendant to provide notice pursuant to CCP 1019.5.

This is a Lemon law matter. The operative complaint was filed on December 29, 2023 solely against Volkswagen Group of America. On January 17, 2025, Plaintiff filed amendments to complaint to add Doe 1 (BN Dealership II), Doe 2 (Great American Insurance Co.) and Doe 3 (Path Automotive LLC.) Defendant Great American Insurance Co.’s counsel had a conflict of interest and their motion to be relieved as counsel was granted on November 24, 2025. Initially, Volkswagen accepted the defense of the newly added defendants and continued the litigation. However, almost a year later on September 25, 2025, VW asserted it had a conflict of interest with the other defendants and withdrew its defense. A substitution of attorney was filed on December 15, 2025.

After the Court granted a motion for leave to amend the Complaint on June 18, 2026, Plaintiff filed a First Amended Complaint (“FAC”) on The operative FAC on the same date. The FAC is the operative pleading, and alleges causes of action for: (1) Violation of the Song-Beverly Act – Breach of Express Warranty; (2) Violation of the Song-Beverly Act – Breach of Implied Warranty; (3) Breach of Express Warranty Pursuant to California Commercial Code; (4) Violation of the Consumers Legal Remedies Act – Civil Code § 1750, et seq.; (5) Violation of the Unfair Competition Law, Bus. & Prof. Code §17200, et seq.; (6) Fraud and Deceit; (7) Negligent Misrepresentation; (8) Negligent Repair; and (9) Violation of Civil Code § 1796.5.

Defendants now demurrer to the FAC as follows: Great American demurrers to the FAC in its entirety and both Great American and BN demurrer to the 1st, 3rd, 6th, 7th, 8 and 9th causes of action on grounds of failure to state facts sufficient to constitute a cause of action and uncertainty.

In Opposition, Plaintiff contends that the causes of action at issue are properly alleged and that the demurrer does not address the 3rd cause of action. Should the Court sustain the demurrer, leave to amend is requested.

Demurrer

The function of a demurrer is to test the legal sufficiency of a pleading, but not the truthfulness of the allegations. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Id.)

Entire 1st Amended Complaint as to Defendant Great American Insurance Co.

It is undisputed that the only allegation against Great American is that it is an Ohio Corporation operating and doing business in the State of California (FAC ¶ 5). From this, Plaintiff concludes that Moving Defendants have not met their burden of showing no cause of action is stated. Apparently, Plaintiff’s position is that “GAIC is BN’s insurer” (a fact not alleged in the FAC) and “BN is the primary actor” for liability, thus “GAIC’s liability flows directly from BN's conduct without requiring independent factual allegations.” (Opposition, 7:26 – 8:1.) As noted by Moving Defendants, Plaintiff offers no basis for this logic.

Again, there is no allegation Great American is BN’s insurer. Next, even if such a relationship were alleged, there are no allegations of conduct by Great American which would support its liability for any cause of action. Finally, Plaintiff’s apparent conclusion that every insurer is liable to a third party plaintiff for its insured’s torts lacks any legal support. It this were the case, every automobile accident would result in the drivers’ insurers named as defendants in every lawsuit. SUSTAINED WITH LEAVE TO AMEND

1ST Cause of Action - Breach of Express Warranty

The elements for the cause of action are that “(1) the vehicle had a defect or nonconformity covered by a written warranty that substantially impaired the vehicle's use, value, or safety to a reasonable person in plaintiff's shoes (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer for repair (the presentation element); (3) the manufacturer or its authorized repair facility did not repair the defect after a reasonable number of repair attempts (the failure to repair element); and (4) the manufacturer did not promptly replace or repurchase the vehicle from the plaintiff (the failure to replace or repurchase element).” (Carver v. Volkswagen Group of America, Inc. (2024) 107 Cal.App.5th 864 879; see also Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 152.)

Here, there are two fatal defects in this cause of action noted by Defendants. First, the cause of action is based on the allegation that Volkswagen Group of America provided an express Certified Pre-Owned Warranty, New Vehicle Limited Warranty, and Emissions Control Warranty. (FAC, ¶ 37.) There is no allegation BN (or Great American, of course) provided any warranty. To prevail on a breach of express warranty claim under the Song-Beverly Act, a plaintiff must prove that the seller "(1) made an affirmation of fact or promise or provided a description of its good; (2) the promise or description formed part of the basis of the bargain; (3) the express warranty was breached; and (4) the breach caused injury to the plaintiff." (Bakhtiar v. FCA US LLC (C.D.Cal. Apr. 9, 2021, No. 2:20-cv06522-ODW (JEMx)) 2021 U.S.Dist.LEXIS 144485, at *7.)

While the Opposition contends no warranty was issued by BN at the time of the sale of the Subject Vehicle. (Opposition, pg. 7:18-26). However, the Opposition fails to address the fact that the warranty was provided by Defendant Volkswagen Group of America, not BN. (FAC, ¶ 37.) Thus, the resulting liability for any breach falls on the manufacturer under the fourth element of the cause of action.

Second, a plaintiff pursuing an action under the Act has the burden to plead and prove that (1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element). (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101 [emphasis added].

Here, the FAC alleges six nonconformities occurred by September 27, 2023. (FAC, ¶¶ 28-34.) However, it appears each of the nonconformities was repaired without reoccurrence. Specifically:

#1. Date / Mileage: April 7, 2022 / 9,845 miles Alleged Defect: lack power when shifting and vibrate Service: BN confirmed a misfire in the vehicle’s engine - replaced an injector and installed a new engine harness. (FAC, ¶ 29.)

#2. Date / Mileage: October 3, 2022 / 19,365 miles Alleged Defect: “check engine” light illuminated Service: Defect was verified and its software updated. (Id. at ¶ 30.)

#3. Date / Mileage: July 7, 2023 / 37,333 miles Alleged Defect: “check engine” light illuminated and the vehicle’s computer to ask to reduce the oil level. Service: “The repair facility’s technicians recommended that Plaintiff perform a recall to address the ‘check engine light’ and that the vehicle’s oil was over-filled.” (Id. at ¶ 31.)

#4. Date Mileage: July 13, 2023 / unspecified mileage Alleged Defect: “check engine”

light illuminated and fuel delivery module recall Service: Repaired (Id. at ¶ 32.)

#5. Date / Mileage: August 16, 2023 / 39,173 miles Alleged Defect: “check engine” light

illuminated Service: verified the concern and replaced the EVAP leak detection pump. (Id. at ¶ 33.)

#6. Date / Mileage: September 20, 2023 / 42,348 miles Alleged Defect: “check engine” light illuminated Service: verified the concern and VW technicians replaced the vehicle’s pressure regulator valve on the evap. system. (Id. at ¶ 34.)

It appears each of the nonconformities was repaired. The FAC also fails to allege which express warranty was applicable for each of the listed issues. In the Opposition, Plaintiff contends that “Defendants’ statement that the complaints were repaired and did not reoccur appear to be fabricated by Defendants”. (Opposition, 10:3-4.) Plaintiff never alleged the same “nonconformity” twice and each service corrected the stated problem. Under Song-Beverly, a nonconformity "is similar to what the average person would understand to be a ‘defect’” “which substantially impairs the use, value, or safety of the new motor vehicle to the buyer or lessee." (Schreidel v. American Honda Motor Co. (1995) 34 Cal.App.4th 1242, 1249; see also, Civ. Code, § 1793.22, subd. (e)(1).) Each defect was verified and corrected according to the FAC. SUSTAINED WITH LEAVE TO AMEND

3rd Cause of Action – Breach of Express Warranty under CA UCC

The elements of a of a cause of action for breach of express warranty under the California Uniform Commercial Code mirror those under Song-Beverly - the “essential elements of a cause of action under the California Uniform Commercial Code for breach of an express warranty to repair defects are (1) an express warranty [Citation] to repair defects given in connection with the sale of goods; (2) the existence of a defect covered by the warranty; (3) the buyer's notice to the seller of such a defect within a reasonable time after its discovery [Citation]; (4) the seller's failure to repair the defect in compliance with the warranty; and (5) resulting damages.” (Orichian v.

BMW of North America, LLC (2014) 226 Cal.App.4th 1322, 1333-1334.) Consequently, the Demurrer will be sustained to the third cause of action as well, for the same reasons as discussed in connection with the 1st cause of action. SUSTAINED WITH LEAVE TO AMEND.

6th Cause of Action - Fraud and Deceit

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [quoting 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 676, p. 778].) "In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] Thus, the policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect. [Citation.] [¶] This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. [Citation.]

A plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. [Citation.]" (Id. at 645 [emphasis in original; internal quotations omitted].)

Here, Plaintiff lists nine misrepresentations / nondisclosures. Most lack any specificity regarding the who, what, when, required to plead corporate fraud. (E.g., “Advertised the vehicle to Plaintiff as ‘certified pre-owned’” (Id. at ¶ 101.a); Sold the vehicle to Plaintiff as ‘certified pre-owned’” (Id. at ¶ 101.b); “Labeled the vehicle to Plaintiff as ‘certified pre-owned’” (Id. at ¶ 101.c). Many of the other allegations are simply rote conclusory statements of the law. (E.g., “Sold an unmerchantable vehicle to Plaintiff” (Id. at ¶ 101.d); “Violated California Vehicle Code Section 11713.18(a)(9)” (Id. at ¶ 101.e); “Sold an unmerchantable vehicle that would not pass without objection in the trade” (Id. at ¶ 101.h); “Failed to provide service and repair facilities within the 30- day express warranty . . .” (Id. at ¶ 101.i).

These appear to state various elements of other causes of action such as negligence or breach of the warranty of merchantability, but not fraud. At best, this cause of action is uncertain.

Plaintiff not only does not say who at BN made the alleged misrepresentations or their authority to speak or indicate if the misrepresentation was written or only spoken, Plaintiff does not allege he even spoke with anyone from BN at any time! These allegations fail to state a cause of action for fraud and fail to place BN on notice of the basis for the cause of action.

In addition, the cause of action negates the justifiable reliance element. Assuming that Plaintiff’s position is that he relied on the representations to decide to purchase the Subject Vehicle, and one can only assume so because the element is only summarily stated as “Plaintiff was unaware of the falsity of the representations or omission and acted in reasonable reliance upon the truth of those representations and was justified in relying upon those representations” (FAC, ¶ 105) and “suffered damages” as a result (Id. at ¶ 106), Plaintiff confusingly alleges the misrepresentations were made both before and after the sale. (Id. at ¶¶ 99 & 100.) Critically missing are not only proper allegations of any misrepresentations but any allegation of BN’s intent to induce reliance, Plaintiff’s justifiable reliance or resulting damages.

In the Opposition, Plaintiff acknowledges that “more specificity is required in pleading a cause of action for fraud” (Opposition, 11:1-2), but then leaps into an incorrect statement of the law, misciting the holding in Wald v. TruSpeed Motorcars, LLC (Wald) (2010) 184 Cal.App.4th 378 as “where the specific facts regarding the identity of the corporate employee who made a misrepresentation are peculiarly within the defendant's knowledge, the pleading requirements may be relaxed.” (Id. at 11:4-6.)

Wald does not excuse Plaintiff’s failure to plead fraud with particularity. To the contrary, the court there reaffirmed that fraud must be pled specifically, including the “how, when, where, to whom, and by what means” of the alleged misrepresentation. Where the defendant is a corporation, the plaintiff must also allege the identity of the persons making the representations, their authority to speak, what they said, to whom, and when. (Id. at 393–394.)

Although Wald recognized that less specificity may be required where the defendant necessarily possesses full information concerning the facts, the court did not apply that principle to dispense with the ordinary pleading requirements. Rather, it found the complaint sufficient because Wald specifically identified the corporate representatives by name, their authority, the time and place of the statements, the recipient, and the substance of the representations. (Id. at 394.) SUSTAINED WITH LEAVE TO AMEND

7th Cause of Action - Negligent Misrepresentation

“The elements of negligent misrepresentation are '(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.'" (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50.) "While there is some conflict in the case law discussing the precise degree of particularity required in the pleading of a claim for negligent misrepresentation, there is a consensus that the causal elements, particularly the allegations of reliance, must be specifically pleaded." (Id.)

Here, the FAC relies on the prior allegations to support this cause of action. (FAC, ¶¶ 110 – 116.) No new facts are alleged. As discussed above, the allegations in the FAC fail to meet the required standard of particularity. In fact, many of the alleged misrepresentations are simply allegations of negligence. (E.g., ¶ 101.d. – i.) Likewise, there are no allegation of BN’s intent to induce reliance, Plaintiff’s justifiable reliance or resulting damages.

As noted by Moving Defendants, Plaintiff does not dispute that the FAC relies on the prior allegations to support this cause of action. Likewise, he asserts the same “reasons set forth above in support of Plaintiff’s fraud cause of action” apply here. (Opposition, 12:22-23.) Consequently, for the same reasons discussed above, this cause of action lacks merit. SUSTAINED WITHOUT LEAVE TO AMEND

8th Cause of Action - Negligent Repair

"To state a claim for negligent repair, the plaintiff must establish the elements of a standard negligence claim: duty, breach, causation, and damages." (Maldonado v. Ford Motor Co. (C.D.Cal. Jan. 28, 2026, No. 2:25-cv-07344-MAR) 2026 U.S.Dist.LEXIS 18935, at p. 6, quoting Rodriguez Andrade v. Ford Motor Co. (S.D. Cal. Mar. 20, 2023) No. 322CV00291RBMMSB, 2023 U.S. Dist. LEXIS 47583, 2023 WL 2586302, at p. 5.)

In Maldonado, the court held that “[a]lthough the Complaint is not particularly detailed, Plaintiff does allege that the Dealership owed her a duty to use ordinary care and skill in storing, preparing, and repairing her vehicle in accordance with industry standards, and that its breach of that duty damaged Plaintiff.” (Ibid.) Coincidentally, the FAC here makes the identical allegation as in Maldonado: BN “breached its duty to use ordinary care and skill by failing to properly store, prepare and repair the Vehicle in accordance with industry standards.” (FAC, ¶ 132; see also Maldonado v. Ford Motor Co., supra, at p.2.)

The difference is that here, as noted earlier, the FAC alleges six repairs by BN in 2022 and 2023. (FAC, ¶¶ 29-34.) The FAC further alleges each of those repairs were completed and vehicle was returned. (Ibid.) However, the FAC fails to allege any of those repairs were performed negligently. In fact, it appears by the allegations, that each “nonconformity” was repaired and did not reoccur. Likewise, the FAC alleges “Plaintiff continued to experience nonconformities that caused the vehicle’s “check engine” light to illuminate in June 2025, March 2025, December 2024, November 2024, October 2024, and July 2024 (Id. at ¶ 35), but does not allege what nonconformities caused the light or whether vehicle was presented for repairs to BN or that repair attempts were made. Plaintiff has not alleged any breach, causation, or damages related to service provided by BN.

Again, the FAC identifies six repair visits and then concludes that BN “breached its duty to Plaintiff to use ordinary care and skill by failing to properly store, prepare and repair the Vehicle in accordance with industry standards.” (FAC, ¶ 132.) Plaintiff argues that this allegation, coupled with allegations that the Subject Vehicle later experienced additional engine-related issues, sufficiently establishes negligent repair. But merely alleging that a vehicle required subsequent repairs does not allege that any prior repair was negligently performed.

Here, the FAC does not allege what BN negligently did or failed to do in performing any identified repair, how BN’s conduct breached the applicable standard of care, or how any such breach caused Plaintiff’s claimed damages. The mere fact that the Vehicle subsequently experienced additional problems does not establish that BN’s prior repairs were negligently performed. Nor does Plaintiff’s contention that determining the cause of the continued check-engine light requires expert testimony cure the defect. Plaintiff need not plead a technical diagnosis, but he must plead facts connecting some negligent act or omission by BN to his claimed injury. SUSTAINED WITH LEAVE TO AMEND

9th Cause of Action - Violation of Civil Code § 1796.5

“Any individual, partnership, corporation, association, or other legal relationship which engages in the business of providing service or repair to new or used consumer goods has a duty to the purchaser to perform those services in a good and workmanlike manner.” (Cal Civ Code § 1796.5.)

Defendants contend that the 9th cause of action is duplicative of the negligence cause of action and that the analysis for the 8th cause of action for negligent repair applies here. In the Opposition, Plaintiff contends that outside of arguing that this claim is duplicative, Defendant does not really address the sufficiency of the pleading.

Plaintiff’s negligent repair cause of action is a tort similar to negligence and in order to prevail, Plaintiff must establish the elements of negligence. Plaintiff’s 1796.5 cause of action differs because it is a statutory claim based on Section 1796.5. Moreover, while Plaintiff’s negligent repair claim is based on a general duty to use care in accordance with industry standards (FAC, ¶ 131), Plaintiff’s 1796.5 claim is based on a statutory duty enunciated in Civil Code section 1796.5. (FAC, ¶ 135-136). These are not only different causes of action, but Plaintiff’s Section 1796.5 cause of action is clearly based on a different theory of recovery than his negligent repair claims and, therefore, this cause of action has been pled properly. OVERRULED.

2. CASE # CASE NAME HEARING NAME KG MULLEN INC., A HEARING RE: MOTION TO COMPEL CALIFORNIA DEPOSITION OF KEVIN G MULLEN BY CVPS2501784 CORPORATION VS FAWAZ, REBECCA POLAK, AN INDIVIDUAL, AN INDIVIDUAL JONATHAN POLAK, AN INDIVIDUAL Tentative Ruling:

This is a mechanic’s lien case. On February 22, 2022, Plaintiff KG Mullen, Inc. (“Plaintiff”) entered into a written contract with Defendant Isabella and Moet Fawaz (“Fawaz”) whereby Plaintiff agreed to provide specified construction-related services including labor and materials necessary for the substantial improvements to a residential property in Palm Desert, California (“Subject Property”). Over the course of the construction project, the scope of the work was modified through written and verbal change orders that increased the cost of the project.

Plaintiff alleges that Fawaz failed to make all payments. As a result, Plaintiff was unable to complete all work on the project. On December 17, 2024, Plaintiff recorded a mechanic’s lien against the Subject Property. On December 23, 2024, Fawaz transferred titled to the Subject Property to Defendants Rebecca and Jonathan Polaks (“Defendants” or “Polaks”).

Plaintiff filed it Complaint on March 14, 2025, and the operative Second Amended Complaint (“SAC”) on August 1, 2026. The SAC includes six causes of action for: (1) Breach of Contract; (2) Foreclosure of Mechanic’ Lien; (3) Quantum Meruit and Quantum Valebant; (4) Account Stated; (5) Open Book Account; and (6) Unjust Enrichment. On September 29, 2025, the Polaks filed a Cross-Complaint against the Fawaz for: (1) Equitable Indemnification; (2) Contribution; and (3) Fraud.

On March 4, 2026, Defendants served a deposition subpoena on non-party Kevin Mullen (“Mullen”) with a deposition date of March 26, 2026. Mullen failed to appear.

Defendants now move to compel the deposition of Mullen. Defendants argues that the deposition is necessary because Mullen signed the mechanic’s lien and other important documents and is the CEO of ACL. Defendants argue that the failure to appear or contact counsel is part of a pattern of delay and refusal to participate in discovery and litigation. Defendants request $6,000 in sanctions.

Mullen argues that his failure to appear for deposition was substantially justified because he underwent an out patient surgery under general anesthesia the day before and was not capable of testifying under oath. Mullen asserts that he attempted to contact defense counsel prior to the deposition start time. Mullen argues that Defendants failed to meet and confer. Mullen states that he does not oppose the deposition, but argues that sanctions are not warranted.

In their Reply, Defendants argue that the Court should order Mullen to appear for deposition on September 10, 2026. Defendants argue that Mullen and his counsel received their meet and confer letter but failed to respond. Defendants argue that Mullen’s failure to appear and respond to meet and confer efforts were not substantially justified.

Motion to Compel Deposition

Any party may obtain discovery by taking the deposition of any person, including a party to the action. (CCP § 2025.010.) Personal service of a deposition subpoena obligates any California resident to appear, testify and produce the requested documents, and to appear in any proceedings to enforce the discovery. (CCP §2020.220(c).) If a non-party refuses to comply with