Defendant Volkswagen Group of America, Inc.’s Demurrer to Plaintiff’s Complaint
The proof of service indicates the motion was served on May 19. Factoring in the Memorial Day Court Holiday, May 19 is 15 court days before the hearing.
14. 25CV04067 Wells Fargo Bank, N.A. v. Sifton, Adrian
EVENT: Plaintiff’s Motion to Deem Requests for Admissions Admitted
Plaintiff’s Motion to Deem Requests for Admissions Admitted is GRANTED. The Court will sign the proposed order.
15. 25CV05091 De Baun, Roger Dale v. Fulton, Lauren Lynn et al.
EVENT: City of Oroville’s Demurrer to Plaintiff’s Complaint
Per CCP 472 and the First Amended Complaint (FAC) filed on May 29, the demurrer is moot. The Court notes that the FAC was filed one day late.
16. 26CV01040 Turri, Daniel Eugene James v. Volkswagen Group of America Inc.
EVENT: Defendant Volkswagen Group of America, Inc.’s Demurrer to Plaintiff’s Complaint
First and Fourth Causes of Action As Defendant noted, these causes of action are essentially duplicative as they seek remedies for failure to repurchase or replace after a reasonable number of attempts. Regarding Defendant’s argument that the Complaint fails to sufficiently allege the vehicle was new for purposes of Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189, the Court disagrees. The Court finds paragraph 10 sufficiently alleges a new vehicle as that term is defined in Rodriguez. Defendant contends that pursuant to Civ.
Code 1791.2 the complaint must identify the authorized retail entity that sold Plaintiff the vehicle. Nowhere in section 1791.2 does it require Plaintiff to identify the identity of the retailer at the pleading stage. From a practical perspective, if the vehicle was sold from an unauthorized retailer the chances that it is actually a new vehicle pursuant to Rodriguez is probably slim, but there is no authority for sustaining a demurrer on this ground. Section 1971.2 contemplates a warranty from a manufacturer or retailer, and paragraph 10 adequately alleges Plaintiff received a warranty from the manufacturer. 6|Page
As to the issue of whether the Complaint sufficiently alleges non-conformities, the Court finds that it does. Paragraph 12 alleges ultimate facts including defects with the braking system. The Court agrees with Defendant that the allegations in the Complaint that Defendant has had a “reasonable number of opportunities” to cure the alleged defects is conclusory. It is essentially a restatement of the statutory language. At a minimum there should be allegations as to how many attempts were made. The demurrer is sustained with leave to amend on this ground.
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Defendant’s contention that the Complaint’s willful allegations are conclusory is overruled on procedural grounds. A demurrer is not the appropriate mechanism to challenge a portion of a cause of action. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1681) Section 1794(c) provides a supplemental remedy, but it is not an essential element of a cause of action. Lastly, Defendant demurrers to the pleading as a whole on uncertainty grounds. Demurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. (Morris v.
JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292) The pleading is nowhere near unintelligible. The demurrer is overruled on that ground.
Second Cause of Action (Civ. Code 1793.2(b)) The demurrer is SUSTAINED WITH LEAVE TO AMEND. The Complaint simply restates the statutory language. Plaintiff must identify the representative(s) who allegedly performed repairs and at least provide general allegations as to when those events occurred.
Third Cause of Action (Civ. Code 1793.2(a)(3) The demurrer is SUSTAINED WITH LEAVE TO AMEND. The Complaint simply restates the statutory language. Further, the fact that the service provider is not identified and no dates for service identified exacerbates the lack of factual allegations.
Fifth Cause of Action (Civ. Code 1792 Implied Warranty for Merchantability) The demurrer is SUSTAINED WITH LEAVE TO AMEND. Civ. Code 1792 requires the pleading allege retail sale within this state. In reviewing the complaint, there are no allegations that the transaction occurred within this state and again, there are no allegations identifying who sold the vehicle.
To the extent leave to amend is granted, Plaintiff shall amend within 20 days’ notice of this order. Defendant shall prepare and submit a form of order consistent with this ruling within 20 days.
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