Case Name:   Jason Towle, et al. v. Ford Motor Company

Case No.:       1-14-CV-267407

After full consideration of the arguments, authorities, and papers submitted by each party, the court makes the following rulings:

This lemon law case arises out of the purchase of a new 2008 Ford F-250 by plaintiffs Jason Towle and Tisha Towle (“Plaintiffs”) from defendant Ford Motor Company (“Defendant”) on August 29, 2008.  (Complaint, ¶ 7.)  On July 2, 2014, Plaintiffs filed the operative complaint, alleging causes of action for: (1) violation of the Song-Beverly Consumer Warranty Act, Civil Code sections 1790, et seq. (the “Song-Beverly Act”); and (2) violation of the Magnuson-Moss Warranty Act, 15 U.S.C. section 2301, et seq. (the “Magnuson-Moss Act”).

Defendant moves to strike the following portions of the complaint that reference implied warranties on the ground that Plaintiffs’ implied warranty claims are barred by the applicable statute of limitations: p. 3, ¶ 13 in its entirety; p. 3,  ¶ 17 as to the words “and implied;” p. 3, ¶ 18 as to the words “and implied;” pp. 4-5, ¶ 30 in its entirety; p. 5, ¶ 31 as to the words “and implied;” p. 5, ¶ 32 as to the words “and implied.”  (Amended Notice of Motion, p. 1:7-12.)

Defendant’s request for judicial notice is GRANTED as to exhibits A, B, and E but only as to the existence of the documents, not necessarily the truth of any matters asserted therein.  (See Evid. Code, § 452, subds. (a) and (d); see also Hughes Electronics Corp. v. Citibank Delaware (2004) 120 Cal.App.4th 251, 266, fn. 13.)  Defendant’s request for judicial notice is DENIED as to exhibits C, D, and F.  (See Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal App 4th 26, 37-38; see also Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1340-1341; see also People v. Patterson (1999) 72 Cal. App. 4th 438, 443-444.)

The Court finds that Plaintiffs’ implied warranty claims are barred by appropriately strict application of the statute of limitations pursuant to Commercial Code section 2725 and Civil Code section 1791.1, subdivision (c).  The statute of limitations expired on August 29, 2013, and Plaintiffs did not file the instant complaint until July 2, 2014.  (See Mexia v. Rinker Boat Company (“Mexia”) (2009) 174 Cal.App.4th 1297, 1305 [“[i]n the case of a latent defect, a product is rendered unmerchantable, and the warranty of merchantability is breached, by the existence of the unseen defect, not by its subsequent discovery] [emphasis added]; see also id. at p. 1309 [“[t]o say that a warranty exists is to say that a cause of action  can arise for its breach [. . .] [d]efining the time period during which the implied warranty exists, therefore, also defines the time period during which the warranty can be breached]; see also Atkinson v. Elk Corp. of Texas (“Atkinson”) (2006) 142 Cal.App.4th 212, 230-232 [the plaintiff’s cause of action under the implied warranty of merchantability was barred as a matter of law because the suit was filed more than 5 years after the expiration of the 1-year warranty period].)

To the extent that Plaintiffs’ argue in their opposition that the complaint alleges that the applicable statute of limitations is tolled by the delayed discovery rule or the doctrine of fraudulent concealment, the argument is without merit.

With respect to the delayed discovery rule, the complaint does not allege sufficient facts to assert the delayed discovery rule because it does not plead facts showing the time and manner of Plaintiffs’ discovery of the alleged defects, that Plaintiffs had an excuse for late discovery, or that Plaintiffs were unable to make earlier discovery despite reasonable diligence.  (See E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal App 4th 1308, 1319, 1324-1325 [in order to rely on the discovery rule for delayed accrual of a cause of action, a plaintiff whose complaint shows on its face that the claim(s) would be barred without the benefit of the discovery rule must specifically plead facts showing the time and manner of discovery, that plaintiff had an excuse for late discovery, and that plaintiff was unable to make earlier discovery despite reasonable diligence].)

Moreover, the delayed discovery rule does not apply to Plaintiffs’ claims for breach of implied warranties.  (See U. Com. Code § 2725, subd. (2) [stating that “[a] cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach,” and “[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”] [emphasis added]; see also Cardinal Health 301, Inc. v. Tyco Electronics Corp. (“Cardinal”) (2008) 169 Cal.App.4th 116, 134 [“[b]ecause an implied warranty is one that arises by operation of law rather than by an express agreement of the parties, courts have consistently held it is not a warranty that ‘explicitly extends to future performance of the goods’”].)

With respect to the doctrine of fraudulent concealment, the complaint does not: allege that Defendant concealed or suppressed any material facts; allege specific facts regarding the purported acts of concealment; allege the dates on which Defendant performed any of the alleged repairs on Plaintiffs’ vehicle by which Defendant concealed the alleged defects; allege that Defendant intentionally concealed or suppressed facts; or allege that Plaintiffs were unaware of the material facts that were concealed.  (See Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641; see also Snapp & Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884, 890-891; see also Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal. App. 4th 115, 131 [“the elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.”].)

Accordingly, Defendant’s motion to strike portions of the complaint is GRANTED, , and the following paragraphs and language are stricken:  p. 3, ¶ 13 in its entirety; p. 3,  ¶ 17 as to the words “and implied;” p. 3, ¶ 18 as to the words “and implied;” pp. 4-5, ¶ 30 in its entirety; p. 5, ¶ 31 as to the words “and implied;” p. 5, ¶ 32 as to the words “and implied.”   Plaintiff is granted 10 days’ leave to amend.  (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [it is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action].)

The court will prepare the order.