This is an action for fraud based on representations made prior to plaintiff Russ Bonino’s (“Plaintiff”) purchase of a 2004 Ford Excursion (“subject vehicle” or “SUV”).

On December 23, 2003, Plaintiff purchased the subject vehicle from Bob Lynch Ford. (See first amended complaint (“FAC”), ¶ 9, 19.) Before purchasing the subject vehicle, Plaintiff observed television advertisements for the 2004 Ford Excursion, describing it as best in class, reliable, having superior towing/hauling capacity and fuel mileage, and being built “Ford tough.” (See FAC, ¶ 15.) Plaintiff also read promotional materials that stated that: the 2004 Ford Excursion has the strength to handle the toughest assignments; the 6.0 liter diesel engine is built “Ford tough”; the 6.0 liter diesel engine is the “longest lasting diesel motor”; “altogether, the 6.0 L Power Strike is the longest lasting diesel in its class”; the 2004 Ford Excursion is “best in class” with “unsurpassed diesel horsepower and “the longest lasting diesel motor… [that] is the boldest, strongest, and most capable yet”; the 2004 Ford Excursion has “the best payload, best conventional towing, best braking performance, highest GVWR, unsurpassed GCWR… [and] best 5th wheel towing”; the 2004 Ford Excursion is “best in class [for] horsepower, gas torque, unsurpassed diesel horsepower”; and, the Ford Super Duty powertrain “delivers the right power, right when you need it… [and] delivers the muscle to get the job done.” (FAC, ¶ 14.) Unfortunately for Plaintiff, the SUV was constantly in the shop and could not be relied upon because it repeatedly broke down. (See FAC, ¶ 20.) The dealership attempted to make repairs on the subject vehicle on at least five different occasions and failed to permanently remedy the SUV’s persistent problems. (See FAC, ¶¶ 21-22.) The express warranty for the subject vehicle expired on December 23, 2008 and Plaintiff contends it was on that date that he first discovered that the prior repairs failed to conform to the express warranty. (See FAC, ¶ 37.)

On April 30, 2013, Plaintiff contacted the Better Business Bureau (“BBB”) and asked for a repurchase or replacement of the vehicle under the Lemon Law; however, on August 21, 2013, the BBB denied Plaintiff’s request stating that the BBB lacked jurisdiction over the claim. (See FAC, ¶ 24.) Ford also denied Plaintiff’s request. (See FAC, ¶ 24.) On January 25, 2012, a class action was filed, Adams v. Ford Motor Company, Case No. 37-2012-00091290-CU-BC-CTL in the Superior Court of California, County of San Diego (“the Adams action”), of which Plaintiff was a putative class member. (See FAC, ¶ 42.) The Adams action was subsequently consolidated into pending multi district litigation/class action In re: Navistar 6.0 L Diesel Engine Products Liability Litigation; Custom Underground v. Ford Motor Company, United States District Court for the Northern District of Illinois, Eastern Division, Case No. 11 C 2496 (“the Navistar action”). (See FAC, ¶ 46.) Plaintiff was also a putative class member in a class action, Burns v. Navistar Inc., and Ford Motor Company, United States District Court for the Southern District of California, Case No. 10CV2295MAB BGS (“the Burns action”), which was filed on November 5, 2010. (See FAC, ¶ 61.) The Burns action was also consolidated into the Navistar action. (See FAC, ¶ 66.) Plaintiff was also a putative class member in a class action, Custom Underground, Inc. v. Ford Motor Company, United States District Court for the Northern District of Illinois Eastern Division, Case No. 1:10-CV-00127 (“the Custom Underground action”), which was filed on January 8, 2010. (See FAC, ¶ 93.) The Custom Underground action was also consolidated into the Navistar action. (See FAC, ¶ 97.) On April 23, 2013, Plaintiff requested exclusion from the class action settlement in the Navistar action. (See FAC, ¶¶ 49, 68, 90.) Plaintiff contends that the statute of limitations was tolled pursuant to American Pipe & Construction Co. v. Utah (1974) 414 U.S. 538 and by equitable tolling. (See FAC, ¶¶ 50-59, 70-81, 92-102.)

On December 10, 2013, Plaintiff filed a complaint against defendant Ford Motor Company (“Defendant”), asserting the following causes of action:

1) fraud in the inducement—intentional misrepresentation;
2) fraud in the inducement—concealment;
3) negligent misrepresentation;
4) fraud in the performance of a contract—intentional misrepresentation;
5) violation of the Consumer Legal Remedies Act; and,
6) violation of the Song-Beverly Act.

On January 14, 2014, Plaintiff filed a FAC against Defendant, asserting identical causes of action. Defendant demurs to the first through fifth causes of action and also moves to strike portions of the FAC.

Plaintiff requests judicial notice of a number of orders in other cases from courts outside of Santa Clara County. Based on the language of the orders, none of the cases appear to involve the purchase of a 2004 Ford Excursion; in fact, the orders that mention a model note that they are F-series trucks—not SUVs—and from a latter year. Many of the orders do not include the reasoning for the ruling. Moreover, as will be discussed below, the Court need not address Plaintiff’s tolling arguments based on American Pipe, as he has failed to specifically plead facts to show the applicability of the discovery rule, upon which the tolling arguments necessarily rely. Plaintiff’s request for judicial notice is DENIED. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (stating that “judicial notice…is always confined to those matters which are relevant to the issue at hand”); see also Aquila, Inc. v. City and County of San Francisco (2007) 148 Cal.App.4th 556, 569 (stating that “[a]lthough a court may judicially notice a variety of matters, only relevant material may be noticed”).)

Defendant’s request for judicial notice of the initial complaint is GRANTED. (Evid. Code § 452, subd. (d).) Defendant’s request for judicial notice of the legislative history of the CLRA is also GRANTED. (Evid Code § 452, subd. (c).) Defendant’s request for judicial notice in reply was not considered for the purpose of the instant ruling.

Defendant demurs to the first through fourth causes of action on the ground that they are not pled with sufficient particularity. Indeed, the claims do not allege when the misrepresentations were made. (See Lazar v. Super. Ct. (Rykoff-Sexton, Inc.) (1996) 12 Cal. 4th 631, 645 (stating that a fraud cause of action must “allege…when it was said or written”).) Plaintiff apparently concedes the issue as he fails to address the issue in his opposition. The demurrer to the first through fourth causes of action is SUSTAINED with 10 days leave to amend on this basis.

Defendant also demurs to the first through fourth causes of action on the ground that they are barred by the economic loss rule. In opposition, Plaintiff cites to Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979. In Robinson, the California Supreme Court indeed stated that the economic loss rule does not apply to a fraud or negligent misrepresentation claim where the damages are not dependent of the contract since “[n]o rational party would enter into a contract anticipating that they are or will be lied to.” (Id. at pp. 991-993 (stating that “[w]e hold the economic loss rule does not bar Robinson’s fraud and intentional misrepresentation claims because they were independent of Dana’s breach of contract”).)

However, the problem with Plaintiff’s argument is that the alleged damages are dependent on the breach of warranty. (See e.g., FAC, ¶¶ 163-164 (seeking rescission of the contract, restitution of payments, and damages for diminution in the value of the vehicle, and damages in the amount of the difference between the value of the vehicle equipped with the defective engine and the value of the vehicle if it had been equipped as warranted”), 211-212, 258-259.) The Robinson court expressly stated that “the economic loss rule allows a plaintiff to recover in strict products liability in tort when a product defect causes damage to ‘other property,’ that is, property other than the product itself… [t]he law of contractual warranty governs damage to the product itself.” (Id. at p.989.) The demurrer to the first through fourth causes of action is also SUSTAINED on this additional basis with 10 days leave to amend. (See . Lazar v. Super. Ct. (Rykoff-Sexton, Inc.) (1996) 12 Cal. 4th 631, 638 (stating that resulting damages is an element for a fraud claim); id. at p.645 (requiring a fraud claim to be pled with particularity); see also Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519 (also requiring resulting damages as an element for a fraud claim).)

Defendant also argues that the first through fourth causes of action are barred by the applicable three-year statute of limitations. (See Code Civ. Proc. § 338, subd.(d).) The FAC alleges that “[t]he vehicle was constantly in the shop and could not be relied on because it repeatedly broke down” and that “Plaintiff has attempted to have the engine issues fixed on many occasions… but the problems with the engine persisted” and “[o]n one occasion, the repair representatives advised Plaintiff that they had to clean soot or “coking” from the engine and its components.” (FAC, ¶¶ 21-22.) Despite those allegations, Plaintiff contends that he did not discover the alleged harm related to the engine of the subject vehicle because “[i]t was not until the express warranty for the engine in Plaintiff’s vehicle expired on December 23, 2008, that Plaintiff first discovered, or reasonably could have discovered, that Ford’s previous repairs to the engine during the express warranty period had failed to conform Plaintiff’s vehicle to the express warranty.” (FAC, ¶ 37.)

Here, there is a disconnect between the alleged misrepresentations made prior to the purchase of the vehicle and the basis for the delayed discovery. Under the discovery rule, “the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” (Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 715 (Sixth District case), citing Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) “So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Id.) “The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 (also stating that “[t]he discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury”); see also Sahadi, supra, 155 Cal.App.4th at p.715 (stating that “[s]o long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her”); see also Jolly, supra, 44 Cal.3d at p.1109 (stating that “[a] plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her”).) “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 his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” (Fox, supra, 35 Cal.4th at p.808.) Although, as previously stated above, the FAC fails to allege exactly when the misrepresentations occurred, the FAC alleges that any such misrepresentations occurred prior to Plaintiff’s purchase of the subject vehicle on December 23, 2003 and thus the complaint shows on its face that the claims would be barred without the benefit of the discovery rule. Since Plaintiff has failed to specifically plead facts to show the applicability of the discovery rule, the demurrer to the first through fourth causes of action is SUSTAINED with 10 days leave to amend.

In opposition to the demurrer to the first through fourth causes of action, Plaintiff makes a number of arguments regarding tolling based on the class action claims, but also concedes “that the statute of limitations on his claims ran from December 23, 2008 through January 8, 2010.” Here, tolling would not save Plaintiff’s claims as alleged as there are no allegations in the FAC that suggest the applicability of the discovery rule in the first instance.

Defendant also demurs to the fifth cause of action for violation of the CLRA on the ground that it is barred by the statute of limitations. In opposition, Plaintiff fails to address the argument, effectively conceding the issue. Accordingly, the demurrer to the fifth cause of action is SUSTAINED with 10 days leave to amend.

The Court also agrees that the statements that form the basis of the CLRA claim, such as the subject vehicle was built “Ford tough” is the “best in class” or “best” or “boldest” or “strongest yet” is classic puffery. (See Steen v. Southern California Supply Co. (1925) 74 Cal.App. 265, 266 (the statement that caramel coloring was “just as good or perhaps better than any” was “puffing talk”); see also W. J. Bush & Co. v. Van Camp Sea Food Co. (1921) 55 Cal.App. 672, 673 (the statement that the peach kernel oil “was equal to the ‘best grades of imported olive oil’… expressed a mere opinion”); see also Alexander v. Stone (1916) 29 Cal.App. 488, 490 (representation that “the goods were first class… amounts to no more than what is termed ‘puffing,’ or an expression of opinion or judgment”); see also Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal. App. 4th 824, 835; see also Klinker v. Alta Vista Health Care Ctr. (Dec. 9, 2005) 2005 Cal. App. Unpub. LEXIS 11392 *1, *30 (nonpub. opn., statements that patients would receive “best of care”, facility is “top notch”, care is “excellent,” and that the staff is “competent in every respect” are mere puffery).) The demurrer to the fifth cause of action is SUSTAINED with 10 days leave to amend on this basis as well.

Defendant moves to strike the words “and implied” from line 15 of paragraph 293, and paragraphs 298 and 299 in their entirety, on the ground that any claim for breach of an implied warranty is barred by the statute of limitations. In opposition, Plaintiff relies principally on Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, arguing that “[t]his court should follow the reasoning of the Mexia court and apply the accrual upon discovery rule to plaintiff’s breach of implied warranty of merchantability.” (Opposition, p.3:1-3.)

“[T]he implied warranty of merchantability… does not ‘impose a general requirement that goods precisely fulfill the expectation of the buyer.’” (American Suzuki Motor Corp. v. Super. Ct. (Carney) (1995) 37 Cal.App.4th 1291, 1296.) “Instead, it provides for a minimum level of quality… in the case of automobiles, the implied warranty of merchantability can be breached only if the vehicle manifests a defect that is so basic it renders the vehicle unfit for its ordinary purpose of providing transportation.” (Id.)

In Mexia, the plaintiffs brought the action within four years of the purchase of the boat, and the court thus found that the plaintiffs’ claim was not barred by the four-year statute of limitations for a breach of an implied warranty. (Id. at p.1306.) In contrast, here, the FAC alleges that the subject vehicle had “ongoing problems”, “was constantly in the shop” and “repeatedly broke down”, necessitating attempts to have the vehicle “fixed on many occasions”, and yet, Plaintiff did not file the instant complaint until over nine years after the SUV’s purchase. Plaintiff argues that his claim did not accrue until the expiration of the express warranty; however, even Mexia notes that, in the case of a latent defect, a breach of the implied warranty of merchantability occurs by the existence of the unseen defect. (Id. at p.1305 (stating that “[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”).) Again, Plaintiff did not file his initial complaint within four years of the alleged breach of the implied warranty of merchantability. However, under Mexia, Plaintiff may still be able to state such a claim by alleging delayed discovery. Plaintiff’s opposition regarding such delayed discovery makes the identical arguments made in support of the opposition to the demurrer; for identical reasons, those arguments are without merit. The motion to strike is GRANTED with 10 days leave to amend.

Accordingly, the words “and implied” from line 15 of paragraph 293, and paragraphs 298 and 299 in their entirety, are hereby stricken, with leave to amend.

The Court will prepare the order.