Case Name:   Chris Van Tiem, et al. v. Ford Motor Company

Case No.:       1-14-CV-264718

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 2006 Ford F-250 by plaintiffs Chris Van Tiem and Wendi Van Tiem (“Plaintiffs”) from defendant Ford Motor Company (“Defendant”) on June 30, 2006.  (Complaint, ¶ 7.)  The purchase agreement between Plaintiffs and Defendant was accompanied by an express warranty and implied warranties of merchantability and fitness. (Complaint, ¶¶ 123, 140.)  Plaintiffs allege that “[t]he vehicle was delivered to [them] with serious defects and nonconformities to warranty and developed other serious defects and nonconformities to warranty including, but not limited to, exterior, engine, suspension, brakes, fuel system, and steering defects.  (Complaint, ¶ 8.)  Plaintiffs further allege that Defendant misrepresented the quality, engine capacity, and towing capacity of the diesel engine to them at the time of the sale of the vehicle and continued to misrepresent its ability to repair the vehicle in conformity with the warranty throughout the warranty period.  (Complaint, ¶¶ 9-10.)  On April 20, 2012, Plaintiffs first discovered that Defendant’s previous repairs to their vehicle’s engine during the express warranty period failed to adequately repair the vehicle, and Defendant had misrepresented the engine quality.  (Compliant, ¶ 46.)  Plaintiffs allege that they could not have discovered these facts on an earlier date because of Defendant’s fraudulent misrepresentations and concealment of the defects in their vehicle’s engine.  (Id.)

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. 25, ¶ 123 in its entirety; p. 25,  ¶ 127 as to the words “and implied;” p. 25, ¶ 128 as to the words “and implied;” p. 26, ¶ 140 in its entirety; p. 26, ¶ 141 as to the words “and implied;” p. 27, ¶ 142 as to the words “and implied.”  (Notice of Motion, p. 2:7-12.)

Defendant’s request for judicial notice is GRANTED as to exhibits A, B, E, and G, 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 strict application of the statute of limitations pursuant to Commercial Code section 2725 and Civil Code section 1791.1, subdivision (c) because the statute of limitations expired on June 30, 2011, and Plaintiffs did not file the instant complaint until May 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 that 5 years after the expiration of the 1-year warranty period].)

In addition, Plaintiffs’ argument that the statute of limitations is tolled by the delayed discovery rule is not well-taken because the delayed discovery rule does not apply to Plaintiffs’ claims for breach of implied warranties.  (SeeU. 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’”].)

Furthermore, Plaintiffs have not adequately pled that the statute of limitations is tolled by the fraudulent concealment doctrine, equitable considerations, and/or so-called “American Pipe” tolling.  (See Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641 [“[w]hen a plaintiff relies on a theory of fraudulent concealment, delayed accrual, equitable tolling, or estoppel to save a cause of action that otherwise appears on its face to be time-barred, he or she must specifically plead facts which, if proved, would support the theory”]; see also McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 102 [plaintiff must establish “three elements: ‘timely notice, [. . .] lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff’”]; see also In re Ford Tailgate Litig. (N.D.Cal. 2014) 2014 U.S. Dist. LEXIS 32287 *1, *32 [stating “[t]he equitable tolling doctrine articulated in American Pipe, however, applies only to federal question claims and not to plaintiffs’ state law claim”]; see also Clemens v. DaimlerChrysler Corp. (9th Cir. Cal. 2008) 534 F.3d 1017, 1025 [concluding Civil Code fraud claim is time-barred, stating that plaintiffs may not rely on the filing of an Illinois nationwide class-action for purpose of American Pipe tolling because “the California Supreme Court has not adopted such cross-jurisdictional tolling [. . .] the weight of authority and California’s interest in managing its own judicial system counsel us not to import the doctrine of cross-jurisdictional tolling into California law [. . .] [t]he rule of American Pipe–which allows tolling within the federal court system in federal question class actions–does not mandate cross-jurisdictional tolling as a matter of state procedure [. . .] [w]e therefore conclude that the filing of the Illinois action did not toll the statute”].)

Accordingly, Defendant’s motion to strike portions of the complaint is GRANTED, with 10 days’ leave to amend.

The Court will prepare the order.