Defendant Ford Motor Company (“Ford”) moves to strike portions of the complaint (“Complaint”) filed by plaintiff John Dino Molina dba John Molina Concrete, Inc. (“Plaintiff”).

Ford’s request for judicial notice are GRANTED IN PART and DENIED IN PART. Ford’s request is denied as to Exhibit C and otherwise granted. (Evid. Code, § 452, subds. (a), (c) and (d).)

Plaintiff’s request for judicial notice is DENIED. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [a court may take judicial notice only of “those matters which are relevant to the issue at hand”].)

As a preliminary matter, Plaintiff’s assertion that Ford’s motion to strike is procedurally improper is without merit. Plaintiff’s first and second causes of action are predicated on violations of both the implied and express warranties; Ford is only challenging the implied warranty allegations and a demurrer does not lie to only part of a cause of action. (See Kong v. City of Hawaiian Gardens Redevelop. Agency (2003) 108 Cal.App.4th 1028, 1046.) Where there is a substantive defect affecting only a portion of a claim, the proper challenge is by motion to strike. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683.)

Ford’s motion to strike is GRANTED WITH 10 DAYS’ LEAVE TO AMEND. As currently pleaded, Plaintiff’s claims for breach of the implied warranty are time-barred. The statute of limitations for an action for breach of warranty under the Song-Beverly Consumer Warranty Act is four years pursuant to Section 2725(1) of the Commercial Code. (See Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 215; see also Jensen b. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 132.) A cause of action for breach of warranty accrues “when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach.” (Comm. Code, § 2725(2).) A breach occurs, in turn, “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.” (Id.)

While written vehicle warranties promising to repair factory defects for a specified time period have been construed as warranties of “future performance” justifying accrual when the consumer determines that the repairs have been unsuccessful (see Krieger, supra, 234 Cal.App.3d at 215), California courts hold that the accrual of a breach of implied warranty cause of action occurs when tender of delivery is made because an implied warranty is not an agreement as to future performance. Instead, an implied warranty arises by operation of law; accordingly, a party aggrieved by a breach of implied warranty has its cause of action accrue at tender of delivery and the latest it can file such a claim is four years after that time. (See Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 134.) Thus, contrary to Plaintiff’s assertions, there is no delayed discovery or prospective application of the implied warranty beyond the four-year limit.

Plaintiff’s reliance on Mexia for the proposition that a claim for breach of the implied warranty accrues upon discovery is misplaced; in that case, the court was concerned with the interpretation and application of the duration provision of the Song-Beverly Act, i.e., Civil Code section 1791.1, subdivision (c), and not the statute of limitations. There are two timing issues when it comes to warranties: the duration of the warranty and the statute of limitations. To properly assert a breach of implied warranty claim, a plaintiff must allege a breach of warranty- occurring while the warranty is valid- and bring suit within the limitations period. The Mexia court was primarily concerned with only one of the aforementioned timing issues- the duration of the warranty. The duration provision and how it is construed and applied has no bearing on when a claim for breach of implied warranty accrues and the limitations period begins to run. Consequently, Plaintiff’s assertion that Mexia mandates application of the discovery rule to his implied warranty claim is without merit.

Here, pursuant to Commercial Code section 2725(2), Plaintiff’s cause of action for breach of the implied warranty accrued on July 11, 2005, the date upon which he purchased (i.e., delivery of the vehicle was tendered) the subject vehicle from Ford. Consequently, absent tolling, the statute of limitations would have expired on July 11, 2009. (See e.g., National Union Fire Ins. Co. of Pittsburgh v. Dassault Falson Jet Corp. (9th Cir. 2008) 263 Fed.Appx. 604, 607 [noting under Comm. Code section 2725 that a cause of action for breach of warranty accrues when tender of delivery is made and concluding that plaintiff’s claim was time-barred because it was filed more than four years after the subject aircraft was delivered].)

To the extent that Plaintiff asserts that the statute of limitations was tolled pursuant to the theory of fraudulent concealment, he has not pleaded the theory with the requisite specificity and factual support. (See Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641 [“When a plaintiff relies on a theory of fraudulent concealment … 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”].)

Plaintiff’s assertion that the filing of a class action complaint in the matter entitled Custom Underground v. Ford Motor Company in the U.S. District Court for the Northern District of Illinois Eastern Division tolls the statute of limitations is unavailing. This action was filed on January 8, 2010, well after the statute of limitations on the implied warranty claim expired on July 11, 2009.

Finally, Plaintiff has not alleged sufficient facts to come within the doctrine of equitable estoppel. (See Leasequip, Inc. v. Drapeer (2002) 103 Cal.App.4th 394, 403-404.)

As Plaintiff has not stated a viable implied warranty under California law, it follows that he has not stated a viable implied warranty claim under the Magnuson-Moss Act. (See 15 U.S.C. § 2301(7) [“[t]he term ‘implied warranty’ means an implied warranty arising under State law … in connection with the sale by a supplier of a consumer product”]; see also Kanter v. Warner-Lambert Co. (2002) 99 Cal.App.4th 780, 798 [“State law applies in breach of warranty actions as to both implied and written warranty claims under Magnuson-Moss, except as expressly stated by that act”].)