Defendant’s demurrer to the 1st through 6th causes of action is overruled. Defendant’s Request for Judicial Notice is granted as to Requests 1-4 and denied as to Requests 5-7 (rulings of other trial courts are not relevant).

Statute of Limitations: Defendant contends plaintiff’s causes of action are barred by the statute of limitations. Plaintiff alleges that he purchased the truck on 3-10-08, that the last warranty repair was performed on 9-10-09, that the warranty expired on 6-25-10, and that he discovered his claims on 6-25-10 when the warranty expired.

Plaintiff’s fraud causes of action (causes of action 1 and 3-4) are subject to a 3-year SOL. (CCP 338(d)) Plaintiff’s attempt to re-characterize these causes of action as being for rescission – and thus subject to a 4-year SOL (CCP 337(3)) – is not successful as plaintiff has not asserted a cause of action for rescission. The 2nd cause of action for negligent misrepresentation is subject to a 2-year SOL. (CCP 339.1; Ventura County Nat’l Bank v. Macker (1996) 49 Cal.App.4th 1528, 1531.) Plaintiff’s 5th cause of action for violation of the Consumer Legal Remedies Act (CLRA) is also governed by a 3-year SOL. (CC 1783) And, plaintiff plaintiff’s 6th cause of action, for violation of the Song-Beverly Act is governed by a 4-year SOL. (Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 215.)

Plaintiff contends that the SOL tolled under the delayed discovery rule until he discovered defendant’s fraud/bad acts in June 2010 and that, in any event, the SOL tolled while the federal class action was pending, until he opted out.

Even assuming the SOL began running on the date of the last repair (9-10-09), rather than on the alleged date of discovery (6-25-10), plaintiff has alleged facts sufficient to plead equitable tolling due to the pendency of the class actions re the Navistar engine. Plaintiff alleges he was a member of multiple class actions – all of which ended up consolidated into one class action in federal court. The filing of a class action in federal court generally tolls the SOL of a plaintiff who later files a federal case under the “American Pipe” rule. Defendant contends such tolling does not apply to a later filed state court action as California does not allow such “cross-jurisdictional” tolling. (Clemens v. DaimlerChrysler Corp. (9th Cir. 2008) 534 F.3d 1017.)

“In some instances, a plaintiff can rely on the filing of a prior class action to vindicate the right in question and toll the statute in the event that the class is not ultimately certified. (Citation). A handful of states have applied this rule when a class action is filed in another jurisdiction. (Citations). The California Supreme Court has not adopted such cross-jurisdictional tolling, however, and few states do. (Citation.) As the Maestas court noted, several federal courts have declined to import the doctrine into state law where it did not previously exist. (Citation).

Accordingly, 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. The 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. We therefore conclude that the filing of the Illinois action did not toll the statute, and Clemens’s Civil Code fraud claim is barred by the three-year statute of limitations.” (Id. at 1025)

However, California still recognizes equitable tolling – which can essentially act as cross-jurisdictional tolling in the right circumstances. Thus, in Hatfield v. Halifax PLC (9th Cir. 2009) 564 F.3d 1177, the 9th Circuit found the filing of a class action in another jurisdiction (New Jersey state court) equitably tolled the SOL under California law.

“The Clemens panel, applying California law, refused to allow American Pipe tolling in a case where a plaintiff sought to use a class action filed in one jurisdiction to toll an action later filed in another (a ‘cross-jurisdictional action’). The plaintiff in Clemens, relying on American Pipe, argued that the limitations period should have been tolled by the filing of a similar class action in Illinois, of which the plaintiff was a class member…. The Clemens court reasoned that, although ‘[i]n some instances, a plaintiff can rely on the filing of a prior class action to vindicate the right in question and toll the statute in the event that the class is not ultimately certified,’ California has not adopted such American Pipe tolling where the class action was filed in a foreign jurisdiction….

Although the Clemens decision would foreclose application of American Pipe here, it does not dictate a similar rejection of California’s equitable tolling doctrine, especially as it applies to California’s own residents. Although the two types of tolling-equitable and American Pipe-overlap to some extent … and even though California courts have treated them at times as interchangeable, they are not congruent…. Thus, by the Halifax Appellees’ own admission, Clemens, which only rejected the application of American Pipe tolling in a cross-jurisdictional action, does not affect the application of California’s equitable tolling doctrine, which covers situations beyond those covered by American Pipe.” (Id. at 1187-1188.)

Plaintiff argues he is entitled to tolling for the time that three class actions (Custom Underground; Burns; Adams) were pending, until he opted out on 4-22-13. Defendant responds that even if cross-jurisdictional/equitable tolling potentially applies, these cases did not have claims sufficiently similar to plaintiffs. However, each of the three other cases allege the same basic wrong – that defendant knew or should have known of the problems with the engine, that defendant misrepresented the quality of the vehicles and its ability to repair, and that defendant failed to warn buyers of the problems. In Custom Underground (filed 1-8-10), the plaintiffs alleged in their negligence cause of action that the engines were negligently designed and that defendant failed to warn consumers. (Exh. 1 to Request for Judicial Notice; ¶ 79)

In Burns (filed 11-5-10), the causes of action included violation of the Consumer Legal Remedies Act and Fraud – which are also involved in this case. The plaintiff in Burns alleged defendant misrepresented the quality of the vehicles and defendant’s ability to repair and service the vehicles. (Exh. 2 to Request for Judicial Notice; ¶ 59) Moreover, it is not required that the prior case and the current case have exactly the same causes of action for equitable tolling to apply.

“The fact that two claims may be separate, distinct and independent insofar as they are founded upon different laws, involve different procedures or seek different remedies does not compel the conclusion that they arise from separate wrongs. Here, both claims arise from the same wrong predicated upon identical facts-i.e., the defendants’ failure to provide adequate medical care to Benjamin even though the defendants allegedly knew or should have known that he suffered from a potentially life-threatening medical condition.

California law does not require that the two claims seek the same remedies, involve the same procedures, or arise from the same laws in order for equitable tolling to apply…. [T]he rationale for requiring that a plaintiff’s second claim be based on the same wrong set forth in the first claim does not warrant a requirement that the plaintiff seek the same remedy as well ….” (Lucchesi v. Bar-O Boys Ranch (9th Cir. 2003) 353 F.3d 691, 695.)

In short, the facts alleged do now dispositively establish plaintiff’s claims are barred by the SOL. If the SOL began running on the date of the last repair (9-10-09), it then tolled either from 1-8-10 (when Custom Underground was filed) or from 11-5-10 (when Burns was filed) until 4-22-13 (when plaintiff opted out of the class action). In either event, with this tolling, the facts alleged do not establish that any of the applicable SOL’s have run.

Defendant finally contends plaintiff is not entitled to equitable tolling because plaintiff did not act reasonably and because defendant has been prejudiced by the delay – but those are issues which require facts beyond the pleading and thus are not properly resolved on demurrer.

Economic Loss Rule: Defendant argues the 1st through 4th causes of action are barred by the economic loss rule citing Robinson Helicopter v. Dana Corp. (2004) 34 Cal.4th 979.) [Defendant adds the 5th cause of action to this argument in the Reply.] In Robinson Helicopter, the court set out the general rule that the remedy for a product that does not work properly is contractual. Tort remedies are generally not allowed absent physical injury or injury to property other than the product. However, the court carved out a narrow exception when there are claims of fraud – where the fraud is separate from the breach itself. The plaintiff must also be exposed to liability for personal damages. (Id. at 991.) In Robinson Helicopter, the court found the plaintiff’s fraud claims were not barred where the plaintiff (maker of helicopters) contended a supplier of a part changed its manufacturing process, which the contract prohibited, and provided certificates required by the FAA that the parts had been made in compliance with the previously approved standards. The court found the fraud claims under those circumstances were not barred. (Id.)

Here, it appears, at least at the pleading stage, that plaintiff’s common law tort claims are not barred by the economic loss rule. Causes of action 1-3 allege misrepresentations and concealments which induced plaintiffs to enter the sales contract – a contract to which defendant does not appear to have been a party. As pleaded, these torts are independent of the contract between plaintiff and defendant (the warranty). As to the 4th cause of action for fraud in performance of contract, this cause of action is based on the warranty. However, in addition to alleging defendant’s fraud in making the warranty, plaintiff further alleges defendants implemented a scheme to make inadequate repairs during the warranty period which defendant knew would not solve the problem. This cause of action is thus also pleaded as an independent tort.

Further, to the extent it is required that plaintiff be exposed to liability for personal injury damages, the court in Robinson Helicopter found this element was met where the defective part could have caused an accident – even though there was no allegation a crash ever occurred. As plaintiff has alleged the vehicle suffered from multiple problems – and as almost any car defect can result in an accident – this element is adequately satisfied at the pleading stage.

5th cause of action for Consumer Legal Remedies Act: Defendant contends plaintiff has not adequately alleged a specific and measurable representation – contending that plaintiff’s allegations about what was represented in advertising prior to his purchase are not sufficiently specific. However, the allegation that defendant represented that plaintiff was securing the benefit of a warranty is sufficiently specific. (FAC; ¶ 281)

Delayed Discovery: Plaintiff’s equitable tolling argument takes care of most of the SOL issue at the pleading stage. And, defendant’s contention that plaintiffs were on inquiry notice at some time prior to the last warranty repair on 9-10-09, because the vehicle was repaired 4 times, does not show the action is certainly barred by the SOL. The complaint does not plead, and need not plead, all the details re the prior repairs and such details would be needed to show a reasonable person in plaintiff’s’ position would have been on notice. I.e., whether or not plaintiff had notice prior to the date of the last warranty repair is a factual question which will not be resolved on demurrer.