Case Name: Kim Anh Michelle Blank v. KIA Motors America, Inc.
Case No.: 18CV330187

I. Background

This is a lemon law action brought by plaintiff Kim Anh Michelle Blank (“Plaintiff”) against defendant KIA Motors America, Inc. (“Defendant”).

According to the allegations of the complaint, Plaintiff purchased a 2013 KIA Optima (the “Vehicle”) manufactured and/or distributed by Defendant. In connection with the purchase, Plaintiff received an express warranty, which stated Defendant was to preserve or maintain the Vehicle’s utility or performance, or provide compensation in the event either failed during a specified period of time. During the warranty period, the Vehicle contained or developed numerous defects, including but not limited to: restricted oil flow through areas of the engine resulting in stalling; circulating metal debris causing the engine’s rod bearings to fracture; engine failure; the Vehicle’s electrical system malfunctioning; the driver’s side brake light bulb having to be replaced; and rattling and grinding noises upon acceleration.

Defendant knew since 2011, if not earlier, that the 2011-2014 KIA Optima models, among others, contained one or more design and/or manufacturing defects in their engines that would cause it to experience catastrophic engine failure and/or stalling while in operation. However, Defendant failed to disclose this fact to Plaintiff at the time of sale or any point thereafter, and concealed such information from her. Had Plaintiff been aware of the defects, she would not have purchased the Vehicle.

In April 2018, Plaintiff requested a buyback and/or restitution of the Vehicle from Defendant. However, Defendant failed to provide such relief as required under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790, et seq.) (the “Song-Beverly Act”).

Plaintiff asserts the following causes of action against Defendant: (1) violation of Civil Code section 1793.2, subdivision (d); (2) violation of Civil Code section 1793.2, subdivision (b); (3) violation of Civil Code section 1793.2, subdivision (a)(3); (4) breach of express warranty; (5) breach of the implied warranty of merchantability; and (6) fraud by omission.
Defendant presently demurs to the third, fourth, fifth, and sixth causes of action, and also moves to strike certain damages allegations. Plaintiff opposes both.

II. Demurrer

As a preliminary matter, there are anomalies with Defendant’s identification of the grounds for its demurrer. First, Defendant states in its notice that the demurrer is on the grounds of uncertainty and failure to state sufficient facts. In its demurrer, however, Defendant does not mention uncertainty as a ground for demurrer to any cause of action. It otherwise does not specifically address the ground of uncertainty in its memorandum of points and authorities. Instead, it only refers to the ground of failure to state sufficient facts in these supporting papers. Thus, to the extent it intended to demur on the ground of uncertainty, the demurrer is disregarded. (See Code Civ. Proc., § 430.60 [demurrer that fails to distinctly specify grounds may be disregarded].) As such, the Court treats the demurrer as being brought solely on the ground of failure to state sufficient facts.

With that said, the Court observes Defendant did not precisely state the ground for its demurrer to the fifth and sixth causes of action. The grounds for a demurrer are enumerated in Code of Civil Procedure section 430.10. But some of the grounds as framed by Defendant do not correspond. For example, Defendant states in the demurer that the fifth cause of action fails because it is “time-barred based on the statute of limitation.” (Dem., p. 8:11.) As for the sixth cause of action, it states Plaintiff’s claim is “time barred on its face and is barred by the economic loss rule.” (Dem., p. 8:13-14.) These are not statutory grounds for demurrer, but instead are arguments that may be made in support of the ground of failure to state facts sufficient to constitute a cause of action. (See, e.g., Bainbridge v. Stoner (1940) 16 Cal.2d 423, 431 [statute of limitations is an argument for failure to state sufficient facts, not a separate ground for a demurrer].)

In advancing its arguments, Defendant does not address the subject causes of action sequentially. Accordingly, the Court will address the claims in the order they are discussed in Defendant’s memorandum of points and authorities.

A. Sixth Cause of Action

Plaintiff’s sixth cause of action for fraud by omission alleges that Defendant intentionally and knowingly concealed material facts from her about the Vehicle’s defects and potential consequences of those defects.

Defendant argues no claim has been stated because it is (1) untimely; (2) the allegations are not sufficiently specific; and (3) barred by the economic loss rule.

1. Statute of Limitations

“ ‘The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action.’ [Citations.] There is an important qualification, however: ‘In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.’ [Citations.]” (E-Fab., Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-1316.) In evaluating whether a claim is time-barred, the court must determine (1) which statute of limitations applies and (2) when the claim accrued. (Id. at 1316.)

The statute of limitations for fraud is three years. (Code Civ. Proc., § 338, subd. (d).) Defendant contends the limitations period expired in 2016 because Plaintiff bought the Vehicle in 2013. Because Plaintiff did not file this action until 2018, Defendant concludes the complaint is untimely. Defendant’s position is flawed because the statute itself states a claim for fraud “is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud.” (Ibid.) Here, Plaintiff affirmatively alleges she discovered the fraud in April 2018, well within the three-year limitations period.

Consequently, Defendant does not demonstrate Plaintiff’s sixth cause of action is clearly and affirmatively barred by the statute of limitations. As such the demurrer is not sustainable based on an argument that it is time-barred, and it is unnecessary to address the parties’ tolling arguments.

2. Sufficiency of Allegations

Defendant argues Plaintiff does not allege the elements of her fraud claim with requisite specificity. More particularly, it contends that Plaintiff fails to plead “how, when, where, to whom, and by what means” the alleged omissions were made. For example, Defendant states Plaintiff did not identify the sales representative she interacted with or the repair facility she went to. Defendant concludes it does not have fair notice of the nature of the fraud claim. In opposition, Plaintiff insists Defendant incorrectly applies the pleading standard for fraud claims predicated on affirmative misrepresentations. Plaintiff’s position is persuasive.

Generally, a fraud claim must be pleaded with specificity. (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.) When a fraud claim against a corporation is based on affirmative misrepresentations, the plaintiff must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Tarmann v. State Farm Mutual Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) This is the pleading standard relied on by Defendant herein. But Plaintiff is not asserting a claim based on affirmative misrepresentations; rather, her claim is based on the concealment of material facts. Thus, the standard cited by Defendant is inapplicable. (See Alfaro v. Community Housing Imp. System & Planning Ass’n., Inc. (2009) 171 Cal.App.4th 1356, 1384.)

The federal case cited by Defendant does not support a contrary conclusion. Defendant cites Marolda v. Symantec Corp. (N.D.Cal. 2009) 672 F.Supp.2d 992 for the purported proposition that a claim for fraud by omission must be include allegations of how, what, when, and where such omissions occurred. (Marolda v. Symantec Corp. (N.D.Cal. 2009) 672 F.Supp.2d 992, 1002.) But this case, as federal authority, is not binding on this Court. As stated above, California courts do not require a plaintiff to plead how, what, when, where, and how omissions occurred. Furthermore, the court in Marolda was clearly applying a federal pleading standard for fraud to the case. (Ibid. [“The Ninth Circuit has recently clarified that claims of nondisclosure and omission, as varieties of misrepresentations, are subject to the pleading standards of Rule 9(b).”].) Under California law, Plaintiff does not have to allege with specificity how, when, where, and by what means the omissions occurred.

Moreover, less particularity is required when the defendant possesses superior knowledge of the facts. “Less specificity is required when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy.” (Committee on Children’s Television, Inc. v. General Food Corp. (1983) 35 Cal.3d 197, 217 [internal citations and quotation marks omitted].) Here, Plaintiff’s complaint continuously alleges Defendant possessed exclusive and superior knowledge of the various defects in the Vehicle and intentionally withheld the information from her. As a result, less specificity is required in Plaintiff’s pleading.

Therefore, Defendant has not substantiated its argument that Plaintiff has not pleaded her claim with the requisite specificity.

3. Economic Loss Rule

Defendant contends Plaintiff’s fraudulent concealment claim is barred by the economic loss rule.

The economic loss rule states that “where a purchaser’s expectations in a sale are frustrated because the product he brought is not working properly, his remedy is said to be in contract alone, for he has suffered only economic losses.” (Robinson Helicopter Company v. Dana Corporation (2004) 34 Cal.4th 979, 988 (“Robinson”).) The court in Robinson carved out an exception to this rule, holding it does not bar recovery for fraud claims that are independent of the alleged breach of contract. (Id., at 991.) “[W]hen one party commits a fraud during the contract formation or performance, the injured party may recover in contract and tort.” (Harris v. Atlantic Richfield Co. (1993) 14 Cal.App.4th 70, 78.)

Defendant argues Plaintiff has only alleged contractual damages in her complaint stemming from Defendant’s sale of the Vehicle. Defendant contends that because Plaintiff has not alleged any independent tortious conduct, she cannot recover on her fraud by omission claim.

Defendant first argues that the exception to the economic loss rule applies only in cases of affirmative misrepresentations and is therefore inapplicable here. It relies on a narrow reading of Robinson in support. Defendant states the court in Robinson limited the exception to the economic loss rule to affirmative misrepresentations. However, as noted by Plaintiff, this reading of the court’s ruling is plainly wrong. The court there stated it would “not address the issue of whether [the defendant’s] intentional concealment constitutes an independent tort.” (Robinson, supra, 34 Cal.4th at 991.) The Robinson court clearly declined to reach that issue; it did not hold the economic loss rule only applies to fraud claims based on affirmative representations.

Defendant also argues in the alternative that, even assuming the economic loss rule does not apply to fraudulent concealment claims, Plaintiff has not alleged damage or injury independent of the breach of contract. Defendant continues, even if she did allege an independent injury, it would be purely speculative.

If Plaintiff’s allegations of an independent injury were speculative, she would be unable to support her cause of action. (See, e.g., Dimond v. Caterpillar Tractor Co. (1976) 65 Cal.App.3d 173, 184-185.) However, that is not the case here. While it is generally true that speculative damages are not recoverable (In re Easterbrook (1988) 200 Cal.App.3d 1541, 1544 [disapproved on other grounds]), tort damages are recoverable where a contract was fraudulently induced (Erlich v. Menezes (1999) 21 Cal.4th 543, 551-552). Such fraudulent inducement constitutes an independent injury. (Robinson, supra, 34 Cal.4th at 989-991.) Here, Plaintiff clearly alleges she would not have purchased the Vehicle if Defendant had not failed to disclose the known engine defects.
Thus, Defendant has not substantiated its position that Plaintiff’s fraud by omission claim is barred by the economic loss rule.

4. Conclusion

Because none of the arguments asserted by Defendant in support of its demurrer to the sixth cause of action are persuasive, Defendant’s demurrer on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

B. Fifth Cause of Action

Plaintiff’s fifth cause of action alleges Defendant breached the implied warranty of habitability under the Song-Beverly Act by providing her with a vehicle that did not comply with the requirements in Civil Code section 1791.1, subdivision (a).

In order for a court to sustain a demurrer because of the statute of limitations, the defect must clearly appear on the face of the complaint. (E-Fab., Inc. v. Accountants, Inc. Services, supra, 153 Cal.App.4th at 1315-1316.) Here, Defendant argues that Plaintiff’s claim is time-barred on its face by the four-year statute of limitations set forth in Commercial Code section 2725, which began to accrue when tender of delivery was made.

In opposition, Plaintiff insists her claim did not begin to accrue until she discovered the alleged breaches and that the “future performance” exception set forth in Commercial Code section 2725 applies, rendering his claim timely because her Vehicle was covered by an extended warranty.

Generally, an action for damages under the Song-Beverly Act is governed by the four-year limitations period for breach of warranty in sales contracts set forth in Uniform Commercial Code section 2725. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 132; Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 213-215.) Commercial Code section 2725, subdivision (1) states that “[a]n action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.” Commercial Code section 2725, subdivision (2) further provides that “[a] cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach.” “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.” (Com. Code, § 2725, subd. (2).)

Further, under the Song-Beverly Act, the duration of the implied warranties of merchantability and fitness is coextensive with a manufacturer’s express warranty. (Civ. Code, 1791.1, subd. (c).) However, in no event will the duration of the implied warranties be less than 60 days or more than 1 year following the sale of new consumer goods to a retail buyer. (Ibid.)
This “future performance” exception within Commercial Code section 2725 is narrowly construed, and applies “only when the seller has expressly agreed to warrant its product for a specific and defined period of time.” (Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 130; see Carrau v. Marvin Lumber & Cedar Co. (2001) 93 Cal.App.4th 281, 291 [stating that where an express warranty is made which extends for a specific period of time, “the policy reasons behind strict application of the limitations period do not apply …”].) However, “the argument that a warranty necessarily extends to future performance merely because it contains promises regarding the manner in which the goods will perform after tender of deliver[y]” has been rejected by the courts. (Cardinal Health 301, Inc., supra, 169 Cal.App.4th at 131.) Moreover, “[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 ….” (Id. at 134 [internal citations and quotations omitted].) Thus, Plaintiff’s implied warranty claim accrued at delivery and not when she allegedly discovered the breaches.

Relying on Erlich v. BMW of North America (2010) 801 F.Supp.2d 908, Plaintiff notes that the court rejected BMW’s assertion that the statute of limitations began to run on the date the vehicle was purchased and concluded that a warranty for a specific length of time and/or amount of mileage “explicitly extends to future performance of the goods.” (Erlich, 801 F.Supp.2d at 924-925.) Erlich, however, is an outlier when it comes to decisions that have considered the issue of whether the future performance exception applies to implied warranty claims and, as federal authority, is not controlling in this action. The Court therefore declines to follow the Erlich court’s interpretation of the “future performance” exception set forth in Commercial Code section 2725.
Thus, it is clear that Plaintiff’s claim is barred on its face by the statute of limitations. Plaintiff additionally argues that her claim is tolled by the doctrine set forth in American Pipe & Const. Co. v. Utah (1974) 414 U.S. 538 and the doctrine of fraudulent concealment. These arguments are not persuasive.

Plaintiff contends that, pursuant to the doctrine outlined in American Pipe & Const. Co. v. Utah (1974) 414 U.S. 538 (“American Pipe”), the statute of limitations on this claim was tolled by the filing of the Wallis, et al. v. KIA Motors America, Inc. (“Wallis”) class action suit in federal court. In American Pipe, the court ruled that the commencement of a class action tolls the limitations period for similar individual actions of each member of the purported class until certification is denied. This doctrine has been held to have limited application in California; whether it applies in state court is decided on a case-by-case basis as to “whether claims asserted in the class action have placed the defendant on notice of the claims at issue in the individual action” and whether it serves to further the economy and efficiency of litigation. (San Francisco Unified School District v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1337, internal citation omitted.)
Even if American Pipe did apply, Plaintiff’s claim is untimely. Tender of delivery occurred on May 25, 2013, giving Plaintiff until May 25, 2017, absent tolling, to sue for breach of implied warranty. According to Plaintiff’s complaint, the Wallis class action was filed on June 2, 2016; at that time, Plaintiff had approximately 11 months remaining to file her lawsuit. Wallis was dismissed on November 7, 2016, leaving Plaintiff until October 2017 to file her lawsuit. However, she filed in June 2018. The statute of limitations had already expired. Consequently, American Pipe tolling does not render this warranty claim timely.

Plaintiff also argues this claim was tolled because Defendant fraudulently concealed the Vehicle’s defects from her.

This doctrine operates such that “the defendant’s fraud in concealing a cause of action against him tolls the applicable statute of limitations.” (Regents of University of California v. Super. Ct. (1999) 20 Cal. 4th 509, 533.) “When 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.” (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641.) With regard to belated discovery due to fraudulent concealment in particular, the complaint must allege “(1) when the fraud was discovered; (2) the circumstances under which it was discovered; and (3) that the plaintiff was not at fault for failing to discover it or had no actual or presumptive knowledge of facts sufficient to put him on inquiry.” (Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 900.)
Here, Plaintiff’s complaint falls short of the foregoing standard, because her complaint lacks facts establishing the circumstances under which she discovered the fraud. She simply states she discovered the fraud when she attempted buyback or restitution of her Vehicle but does not provide material facts as to what the circumstances were. The Court, however, will provide Plaintiff with an opportunity to amend her pleading to address this deficiency.

Consequently, Defendant’s demurrer to the fifth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 20 DAYS LEAVE TO AMEND after service of this order signed by the Court.

C. Third Cause of Action

Plaintiff’s third cause of action alleges Defendant failed to make service literature and replacement parts available to its authorized service and repair facilities sufficient to repair her Vehicle during the express warranty period in violation of Civil Code section 1793.2, subdivision (a)(3) of the Song-Beverly Act, which provides that every manufacturer of consumer goods for which an express warranty is made shall “[m]ake available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.”

Defendant argues this cause of action is deficient because Plaintiff fails to plead facts identifying “any facility relevant to Plaintiff’s putative claims or allege in even cursory fashion what literature of replacement parts supposedly were unavailable to any such repair facilities.” (Dem., pp. 20:27-28, 21:1.) Defendant fails to cite any legal authority in support. As such, its argument is unsubstantiated. (See People v. Dougherty (1982) 138 Cal.App.3d 278, 282 [a point asserted without authority in support is without foundation and requires no discussion].) To the extent Defendant believes Plaintiff must plead evidentiary facts to support her claim, such position is misplaced. A “complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) In other words, a pleading “need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

Therefore, Defendant’s demurrer to the third cause of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

D. Fourth Cause of Action

Plaintiff’s fourth cause of action alleges Defendant breached the express written warranty provided with the Vehicle by failing to repair the defects.

Defendant first contends the fourth cause of action fails because Plaintiff did not plead the existence of an express warranty. In support, it recites ways in which an express warranty may be created and then states Plaintiff did not plead the same. Defendant does not elaborate any further. But Plaintiff specifically alleges she received an express written warranty and sets forth relevant terms. Defendant fails to explain how or why that allegation is insufficient for pleading purposes.

Next, Defendant argues the pleading fails because the warranty contract is not attached to the pleading or alleged verbatim. But the California Supreme Court has explicitly stated that, “[i]n an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.) That is the correct pleading rule; the authority cited by Defendant is not. (See Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 401-402.)
Next, Defendant argues the claim is redundant of the first cause of action for failure to replace or make restitution in violation of Civil Code section 1793.2, subdivision (d). This argument is unavailing. As the Sixth District has explained, the purported fact that causes of action are duplicative is not a ground to sustain a demurrer. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889-890.) Moreover, a claim for failure to repurchase is separate and distinct from a claim for breach of an express warranty. (Park City Services, Inc. v. Ford Motor Co., Inc. (2006) 144 Cal.App.4th 295, 301-303.)

Accordingly, Defendant’s demurrer to the fourth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

III. Motion to Strike

Defendant moves to strike portions of the Complaint pursuant to Code of Civil Procedure section 436, subdivision (a), which in pertinent part authorizes a court to strike out improper and irrelevant matter from a pleading.

As a preliminary matter, Defendant fails to adequately and consistently identify the challenged allegations. In the caption of the motion, Defendant states it is moving to strike punitive damages and civil penalties in connection with the third cause of action. Then, in the notice of motion and motion itself, it only mentions the prayer for punitive damages; it does not mention the prayer for civil penalties—which is addressed in the supporting memorandum—or otherwise indicate only the third cause of action is implicated. In this regard, Defendant’s presentation is imprecise and violates California Rules of Court, rule 3.1322(a) by failing to identify the prayer for civil penalties in the notice of motion. With that said, the Court will consider the merits of the motion to strike the prayer for civil penalties since Plaintiff apparently was not prejudiced by the defective notice.

Next, although the notice of motion and motion states Defendant is moving to strike portions of paragraphs 13 and 16 on the basis they consist of conclusory allegations of the Vehicle’s engine defects, Defendant does not actually address that issue in its memorandum of points and authorities. In fact, the conclusion of its memorandum asks the Court to strike only the prayers for punitive damages and civil penalties; the other paragraphs referenced in the notice of motion are not mentioned in the memorandum. The Court assumes the inclusion of paragraphs 13 and 16 in the notice of motion was a clerical error and Defendant did not intend to move to strike allegations therein.

A. Punitive Damages

Defendant moves to strike the prayer for punitive damages.

If a claim for punitive damages is not properly pleaded, it may be stricken. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.) In order to plead a claim for punitive damages, a plaintiff must allege the defendant was guilty of malice, oppression, or fraud and the ultimate facts underlying such allegations. (Civ. Code, § 3294, subd. (a); Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

Here, there are no direct allegations of malice or oppression in the complaint. But there are allegations of fraud. Defendant argues that because Plaintiff did not adequately plead her fraud cause of action, punitive damages are not recoverable based on fraud. This argument lacks merit in light of the Court’s order overruling the demurrer to the fraud claim.

Defendant additionally argues that punitive damages are not allowed under the Song-Beverly Act. The prayer for punitive damages, however, is not exclusive to the causes of action for violating the Song-Beverly Act. Since the fraud claim survives the demurrer, it provides a basis for the recovery of punitive damages. (See Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 610 [stating that a properly pleaded fraud claim will by itself support the recovery of punitive damages].)

Consequently, the motion to strike the prayer for punitive damages is DENIED.

B. Civil

Defendant moves to strike Plaintiff’s prayer for civil penalties as to the third cause of action. Plaintiff’s third cause of action alleges a violation of Civil Code section 1793.2, subdivision (a)(3). Defendant argues that Civil Code section 1793.2, subdivision (d)(1) specifies that the only available remedies for a violation of section 1793.2, subdivision (a)(3) are for Defendant to accept the defective Vehicle back or reimburse Plaintiff for its purchase.

In opposition, Plaintiff notes that this is incorrect, as Civil Code section 1794, subdivision (c) explicitly provides that a party may recover civil penalties for any violation of the Song-Beverly Act, but only if the violation was willful. (See Civ. Code, § 1794, subd. (a), (c).) Plaintiff also notes that it alleged Defendant’s violations of the Song-Beverly Act were willful.
Moreover, the Court observes that section 1793.2, subdivision (d) provides that a party may be entitled to damages under this section and damages under section 1794.

Plaintiff is correct, and she may request civil penalties for any violation of the Song-Beverly Act, including Civil Code section 1793.3, subdivision (a)(3), as long as she alleges willful conduct, which she does here.\
Accordingly, Defendant’s motion to strike the prayer for civil penalties pursuant to Civil Code section 1793.3, subdivision (a)(3) is DENIED.

The Court will prepare the Order.