JUAN HERNANDEZ VS HOLLYWOOD RIDES INC.; AND DOES 1 THROUGH 20 INCLUSIVE

Tentative Rulings

Case Number: 20STLC00672    Hearing Date: October 13, 2020    Dept: 26

Hernandez v. Hollywood Rides, Inc., et al

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendant Hollywood Rides, Inc.’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

ANALYSIS:

On January 22, 2020, Plaintiff Juan Hernandez (“Plaintiff”) filed the instant action against Defendant Hollywood Rides, Inc. (“Defendants”) for (1) Breach of Implied Warranty of Title in Violation Of Magnuson-Moss Warranty Act, 15 U.S.C. § 2301; and (2) Violation of Vehicle Code § 5753 Failure to Deliver Certificate of Ownership. The Complaint pertains to the sale of a used 2015 Chevrolet Silverado 1500 (“the Vehicle”). (Compl.,

On April 15, 2020, Defendant filed the instant Demurrer to the Complaint. On September 29, 2020, Plaintiff filed an opposition and Defendant replied on October 5, 2020.

Request for Judicial Notice

The demurrer asks the Court to take judicial notice of the following business records created by Defendant: (1) the Vehicle/Vessel Transfer and Reassignment Form for the Vehicle; (2) an unnamed / unidentifiable document; (3) a printout of the electronic application for transfer and release of liability system; and (4) registration card of Hernandez Juan G for a 2015 Chevrolet Commercial. (Demurrer, RJN, pp. 1-2.) Other than broadly citing to Cal. Evidence Code sections 451, 452 and 453, the Demurrer offers no explanation why business records created by Defendant are matters of which the Court may take judicial notice. Defendant’s request for judicial notice is denied.

The opposition asks the Court to take judicial notice of Legislative History, Governor’s File, Senate Bill No. 237, Chapter 151, which pertains to Cal. Vehicle Code section 5753. Pursuant to Cal. Evidence Code section 452, subdivisions (a) and (c), Plaintiff’s request for judicial notice is granted.

Discussion

The Demurrer demonstrates compliance with the requirements of Code of Civil Procedure section 430.41. The demurring party is required to meet and confer in person or telephonically at least five days before the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a).) The Demurrer is accompanied by a declaration demonstrating a prior meet and confer effort. (Demurrer, Parshin Decl., ¶¶2-4.)

The Court also addresses both parties’ contentions that notice of the papers was not provided as required by the Code of Civil Procedure. Insofar as neither party has been prejudiced by any apparent improper notice, the Court finds no reason to fail to address the substantive merits of the Demurrer.

The Complaint alleges two causes of action: (1) Breach of Implied Warranty of Title in Violation of Magnuson-Moss Warranty Act, 15 U.S.C. § 2301; and (2) Violation of Vehicle Code § 5753 Failure to Deliver Certificate of Ownership. Defendant demurs to both causes of action for failure to allege sufficient facts. (Code Civ. Proc., § 430.10, subd. (e).)

The Complaint alleges that on June 21, 2019, Plaintiff paid Defendant $23,737.58 in exchange for the Vehicle, at which time Defendant represented that it had full right and title to sell the Vehicle

and transfer all rights and title to the Vehicle to Plaintiff upon full payment, and that Defendant would pay all DMV registration, title and transfer fees to the California Department of Motor Vehicles (“the DMV”). (Compl., ¶¶5-6 and Exh. A.) Defendant allegedly misrepresented that it had had full right and title to sell the Vehicle and transfer all rights and title to the Vehicle to Plaintiff. (Id. at ¶7a.) Defendant also allegedly misrepresented that it would pay all DMV registration, title and transfer fees to the DMV. (Id. at ¶7b.) It is also alleged that Defendant failed to deliver the Vehicle’s certificate of ownership and registration card to Plaintiff within fifteen (15) days after receipt of full payment of the purchase price. (Id. at ¶11.)

In the first cause of action Plaintiff alleges that Defendant breached the implied warranty set forth in 15 U.S.C. section 2301 by failing to deliver the certificate of ownership within 15 business days of Plaintiff’s entitlement to receive title under California Vehicle Code section 5753. (Id. at ¶¶21-23.) As a result, Plaintiff alleges he is entitled to reimbursement of the purchase money and to statutory penalties under Vehicle Code section 5753. The second cause of action also alleges that Defendant violated Vehicle Code section 5753 by failing to deliver the certificate of ownership and vehicle registration within 15 days of receipt of full payment. (Compl., ¶32.) Plaintiff again alleges he is entitled to statutory damages as a result. (Id. at ¶36.)

The gravamen of the Complaint, therefore, is Defendant’s alleged violation of Vehicle Code section 5753 and Plaintiff’s entitlement to damages thereunder. Vehicle Code section 5753 states in relevant part:

(a) It is unlawful for any person to fail or neglect properly to endorse, date, and deliver the certificate of ownership and, when having possession, to deliver the registration card to a transferee who is lawfully entitled to a transfer of registration.

(b) Except when the certificate of ownership is demanded in writing by a purchaser, a vehicle dealer licensed under this code shall satisfy the delivery requirement of this section by submitting appropriate documents and fees to the department for transfer of registration in accordance with Sections 5906 and 4456 of this code and rules and regulations promulgated thereunder.

(c)(1) Within 15 business days after receiving payment in full for the satisfaction of a security interest and a written instrument signed by the grantor of the security interest designating the transferee and authorizing release of the legal owner's interest, the legal owner shall release its security interest and mail, transmit, or deliver the vehicle's certificate of ownership to the transferee who, due to satisfaction of the security interest, is lawfully entitled to the transfer of legal ownership.

(Cal. Veh. Code, § 5753, subds. (a), (b), (c).) Section 5753 makes it unlawful for a dealer, such as Defendant, to fail to deliver the certificate of ownership and registration card to a purchaser, like Plaintiff, who is lawfully entitled to a transfer of registration. (Cal. Veh. Code, § 5753, subd. (a).) However, subdivision (b) makes delivery of the registration card to the purchaser conditional upon written demand. (Cal. Veh. Code, § 5753, subd. (b).) If no written demand is made by the purchaser, the dealer must satisfy its obligation to deliver the registration card by submitting the appropriate documents and fees to the DMV for transfer of registration in accordance with sections 5906 and 4456 of the Vehicle Code. Under subdivision (c)(1), the dealer must deliver the vehicle's certificate of ownership to the transferee within 15 days. (Cal. Veh. Code, § 5753, subd. (c)(1).)

The Complaint does not allege that Plaintiff made written demand upon Defendant for delivery of the registration card. Therefore, there is no allegation showing that Defendant was obligated to deliver the certificate of ownership and registration card to Plaintiff. Nor does the Complaint expressly allege that Defendant failed to submit the appropriate documents to the DMV for transfer of registration. So, there is no allegation that Defendant violated Cal. Vehicle Code section 5753, subdivision (c)(1).

Furthermore, in order for Plaintiff to obtain statutory penalties under Cal. Vehicle Code section 5753, subdivision (e), the Complaint must allege Defendant violated both subdivisions (c) and (d). Without an allegation that Defendant violated subdivision (c), Plaintiff also cannot allege that the certificate of ownership delivered failed to accomplish release of the legal owner's interest pursuant to subdivision (d).

Based on the foregoing, the demurrer to the Complaint is sustained with leave to amend. The Court does not reach the specific issue of whether Plaintiff can state a claim for breach of implied warranty under the Magnuson-Moss Act with respect to the purchase of a motor vehicle, but points out that “[i]n California, an implied warranty of merchantability arises under the Song–Beverly Consumer Warranty Act.” (Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 24.)

Conclusion

Defendant Hollywood Rides, Inc.’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party to give notice.