Gitmed
Gitmed v. General Motors Corp.
Opinion
Opinion
Hastings, J.
— In this opinion, we hold that the trial court abused its discretion in dismissing an action after appellant filed his amended complaint one day late. We also hold that where the amended complaint has been served on the defendant before the defendant moves to dismiss the action, the defendant must give notice of any application or motion to dismiss or strike to the opposing party.
Facts
On September 10, 1986, appellant Jerry Gitmed purchased a new automobile from respondent General Motors Corporation (GMC). In January of 1987, the car experienced engine and electrical system malfunctions. These malfunctions relating to the brake, transmission, hydraulic and fuel systems plagued the car on a persistent basis through November 1988. Respondent apparently was not able to repair the car.
On October 15, 1991, appellant filed this action against respondent, alleging breach of express warranty, breach of implied warranty and violation of the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.). Respondent demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action in that all claims were time-barred by Code of…