Judge Ashfaq G. Chowdhury, Case Number: 25NNCV01160, Date: 2025-05-09 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 25NNCV01160, Date: 2025-05-09 Tentative Ruling

Case Number: 25NNCV01160 Hearing Date: May 9, 2025 Dept: E

Case No: 25NNCV01160
Hearing Date: 05/09/2025 – 8:30am

Trial Date: UNSET

Case Name: JESUS CRUZ v. HARLEY-DAVIDSON MOTOR COMPANY INC., a corporation; WEST COAST MOTORCYCLES INC D.B.A HARLEY DAVIDSON OF GLENDALE, a corporation; and DOES 1 through 10, inclusive

TENTATIVE RULING ON DEMURRER AND MOTION TO STRIKE

PROCEDURAL

Moving Party: Defendant, Harley-Davidson Motor Company, Inc. (Defendant or HD)

Responding Party: No opposition by Plaintiff

Moving Papers: Notice/Demurrer; Proposed Order

Opposing Papers: No opposition by Plaintiff

Reply Papers: Notice of Non-Opposition

Proof of Service Timely Filed (CRC, Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Correct Address (CCP § 1013, § 1013a, § 1013b): Ok

RELIEF REQUESTED

Defendant, Harley-Davidson Motor Company, Inc. (HD), demurs to the second cause of action for violation of Business and Professions Code Section 17200 (UCL) in Plaintiff’s Complaint.

Defendant demurs to the second cause of action pursuant to CCP § 430.10(e) for failure to state facts sufficient to constitute a cause of action.

BACKGROUND

Plaintiff, Jesus Cruz, filed the instant action on 2/21/2025.

Plaintiff names two defendants: (1) Harley-Davidson Motor Company, Inc. and (2) West Coast Motorcycles Inc. dba Harley Davidson of Glendale.

Plaintiff’s Complaint lists three causes of action: (1) Magnuson-Moss Warranty Act, (2) Violation of Business and Professions Code § 17200, and (3) Negligent Repair.

The first two causes of action are alleged against all Defendants.

The third cause of action is alleged against West Coast Motorcycles Inc. dba Harley Davidson of Glendale.

Plaintiff alleges that HD manufactured and/or distributed a 2024 Harley Davidson FLHX Street Glide that Plaintiff acquired on or about April 6, 2024. (See Compl. ¶¶ 4-5.)

Plaintiff alleges that HD issued express warranties as part of the purchase that the subject vehicle would be free from defects and nonconformities. (See Compl. ¶ 6.) Plaintiff also alleges that HD impliedly warranted the subject vehicle would be of the same quality as similar vehicles sold in the trade and the subject vehicle would be fit for the ordinary purposes for which similar vehicles are used. (See Compl. ¶ 7.)

Plaintiff alleges that Defendant failed to make the subject vehicle conform to the applicable warranties, despite a reasonable amount of time and reasonable number of attempts to do so. (See Compl. ¶ 10.)

PROCEDURAL
Meet and Confer
A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41, subd. (a)(2).) Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Id., § 430.41(a)(4).)

Here, Defendant’s counsel sent Plaintiff’s counsel a letter via email explaining to Plaintiff’s counsel the issues that it had with the second cause of action. (See Kong Decl. ¶ 4.) Several days later, Defendant’s counsel followed up via email attempting to meet and confer, explaining that Defendant’s counsel was willing to discuss the issues over a phone call or email. (See Kong Decl. ¶ 5.) Defendant’s counsel states that Plaintiff’s counsel has remained unresponsive. (See Kong Decl. ¶ 6.)

LEGAL STANDARDS FOR DEMURRERS
Demurrer – Sufficiency
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading … is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.)

Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

ANALYSIS
Second Cause of Action – Violation of Business and Professions Code Section 17200

Discussion
California’s unfair competition law, Business and Professions Code § 17200 et seq., is commonly known as the UCL. (See Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949.) The purpose of the UCL “is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.” (Drum v. San Fernando Valley Bar Assn. (2010) 182 Cal.App.4th 247, 252 citing Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949.) Business and Professions Code section 17200 provides: “[a]s used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” (Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 284.) Because the UCL is written in the disjunctive, it establishes three varieties of unfair competition – acts or practices which are unlawful, or unfair, or fraudulent. (Adhav v. Midway Rent a Car, Inc. (2019) 37 Cal.App.5th 954, 970 citing Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.)

Unlawful
“ ‘The “unlawful” practices prohibited by … section 17200 are any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made. [Citation.] It is not necessary that the predicate law provide for private civil enforcement. [Citation.] As our Supreme Court put it, section 17200 “borrows” violations of other laws and treats them as unlawful practices independently actionable under section 17200 et seq.’” (South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861, 880 citing Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 531-532.) “A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619; “Demurrer was properly sustained as to this cause of action because the second amended complaint identifies no particular section of the statutory scheme which was violated and fails to describe with any reasonable particularity the facts supporting violation.”)

Plaintiff’s Complaint divides its second cause of action into three prongs – unlawful, unfair, and fraudulent.

Under the unlawful prong of the second cause of action, Plaintiff alleges:

Defendant HARLEY-DAVIDSON MOTOR COMPANY INC. intentionally placed the Subject Vehicle, with defective components, into the stream of commerce. They knew the components and the Subject Vehicle suffered from defects which substantially affected the vehicle’s value and safety. The issues that affected the Subject Vehicle were extensive and Manufacturer knew these defects existed and intentionally sold defective vehicles to the general public.

(Compl. ¶ 30.)

Here, the Court does not find that Plaintiff alleged sufficient facts to state a cause of action under the unlawful prong of the UCL.

“ ‘The “unlawful” practices prohibited by … section 17200 are any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made. [Citation.] It is not necessary that the predicate law provide for private civil enforcement. [Citation.] As our Supreme Court put it, section 17200 “borrows” violations of other laws and treats them as unlawful practices independently actionable under section 17200 et seq.’” (South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861, 880 citing Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 531-532.)

It is unclear what law Plaintiff is alleging the conduct in paragraph 30 of the Complaint violated.

Thus, Plaintiff did not state facts sufficient to constitute a cause of action under the unlawful prong of the UCL.

Unfair

There is authority that the test to determine whether a business practice is unfair differs depending on whether the plaintiff in a UCL case is a competitor of the defendant or a consumer. (Drum v. San Fernando Valley Bar Assn. (2010) 182 Cal.App.4th 247, 253.) In competitor cases, a business practice is “unfair” only if it “threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens of harms competition.” (Id. citing Cel-Tech, supra, 20 Cal.4th at 187.)

In consumer cases, the Supreme Court has not established a definitive test to determine whether a business practice is unfair. (Drum v. San Fernando Valley Bar Assn., supra, 182 Cal.App.4th at 246 citing Cel-Tech, supra, 20 Cal.4th at 187, fn. 12.)

Several definitions of “unfair” under the UCL have been formulated, and they are:

1. “An act or practice is unfair if the consumer injury is substantial, is not outweighed by any countervailing benefits to consumers or to competition, and is not an injury the consumers themselves could reasonably have avoided.” (Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 839.)

2. “’[A]n “unfair business practice occurs when that practice “offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” [Citation.]’ [Citation.]” (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 719.)

3. An unfair business practice means the “ ‘the public policy which is a predicate to the action must be “tethered” to specific constitutional, statutory or regulatory provisions.’” (Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 940.)

(West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 806.)

“The balancing test required by the unfair business practice prong of section 17200 is fact intensive and is not conducive to resolution at the demurrer stage. ‘[U]nfairness’ is an equitable concept that cannot be mechanistically determined under the relatively rigid legal rules applicable to the sustaining or overruling of a demurrer.” (Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 287 citing Schnall v. Hertz Corp. (2000) 78 Cal.App.4th 1144, 1167.)

Under the unfair prong of Plaintiff’s Complaint, Plaintiff alleges as follows:

33. Defendants’ actions and representations constitute an “unfair” business act or practice under § 17200 in that Defendant’s conduct is substantially injurious to consumers, offends public policy, and is immoral, unethical, oppressive, and unscrupulous as the gravity of the conduct outweighs any alleged benefits attributable to such conduct. Without limitation, it is an unfair business act or practice for Defendants to knowingly or negligently:

(1) fail to provide repair facilities to service vehicles to conform to the express warranties reasonably close to where Plaintiff’s vehicle is sold;

(2) provide their authorized repair facilities service and repair literature to allow them to conform the vehicles to the express warranties;

(3) inform consumers of their warranty rights on their repair orders; (4) pay their authorized repair facilities for work done under the express warranty;

(5) Trying to coerce Plaintiff and other members of the public to sign confidentiality clauses.

34. At a date presently unknown to Plaintiff, within four years of the filing of this action, and as set forth above, Defendants have committed acts of unfair competition as defined by Cal. Bus. & Prof. Code §§ 17200 et seq., as alleged further detail above and herein.

35. Plaintiff could not have reasonably avoided the injury suffered herein. Plaintiff reserves the right to allege further conduct that constitutes other unfair business acts or practices. Such conduct is ongoing and continues to this date, as Defendants continue to violate the provisions of the Song-Beverly Act.

(Compl. ¶¶ 33-35.)

Here, the Court will hear argument.

First, as to the allegations in paragraph 33, it is not entirely clear what Plaintiff is referring to with respect to Defendant’s “actions and representations.”

Are the actions the failure to conform to warranties? Further, what are the representations?

Further, the Court points to a portion of Plaintiff’s allegations in ¶ 33:

Without limitation, it is an unfair business act or practice for Defendants to knowingly or negligently:

(1) fail to provide repair facilities to service vehicles to conform to the express warranties reasonably close to where Plaintiff’s vehicle is sold;

(2) provide their authorized repair facilities service and repair literature to allow them to conform the vehicles to the express warranties;

(3) inform consumers of their warranty rights on their repair orders; (4) pay their authorized repair facilities for work done under the express warranty;

(5) Trying to coerce Plaintiff and other members of the public to sign confidentiality clauses.

(Compl. ¶ 33.)

The Court points to the aforementioned allegations in paragraph 33 because Plaintiff does not even allege that Defendants did, or failed to do, those things mentioned in subsections (1)-(4) of ¶ 33.

Plaintiff simply states that those acts/practices are unfair. Plaintiff does not allege that Defendant did those unfair acts/practices.

That being said, Plaintiff alleges:

Defendants’ actions and representations constitute an “unfair” business act or practice under § 17200 in that Defendant’s conduct is substantially injurious to consumers, offends public policy, and is immoral, unethical, oppressive, and unscrupulous as the gravity of the conduct outweighs any alleged benefits attributable to such conduct.

(Compl. ¶ 33.)

To the extent that Plaintiff refers to “Defendants’ actions,” and to the extent that Plaintiff is referring to Defendant’s vehicle failing to conform to warranty, Plaintiff may have stated a cause of action under the unfair prong.

The Court to hear argument as to whether Plaintiff alleged a cause of action under the unfair prong. Further, the Court notes Plaintiff may want to ask for leave to amend at the hearing if Plaintiff intended to allege subsections (1)-(4) in ¶ 33 against Defendant. Because as it currently stands, Plaintiff did not allege subsections (1)-(4) in ¶ 33 against Defendant.

Fraudulent

“A fraudulent business practice under section 17200 ‘is not based upon proof of the common law tort of deceit or deception, but is instead premised on whether the public is likely to be deceived.’” (Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 284 citing Pastoria v. Nationwide Ins. (2003) 112 Cal.App.4th 1490, 1498.) Stated another way, “In order to state a cause of action under the fraud prong of [section 17200] a plaintiff need not show that he or others were actually deceived or confused by the conduct or business practice in question. ‘The “fraud” prong of [section 17200] is unlike common law fraud or deception. A violation can be shown even if no one was actually deceived, relied upon the fraudulent practice, or sustained any damage. Instead, it is only necessary to show that members of the public are likely to be deceived.’ [Citations.]” (Progressive West Ins. Co., supra, 135 Cal.App.4th at 284 citing Schnall v. Hertz Corp. (2000) 78 Cal.App.4th 1144, 1167.)

Here, Plaintiff alleges that “consumers are likely to be deceived by the acts described above in this complaint.” (Compl. ¶ 38.)

The Court will hear argument, as it is not entirely clear what “acts” are likely to deceive consumers.

TENTATIVE RULING

The Court to hear argument. Plaintiff did not state facts sufficient to constitute a cause of action for violation of the UCL under the unlawful prong; however, if the Court finds that Plaintiff sufficiently alleged facts under either the unfair or fraudulent prong, then Plaintiff sufficiently stated a cause of action under the UCL, and Defendant’s demurrer to the second cause of action will be overruled. Additionally, if Plaintiff intended to allege subsections (1)-(4) in ¶ 33 against Defendant, Plaintiff may want to seek leave to amend at the hearing.

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