Judge: Blaine K. Bowman, Case: 37-2023-00033687-CU-BC-NC, Date: 2024-01-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - January 18, 2024

01/19/2024  10:00:00 AM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00033687-CU-BC-NC SWENSON FAMILY TRUST VS DOHERTY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 11/03/2023

The Demurrer brought by defendant Andrea Doherty (dba CPR Classic Sales) (dba CPR Classic Restorations) (dba California Porsche Restorations) (hereinafter, Doherty) is OVERRULED in its entirety. The time to answer or otherwise plead shall be as set forth in California Rules of Court, rule 3.1320.

Admonishment The Court notes that the opposition brief was served by mail only, which is improper. Opposition briefs are to be served via means designed to ensure next-day receipt in order to provide counsel a full and fair opportunity to file responsive briefing. While the Court exercises it discretion and will consider the merits of the opposition brief this time, the Court applies more draconian standards when a party commits the same procedural error in a manner that is repetitious or establishes a pattern of disregarding procedural rules. As such, should future briefing be served improperly or in a manner that denies opposing counsel the opportunity to fully and fairly respond, harsher sanctions than an admonishment may be applied. Moreover, the Court notes for the edification of the parties that the improper service of the opposition brief resulted in a reply brief being filed at 7:11 p.m.

on Wednesday, January 17, 2024, effectively leaving the Court one day to review the reply brief. To the extent that failure to comply with procedural rules burdens the Court with improperly-tight deadlines to prepare tentative rulings for the Law & Motion calendar, such failures are discouraged.

Factual Background and Merits of Motion This case pertains to the sale and restoration of a classic Porsche, specifically, a 1971 Porsche 911 S coupe (the Subject Vehicle). The buyers were the plaintiffs, which are technically a trust – the Swenson Family Trust – but which is controlled by trustees Darrell and Susan Swenson. As such, the buyers, the plaintiffs, the trust, and Darrell and Susan will all be referenced collectively herein as 'the Swensons.' What makes the case interesting is that the deal in this case was not a classic purchase and sale transaction with a simple buyer and seller. Instead, there was a restoration component, whereby Doherty, who is in the business of locating and restoring old Porsche vehicles was to both locate a vehicle fitting the Swenson's parameters and restore that vehicle to a condition that the Swensons found adequate. To complete the first step of that process, it appears that Doherty found a dealer in the State of Florida who had what might be referenced as a 'clunker' version of the classic car in question and made a deal to procure that vehicle and have it sent to California so that Doherty could begin restoring it.

Plaintiffs had put down $200,000.00 deposit to begin this project and receive Doherty's services. It appears that the Florida dealer shipped the vehicle in question to Doherty in California, but retained title Calendar No.: Event ID:  TENTATIVE RULINGS

3047778 CASE NUMBER: CASE TITLE:  SWENSON FAMILY TRUST VS DOHERTY [IMAGED]  37-2023-00033687-CU-BC-NC to the vehicle while Doherty was in the process of restoring it. The problems in this case seem to arise out of the fact that, eventually, it was discovered that there was a discrepancy between the VIN number on the physical vehicle that had been transported to California and the VIN number on the Florida title held by the Florida dealership – though this discrepancy was not caught immediately by the Swensons.

In any event, it appears that the Swensons continued to make certain installment payments toward the restoration of the vehicle, to the point that the Swensons ultimately had $270,000.00 'invested' in the vehicle at a time when all Doherty had done was: (1) locate a vehicle, (2) organize the shipping of that vehicle, (3) disassemble that vehicle, and (4) put a primer coat on that vehicle. It was not in a condition for the Swensons to take possession and actually make use of the vehicle.

The Swensons are now suing Doherty for: (1) breach of contract, (2) declaratory relief, (3) breach of warranty, (4) constructive trust, and (5) fraud. The factual narrative of the case is sufficient to support such causes of action. Though Doherty takes the position that the Swensons did not take official action to rescind the contract, that factual issue cannot be proven-up by Doherty on demurrer.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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