Judge: Carolyn M. Caietti, Case: 37-2023-00014133-CU-PA-CTL, Date: 2024-01-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 04, 2024

01/05/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  PI/PD/WD - Auto Demurrer / Motion to Strike 37-2023-00014133-CU-PA-CTL CALLENDER VS AMERICAN HONDA MOTORS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant American Honda Motor Co., Inc.'s Demurrer to Plaintiff's Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Preliminary Matters Defendant's request for judicial notice of the printout from the Florida Highway Safety and Motor Vehicle's website is denied. (ROA 21; ROA 20, Donoho Decl., Ex. B – Computer Printout of the Vehicle Information Check.) Although unopposed, Defendant did not furnish the Court with sufficient information to enable the Court to take judicial notice of the printout and did not show how the matter is relevant.

(Evid. Code, § 453, subd. (b); Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569.) Defense counsel attests the vehicle identification number (VIN) on the printout shows the same VIN 'as that reflected in Plaintiff's Complaint.' (ROA 20, Donoho Decl., ¶ 6.) However, no VIN for the subject vehicle, a 2021 Honda Odyssey, appears in the Complaint or the attached exhibit. (See, ROA 1.) Additionally, the printout does not identify the model of the vehicle. (See, ROA 20, Donoho Decl., Ex. B [identifying the year and make as a '2021 AMERICAN HONDA MOTOR CO, INC.'].) Thus, the Court cannot determine whether the printout refers to the subject vehicle identified in the Complaint.

Discussion A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) Defendant duly served the demurrer on Plaintiff. (ROA 23, 33.) The demurrer is unopposed; thus, Plaintiff impliedly concedes on the merits of the motion. (San Diego Local Rule 2.1.19(B) ['The court may deem a lack of opposition to be a concession that a motion is meritorious.'].) Calendar No.: Event ID:  TENTATIVE RULINGS

2985357  49 CASE NUMBER: CASE TITLE:  CALLENDER VS AMERICAN HONDA MOTORS [IMAGED]  37-2023-00014133-CU-PA-CTL In addition, the Complaint fails to state sufficient facts. (C.C.P., § 430.10(e).) Generally, the Complaint alleges Defendant's sale of a defective vehicle to Plaintiff caused Plaintiff financial and non-financial harm and unjustly enriched Defendant. (ROA 1, Complaint, ¶ 1.) The Complaint seeks restitution against Defendant pursuant to Civil Code § 1793.2 (part of the Song-Beverly Act) and unjust enrichment. (Id., ¶¶ 8-11.) The Complaint does not allege where Plaintiff purchased the subject vehicle; as a result, the Complaint fails to state sufficient facts to show the Song-Beverly Act applies. (Cummins, Inc. v. Superior Court (2005) 36 Cal.4th 478, 483 ['the Act does not apply unless the vehicle was purchased in California']; Park City Services, Inc. v. Ford Motor Co., Inc. (2006) 144 Cal.App.4th 295, 308 [for the Act to apply, 'the subject vehicle must at least have been bought or leased in California'].) Moreover, the Complaint does not allege the subject vehicle had any express warranties, the vehicle experienced defects covered by express warranties, or that Defendant was unable to conform to the applicable express warranties after a reasonable number of attempts. Nor does the Complaint include any allegations regarding any breach of implied warranties under the Song-Beverly Act. Additionally, '[t]here is no cause of action in California for unjust enrichment.' (Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1138 [affirming trial court's ruling sustaining demurrer to unjust enrichment claim without leave to amend].) Rather, it is a general principle underlying various doctrines and remedies.

(Jogani v. Superior Court (2008) 165 Cal.App.4th 901, 911; McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1490.) Plaintiff did not request leave to amend nor identify any facts to cure the defects raised in the demurrer.

Thus, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

These grounds alone are sufficient to sustain the demurrer without leave to amend, making the other grounds identified by Defendant moot.

Concluding Orders Defendant American Honda Motor Co., Inc. is ordered to prepare and submit a judgment of dismissal by January 19, 2024.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

Further, this ruling is dispositive of the entire action. Defendant American Honda Motor Co., Inc. is also ordered to serve notice of the Court's final order on all appearing parties by January 9, 2024.

The parties are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

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