Judge: Cynthia A Freeland, Case: 37-2023-00020497-CU-BC-NC, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 02, 2023

11/03/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00020497-CU-BC-NC UHLMEYER VS. BAKER SATISFACTION, INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 07/12/2023

Defendant BSI Satisfaction, Inc. ('Defendant')'s demurrer to Plaintiffs David Uhlmeyer and Leandra Uhlmeyer (collectively, 'Plaintiffs')'s First Amended Complaint (the 'FAC') is sustained in part and overruled in part.

Initially, the court notes that Plaintiffs' opposition to the demurrer was filed and served on October 23, 2023 (see ROA No. 21) and, therefore, was timely. The court does not understand the reference in Defendant's reply to a service date of October 25, 2023. While Ms. Norris' October 27, 2023 declaration was not an authorized filing, all it does is confirm what the Register of Actions ('ROA') actually shows – that service of the opposition was, in fact, timely. Even assuming Plaintiffs' opposition had been untimely, Defendant has failed to demonstrate any resulting prejudice. See Luri v. Greenwald (2003) 107 Cal. App. 4th 1119, 1127.

Defendant's request for judicial notice ('RJN') is granted. Plaintiffs contend in their opposition that Defendant did not request judicial notice; however, the ROA reveals that Defendant did file a Code-compliant RJN on July 12, 2023. See ROA No. 13. The issue, however, is that Defendant's proof of service of the RJN reflects a service date of 'March 8, 2023,' which is not possible given that the RJN was not filed until July 12, 2023. See ROA No. 16. Consequently, there is insufficient support for the proposition that Plaintiffs were served with the RJN. That being said, as Defendant accurately notes in its reply, a party challenging a complaint by way of a demurrer is not required to request judicial notice because the court may take judicial notice on its own motion. See Cal. Evid. Code § 455; California Pub.

Records Research, Inc. v. County of Yolo (2016) 4 Cal. App. 4th 150, 168, fn. 8. To the extent Plaintiffs contend that the documents set forth in Defendant's RJN are not properly subject to judicial notice, the court respectfully disagrees. Defendant asks the court to take judicial notice of the FAC and several documents filed in Uhlmeyer v. Subaru of America, Inc. (Case No. 37-2019-00056965-CU-BC-NC) (the 'First Lawsuit'). The court can take judicial notice of its own records in this and other actions. See Cal. Evid. Code § 452(d).

A demurrer tests the legal sufficiency of a pleading. See McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1469. When reviewing a demurrer, the court 'give[s] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court 'treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law.' Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1358. The court's analysis is limited to the complaint, exhibits attached to the complaint and incorporated by reference, and matters properly subject to judicial notice. See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, Calendar No.: Event ID:  TENTATIVE RULINGS

2994024 CASE NUMBER: CASE TITLE:  UHLMEYER VS. BAKER SATISFACTION, INC [IMAGED]  37-2023-00020497-CU-BC-NC 665; Thorburn v. Department of Corrections (1998) 66 Cal. App. 4th 1284, 1287-1288; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.

Defendant's demurrer to the first cause of action for breach of the implied warranty of merchantability under The Song-Beverly Act ('Song-Beverly') and the second cause of action for breach of express warranty under Song-Beverly is sustained. Initially, to the extent that Plaintiffs contend that a demurrer is not the 'appropriate stage for this Court's determination of such issues,' the court must respectfully disagree. See Lazzarone v. Bank of America (1986) 181 Cal. App. 3d 581, 590.

Res judicata, or claim preclusion, 'prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.' Mycogen Corp. v. Monsanto Co. (2002) 28 Cal. 4th 888, 896. 'Claim preclusion arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit.' DKN Holdings LLC v. Faerber (2015) 61 Cal. 4th 813, 824.

The court finds that Defendant has established that Plaintiffs are precluded from asserting their first and second causes of action under the doctrine of res judicata. As to the first element, 'two actions constitute a single cause of action if they both affect the same primary right[.]' Dunkin v. Boskey (2000) 82 Cal. App. 4th 171, 182 (quoting Acuna v. Regents of University of California (1997) 56 Cal. App. 4th 639, 648). ''[T]here is only a single cause of action for the invasion of one primary right,' even if multiple theories of recovery are asserted.' Dunkin, 82 Cal. App. 4th at 182 (quoting Agarwal v. Johnson (1979) 25 Cal. 3d 932, 954). In making this determination, the court 'must compare the two actions, looking at the rights which are sought to be vindicated and the harm for which redress is claimed.' Dunkin, 82 Cal. App. 4th at 182 (citing Zimmerman v. Stotter (1984) 160 Cal. App. 3d 1067, 1073).

The court finds that Defendant has established the first element of res judicata. The court has taken judicial notice of the pleadings in the present action and the First Lawsuit. In the First Lawsuit, Mr.

Uhlmeyer (but not Mrs. Uhlmeyer) filed a Complaint (the 'First Lawsuit Complaint') against Subaru of America, Inc. ('Subaru') alleging causes of action for: (1) breach of the implied warranty of merchantability under Song-Beverly, and (2) breach of express warranty under Song-Beverly. Mr.

Uhlmeyer alleged that on June 18, 2019, he purchased a new 2019 Subaru Crosstrek (VIN JF2GTANCXK8323394) (the 'Vehicle') for approximately $31,500.00. Mr. Uhlmeyer's purchase of the Vehicle included certain warranties as stated in ¶ 8 of the First Lawsuit Complaint: Plaintiff received written warranties and other express and implied warranties including, but not limited to, warranties from Manufacturer and Seller that the Vehicle and its components would be free from all defects in material and workmanship; that the Vehicle would pass without objection in the trade under the contract description; that the Vehicle would be fit for the ordinary purposes for which it was intended; that the Vehicle would conform to the promises and affirmations of fact made; that Defendants, and each of them, would perform any repairs, alignments, adjustments, and/or replacements of any parts necessary to ensure that the Vehicle was free from any defects in material and workmanship; that Defendants, and each of them, would maintain the utility of the Vehicle for Three (3) years or 36,000 miles and would conform the Vehicle to the applicable express warranties. (A copy of the written warranty is in the possession of the Defendants).

See First Lawsuit Complaint, ¶ 8.

Mr. Uhlmeyer further alleged that he delivered the Vehicle to Subaru's authorized service and repair facilities, agents, and/or dealers on at least three occasions to address, inter alia, 'defects and malfunctions, specifically for issues with inoperable audio unit, instrument panel and information screen, lights shutting down, Code U0156 for 'Lost Communication with Information Center A', Code U0162 for 'Lost Communication with Audio Visual Navigation Display Module' and Code B2244 for 'Amplifier Communication.'' Ibid., ¶¶ 10-11. However, Subaru and/or its representatives were unable to conform the Vehicle to the applicable warranties. Ibid., ¶ 13.

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2994024 CASE NUMBER: CASE TITLE:  UHLMEYER VS. BAKER SATISFACTION, INC [IMAGED]  37-2023-00020497-CU-BC-NC By way of the FAC, Plaintiffs seek to vindicate the same primary rights at issue in the First Lawsuit. More specifically, the first and second causes of action in each lawsuit alleged breaches of the implied warranty of merchantability and express warranty under Song-Beverly. Both lawsuits involve the alleged failure to repair the Vehicle to conform with the applicable warranties. Ibid., ¶ 8; FAC, ¶¶ 7-8. The relief sought is identical. The only discernible differences between the two cases are that: (1) the FAC, as part of the Prayer for Relief, includes requests for injunctive relief, punitive damages, and monetary damages; (2) the FAC alleges that Plaintiffs delivered the Vehicle to Defendant's authorized service and repair facilities on five separate occasions (the First Lawsuit Complaint alleges that it was three times); and (3) the FAC has slightly amended the complained-of defects to include '(a) the infotainment system on three (3) separate occasions causing the display screen to go blank, the audio unit volume malfunctioning; (b) a defective dashboard on three (3) separate occasions; (c) the Vehicle producing a buzzing noise during highway speed and start-up issues; (d) recall #WUQ-02 to address the 'Ignition Coil Reprogramming;' (e) the transmission slipping during acceleration on two (2) separate occasions; and (f) a failing battery.' See FAC, ¶ 11. Plaintiffs suggest in their opposition that: (1) the present case does not regard the same warranties as the First Lawsuit because the instant action involves the express and implied warranties issued by Defendant when it installed the Southwest KARR Security Alarm (an allegation absent from the FAC), and (2) they can avoid a finding of claim preclusion by adding a fourth cause of action for violation of California Business & Professions Code § 17200. The court respectfully disagrees (and to the extent Plaintiffs request in their opposition leave of court to amend the operative pleading, such request is not properly before the court). 'Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.' Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal. App. 4th 150, 154. Res judicate bars all causes of action that were litigated or that could have been litigated in the first action. Ibid., at 155. 'Claims that could have been brought' include 'claims in existence when the original complaint was filed or claims actually asserted by supplemental pleadings.' Ibid. In this instance, there is no indication that Mr. Uhlmeyer, in the First Lawsuit, could not have brought the claims that Plaintiffs are now asserting against Defendant. Nor could they given that they would have been aware of the problems with the Vehicle when they presented it for repair as well as the applicable warranties at issue. In sum, the alleged injury is the same between the two actions, i.e., damages Mr. Uhlmeyer and/or Plaintiffs suffered as a result of the defendants' failures to repair the Vehicle to conform to the applicable express and implied warranties.

As to the second element, res judicata prevents relitigation of the same cause(s) of action in a second suit between the same parties or parties in privity with them. See Cal Sierra Development, Inc. v. George Reed, Inc. (2017) 14 Cal. App. 5th 663, 671. The Third District Court of Appeal has recently explained: Privity for collateral estoppel and res judicata purposes refers to a relationship between the party to be estopped and the unsuccessful party in the prior litigation sufficiently close to justify application of the doctrine of res judicata. The determination of privity depends on the fairness of binding one party with the result from an earlier proceeding in which it did not participate. Such a determination requires a close examination of the circumstances. The nonparty must have had an identity or community of interest with, and adequate representation by, the party in the first action, so that the nonparty should have expected to be bound by the prior adjudication. (Citizens for Open Access, supra, 60 Cal.App.4th at pp.

1069-1070, 71 Cal.Rptr.2d 77.) Central Delta Water Agency v. Department of Water Resources (2021) 69 Cal. App. 5th 170, 209.

The parties to the present action and the First Lawsuit are not identical. In the First Lawsuit, Mr.

Uhlmeyer sued Subaru for various Song-Beverly violations. In the present action, Mrs. Uhlmeyer has been added as a plaintiff and Plaintiffs are suing Defendant, rather than Subaru, for the same violations.

The court finds for purposes of res judicata that: (1) the Uhlmeyers are in privity with each other, and (2) Subaru and Defendant are in privity with each other. As to the Uhlmeyers, '[u]nder California law, spouses are in privity with each other where the cause of action in the prior litigation was 'community in nature' and the 'proceeds of any judgment that might have been recovered ... would have belonged to both husband and wife, as community property.' Mueller v. J.C. Penney Co. (1985) 173 Cal. App. 3d Calendar No.: Event ID:  TENTATIVE RULINGS

2994024 CASE NUMBER: CASE TITLE:  UHLMEYER VS. BAKER SATISFACTION, INC [IMAGED]  37-2023-00020497-CU-BC-NC 713, 723. Both the First Lawsuit Complaint and the FAC allege that Plaintiffs purchased the Vehicle 'for personal, family, and/or household purposes.' See FAC, ¶ 5; First Lawsuit Complaint, ¶ 6. Moreover, Plaintiffs do not dispute that both the Vehicle and the proceeds of the judgment from the First Lawsuit are community property. As to Subaru and Defendant, the First Lawsuit alleges that Subaru 'was/is engaged in the manufacture, sale, distribution, and/or importing of Subaru motor vehicles and related equipment.' See First Lawsuit Complaint, ¶ 2. The FAC alleges that Defendant 'was/is engaged in the business of selling Subaru motor vehicles and related equipment.' FAC, ¶ 1. The court finds that Subaru's and Defendant's respective roles as the manufacturer and seller of the Vehicle creates a sufficiently close relationship to warrant the application of res judicata. See, e.g., Osborne v. Subaru of America, Inc. (1988) 198 Cal. App. 3d 636. Plaintiffs' assertion that they can file a second amended complaint to add a new defendant (SouthWest Dealer Services) for purposes of avoiding the application of res judicata does not change the court's analysis.

As to the third element, on April 5, 2023, Mr. Uhlmeyer filed a Notice of Settlement of Entire Case in the First Lawsuit. See First Lawsuit, ROA No. 33; Defendant's RJN, Ex. 4. The court dismissed the First Lawsuit on October 3, 2023. See First Lawsuit, ROA No. 40. 'A dismissal with prejudice following a settlement constitutes a final judgment on the merits.' Estate of Redfield (2011) 193 Cal. App. 4th 1526, 1533. See also Citizens for Open Access to Sand and Tide, Inc. v. Seadrift Assn. (1998) 60 Cal. App. 4th 1053, 1065.

Accordingly, the court sustains the demurrer to the first and second causes of action without leave to amend as Plaintiffs have failed to demonstrate a reasonable possibility that the foregoing deficiencies can be cured by amendment. See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967.

The demurrer to the third cause of action for violation of California Civil Code §§ 1750 et seq. ('CLRA') is overruled. The statute of limitations on a CLRA claim is three years from the date of the commission of the method, act, or practice constitution a CLRA violation. See Meyer v. Sprint Spectrum L.P. (2009) 45 Cal. 4th 634, 644 (citing Cal. Civ. Code § 1783). The limitations period begins running 'from the time a reasonable person would have discovered the basis for a claim.' Massachusetts Mutual Life Ins. Co. v. Sup. Ct. (2002) 97 Cal. App. 4th 1282, 1295.

In this case, the FAC alleges that Plaintiffs purchased the Vehicle on June 18, 2019. See FAC, ¶ 5.

Defendant urges the court to adopt that date for purposes of calculating the statute of limitations. On that basis, Defendant contends that the statute of limitations on Plaintiffs' CLRA claim expired on June 18, 2022. The court respectfully disagrees. As Plaintiffs note in their opposition, June 18, 2019 is not necessarily the date on which they discovered the alleged conduct giving rise to their CLRA claim.

Indeed, Plaintiffs claim that they did not discover the subject conduct until May 28, 2020 – within the three-year limitations period. At most, this is a factual issue that cannot be disposed of by way of the present demurrer. See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113-114 ('A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.').

Accordingly, the court overrules the demurrer to the third cause of action.

In light of the foregoing, the court: (1) sustains the demurrer to the first and second causes of action without leave to amend, and (2) overrules the demurrer to the third cause of action. Defendant shall file and serve an answer or otherwise plead to the FAC within ten (10) days of this hearing. See Cal. R. Ct.

3.1320(j).

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, November 3, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of November 3, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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