Judge Daniel M. Crowley, Case Number: 24STCV08590, Date: 2024-07-18 Tentative Ruling

Cross-Defendant Paola Melgar’s demurrer to Cross-Complainant East LA Auto Sales, Inc.’s cross-complaint is sustained.

Cross-Defendant Paola Melgar (“Melgar”) (“Cross-Defendant”) demurs to Cross-Complainant East LA Auto Sales, Inc.’s (“East LA”) (“Cross-Complainant”) cross-complaint (“CC”) on the following grounds: (1) the 1st cause of action for breach of contract does not state facts sufficient to constitute a cause of action; and (2) the 2nd cause of action for negligence does not state facts sufficient to constitute a cause of action. (Notice of Demurrer, pg. 1.)

Before filing a demurrer, the moving party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer. (C.C.P. §430.41, emphasis added.)

Cross-Defendant’s counsel declares that at least five days before the date the responsive pleading date was due to be filed, he met and conferred with the party who filed the pleading, and they did not reach an agreement resolving the matters raised in the demurrer. (See Decl. of Rose ¶2a.) Cross-Defendant’s counsel’s declaration is insufficient under C.C.P. §430.41 because his declaration does not state that the parties met and conferred in person, by telephone, or by video conference. However, the failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (C.C.P. §430.41(a)(4); Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 355; Olson v. Hornbrook Community Services District (2019) 33 Cal.App.5th 502, 515.) Accordingly, the Court will consider Cross-Defendant’s demurrer.

Cross-Complainant filed the operative CC on May 8, 2024, against Cross-Defendant alleging two causes of action: (1) breach of contract; and (2) negligence. Cross-Complainant’s causes of action arise from its entry into a Retail Installment Sale Contract (“Contract”) with Cross-Defendant on August 16, 2022, in which Cross-Complainant agreed to purchase a used 2009 BMW (“Subject Vehicle”). (See CC ¶5.)

Cross-Defendant filed the instant demurrer on June 10, 2024. Cross-Complainant filed its opposition on July 3, 2024, and filed a second opposition on July 5, 2024. Cross-Defendant filed her reply on July 8, 2024.

Cross-Defendant demurs to the 1st and 2nd causes of action on the basis the claims fail to state facts sufficient to constitute causes of action. (Demurrer, pg. 3.)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) plaintiff’s performance of the contract or excuse for nonperformance, (3) defendant’s breach, and (4) resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Cross-Complainant alleges on August 16, 2022, Cross-Defendant entered into the Contract with Cross-Complainant in which Cross-Defendant agreed to purchase the Subject Vehicle from Cross-Defendant. (CC ¶5, Exh. A.) Cross-Complainant alleges it performed all of its obligations under the Contract. (CC ¶6.) Cross-Complainant alleges in ¶2, §2 of the Contract, Cross-Defendant agreed not to expose the Subject Vehicle to “misuse.” (CC ¶7.) Cross-Complainant alleges on or about October 2022, Cross-Defendant poured coolant into the Subject Vehicle’s engine, causing damage to the Subject Vehicle. (CC ¶8.) Cross-Complainant alleges it suffered harm and damages as a result of Cross-Defendant’s conduct. (CC ¶9.)

Nonetheless, Cross-Complainant does not sufficiently how Cross-Defendant’s pouring coolant into the Subject Vehicle constitutes a breach of the Contract, nor how Cross-Complainant suffered any affirmative damages thereby.

Accordingly, Cross-Defendant’s demurrer to Cross-Complainant’s 1st cause of action is sustained with 20 days leave to amend.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.)

“The first element, duty, ‘may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.’” (Doe v. United States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118, 1128 [214 Cal.Rptr.3d 552].)

“[T]he existence of a duty is a question of law for the court.” (Kentucky Fried Chicken of California v. Superior Court (1997) 14 Cal.4th 814, 819.)

Cross-Complainant alleges Cross-Defendant owed Cross-Complainant a duty of care not to subject the Subject Vehicle to misuse. (CC ¶15.) Cross-Complainant alleges in October 2022, Cross-Defendant breached the duty of care owed to Cross-Complainant by pouring coolant into the Subject Vehicle’s engine, causing damage to the Subject Vehicle, causing harm to Cross-Complainant. (CC ¶16.) Cross-Complainant alleges Cross-Defendant’s conduct was the proximate cause and cause in fact in causing harm and damages to Cross-Complainant. (CC ¶17.) Cross-Complainant alleges as a result of Cross-Defendant’s breach, Cross-Complainant sustained general and specific damages in an amount to be determined at trial. (CC ¶18.)

Cross-Complainant fails to allege a legal duty owed by Cross-Defendant to Cross-Complainant. Specifically, Cross-Complainant fails to allege a legally cognizable duty a buyer owes to a seller to not subject the Subject Vehicle to misuse.

Accordingly, Cross-Defendant’s demurrer to Cross-Complainant’s 2nd cause of action is sustained with 20 days leave to amend.

The Court observes that absent allegations of affirmative damages, the causes of action pled in the Cross-Complaint appear more appropriately pled as affirmative defenses. Cross-Defendant’s demurrer to Cross-Complainant is sustained with 20 days leave to amend.

Hon. Daniel M. Crowley

Judge of the Superior Court