Judge: H. Jay Ford, III, Case: 24SMCV02657, Date: 2025-04-03 Tentative Ruling

Case Number: 24SMCV02657    Hearing Date: April 3, 2025    Dept: O

 Case Name:  Myers, et al. v. Anderson Air Conditioning, L.P., et al.

SUBJECT:                 DEMURRER TO SAC WITHOUT MOTION TO STRIKE

MOVING PARTY:   Defendant Centimark Corporation

RESP. PARTY:         Plaintiffs Michael D. Myers and Pamela M. Rieder, as Trustors and Successor Trustees of the Myers Family Trust and Trustees of the MF Trust No. 1, and 2990 S. SEPULVEDA, LLC  

TENTATIVE RULING

            Defendant Centimark Corporation’s Demurrer to Plaintiffs Michael D. Myers and Pamela M. Rieder, et als’ SAC due to Plaintiffs contracted for warranty as their sole remedy is SUSTAINED with 20 days leave to amend. Plaintiffs attached contract to the SAC includes a SAMPLE WARRANTY which unambiguously states the warranty is the sole remedy. Plaintiffs argue the SAMPLE WARRANTY is not the agreed-upon warranty.

            Defendant Centimark Corporation’s Demurrer to Plaintiffs Michael D. Myers and Pamela M. Rieder, et als’ SAC because the SAC is time-barred due to the contracted for one-year statute of limitations for bringing suit is SUSTAINED with 20 days leave to amend. Plaintiffs fail to allege express compliance with the contracted for one-year statute of limitations, nor exactly when Plaintiffs discovered the defect upon which the complaint is based.

REASONING

As a general matter, 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 pleading alone, and not the evidence or facts alleged.” (E428.50Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Plaintiff is only required to allege ultimate facts, not evidentiary facts. (See Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212 [“the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts”); 1 Cal. Affirmative Def. § 10:2 (2d ed.) [allegations of agency, course and scope of employment, etc. qualify as ultimate facts].) Plaintiff’s allegations must be accepted as true on demurrer. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint”].)

I.                Demurrer to all causes of action against Defendant Centimark in the SAC because the parties agreed that warranty repairs would constitute Plaintiffs’ sole remedy is SUSTAINED with 20 days leave to amend.

"For purposes of a demurrer, we accept as true both facts alleged in the text of the complaint and facts appearing in exhibits attached to it. If the facts appearing in the attached exhibit contradict those expressly pleaded, those in the exhibit are given precedence." (Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567–568; see Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1627 ["facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence"].)

Defendant Centimark Corporation (“Centimark”) argues that Plaintiffs Michael D. Myers and Pamela M. Rieder, as Trustors and Successor Trustees of the Myers Family Trust and Trustees of the MF Trust No. 1, and 2990 S. SEPULVEDA, LLC (“Plaintiffs”) SAC attaches the contract documents agreed to between the parties, which includes a “SAMPLE WARRANTY,” and thus the Court may examine and apply the language of the contract documents including the Sample Warranty. (See SAC, Ex. A; Sample Warranty at SAC p. 109–112, and Motion, Ex. A) The Court agrees and will examine the contents of the SAC’s attached contract materials.

Centimark shows that the Sample Warranty provides an exclusivity of warranty and limitation of remedies section, which states:

“IV. EXCLUSIVITY OF WARRANTY AND LIMITATION OF REMEDIES: CENTIMARK EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER IMPLIED WARRANTY. THIS EXPRESS LIMITED WARRANTY CONTAINS THE SOLE AND EXCLUSIVE WARRANTY AND REMEDY OF PURCHASER AGAINST CENTIMARK. THERE IS NO EXPRESS WARRANTY OTHER THAN THAT STATED IN THIS WARRANTY.”

(See SAC, Ex. A, Sample Warranty (last 4 pages of Ex. A), ¶ IV(a).1.)

            Centimark points to SAC ¶ 88 where Plaintiffs allege they have utilized the warranty repairs by stating “Centimark has attempted corrections on multiple occasions, making repairs, with their most recent repairs having been performed on or about February 2024.” (SAC, ¶ 88.) Centimark argues that they have fulfilled they warranty obligations as alleged in the SAC, with the warranty being the exclusive remedy method as stated in the SAMPLE WARRANTY within the contract materials attached to the SAC.

            “[W]here the parties have stipulated to the nature or amount of a remedy, it is proper for the trial court to honor the parties' agreement unless it finds that to do so would be contrary to a rule of law or public policy . . . . [t]he court may not remake the bargain to the advantage of one party for no reason other than that the party has become dissatisfied with the agreement. ” (DVD Copy Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 725; see also Farnham v. Superior Court (1997) 60 Cal. App. 4th 69, 78 [a “sole remedy” provision is enforceable when it is “the result of a private, voluntary transaction”]; Nelson v. Spence (1960) 182 Cal.App.2d 493, 497 [“Where a contract expressly provides a remedy for a breach thereof, the language used in the contract must clearly indicate an intent to make the remedy exclusive”.]

            “The modern trend of the law is to favor the enforcement of contracts, to lean against their unenforceability because of uncertainty, and to carry out the intentions of the parties if this can feasibly be done.” (Goodwest Rubber Corp. v. Munoz (1985) 170 Cal.App.3d 919, 920. “[A] written contract, having been deliberately executed, is presumed to correctly express the parties’ intentions.” (Appalachian Ins. Co. v. McDonnell Douglas Corp. (1989) 214 Cal. App. 3d 1, 19; see also Civ. Code, § 1638 [“The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity”].)

            The language in the SAMPLE WARRANTY attached to the Contract indicates that the parties did consent to make warranty repairs the exclusive remedy. The Court examined the attached Contract in Ex. A, and the only other statement regarding remedies is a one-year statute of limitations to file a claim within the SAMPLE WARRANTY. Nowhere else is a remedy mentioned, nor does another section exist which expressly negates, or makes ambiguous, the exclusive remedy section.

In the Opposition, Plaintiffs argue that the Sample Warranty is not the actual warranty agreed upon between the parties and requested leave to amend to clarify their allegations. The Court grants that request.

Centimark’s Demurrer to the SAC based on the contractual imitation of remedies to the  express warranty as the sole remedy is SUSTAINED with 20 days leave to amend.

I.                Demurrer to all causes of action against Defendant Centimark as claims are barred by contractual one-year time limit to bring suit— SUSTAINED with 20 days leave to amend.

Centimark demurs to all causes of action in the SAC arguing all claims are barred by a contractual one-year statute of limitations to bring the claims also included within the SAMPLE WARRANTY. Specifically, paragraph V of the SAMPLE WARRANTY states as follows:

“V. TIME LIMIT FOR BRINGING SUIT: ANY ACTION BY PURCHASER TO ENFORCE ANY CLAIMS AGAINST CENTIMARK MUST BE COMMENCED WITHIN ONE (1) YEAR FROM THE DATE THAT A DEFECT IN MATERIALS OR WORKMANSHIP, OR OTHER BREACH OR ANY OTHER CLAIM IS DISCOVERED OR REASONABLY SHOULD HAVE BEEN DISCOVERED.”

(See SAC, Ex. A, Sample Warranty (last 4 pages of Ex. A), ¶ V.)

“In general, California courts have permitted contracting parties to modify the length of the otherwise applicable California statute of limitations, whether the contract has extended or shortened the limitations period.” (Hambrecht & Quist Venture Partners v. American Medical Internat., Inc. (1995) 38 Cal.App.4th 1532, 1546.)

Centimark argues that the SAC alleges the one-year time period to file the action against Centimark began on 1-29-22, since Plaintiff’s allege that “work for necessary repairs” began on 10-12-21, and continued after completion of initial work on 1-29-22. (SAC, ¶¶ 84–85.) Thus, it follows that Plaintiffs first learned of the defect on 1-29-22, when after initial repairs, the work continued meaning the repair was not properly fixed and needed more repair. At that point, Plaintiffs reasonably should have discovered the issue which would begin the one-year time limit to bring suit, thus 1-29-23 was the last date to bring suit. The claim was filed on 6-4-24, therefore, Defendants argue the complaint was filed well outside the SOL according to the SAMPLE WARRANTY and allegations.

Plaintiffs argue that the SAC alleges Plaintiffs initial discovery of the defective work after Centimark’s completion of the work as late as February of 2024. (Oppo., p. 6:11–24; SAC, ¶ 88.) However, the SAC does not expressly allege this fact, instead the SAC states the following: “Centimark has attempted corrections on multiple occasions, making repairs, with their most recent repairs having been performed on or about February, 2024.” (SAC, ¶ 88.) This allegation does not necessarily stand for the proposition that Plaintiffs discovered the defect on or about February of 2024, since Plaintiffs could have discovered the defect as early as 1-29-23 as argued by Centimark. Thus, Plaintiffs have not properly plead compliance with the contracted for one-year statute of limitations within the SAMPLE WARRANTY.

Thus, Centimark’s Demurrer to the SAC as barred by the contracted for one year SOLD to bring claims is SUSTAINED with 20 days leave to amend.

II.             Demurrer to all causes of action as uncertain—[ADDRESS AT HEARING]