Judge: John J. Kralik, Case: 23BBCV01661, Date: 2023-10-27 Tentative Ruling
Case Number: 23BBCV01661 Hearing Date: December 15, 2023 Dept: NCB
North
Central District
|
michael
binns-alfred aka michael d binnsalfred & gabriel alfred, et al., Plaintiffs, v. ford motor
company, et al., Defendants. |
Case No.: 23BBCV01661 Hearing
Date: December 15, 2023 [TENTATIVE]
order RE: demurrers |
BACKGROUND
A.
Allegations
Plaintiffs Michael Binns-Alfred aka
Michael D Binnsalfred and Gabriel Alfred (“Plaintiffs”) allege that on April 1,
2021, they entered into a warranty contact with Defendant Ford Motor Company
(“FMC”) regarding a 2019 Ford F-150.
Plaintiffs allege that during the express warranty period, defects and
nonconformities manifested themselves.
Plaintiffs allege that they delivered the vehicle to an authorized FMC
repair facility, Defendant Knight Sunrise Hollywood LLC dba Sunrise Ford of
North Hollywood (“Sunrise”), but Sunrise breached its duty by failing to
properly store, prepare, and repair the subject vehicle in accordance with
industry standards. Plaintiffs allege
that they sought a replacement vehicle or restitution, but FMC failed to
promptly make restitution or remedy the defects.
The complaint, filed July 24, 2023,
alleges causes of action for: (1) violation of Song-Beverly Act – breach of
express warranty against FMC; (2) violation of Song-Beverly Act, § 1793.2
against FMC; and (3) negligent repair against Sunrise.
B.
Demurrers on Calendar
On October 2, 2023, FMC filed a demurrer
to the complaint. On October 30, 2023, Plaintiff
filed opposition papers. (On October 27,
2023, the Court initially held a hearing on the demurrers and continued the
hearing so that Plaintiff could file opposition papers to FMC’s demurrer.) On October 20, 2023, FMC filed a reply brief
and evidentiary objections.
On October 2, 2023, Sunrise filed a
demurrer to the complaint. On October
16, 2023, Plaintiffs filed an opposition brief.
On October 20, 2023, Sunrise filed a reply brief.
The matter came for hearing on November 9,
2023. The Court disclosed that there may
be an appearance of a conflict and advised the parties to request a recusal
prior to the next hearing if there was any issue. Since the November 9, 2023 hearing, no such
requests have been made and it appears that the parties are willing to proceed
before this Court. As such, the Court
will consider the merits of the demurrers.
DISCUSSION
RE FMC’S DEMURRER
A.
Evidentiary Objections
With the reply
brief, FMC submitted evidentiary objections to the declaration of Armando Lopez
filed in support of the opposition brief.
The Court rules as follows:
·
Objection Nos. 1 and 2 regarding paragraph
4 and Exhibit B, which include Mr. Lopez’s quotations and attachment of the Rodriguez
v. FCA, US LLC (2022) 77Cal.App.5th 209 case, are sustained. The Court notes that it may consider the Rodriguez
case without needing it to be attached as “evidence.”
·
Objection Nos. 3-5 regarding paragraph 5
and Exhibits C-D, which quote portions of the 2005 BMW express warranty manual
and include copies of the 2005 and 2022 manuals, are sustained as the manuals were
not attached to the complaint and constitute extrinsic evidence.
B.
Discussion of Merits
FMC demurs to the 1st and 2nd
causes of action for violation of the Song-Beverly Act – breach of express
warranty and section 1793.2, on the grounds that Plaintiffs fail to allege
sufficient facts to constitute causes of action against FMC because Plaintiffs
failed to allege that they purchased a “new” vehicle.
According to the complaint, FMC entered
into a written warranty contract with Plaintiffs, which included a Basic
Warranty that included bumper-to-bumper coverage for defects in materials and
workmanship for the earlier of 36 months or 36,000 miles; a Drivetrain/Powertrain
Warranty that covered defects in materials and workmanship for the earlier of 5
years or 60,000 miles; and a California Emissions Warranty that covered defects
in materials and workmanship in emissions parts for the earlier of 7 years or
70,000 miles. (Compl., ¶8.) Plaintiffs allege that pursuant to the Act,
the subject vehicle constituted a “new motor vehicle.” (Id., ¶13.)
In the 1st cause of action,
Plaintiffs allege that they entered into the warranty contract with FMC on
April 1, 2021 concerning the subject vehicle.
(Id., ¶16.) They allege
that defects and nonconformities to the warranty manifested themselves during
the express warranty period and that Plaintiffs delivered the vehicle to an
authorized FMC repair facility, but FMC was unable to conform the vehicle to
the applicable express warranties after a reasonable number of attempts. (Id., ¶¶17-19.) Plaintiffs allege by failure of FMC to remedy
the defects or promptly issue restitution, FMC is in breach of its obligations
under the Act. (Id., ¶23.) Plaintiffs make similar allegations in the 2nd
cause of action, alleging that Plaintiffs delivered the vehicle for at least 1
repair attempt to FMC’s authorized repair facility but that the vehicle could
not be conformed to warranty within 30 days.
(Id., ¶32.) Plaintiffs
allege they seek to justifiably revoke acceptance of the subject vehicle and
request monetary, incidental, and consequential damages, as well as civil
penalties. (Id., ¶¶33-38.)
FMC argues that Plaintiffs have failed to
allege that they purchased the vehicle “new” and that they allege on the face
of the complaint that the vehicle was “used.”
FMC argues that Plaintiffs allege that they entered into a warranty
contract regarding a new 2019 Ford F-150, but that they purchased the vehicle 2
years later in April 2021. FMC relies on
paragraph 16 for these facts. Paragraph
16 states: “On April 1, 2021, Plaintiff(s) entered into a warranty contract
with FMC regarding a 2019 Ford F-150, VIN: 1FTEW1E59KKC21649 (the “Subject
Vehicle”).” At this time, the Court
cannot make the inferences FMC is claiming, such as the purported extrinsic
facts that Plaintiffs had a warranty with respect to a new 2019 Ford vehicle
and then they purchased the vehicle 2 years later in April 2021. It may be that Ford had a surplus stock of
new 2019 Ford vehicles that it was attempting to sell in 2021. At this time, the Court cannot ascertain the
truth of FMC’s proposed facts where they were not pleaded by Plaintiffs. At the demurrer stage, the material
allegations of the complaint are accepted as true. (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 976.) Based on the facts alleged in the complaint,
Plaintiffs allege that they purchased a new vehicle. Any extrinsic facts that FMC may be arguing to
dispute whether the subject vehicle was new or used are better raised in a
motion for summary judgment or at the trial stage, where the Court may better
consider FMC’s defenses and documentary evidence.
The remainder of FMC’s arguments are
regarding the applicability of the Rodriguez case to determine whether
the subject vehicle is new or used for the purposes of the Act. (In opposition, Plaintiffs argue that the
Court should rely on Jensen v. BMW of North America, Inc. (1995) 35
Cal.App.4th 112 to determine whether the car is new or used.) However, as discussed above, the complaint
alleges the vehicle is new. The Court
does not have any further facts that would contradict this within the four
corners of the complaint. Whether the subject
vehicle is in fact new or used is better determined when the Court may consider
all the facts and evidence at a later stage in the proceedings, such as at the
summary judgment or trial stage.
The demurrer to the 1st and 2nd
causes of action is overruled.
DISCUSSION
RE SUNRISE’S DEMURRER
Sunrise demurs to the 3rd
cause of action for negligent repair on the grounds that it fails to state
sufficient facts to constitute a cause of action because it is barred by the
economic loss rule and fails to plead damages.
The elements of a negligence cause of
action are “duty, breach of duty, proximate cause, and damages.” (Carlsen
v. Koivumaki (2014) 227 Cal.App.4th 879, 892.)
In the 3rd cause of
action, Plaintiffs allege that they delivered the subject vehicle to Sunrise
for repair during the express warranty period for a warranted defect. (Compl., ¶40.) They allege that Sunrise owed a duty to
Plaintiff to use ordinary care and skill in storage, preparation, and repair of
the subject vehicle in accordance with industry standards. (Id., ¶41.) Plaintiffs allege that Sunrise breached its
duty by failing to properly store, prepare, and repair the vehicle. (Id., ¶42.) Plaintiffs allege that Sunrise’s negligent
breach of duties was the proximate cause of their damages. (Id., ¶43.)
First, Sunrise argues that the 3rd
cause of action is barred by the economic loss rule because Plaintiffs’ claim
is that Sunrise failed to repair the vehicle to conform to warranty, which is
not a duty that is independent from the contract.
The economic loss
rule prevents the law of contract and law of tort from dissolving into
one another. (Robinson
Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988.) Economic losses consist of damages for
inadequate value, cost of repair, replacement of defective products or
consequent loss of profits—without any claim of personal injury or damages to
other property. (Id.) The rule requires a
purchaser to recover in contract for purely economic loss due to disappointed
expectations, unless he can demonstrate harm above and beyond a broken
contractual promise. (Id.)
“Tort damages have been permitted in contract cases where a
breach of duty directly causes physical injury [citation]; for breach of the
covenant of good faith and fair dealing in insurance contracts [citation]; for
wrongful discharge in violation of fundamental public policy [citation]; or
where the contract was fraudulently induced. [Citation.] In each of these cases, the duty that gives rise to tort
liability is either completely independent of the contract or arises from
conduct which is both intentional and intended to harm. [Citation.]” (Erlich v. Menezes (1999) 21
Cal.4th 543, 551–552.)
As currently alleged, the 3rd
cause of action does not allege a duty above and beyond that of bringing the
vehicle into conformity with the warranty.
In order to overcome the economic loss rule, Plaintiffs are required to
allege fact showing intentionality of the conduct and of the harm. The allegations as currently alleged are
general and cursory. Further allegations
should be alleged to state sufficient facts for this cause of action.
In opposition, Plaintiffs argue that their
allegations are adequate based on North America Chemical Co. v. Superior
Court (1997) 59 Cal.App.4th 764 and various other cases regarding
professional services. They argue that
under the North American Chemical Co. case, a claim for negligent
performance can be alleged in spite of the economic loss rule where the six Biakanja
factors are established—"(1) the extent to which the transaction was intended to affect the
plaintiff, (2) the foreseeability of harm to the plaintiff, (3) the degree of
certainty that the plaintiff suffered injury, (4) the closeness of the
connection between the defendant's conduct and the injury suffered, (5) the
moral blame attached to the defendant's conduct, and (6) the policy of preventing
future harm.” (North American
Chemical Co., supra, 59 Cal.App.4th at 782 and 785.) However, as summarized above, the allegations
of the complaint are cursory and do not address these six factors. In opposition, Plaintiffs argue that all the
elements are met, but Plaintiffs have not alleged the facts regarding the Biakanja
factors (including policy concerns) in the complaint. The Court notes that it is unlikely that the Biakanja
factors could be properly alleged in a case involving an ordinary commercial
transaction.
Second, Sunrise argues that Plaintiffs
fail to plead damages or that they paid any out-of-pocket expenses for repairs
performed by Sunrise—and any such payments would have been covered under
warranty. The complaint alleges that
Vista’s negligence was the proximate cause of Plaintiffs’ damages, but the
damages are not specified. (Compl.,
¶43.) It is unclear what the nature of
Plaintiffs’ damages are—i.e., out of pocket costs to repair the vehicle, damage
to the vehicle while stored at Sunrise’s facilities, etc. Further facts should be alleged to describe
the nature of Plaintiffs’ damages.
For these reasons, the demurrer to the 3rd
cause of action is sustained with leave to amend.
CONCLUSION
AND ORDER
Defendant
Ford Motor Company’s demurrer to the 1st and 2nd causes
of action in the complaint is overruled.
Defendant
Sunrise
Ford of North Hollywood’s demurrer to the 3rd
cause of action in the complaint is sustained with 20 days leave to amend.
Defendants
shall
give notice of this order.
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DATED:
December 15, 2023 ___________________________
John
Kralik
Judge
of the Superior Court