Judge: Jon R. Takasugi, Case: 21STCV42944, Date: 2022-10-10 Tentative Ruling

Case Number: 21STCV42944    Hearing Date: October 10, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant’s demurrer to Plaintiff’s Complaint is SUSTAINED, WITHOUT LEAVE TO AMEND.

            On 2/9/2022, Plaintiffs James Jones, Michael Harper, Jeanne Lee, and Martin Scumanski filed suit against Kilowatt. On 7/26/2022, Plaintiffs filed a second amended complaint (SAC) alleging: (1) violation of Civil Code section 1280; (2) violation of the Consumer Legal Remedies Act (CLRA); (3) breach of express warranty; (4) breach of express warranty (Magnuson-Moss Warranty Act); (5) breach of express warranty (Song-Beverly Consumer Warranty Act); (6) breach of implied warranty; (7) breach of implied warranty (Magnuson-Moss Warranty Act); (8) breach of implied warranty (Song-Beverly Consumer Warranty Act); violation of Unfair Competition Law (UCL); (10) negligent misrepresentation; and (11) fraud and concealment.

            Now, Defendant demurs to Plaintiff’s SAC.

            The motion is unopposed.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.)¿ 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 pleadings alone and not the evidence or other extrinsic matters.¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”¿ (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿ “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿ (Hahn, supra, 147 Cal.App.4th at p. 747.) 

Discussion

I.                   Joinder

Defendant argues that Plaintiffs’ claims remain mis-joined because Plaintiffs are four unrelated individuals, living in four different cities, who entered into four separate contracts for four different solar panel systems.

CCP section 378 provides:

(a)   All persons may join in one action as plaintiffs if:

                              (1) They assert any right to relief jointly, severally, or in the

                               alternative, in respect of or arising out of the same transaction,

                               occurrence, or series of transactions or occurrences and if any

                               question of law or fact common to all these persons will arise in the

               action;

                               (2) They have a claim, right, or interest adverse to the defendant

                               in the property or controversy which is the subject of the action.

In its previous Demurrer ruling, the Court held:

Here, Plaintiffs do not appear to meet the criteria for permissive joinder. By Plaintiffs own admission, the four Plaintiffs each bought different models of Defendant’s solar panel systems. While Plaintiffs allege that the systems “failed repeatedly,” Plaintiffs do not allege that the systems suffered from identical defects. Rather, the only commonality alleged between Plaintiffs is that they bought solar panel systems from Defendants and that they allegedly did not “lower Plaintiffs’ total electricity costs significantly by reducing their electricity bills.”  (Complaint ¶ 17.) For the same reason that four individuals who purchased different GM vehicles could not bring a joined claim for breach of warranty against GM, there are insufficient facts here to conclude that Plaintiffs are properly joined here.

The SAC does not address the misjoinder issue in any meaningful way. Instead of identifying any defect that was common between these four different systems in four different cities, Plaintiffs simply allege that their systems produced less electricity than expected. (SAC, ¶ 11 (alleging that the various systems “suffered from identical defects, including, but not limited to, underproduction and overbilling.”); ¶¶ 16–31 (alleging various vague circumstances that do not amount to any common defect between the four systems).

Moreover, Plaintiffs allege that unspecified nonconformities breached unspecified “express warrant[ies]” under various contracts with Defendant. (SAC, ¶¶ 35–36.) But again, Plaintiffs do not allege what these various warranties were or how they were breached, let alone how the warranties or breaches might interrelate. (Id.) This is contrary to California law. The failure to attach the contracts or incorporate their contents verbatim makes it impossible to ascertain whether there are likely to be common legal issues between the four Plaintiffs’ affirmative cases. The SAC pleads no facts as to a common transaction or occurrence, or as to common questions of law or fact. There is no basis for permissive joinder. (Cal. Code Civ. Proc. § 378.)

While the Court’s analysis can stop here, the court notes that even setting the aside the issue of joinder, Plaintiffs’ claims still fail. In its previous ruling, the Court concluded that Plaintiffs’ allegations were so uncertain as to preclude analysis of whether or not they were barred by the statute of limitations. Specifically, the Court wrote:

Defendant argues that Plaintiff’s warranty and CLRA claims are time-barred. However, again, Plaintiff’s allegations are too uncertain for this determination to be made. Plaintiff alleges that the systems failed repeatedly, but does not provide any date as to when these defects occurred. Given that these systems were purchased between 11/9/2014-1/5/2015, whether or not Plaintiffs’ claims are time-barred on their face turn on when they had notice of the defects.

As a result, Plaintiffs must allege facts which could show when these defects appeared, such that the claims are not time-barred on their face

Despite this clear directive, Plaintiffs still did not allege when the defects appeared.

Similarly, Plaintiffs did not address the issues previously identified with respect to their arbitration allegations.

Based on the foregoing, Defendants’ demurrer is sustained, without leave to amend.

It is so ordered.

Dated:  October    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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