Judge: Jon R. Takasugi, Case: 23STCV19908, Date: 2024-02-05 Tentative Ruling

Case Number: 23STCV19908    Hearing Date: February 5, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant Costco’s demurrer is SUSTAINED, WITH 15 DAYS LEAVE TO AMEND. Defendant Costco’s motion to strike is GRANTED.

            On 8/21/2023, Plaintiff Latanya Bautista (Plaintiff) filed suit against Costco Wholesale and Jose’s LLC, alleging: (1) strict products liability; (2) breach of the implied warranty of merchantability; (3) breach of implied warranty of fitness; (4) negligence; and (5) property damage.

            Now, Defendant Costco (Defendant) demurs to the fourth cause of action. Defendant also moves to strike portions of Plaintiff’s Complaint.

Factual Background

            Plaintiff’s claim arises out of a refrigerator that she allegedly purchased from Costco, and which was installed by Defendant Jose, LLC. The refrigerator allegedly began to leak and caused damage to Plaintiff’s flooring. 

Discussion

            Defendant argues that Plaintiff’s fourth cause of action must be struck because it contains no substantive allegations and because it is duplicative.

            After review, the Court agrees.

            As a preliminary matter, Plaintiff’s fourth cause of action contains no substantive allegations. Instead, it is composed entirely of re-incorporated allegations from the preceding paragraphs. (Complaint ¶ 52.) As such, the fourth cause of action contains no additional facts upon which a claim against Costco could be made.

            Second, Plaintiff’s other claims are for products liability, warranty theories of liability, and property damage. Property damage is not a recognized cause of action, and it is uncertain whether or not the negligence arises out of this claim or if is related to the products liability/warranty claims. To the extent it is based on warranty/products liability, the negligence claim would be duplicative of that.

            Plaintiff is representing herself in pro per. A self-represented litigant must follow the same rules of procedure, including all statutory standards for pleadings and motions. (See Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98.) To hold otherwise “would be to give pro per litigants (and particularly vexatious litigants representing themselves) an unfair advantage over parties represented by attorneys.” (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)

            Plaintiff must allege sufficient facts which clarify the basis of her negligence claim and which could show that it is not duplicative of her other causes of action.

            Based on the foregoing, Defendant’s demurrer is sustained, with 15 days leave to amend.

Motion to Strike

            Defendant argues that Plaintiff cannot maintain a claim for mental or emotional injuries, punitive damages, or attorney fees here.

            After review, the Court agrees.

            As for emotional damages, Plaintiff claims that, as a result of the property damage, she has suffered stress and depression, requiring medical treatment. (Complaint, ¶¶ 25, 42, 51, and 75.) However, “in the absence of physical injury, the courts have never allowed recovery of damages for emotional distress arising solely from property damage or economic injury to the plaintiff.” (Butler-Rupp v. Lourdeaux (2005) 134 Cal.App.4th 1220, 1228.) (See also Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012 [“No California case has allowed recovery for emotional distress arising solely out of property damage”].) Here, Plaintiff alleges she purchased a defective refrigerator and that it caused damage to her flooring. As such, she has only alleged economic injury and property damage.

            As for attorney fees, Plaintiff is representing herself in this lawsuit. “[T]he very use of the term ‘attorney fees’ presupposes that the prevailing party has been represented by an attorney.” (Atherton v. Board of Supervisors (1986) 176 Cal.App.3d 433, 436.) As a self-represented party, Plaintiff cannot demand attorneys’ fees for attorney services that were never provided to her, nor fees that she never incurred.

            As for punitive damages, Civil Code section 3294 permits punitive damages only in actions “for the breach of an obligation not arising from contract.” (Civ. Code, § 3294, subd. (a).) By contrast, punitive damages “may not be granted in an action based on a breach of contract even though the defendant’s breach was willful or fraudulent.” (Crogan v. Metz (1956) 47 Cal.2d 398, 405.)  Here, Plaintiff alleges that Plaintiff and Costco entered into a refrigerator purchase agreement, whereby Costco agreed to, and did, sell a refrigerator to Plaintiff in exchange for an agreed upon price. (Compliant, ¶ 6.) Plaintiff claims that the refrigerator Costco sold her was defective, and by reason of this defect, she suffered consequential property damage. (Id., ¶ 10.) In other words, Costco’s liability arises out of allegations that it sold a defective refrigerator to Plaintiff. Because Costco’s liability therefore rises out of its obligations under the contract, punitive damages are not recoverable.

            Based on the foregoing, Defendant’s motion to strike is granted.

It is so ordered.

Dated:  February    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

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