Judge: Joseph Lipner, Case: 23STCV15770, Date: 2024-01-16 Tentative Ruling
Case Number: 23STCV15770 Hearing Date: January 16, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
JAIME PADILLA, et al., Plaintiffs, v. SECARD POOLS, Defendant. |
Case No:
23STCV15770 Hearing Date: January 16, 2024 Calendar Number: 6 |
Defendant Secard Pools (“Defendant”) demurs to the First
Amended Complaint (“FAC”) filed by Plaintiffs Jaime Padilla and Beckie Padilla
(collectively, “Plaintiffs”).
The Court OVERRULES Defendant’s demurrer as to the first,
second, third, and sixth causes of action.
The Court SUSTAINS Defendant’s demurrer WITH LEAVE TO AMEND
as to the fourth and fifth causes of action.
Plaintiff may file a second amended complaint within twenty
days of the issuance of this order.
This action concerns Plaintiffs’ 2018 purchase of a swimming
pool from Defendant. The following facts are alleged in the FAC.
Plaintiffs had seen a brochure from Defendant advertising
in-ground heavy duty vinyl liner pools. The brochure stated that the pools came
with a one-year equipment warranty, a ten-year limited liner warranty, and a
thirty-year limited wall warranty. Plaintiff does not allege the particular
nature of the limited warranties.
Plaintiffs contacted one of Defendant’s stores and
negotiated a construction contract for the installation of one of the
advertised pools.
Defendant presented Plaintiffs with a proposed written
contract on April 7, 2018. The written contract provided a one-year warranty
against defects in material and workmanship which covered 100% of the repair or
replacement of materials and labor (the “Equipment Warranty”). The contract
further stated, “This express warranty is the only warranty the Seller gives.”
Prior to the time Plaintiffs signed the contract on the same day, Defendants
verbally confirmed that a 10-year limited warranty for the liner (the “Liner
Warranty”) and a 30-year warranty for the wall (the “Wall Warranty”)
(collectively, the “Limited Warranties”) would also apply. Defendant expressly
does not dispute that the Limited Warranties applied. (Demurrer at p. 8:18-20.)
The installation of the pool was completed in October 2018.
At that time, Defendant provided Plaintiffs with the Owner’s Manual. The
warranties stated in the owner’s manual provided for prorated charges to be
paid by Plaintiffs which would increase with the age of the pool.
In August 2022, Plaintiffs noticed that the vinyl pool
lining was separating from the wall. Plaintiffs later discovered that the pool
wall had warped.
In October 2022, Defendant sent a representative who
inspected the damage to the pool. The representative instructed Plaintiffs to
contact Greg Budinko, a sales representative of Defendant, Budinko’s
supervisor.
After a series of phone calls and emails, Budinko told
Plaintiffs that Defendant was too busy and did not have time to make the
repairs. Budinko suggested that Plaintiffs repair the pool themselves by
watching YouTube videos. Plaintiffs allege that the pool warranties contain a
clause whereby the warranties are voided when repairs are made by anyone other
than Defendants.
Around April 2023, Plaintiffs contacted other pool
technicians and companies to get repair estimates. Plaintiffs were informed
that the pool would be difficult or impossible to repair because the walls were
made of wood, which had softened over time. As a result, the whole wood
structure would need to be replaced. Plaintiffs also allege that the liner
Defendant installed was low-quality and therefore prone to failing within the
warranty period.
Plaintiff filed this action on July 6, 2023. The operative
complaint is the FAC, which raises claims for (1) violations of the Consumer
Legal Remedies Act (“CLRA”); (2) violation of the Song-Beverly Act (“SBA”) and
breach of warranties; (3) violations of Business & Professions Code,
section 17200, et seq.; (4) fraud; (5) negligence; and (6) rescission.
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.” (E-Fab, Inc. v. Accountants,
Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth
of the complaint’s properly pleaded or implied factual allegations. (Ibid.) 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. (Ibid.;
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).
The Consumer Legal Remedies Act (CLRA) prohibits certain
unfair methods of competition and unfair or deceptive acts or practices
undertaken by any person in a transaction intended to result or that results in
the sale or lease of goods or services to any consumer. (Civ. Code, §
1770.)
Plaintiffs allege that Defendant committed the following
acts prohibited by section 1770:
(5)
Representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities that they do not
have or that a person has a sponsorship, approval, status, affiliation, or
connection that the person does not have. ….
(7)
Representing that goods or services are of a particular standard, quality, or
grade, or that goods are of a particular style or model, if they are of
another. ….
(9)
Advertising goods or services with intent not to sell them as advertised. ….
(13)
Making false or misleading statements of fact concerning reasons for, existence
of, or amounts of, price reductions.
(14)
Representing that a transaction confers or involves rights, remedies, or
obligations that it does not have or involve, or that are prohibited by law.
(15)
Representing that a part, replacement, or repair service is needed when it is
not.
(16)
Representing that the subject of a transaction has been supplied in accordance
with a previous representation when it has not. ….
(19) Inserting
an unconscionable provision in the contract.
(Civ. Code, § 1770, subd. (a).)
“Any consumer who suffers any damage as a result of the use
or employment by any person of a method, act, or practice declared to be
unlawful by Section 1770 may bring an action against that person . . . .” (Civ.
Code, § 1780, subd. (a).)
The substance of each of the alleged violations is that
Defendant misrepresented to Plaintiffs the warranties that the pool came with.
Plaintiffs argue that Defendant withheld the information that the Limited
Warranties covered repair and replacement on a prorated basis rather than at a
100% rate.
Plaintiff argues that California law requires warranties to
be provided at the time the contract is made. (Civ. Code, § 1791.2, subd. (a).)
The Court notes that Civil Code, section 1791.2, subd. (a) does not contain
this requirement.
Defendant contends that Plaintiffs have not actually alleged
that Defendant represented that the limited warranties covered 100% of repair
and replacement costs. However, under the circumstances, Defendant’s
representations could still have been misleading to that effect. Defendant
verbally confirmed that the Limited Warranties set forth in the advertising
brochure applied. That brochure, unlike the Owner Manual, did not state that
repair and replacement costs would be prorated. The Equipment Warranty – the
only warranty expressly laid out in the written contract – did provide
100% coverage for repair and replacement. Thus, the Court cannot find that
Defendant’s conduct could not have been misleading as a matter of law or that
the claim is improperly pled.
The Court therefore overrules the demurrer as to this cause
of action.
Where repairs are necessary because goods do not conform to
express warranties, service and repair must be completed within 30 days. (Civ.
Code, § 1793.2, subd. (b).) If the goods cannot practicably be serviced or
repaired by the manufacturer due to the method of installation, the manufacture
must either replace the goods or reimburse the buyer for the purchase and
installation costs. (Civ. Code, § 1793.2, subd. (e)(1).)
Plaintiff alleges that the pool failed to conform to an
implied warranty of merchantability under Civil Code, section 1791.1. However,
an implied warranty cannot last for more than one year. (Civ. Code, § 1791.1,
subd. (c).) The defects in the pool appeared more than one year after
installation. Thus, it appears that Plaintiff may not be able to state a claim
as to implied warranty.
However, no party contests that the Limited Warranties were
in place at the time that Plaintiffs discovered and reported the damages. Plaintiffs
allege that Defendant failed to repair or replace the pool, or reimburse
Plaintiff, as required by statute. Thus, the Court overrules the demurrer as to
this cause of action.
Defendant argues that the third cause of action fails
because it is derivative of the first two. However, as discussed above,
Plaintiffs have adequately alleged that Defendant’s representations and conduct
surrounding the warranties was deceptive or misleading. The Court therefore
overrules the demurrer as to this cause of action.
To properly allege fraud against a corporation, the
plaintiffs must plead the names of the persons allegedly making the false
representations, their authority to speak, to whom they spoke, what they said
or wrote, and when it was said or written. (Tarmann
v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
Although Plaintiffs have adequately pled misleading conduct
for the purposes of the above causes of action, the allegations in the FAC do
not meet the heightened pleading standard for fraud. As to the warranty
representations, Plaintiffs do not allege who made the verbal representations
as to the warranty or their authority to make those representations. Plaintiffs
also do not plead intent to induce reliance.
Plaintiffs
do plead that Budinko, Defendant’s sales representative, told Plaintiffs to fix
the pool themselves, which would have voided the warranty. However, Plaintiffs
do not plead that they actually did that or that the warranty was voided as a
result. Thus, that representation cannot form the basis for a fraud action.
The
Court sustains the demurrer with leave to amend as to this cause of action.
In order to state a claim for negligence, Plaintiff must
allege the elements of (1) “the existence of a legal duty of care,” (2) “breach
of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014)
228 Cal.App.4th 664, 671.)
The Court repeats the entirety of Plaintiff’s cause of
action for negligence here:
76.
Plaintiffs incorporate herein by reference as though fully set forth the
allegations in paragraphs 1 through 34 of this Complaint.
77. Defendants
were negligent.
78. Plaintiff
was harmed.
79. Defendants’
conduct was a substantial factor in causing Plaintiff’s harm.
(Complaint at p.13:3-7.)
Plaintiffs
do not allege the existence of a duty, nor do they provide any factual
allegations explaining what conduct was negligent or how it led to Plaintiffs’
harm. While the Court accepts Plaintiffs’ factual allegations as pleaded, it is
not able to accept mere legal conclusions of this sort on demurrer.
Plaintiffs
argue in their opposition that the construction of the pool was completed
negligently because of the materials used and faulty workmanship. Thus,
amendment could resolve the defects in the FAC.
The
Court sustains the demurrer with leave to amend.
A party to a contract may rescind it where the contract is
unlawful, was the result of mistake, duress, menace, fraud, or undue influence,
or will prejudice the public interest if permitted to stand, or if there was a
failure of consideration. (Civ. Code, § 1689, subd. (b).)
Defendant argues that this cause of action fails because it
is derivative of the first, second, third, and fourth. However, as discussed
above, Plaintiffs have adequately alleged that Defendant’s representations and
conduct surrounding the warranties was deceptive or misleading. The Court
therefore overrules the demurrer as to this cause of action.