Judge Katherine Chilton, Case 21STLC0285 2023-02-27 Tentative Ruling

Judge: Katherine Chilton, Case: 21STLC0285, Date: 2023-02-27 Tentative Ruling

Case Number: 21STLC0285 Hearing Date: February 27, 2023 Dept: 25

PROCEEDINGS: DEMURRER WITH MOTION TO STRIKE

MOVING PARTY: Plaintiff/Cross-Defendant Eli’s Collision Repair of South Bay, Inc.

RESP. PARTY: Defendant/Cross-Complainant Gannon Brown

DEMURRER w/ MOTION TO STRIKE

(CCP §§ 430.10, 435 et seq.)

TENTATIVE RULING:

Plaintiff/Cross-Defendant Eli’s Collision Repair’s Demurrer to the Second Amended Cross-Complaint’s first and third causes of action is SUSTAINED without leave to amend.

Plaintiff/Cross-Defendant’s Motion to Strike portions of the Second Amended Cross-Complaint is also GRANTED.

SERVICE:

[ X ] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[ X ] Correct Address (CCP §§ 1013, 1013a) OK

[ X ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on February 14, 2023. [X] Late [ ] None

REPLY: Filed on February 17, 2023. [ ] Late [ ] None

ANALYSIS:

I. Background

On April 12, 2021, Plaintiff Eli’s Collision Repair of South Bay, Inc., also known as Eli’s Collision Repair III, a California Corporation (“Plaintiff” or “Eli’s”) filed an action against Gannon Brown (“Brown”) and USAA Casualty Insurance Company, a Texas Corporation (“USAA”), (collectively “Defendants”) for (1) civil damages for theft, (2) conversion, (3) claim and delivery, (4) restitution (unjust enrichment), (5) breach of contract, (6) fraud (intentional misrepresentation), and (7) negligence.

On December 8, 2021, the Court denied Defendant Brown’s Motion to Quash Service of Summons and ordered him to file and serve a responsive pleading within 20 days of the order. (12-8-21 Minute Order.)

On December 28, 2021, Defendant Brown filed a Demurrer to the first and third causes of action in Plaintiff’s Complaint. The Court overruled Defendant Brown’s Demurrer. (2-14-22 Minute Order.)

On February 17, 2022, Defendant Brown filed an Answer to the Complaint and a Cross-Complaint against Plaintiff/Cross-Defendant Eli’s. On March 22, 2022, Brown filed a First Amended Cross-Complaint (“FACC”) against Eli’s for (1) violation of the Magnuson-Moss Warranty Act, (2) breach of common law warranty, (3) promissory fraud, and (4) breach of contract.

On June 24, 2022, Plaintiff/Cross-Defendant Eli’s filed a Demurrer to the First Amended Cross-Complaint’s first, third, and fourth causes of action. On September 7, 2022, the Court sustained the Demurrer to the FACC’s first cause of action for violation of the Magnuson-Moss Warranty Act with 25 days’ leave to amend and continued the hearing on the Demurrer to the third and fourth causes of action. (9-7-22 Minute Order.) On October 3, 2022, Defendant/Cross-Complainant Brown filed a Second Amended Cross-Complaint (“SACC”). On October 10, 2022, the Court overruled the Demurrer as moot following the filing of the SACC. (10-10-22 Minute Order.)

On December 14, 2022, Plaintiff/Cross Defendant Eli’s filed the instant Demurrer (“Demurrer”) with Motion to Strike (“MTS”) portions of the SACC. Brown filed a late Opposition on February 14, 2023, and Eli’s filed a Reply on February 17, 2023.

On January 19, 2023, pursuant to Plaintiff’s oral request, the Court dismissed Defendant USAA without prejudice. (1-19-23 Order of Dismissal.)

II. Legal Standard

A demurrer is a pleading that may be used to test the legal sufficiency of the factual allegations in the complaint. (Code of Civ. Proc. § 430.10.) There are two types of demurrers – general demurrers and special demurrers. (See McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.)

General demurrers can be used to attack pleadings for failure to state facts sufficient to constitute a cause of action or for lack of subject matter jurisdiction. (Code Civ. Proc. § 430.10(e); McKenney, 167 Cal.App.4th at 77.) Such demurrers can be used only to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable; evidence or extrinsic matters are not considered. (Code of Civ. Proc. §§ 430.30, 430.70; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of testing the sufficiency of the cause of action, the Court admits “all material facts properly pleaded” and “matters which may be judicially noticed,” but does not consider contentions, deductions, or conclusions of fact or law. [Citation].” (Blank, 39 Cal.3d at 318.) It gives these facts “a reasonable interpretation, reading it as a whole and its parts in their context.” (Ibid.). At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) "If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence." (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Special demurrers can be used to attack the pleadings on grounds that the pleading is uncertain, ambiguous, and unintelligible, or in a contract case, for failure to allege whether a contract is oral or written. (Code Civ. Proc., § 430.10(f).) However, special demurrers are not allowed in limited jurisdiction civil actions and any grounds for special demurrers must be raised as affirmative defenses in the answer. (Code Civ. Proc., § 92(c).)

Moreover, Code of Civil Procedure § 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)

III. Discussion

A. Meet and Confer Requirement

In conjunction with the Demurrer, Eli’s counsel had filed a declaration stating that on December 14, 2022, counsel for Eli’s and Brown met and conferred regarding a potential demurrer and motion to strike the Second Amended Cross-Complaint. (12-14-22 Thomas Decl. ¶ 2.) Eli’s Counsel states that “[t]he meet and confer was unsuccessful as the parties could not come to an agreement” and Brown’s counsel did not agree to amend the SACC. (Ibid.)

The Court finds counsel’s declaration regarding his efforts to meet and confer with Brown’s attorney sufficient.

B. First Cause of Action – Violation of the Magnuson-Moss Warranty Act

a. Defendant/Cross-Complainant Brown’s Allegations

In December 2018, the exterior paint of Brown’s 2017 Porsche 911 Carrera was scratched in two places, so he took his vehicle to Eli’s Collision Repair. (SACC ¶¶ 6-8.) Brown alleges that he asked Mr. Devin Swoope, an employee of Eli’s, “whether the original paint could be matched precisely, so that upon ordinary inspection, the new paint could not be differentiated from the original paint” and was assured “that it could and would be.” (Ibid. at ¶ 8.) When the vehicle was returned to Brown in February 2019, he saw that the shade of red that Eli’s used on the car “was noticeably different from the Guard’s Red that the vehicle was originally painted” and created “a jarring mismatch.” (Ibid. at ¶ 9.) At that point Brown had paid Eli’s bill with his credit card. (Ibid.) Brown informed Mr. Jacob Breall of Eli’s about the mismatch and gave Eli’s an opportunity to repaint the vehicle and match the original color; however, the color once again did not match. (Ibid. at ¶¶ 10-11.) Brown requested that Eli’s either repaint the entire vehicle in a single color or provide a refund, but Eli’s refused both requests. (Ibid. at ¶ 11.) Brown disputed the charge with the credit card company, which concluded that the dispute was valid, and was provided a refund. (Ibid. at ¶ 13.) To this day, the vehicle has mismatched paint, which impacts the value of Brown’s vehicle and his pleasure in owning it. (Ibid. at ¶ 12.)

The SACC alleges that Eli’s violated the Magnuson-Moss Warranty Act because it provided an express warranty that it would repair the scratches on Brown’s vehicle and that the paint used would “precisely match the Guard’s Red color BROWN had selected for his car when he ordered it.” (Ibid. at ¶ 15.) The Final Bill “warrants against defects in materials and workmanship for as long as the original customer owns the vehicle.” (Ibid. at ¶ 16, Ex. A.) Eli’s breached the express warranty because it did not “repair the damage to the paint job on BROWN’s car using paint that matched the original color, and by failing to take reasonable required steps to remedy its poor workmanship.” (Ibid. at ¶ 17.) As a result, Brown has been harmed and has incurred damages. (Ibid. at ¶ 18.)

Brown also alleges that Eli’s warranty failed to comply with the requirements of the Magnuson-Moss Warranty Act because it failed to (1) “designate its warranty as full or limited, in violation of 15 U.S.C. § 2303(a),” (2) “identify the parties who could enforce the warranty, in violation of 16 C.F.R. §701.3(a)(1),” (3) “specify the point in time on which the warranty period commenced, in violation of 16 C.F.C. §701.3(a)(4),” (4) “include the statement required by 16 C.F.R. §701.3(a)(7),” and (5) “include the statement required by 16 C.F.R. §701.3(a)(8).” (Ibid. at ¶ 19.) Thus, Brown is entitled to actual damages, attorney’s fees, and costs pursuant to 15 U.S.C. §§2310(d)(1), 2310(d)(2). (Ibid. at ¶ 20.)

b. Plaintiff/Cross-Defendant Eli’s Collision Repair’s Demurrer

Eli’s demurs to Brown’s cause of action for violation of the Magnuson-Moss Warranty Act (“MMWA”) for failure to state facts sufficient to constitute a cause of action. (Demurrer p. 5.) First, Eli’s states that the cause of action for MMWA should be dismissed because the Act does not apply to a violation of an express warranty on service. (Ibid. at p. 6, citing to Hunter v. Shield (S.D. Ohio 2021) 550 F.Supp.3d 500.) Here, “Brown alleges a breach of the workmanship warranty for poor workmanship for not matching the paint color with no claim the paint itself was defective.” (Ibid. at p. 7.) Therefore, “[a]s a matter of law…Brown cannot possibly state a cause of action under the Magnuson-Moss Warranty Act” based on his allegations involving Eli’s poor workmanship in repairing the scratches. (Ibid.)

Second, if the automobile paint, and not the service, was alleged to be defective, the cause of action should be dismissed since “commercial automotive paint is not a ‘consumer product’” and is “‘not customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer’ Consumer Product Safety Act, 15 U.S.C. § 2052(a)(1).” (Ibid. at p. 6.) It is unlawful for the general public to use or possess automotive paint in Los Angeles County as it is “ultra-hazardous and highly flammable,” and thus, “highly regulated to prevent consumer use.” (Ibid. at p. 10.)

Furthermore, Brown does not allege that Eli’s sold commercial automotive paint to Brown, but rather that it used the paint as part of its service of repairing the vehicle. (Ibid. at pp. 8-9.)

Finally, Eli’s also argues that the MMWA does not apply to oral warranties, as Brown alleges that the Eli’s employee provided an oral warranty that the paint used to repair the vehicle would be a precise match. (Ibid. at pp. 7-8.)

c. Defendant/Cross-Complainant Brown’s Opposition to Demurrer

On February 14, 2023, Brown filed a late Opposition to the Demurrer with Motion to Strike, as the Opposition was due on February 10, 2023 pursuant to Code of Civil Procedure § 1005(b). However, the Court notes that Eli’s has filed a Reply to the Opposition, and thus, the Court, in its discretion considers the late Opposition. (California Rules of Court, rule 3.1300.)

In its Opposition to the Demurrer, Brown states that “Eli’s argument regarding the application of Magnuson-Moss is inconsistent with Eli’s own contentions, fallacious, and legally unsound.” (Oppos. p. 3.) Brown states that Eli’s admits “that it did not solely provide services” as its Complaint against Brown includes a cause of action for conversion, “an alleged theft of ‘products.’” (Ibid. at p. 3.) Moreover, the Final Bill attached to the Complaint has a charge for “Material, Paint” in the amount of $490.50. (Ibid. at p. 3.) The Final Bill, on page 6, states that Eli’s “‘warrants against defects on materials and workmanship…’” (Ibid. at pp. 3-4.) Thus, “a written warranty on both the parts and the labor…does involve a product, and thus Magnuson-Moss would apply, even if – in general – Magnuson-Moss does not apply solely to service contracts.” (Ibid. at p. 4.) Brown argues that the MMWA applies as 16 C.F.R. § 700.1(h) states:

(h) Warranties on replacement parts and components used to repair consumer products are covered; warranties on services are not covered. Therefore, warranties which apply solely to a repairer’s workmanship in performing repairs are not subject to the Act. Where a written agreement warrants both the parts provided to effect a repair and the workmanship in making that repair, the warranty must comply with the Act and the rules thereunder.”

Although Brown did not purchase a “barrel of commercial automotive paint,” Eli’s applied the paint to the vehicle and “[t]hat quantity of paint became part of a consumer transaction.” (Ibid. at pp. 4-5.)

Furthermore, Brown disputes Eli’s citations to cases outside this Court’s jurisdiction, arguing that they are not binding upon this Court and are distinguishable from the facts in the instant case. (Ibid. at pp. 5-6.)

d. Plaintiff/Cross-Defendant Eli’s Collision Repair’s Reply to Opposition to Demurrer

In its Reply to the Opposition, Eli’s requests that the Court disregard Brown’s Opposition because it was four (4) days late and submits its Reply under protest. (Reply p. 2.) As noted above, the Court, in its discretion, considers the Opposition.

Eli’s reiterates that Brown has not shown how the MMWA can apply “when [1] no product is allegedly defective (the paint); [2] and even if the paint were defective, automotive paint is not a consumer product because automotive paint cannot be directly sold to, or possessed by consumers in Los Angeles County…and [3] the SAX-C is solely for failure of an alleged service to match the right paint to the current color of his vehicle.” (Reply p. 3.)

Eli’s also argues that “service liability claims, standing alone, with no product defect, are outside the Commerce Clause powers of Congress.” (Ibid. at p. 4.)

Eli’s disputes Brown’s reference to the billing of paint as a product as a “meaningless fact.” (Ibid. at p. 6.) It states that “Brown’s claim is solely for breach of warranty on a service” and his reference to Eli’s Complaint for conversion of paint is “[j]umbling them together” and using Eli’s claims to establish the application of the MMWA. (Ibid. at p. 6.) Brown has not alleged that the paint was defective and his discussion of the cost of the paint is irrelevant. (Ibid. at p. 7.)

Furthermore, Eli’s makes an argument that Brown’s interpretation of the MMWA would render an unconstitutional application to this case as applying “a federal law to what is solely a locally performed service is a reach too far.” (Ibid. at p. 7.) It argues that “Brown twists the words of § 700.1(h) to expand federal jurisdiction to a warranty of services even when there is no breach of warranty of a consumer product involved — the very premise of why the Commerce Clause jurisdiction was found by Congress justifying application of the MMWA nationwide.” (Ibid. at pp. 7-8.) It adds that “[t]he Reg. § 700.1(h) cited above was obviously drafted…to maintain the delicate balance of federal vs. state’s right to regulate commercial activity outside strictly consumer products.” (Ibid. at p. 8.) Eli’s cites to Chrysler Corp. v. Texas Motor Vehicle Com’n, where the Court explains that consumer protection “has traditionally been regulated by states through the common law and the Uniform Commercial Code” and despite the enactment of the MMWA, Courts do not interpret the Act to occupy this field. (Ibid.; Chrysler (5th Cir. 1985) 755 F.2d 1192, 1205-06.) “Congress did not intend to encroach on states’ rights beyond consumer products” and a claim of defective workmanship “is outside the ambit of the Magnuson Moss Warranty Act.” (Ibid.)

Finally, Eli’s reiterates all the reasons that automotive paint is not a consumer product and argues that Brown’s opposition ignores that “by its very character, automotive paint in any quantity is a commercial product, is highly regulated by the AQMD, and limited to use only in a commercial setting.” (Ibid. at p. 10.)

e. Analysis

The Magnuson-Moss Warranty Act (MMWA) is a federal law that governs consumer product warranties, as set forth in 15 U.S.C. § 2301 et seq. Pursuant to the Act “a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief (A) in any court of competent jurisdiction in any State or the District of Columbia…” (15 U.S.C. § 2310(d).) “Except in the specific instances in which Magnuson-Moss expressly prescribes a regulating rule, the Act calls for the application of state written and implied warranty law, not the creation of additional federal law.” (Walsh v. Ford Motor Co. (D.C. Cir. 1986) 807 F.2d 1000, 1012.)

A claim for violation of the Magnuson-Moss Act, requires showing that “(i) the item at issue was subject to a warranty; (ii) the item did not conform to the warranty; (iii) the seller was given reasonable opportunity to cure any defects; and (iv) the seller failed to cure the defects within a reasonable time or a reasonable number of attempts." (Hunter v. Shield, 550 F.Supp.3d 500, 521, citing Abele v. Bayliner Marine Corp. (N.D. Ohio 1997) 11 F. Supp. 2d 955, 961.)

The MMWA defines “consumer product” as “any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes (including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed).” (15 U.S.C. § 2301(1).) A “consumer” is defined as a “a buyer (other than for purposes of resale) of any consumer product, any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product, and any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract).” (Ibid. at § 2301(3).)

According to 16 C.F.R. § 700.1(h), (h) “[w]arranties on replacement parts and components used to repair consumer products are covered; warranties on services are not covered. Therefore, warranties which apply solely to a repairer's workmanship in performing repairs are not subject to the Act. Where a written agreement warrants both the parts provided to effect a repair and the workmanship in making that repair, the warranty must comply with the Act and the rules thereunder.” Additionally, as stated in Hunter, a workmanship warranty that applies to performing repairs is not subject to the MMWA. (Hunter 550 F. Supp. 3d at 521.)

Brown’s allegations that Eli’s made an express warranty arise from the language in the Final Bill, which states that Eli’s “warrants against defects in materials and workmanship for as long as the original customer owns the vehicle.” (SACC p. 12.) The Court finds that Brown has not made any allegations regarding a defect in the materials, in this case the red color paint, but rather focuses on the alleged defective workmanship in matching the right color paint to his car’s color. These allegations are not sufficient for a claim of violation of the MMWA.

Moreover, having reviewed Eli’s arguments and citations to legal authority, including In re Ford Motor Company Vehicle Paint Litigation, No. MDL 1063, 1996 WL 426548 (E.D.La. July 30, 1996), which holds that commercial automotive paint is not a consumer product within the meaning of the MMWA, the Court finds Eli’s arguments persuasive and well-supported. In applying these conclusions to Brown’s allegations in the Second Amended Cross-Complaint, the Court finds that the allegations are not sufficient to demonstrate that the paint used by Eli’s is a consumer product that warrants the application of the MMWA to the instant case. Eli’s has produced sufficient legal authority to demonstrate that the MMWA does not apply to any alleged warranty made by Eli’s regarding its workmanship and automotive paint does not fall into the category of consumer product under the Act.

Accordingly, Eli’s Demurrer to the first cause of action for violation of the Magnuson-Moss Warranty Act is sustained.

C. Third Cause of Action – Promissory Fraud

a. Defendant/Cross-Complainant Brown’s Allegations

Relying on the same facts as described above, the SACC alleges a cause of action for promissory fraud. It states that Eli’s “expressly represented” that if Brown used their services, they would repair the scratches using paint that “would precisely match the Guard’s Red color.” (SACC ¶ 26.) These representations were made personally by Mr. Devin Swope, a manager at Eli’s, located on Aviation Boulevard in Inglewood, CA, on December 31, 2018. (Ibid.) Brown states that the Eli’s employee “knew – or in the exercise of reasonable diligence should have known – that the representation was false” because Eli’s paint vendor did not have the precise shade of red that would match the vehicle. (Ibid. at ¶ 27.) Given that Eli’s “appeared to have a decent reputation, and its employees exuded considerable confidence in their ability to match the paint already on Brown’s Porsche,” Brown was justified in relying on the representation. (Ibid. at ¶ 28.) This information was provided to Brown “consistent with Eli’s company policies regarding sales and marketing.” (Ibid.) If Brown had been aware of the truth, he would not have entered into a contract with Eli’s. (Ibid. ¶ 29.)

As a result of Brown’s reliance on the representation, the vehicle has been damaged and thus, has decreased in value, and “Brown’s pleasure from owning the vehicle has been diminished.” (Ibid. at ¶ 30.) Brown also alleges that Eli’s “conduct was wanton, willful and oppressive, thus entitling Brown to punitive and/or exemplary damages under California Civil Code section 3294.” (Ibid. at ¶ 31.)

b. Plaintiff/Cross-Defendant Eli’s Collision Repair’s Demurrer

Eli’s demurs to Brown’s promissory fraud cause of action for failure to state facts sufficient to constitute a cause of action. (Demurrer p. 12.) Eli’s cites to the California Supreme Court holding in Lazar v. Superior Court that an action for promissory fraud requires allegations demonstrating that the party making the promise “did not intend to (since he knew he could not) perform…” this promise. (Ibid. at p. 13, citing to Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Brown has failed to allege that Eli’s lacked the intention to perform. (Demurrer p. 13.)

Moreover, Brown’s cause of action for promissory fraud is “fatally devoid of the necessary specific and factual details” demonstrating intentional fraudulent conduct as Brown alleges that the mismatch in color was due to “poor workmanship.” (Ibid.)

c. Defendant/Cross-Complainant Brown’s Opposition to Demurrer

In its Opposition to the Demurrer, Brown states that he has alleged sufficient facts for the heightened standard of pleading for promissory fraud by making allegations regarding the date of the representations, the name of the employee who made the allegations, the harm suffered, and Brown’s justifiable reliance on the representations. (Oppos. p. 6.) Brown argues that taking its allegations regarding Eli’s employee’s knowledge of inability to fulfill the promise, “intent to deceive is implied.” (Ibid. at pp. 6-7.)

d. Plaintiff/Cross-Defendant Eli’s Collision Repair’s Reply to Opposition to Demurrer

In its Reply to the Opposition, Eli’s reiterates that Brown had to allege facts showing intentional conduct and relies on allegations that demonstrate what amounts to “negligence” to support his cause of action for an intentional tort. (Reply pp. 11.) Brown alleges that the Eli’s employee knew or with reasonable diligence should have known the misrepresentation was false and “completely ignores the legally required element of intentionality.” (Ibid.)

e. Analysis

The elements of promissory fraud are: 1) a promise made regarding a material fact; 2) promisor’s lack of any intention of performing at the time of making the promise, based upon: a) specific factual circumstances beyond contract breach; or b) inferring a contemporaneous intent not to perform; 3) the promise was made with an intent to induce action by plaintiff; 4) plaintiff reasonably relied on the promise; 5) defendant did not perform the promised act; 6) plaintiff was injured/harmed; and 7) plaintiff’s reliance on defendant’s promise was a substantial factor in causing the harm. (CACI 1902.)

Here, Brown alleges that an Eli’s employee “expressly represented” to him that they would match the red color of Brown’s car if Brown used their services. (SACC ¶ 26.) Brown states that the employee “knew – or in the exercise of reasonable diligence should have known – that the representation was false” because Eli’s paint vendor did not have the precise shade of red that would match the vehicle. (Ibid. at ¶ 27.) Given Eli’s reputation and the employee’s confidence “in their ability to match the paint,” Brown was justified in relying on the representation. (Ibid. at ¶ 28.) Eli’s did not match the color as promised and because of Brown’s reliance on the representation, the vehicle has been damaged, decreased in value, and “Brown’s pleasure from owning the vehicle has been diminished.” (Ibid. at ¶¶ 29-30.)

The Court finds that Brown’s allegations regarding Eli’s intention not to perform the promise are not sufficient. Brown alleges that Eli’s vendor did not have the exact shade of red that would match the Guard red color of the vehicle. However, in the Demurrer, Eli’s states that,

[C]ommercial automobile paint does not come premixed for each vehicle’s particular color. Rather, a particular vehicle’s paint is determined via the manufacturer’s color code. The color code (along with other factors) are imputed into a $10,000+ computerized commercial paint mixing machine that adds and mixes the precise amounts of color tints and toners into the base paint to obtain the desired color.

(Demurrer p. 2.) Furthermore, “[t]he factor color on a vehicle will vary due to a host of factors, such as the nature of the type of paint (solid, matte, metallic, pearlescent , etc.), the color and age of the vehicle, its exposure to sunlight and elements, how the paint was applied (manual or automated spraying, type of commercial spray guns used and air pressure), and where in the world (e.g., Germany, USA, Mexico, etc.) the paint was originally applied.” (Ibid.)

Given the process of producing this paint, Brown has not made specific allegations regarding how and why Eli’s employee made a promise to match the color, while intending not to perform. Brown’s allegations are not sufficient to plead the lack of intention required for a cause of action for promissory fraud. For this reason, Eli’s Demurrer is SUSTAINED as to the cause of action for promissory fraud.

D. Leave to Amend

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Generally, the court will allow leave to amend on at least the first try, unless there is absolutely no possibility of overcoming the issue. (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ("Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.").)

Here, the Demurrer as to the first and third causes of action is sustained. Brown has amended the Cross-Complaint on two occasions, once before the filing of Eli’s Demurrer and once in response to the Demurrer. Thus, Brown has had an opportunity to correct deficiencies in the Cross-Complaint. The Court also finds that Brown has not shown that there is a reasonable possibility that an additional amendment will cure the defects in the Cross-Complaint.

Accordingly, Plaintiff/Cross-Defendant Eli’s Demurrer to the Second Amended Cross-Complaint’s first and third causes of action is SUSTAINED without leave to amend.

E. Motion to Strike

a. Plaintiff/Cross-Defendant Eli’s Motion to Strike

In its Motion to Strike, Eli’s moves to strike the following portions from the Second Amended Cross-Complaint:

1) Page 7, Paragraph 31, in its entirety (“Cross-Defendants’ conduct was wanton, willful and oppressive, thus entitling BROWN to punitive and/or exemplary damages under California Civil Code section 3294.”);

2) Page 8, Prayer for Relief, No. 3, in its entirety (“On the third cause of action, for punitive and/or exemplary damages”).

Eli’s argues that the SACC “fails to allege factual conduct of Defendant that constituted malice, oppression, fraud or despicable conduct” and does not provide the basis “for punitive damages against a corporate entity.” (MTS p. 2.) Brown merely alleges that Eli’s failed to match the car’s color due to “poor workmanship” but “[n]owhere in the SAX-C does Cross-Complainant Brown allege facts which rise to the level of ‘vile, base, contemptible, miserable, wretched or loathsome’ conduct.” (Ibid. at p. 6.)

Eli’s also states that the prayer for punitive damages is “fatally defective as against corporate Cross-Defendant Eli’s Collision” as the SACC does not contain any allegations that the alleged fraudulent promise was made by an employee or agent acting in a managerial capacity or was ratified or authorized by a managerial agent as required by Civil Code § 3294. (Ibid. at p. 7.) Here, the allegations pertain to Eli’s employee Devon Strope, “who is merely a low level damage estimator” without any managerial authority. (Ibid. at p. 8.)

b. Defendant/Cross-Complainant Brown’s Opposition to Motion to Strike

In its Opposition to the Motion to Strike, Brown only states that “[p]unitive damages may be available based upon a cause of action for promissory fraud” based on Civil Code § 3294(a) and “[w]hether they should be awarded in this case should be determined at trial.” (Oppos. at p. 7.)

c. Plaintiff/Cross-Defendant Reply to Opposition to Motion to Strike

As discussed above, Eli’s requests that the Court disregard Brown’s Opposition because it was four (4) days late and submits its Reply under protest. (Reply p. 2.) As noted above, the Court, in its discretion, considers the Opposition.

In its Reply to Brown’s Opposition to the Motion to Strike, Eli’s reiterates that Brown has not presented sufficient allegations for promissory fraud and as a result, Brown’s prayer for punitive damages is not supported by his allegations. (Reply re: MTS p. 4.) Brown’s two-sentence Opposition to the Motion to Strike is a “waiver of opposition” and should not be considered by the Court, according to Eli’s. (Ibid. at pp. 4-5.)

Moreover, as Brown conceded that his allegations are based on Eli’s employee’s alleged negligence and not intentional conduct, “Brown’s admission destroys any legal claim for punitive damages.” (Ibid. at pp. 5-6.)

d. Analysis

According to Code of Civil Procedure § 436:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strikeout any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

However, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92(d).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (Code Civ. Proc. § 436.) Furthermore, § 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5(a).)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) A request for punitive damages may be made pursuant to Civil Code § 3294(a) which provides that “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

Under the statute, malice is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others” and oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Code Civ. Proc. § 3294(c)(1), (c)(2).) Although not defined by the statute, despicable conduct refers to circumstances that are base, vile, or contemptible. College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) Also, “[u]nder the statute, malice does not require actual intent to harm…Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences…. [Citation.]” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.)

As discussed above, Eli’s has satisfied the meet and confer requirement through its counsel’s declaration.

Furthermore, the Court sustains Eli’s Demurrer to the third cause of action for promissory fraud. Accordingly, Eli’s Motion to Strike ¶ 31 of the SACC, which is part of Brown’s third cause of action, is granted. Given that Brown’s prayer for relief for punitive and/or exemplary damages is based on the third cause of action, the Court also grants Eli’s Motion to Strike the following portion of the SACC: Page 8, Prayer for Relief, No. 3.

IV. Conclusion & Order

For the foregoing reasons,

Plaintiff/Cross-Defendant Eli’s Collision Repair’s Demurrer to the Second Amended Cross-Complaint’s first and third causes of action is SUSTAINED without leave to amend.

Plaintiff/Cross-Defendant’s Motion to Strike portions of the Second Amended Cross-Complaint is also GRANTED.

Moving party is ordered to give notice.