Hearing Date:             Wednesday, April 03, 2024 

Case Name: STALIM SANTOS v. EL MONTE AUTO REPAIR AND TIRES CORPORATION, a California Corporation; and DOES 1 through 50, inclusive.  

EL MONTE AUTO REPAIR AND TIRES v. STALIM SANTOS and ROES 1 through 10 inclusive, 

Case No.: 23STLC03318 

Motion: Demurrer to Third Amended Cross-Complaint with Motion to Strike 

Moving Party: Cross-Defendant Stalim Santos   

Responding Party: None  

Notice: OK 

 

Tentative Ruling: Cross-Defendant Stalim Santos’s Demurrer to Third Amended Cross-Complaint is SUSTAINED in whole without leave to amend.  

On the Court’s own motion, the third cause of action is STRICKEN from the third amended cross-complaint. 

 

 

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 late as of March 26, 2024 [X] Late [   ] None¿ 

REPLY: Filed as of March 25, 2024 [   ] Late [   ] None¿ 

 

BACKGROUND 

A. Factual  

The Third Amended Cross-Complaint alleges that on May 06, 2022, Cross-Defendant entered into a service agreement in which Cross-Complainant would repair Cross-Defendant’s Ford F-250 diesel truck (“Vehicle”) which had experienced engine failure. After the engine block was replaced, Cross-Defendant’s Vehicle experienced issues with its cooling system. Cross-Complainant treated these issues around October 31, 2022. The cooling system issues damaged the new engine block, causing Cross-Complainants to replace the engine block with a refurbished engine block free of charge in November 2022, costing Cross-Complainant approximately $8,922.00 to $10,000.00 in replacement costs under the warranty agreement between the parties. Upon further investigation of the damaged engine block, it was discovered that the fuel-to-oil mixture was “dangerous” and that the source of the engine damage was caused by the fuel injectors, which Cross-Defendant previously indicated were replaced.  Around February 7, 2023, Cross-Defendant agreed to purchase a new engine block and Cross-Complainant would install it free of charge, with storage fees discussed. Cross-Defendant left his vehicle with Cross-Complainant from February 7, 2023, to May 2, 2023, at $70/day storage.  

B. Procedural 

On May 9, 2023, Plaintiff Stalim Santos (“Plaintiff” and “Cross-Defendant”) filed an action against Defendant El Monte Auto Repair and Tires Corporation (“Defendant” and “Cross-Complainant”) for breach of contract and negligence.  

Defendant filed an Answer on July 3, 2023. Defendant also filed a Cross-Complaint against Santos.  

On July 19, 2023, El Monte Auto Repair filed an Amended Cross-Complaint (“FACC”) for (1) negligent misrepresentation, (2) negligence, (3) breach of implied covenant of good faith and fair dealing, (4) breach of contract – violation of warranty and (5) breach of contract – storage fees.  

On August 18, 2023, Cross-Defendant filed a demurrer to the FACC. On September 6, 2023, Cross-Defendant filed a Notice of Non-Opposition to Demurrer.  

On September 13, 2023, the Court continued the hearing on the Demurrer for October 19, 2023, ordering Cross-Defendant to file and serve a corrected Notice prior to the next scheduled hearing.  

On September 13, 2023, Cross-Defendant filed a corrected Notice of Ruling. On October 5, 2023, Cross-Complainant filed an opposition. On October 6, 2023, Cross-Defendant filed a reply.  

On October 19, 2023, the Court sustained Cross-Defendant’s demurrer to the FACC as to all five of Cross-Complainant’s causes of action and granted Cross-Complainant leave to amend.  

On November 20, 2023, Cross Complainant filed its Second Amended Cross Complaint (“SACC”) for (1) negligent misrepresentation, (2) negligence, (3) breach of implied covenant of good faith and fair dealing, (4) breach of contract – violation of warranty (5) breach of contract – storage fees, (6) common count – goods and services rendered, (7) trespass, and (8) nuisance.  

On December 07, 2023, Cross-Defendant filed a Demurrer to the SACC. The Court sustained Cross-Defendant’s Demurrer to the SACC and granted Cross-Complainant 20 days leave to amend.  The Court also granted in part Cross-Defendant’s motion to strike, and on its own motions struck Cross-Complainant’s 6th, 7th and 8th causes of action from the SACC.  

On February 21, 2024, Cross-Complainant filed a Third Amended Cross Complaint (“TACC”) for (1) negligent misrepresentation, (2) negligence, (3) tortuous interference with a contract, (4) breach of contract and (5) recovery of storage fees.  

On March 06, 2024, Cross-Defendant filed the instant Demurrer to the TACC (“Demurrer”) and Motion to Strike on March 4, 2024.       

No opposition has been filed.  

MOVING PARTY POSITION 

 

Cross-Defendant prays for the Court to sustain his demurrer and dismiss Cross-Complainant’s TACC regarding all five of its causes of action because Defendant fails to either state facts sufficient to constitute a cause of action, the allegations are uncertain, Defendant fails to state whether contract sued upon is written or oral or implied by conduct under C.C.P. § 430.10, and leave was not granted by this Court to add additional causes of action. 

OPPOSITION 

 

Cross-Complainant responds in opposition arguing that Cross-Defendant has failed to properly serve the motions under CCP 1005 and 1013.  

 

REPLY 

 

Cross-Defendant files a notice indicating that Cross-Complainant has failed to oppose the Demurrer and Motion to Strike. Cross-Defendant additionally files a reply arguing that Cross-Complainant’s assertion that service was not properly rendered is an attempt to “buy more time.” 

 

ANALYSIS 

 

I. 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.”¿ (Id.). 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).)¿ 

 

¿“The primary function of a pleading is to give the other party notice so that it may prepare its¿case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to¿affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)¿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.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) 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. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128.) 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). 

 

II. Discussion  

 

Cross Complainant filed its TACC for (1) negligent misrepresentation, (2) negligence, (3) tortuous interference with a contract, (4) breach of contract and (5) recovery of storage fees. 

As a preliminary matter, the Court finds that the service of the demurrer and the motion to strike on the Cross-Complainant is proper. In both motions, Cross-Defendant provides proof of service indicating that Cross-Complainant had been properly served with notice of the instant motions. (See Demurrer p. 23; See also Mot. p. 15.) The Court further notes that Cross-Defendant’s motion to special demur Cross-Complainant’s TACC is improper. Under CCP § 92(c) only general demurrers are allowed in limited civil cases. (Code Civ. Proc., § 92(c).)¿Demurrers for failure to state a cause of action or defense or for lack of subject matter jurisdiction are commonly referred to as “general” demurrers. (McKenney v. Purepac Pharmaceutical Co. (2008) 167 CA4th 72, 77.) All other grounds for demurrers are considered “special” demurrers. (A. Demurrers, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A.) Here, the Court notes that for each cause of action plead in the TACC, Cross-Defendant demurs on the ground that the allegations of the TACC are uncertain in addition to failing to state facts sufficient to constitute a cause of action under CCP § 430.10(e) and (f). Cross-Defendant additionally demurs Cross-Complainant’s third and fourth causes of action for failure to state whether the contract sued upon is written, oral, or implied by conduct under CCP § 430.10(g). Demurrers brought under CCP § 430.10(f) and (g) are special demurrers and are not allowed in a limited civil jurisdiction under CCP § 92(c). Therefore, the Court will address the motion as a general demurrer grounded under 430.10(e).  

A. Meet and Confer Requirement  

 

The demurring party must meet and confer in person or by telephone with the party who filed the pleading to resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)  

 

Cross-Defendant provides the Court with a declaration from its counsel, who states that counsel drafted and emailed a meet and confer letter to Cross-Complainant’s counsel on February 22, 2024. (Michael Y. Lavaee Decl. ¶ 2; Exh. A.) Cross-Complainant’s counsel responded on February 26, 2024, and refused to amend the TACC. “Accordingly, Cross-Defendant has exhausted its attempts to informally resolve this matter … before bringing the instant demurrer.” (Id.) Thus, the Court finds that Cross-Defendant has satisfied the meet and confer requirement under CCP § 430.41(a). 

 

The Court now moves to the merits of the demurrer.  

 

B. First Cause of Action – Negligent Misrepresentation.  

 

Cross-Defendant demurs to Cross-Complainant’s First Cause of Action of negligent misrepresentation for failure to state facts sufficient to state a cause of action. 

 

The elements of a cause of action for negligent misrepresentation include “[m]isrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another’s reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage.” (Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1154, quotation marks omitted.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiff 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.) The tort of negligent misrepresentation is similar to fraud, except that it does not require scienter or an intent to defraud. (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 845.) 

 

Here, the TACC alleges that Cross-Defendant represented to Cross-Complainant that he had just replaced the fuel injectors which Cross-Complainant claims demonstrated a refusal to allow Cross-Complainant to test the fuel system based on Cross-Defendant’s representation that the vehicle had fresh, properly functioning fuel injectors. (TACC, ¶ 24.) Cross-Defendant’s statement altered the way Cross-Complainant repaired the vehicle and that had Cross-Complainant known that the fuel injectors and fuel system were not repaired, they would not have entered into a contract that included a warranty. (Id. ¶ 25.) The TACC alleges that Cross-Defendant’s statement was false because the fuel injectors were not correctly functional when they released the vehicle. (Id. ¶¿26.) Cross-Complainant further alleges that while Cross-Defendant may or may not have believed that the misrepresentation was accurate when it was made, Cross-Defendant intended for Cross-Complainant to believe the representation, despite having no reasonable grounds to believe the representation was true when made. (Id.¿¶ 27.) Cross-Complainant reasonably relied upon the representation, resulting in Cross-Complainant paying for a short block to replace the one under warranty despite issues with the cooling system that likely added to the damage to the engine block that Cross-Complainant installed around October 31, 2022. (Id.¿¶¶ 28, 30-31.) The TACC further alleges that Cross-Complainant’s reliance upon Cross-Defendant’s representation caused it to install an engine block at its expense worth between $8,922.00 and $10,000.00. (Id.¿¶ 31.)  

 

These facts are insufficient to establish a claim for negligent misrepresentation because the facts are not pleaded with specificity. Cross-Complainant does state that Cross-Defendant informed them that the fuel injectors did not need to be tested to evaluate his vehicle correctly. Cross-Complainant alleges it relied on this representation, causing it to pay for another short block to solve the problem when, in fact, Cross-Complainant alleges the issues with the cooling system likely added to the damage to the engine block.  

 

However, similar to the Court’s previous order, Cross-Complainant does not state whether it informed Cross-Defendant that the fuel injectors needed to be tested to properly evaluate his vehicle, as it speaks to whether Cross-Complainant had reasonable grounds to believe its alleged misrepresentation, and whether Cross-Complainant’s reliance on Cross-Defendant’s statement was justifiable. Moreover, Cross-Complainant does not provide specific facts regarding how the cooling system ‘likely added” to the damage to the engine block installed around October 31, 2022. Noting that the Court has given Cross Complainant several opportunities to correct these deficiencies, the Court does not believe there is a reasonable possibility of further successful amendment. 

 

Therefore, Cross-Defendant’s demurrer to the First Cause of Action is SUSTAINED without leave to amend. 

 

C. Second Cause of Action – Negligence   

Cross-Defendant argues that the Cross-Complainant fails to allege facts sufficient to state a cause of action for negligence. 

To state a claim for negligence, Cross-Complainant 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.) 

Here, the TACC alleges that the contract entered into by the parties was obtained by fraud. (TACC ¶ 33.) Cross-Defendant had a duty to act as a reasonable person, including proper maintenance for the safe use of a vehicle. (TACC, ¶34.) Cross-Defendant failed to properly maintain the vehicle, which he hired Cross-Complainant to fix, specifically the cooling and fuel systems, which damaged the engine blocks which Cross-Complainant properly fixed. (Id., ¶ 36.) Cross-Complainant argues that Cross-Defendant’s statements and actions were a substantial factor in causing harm to Cross-Complainant. (Id.¿¶ 37.)  

The Court finds that Cross-Complainant again has failed to establish with particular facts the elements for a negligence cause of action. Specifically, Cross-Complainant fails to provide specific facts alleging that a legal duty of care existed, a breach occurred, and that the proximate cause resulted in an injury. Here, while the TACC provides that Cross-Defendant had a duty to maintain a vehicle for safe utilization, arguably, a reasonable person meets any such duty by fixing their vehicle when problems arise. The Court again notes that these are the same issues raised in the Court’s February 01, 2024, order. Based on the facts alleged in the complaint, Cross-Complainant fails to show how Cross-Defendant breached any legal duty of care, particularly given that Cross-Defendant sought to repair his car. Here, as raised above, the Court does not believe there is a reasonable possibility of further successful amendment.  

Therefore, the Court SUSTAINS Cross-Defendant’s demurrer as to the second cause of action without leave to amend. 

D. Third Cause of Action – Tortuous Interference with Contract 

Cross-Complainant brings the third cause of action for tortious interference in the alternative should it be found that the alleged warranty contract is found not to be fraudulent.  

The Court notes that in its prior order, the Court granted Cross-Complainant leave to amend its cause of action for breach of implied covenant of good faith and fair dealing. The Court did not grant Cross-Complainant leave to file an additional cause of action for tortious interference with contract. Therefore, Cross-Defendant’s demurrer to the third cause of action is SUSTAINED without leave to amend. 

 

E. Fourth Cause of Action – Breach of Contract  

 

Cross-Defendant argues that the TACC fails to state facts sufficient to state a cause of action for breach of contract, in that it fails to state whether the contract sued upon is written, or oral or implied by conduct and the alleged breached terms do not appear in the contract attachment.  

 

To state a cause of action for breach of contract, Plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) 

 

If a breach of contract claim “is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also “plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.)  

 

Here, the TACC alleges that Cross-Complainant and Cross-Defendant entered into a contract to repair Cross-Defendant’s vehicle. (TACC, ¶ 52.) Cross-Complainant alleges that it did all or substantially all the significant things that the contract required, including replacing the engine block that Cross-Defendant damaged with heat in November of 2022 (Id.¿¶ 53.) Cross-Complainant completed its half of the contract by installing a new engine block at its own expense. (Id.¿¶ 54.) Cross-Defendant failed to maintain the cooling and fuel systems in the vehicle, causing the failure of an initial engine block and its replacement. (Id.¿¶ 55.) Furthermore, Cross-Defendant refused to assist in the further repair of his vehicle. (Id.) Cross-Complainant tested the engine that they had replaced after Cross-Defendant destroyed it. (Id.¿¶ 56; Exh. 3.) Testing showed excessive oil and sediment inside the engine block. (Id.)  

 

In the Court’s previous order, the Court noted that the SACC failed to allege with specificity how Cross-Defendant breached the agreement. (02/01/24 Minute Order.) Moreover, the Court found that Cross-Complainant failed to include verbatim language from the contract between the parties or incorporate the terms of the contract by reference in the SACC and that the referenced testing report in Exhibit 2 of Cross-Complainant’s SACC was not included. (Id.) These were similar issues raised with Cross-Complainant’s FACC. The Court notes that these same issues exist for the TACC. As raised above, the Court does not believe there is a reasonable possibility of further successful amendment. 

 

Therefore, Cross-Defendant’s demurrer to the fourth cause of action is SUSTAINED without leave to amend. 

 

F. Fifth Cause of Action – Recovery of Storage Fees 

 

Cross-Defendant argues the Cross-Complainant fails to state facts sufficient to state a cause of action for breach of contract regarding storage fees. 

 

Similar to part E of the order, the Court previously found that Cross-Complainant failed to include verbatim language from the contract indicating the storage fee terms or incorporate the contract terms by reference in the SACC.  The TACC has the same deficiencies.  The Court additionally finds that the referenced invoice regarding storage fees in Exhibit 4 of Cross-Complainant’s TACC is not included. Thus, the Court does not believe there is a reasonable possibility of further successful amendment and SUSTAINS the demurer as to the fifth cause of action without leave to amend.   

 

 

G. Motion to Strike  

 

Cross-Defendant moves to strike Cross-Complainant’s third cause of action in its entirety asserting that Cross-Complainant violated the Court’s prior order by adding a new cause of action without permission from the Court to do so.  

 

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).) As Cross-Defendant’s motion to strike does not pertain to the basis of damages or relief, thus Cross-Defendant’s motion to strike the third cause of action in its entirety, is denied.  

 

However, the Court finds that Cross-Complainant has improperly added a new cause of action in place of the original third cause of action for breach of implied covenant of good faith and fair dealing without seeking leave to amend. Under the prior court order, Cross-Complainant was given 20 days to file a third amended complaint. “Generally, where a court grants leave to amend after sustaining a demurrer, the scope of permissible amendment is limited to the cause(s) of action to which the demurrer has been sustained . . ..” (Harris v. Wachovia Mortgage, FSB¿(2010) 185 Cal.App.4th 1018, 1023.) While a court has discretion to allow other amendments (Code Civ. Proc., §§ 473(a)(1).), there are no indications that Cross-Complainant requested and was granted leave to amend the SACC to bring a new cause of action for tortious interference with a contract. The Court notes that it previously struck new causes of actions raised by the Cross-Complainant when no such leave had been granted to do so. (See. 02/01/24 Minute Order.) As such, on its own motion, the Court strikes the third cause of action from the TACC. (See Code Civ. Proc., § 436 (authorizing the Court to enter orders striking matters “at any time in its discretion, and upon terms it deems proper”).)  

 

Accordingly, the Court SUSTAINS Cross-Defendant’s Demurrer as to Cross-Complainant’s Third Amended Cross-Complaint without leave to amend.