Judge: Lee W. Tsao, Case: 22NWCV00928, Date: 2023-03-23 Tentative Ruling

Case Number: 22NWCV00928    Hearing Date: March 23, 2023    Dept: C

TIRADO v. IRVINE AUTO RETAIL II INC.

CASE NO.:  22NWCV00928

HEARING:  03/23/23

#3

TENTATIVE ORDER

Defendant IRVINE AUTO RETAIL II INC.’s Demurrer to Plaintiff’s Complaint is SUSTAINED with 30 days leave to amend.

Moving Party to give notice.

No Reply filed as of March 21, 2023.

This “lemon law” action was filed by Plaintiff PALOMA TIRADO (“Plaintiff”) on October 3, 2022.  Plaintiff alleges that Defendant IRVINE AUTO RETAIL II INC. (“Defendant” or “Norm Reeves Volkswagen”) negligently repaired Plaintiff’s 2020 Volkswagen Tiguan. (See Complaint §§41-43.)

Plaintiff’s Complaint asserts the following causes of action: (1) Violation of Song-Beverly Act (Breach of Express Warranty); (2) Violation of Song-Beverly Act (Breach of Implied Warranty); and (3) Negligent Repair.  

Defendant generally demurs to the third cause of action.

Third Cause of Action – Negligent Repair

Defendant argues that Plaintiff’s third cause of action, as alleged, is barred by the economic loss rule.

The economic loss rule provides that “where a purchaser’s expectations in a sale are frustrated because the product he bought is not working properly, his [or her] remedy is said to be in contract alone, for he [or she] has suffered only economic losses.”  (Robinson Helicopter Company v. Dana Corporation (2004) 34 Cal.4th 979, 988.)  “Tort damages have been permitted in contract cases where a breach of duty directly causes physical injury; for breach of the covenant of good faith and fair dealing in insurance contracts; for wrongful discharge in violation of fundamental public policy; or where the contract was fraudulently induced…. in each of these cases, the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm.”  (Robinson, supra, 34 Cal.4th at 989–990.)

In Robinson, the California Supreme Court carved out a “narrow” and “limited” exception to the economic loss rule, holding that “a defendant's affirmative misrepresentations on which a plaintiff relies and which expose a plaintiff to liability for personal damages independent of the plaintiff's economic loss” is excluded from the economic loss rule.  (Robinson, supra, 34 Cal.4th at 993.) 

Here, Plaintiff alleges a claim for negligent repair, which does not fall within the narrow exceptions carved out by the California Supreme Court in Robinson.  Plaintiff does not allege that Defendant engaged in any intentional misconduct or made any affirmative misrepresentations. As alleged, the economic loss rule bars Plaintiff’s recovery under the third cause of action.

The demurrer to the third cause of action is SUSTAINED with 30 days leave to amend.