Judge: Lee W. Tsao, Case: 23NWCV02109, Date: 2023-12-19 Tentative Ruling
Case Number: 23NWCV02109 Hearing Date: December 19, 2023 Dept: C
Samantha Ruiz vs Volkswagen Group of America,
Inc., et al
Case No.: 23NWCV02109
Hearing Date: 12/19/23 at 10:30 a.m.
#11
Tentative Ruling
Defendant LAD-V, LLC dba Volkswagen of Downtown
L.A.’s Demurrer to the Fourth Cause of Action for Negligent Repair is SUSTAINED
with thirty days leave to amend.
Moving party to give notice.
Background
This is a “lemon law” case.
On July 10, 2023, Plaintiff Samantha Ruiz (“Plaintiff”)
filed a Complaint against Volkswagen Group of America, Inc. (“VWGoA”) and
LAD-V, LLC dba Volkswagen of Downtown L.A. (erroneously sued as Volkswagen of
Downtown L.A. dba LADV, LLC) (“VW DTLA,” “Dealer” and/or “Defendant”).
Plaintiff’s Complaint states four causes of action: (1) Violation of
Song-Beverly Act – Breach of Express Warranty; (2) Violation of Song Beverly
Act – Breach of Implied Warranty; (3) Violation of the Song-Beverly Act Section
1793.2; and (4) Negligent Repair. The
Complaint seeks compensatory and statutory damages as provided by the Song
Beverly Act. (Compl. at p. 7 [Prayer for Relief].)
Defendant VW DTLA demurs to the fourth cause of action for
negligent repair.
Meet and Confer
A
party filing a demurrer “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., section 430.41(a).)
“The parties shall meet and confer at least five days before the date the
responsive pleading is due. If the parties are not able to meet and confer at
least five days prior to the date the responsive pleading is due, the demurring
party shall be granted an automatic 30-day extension of time within which to
file a responsive pleading, by filing and serving, on or before the date on
which a demurrer would be due, a declaration stating under penalty of perjury
that a good faith attempt to meet and confer was made and explaining the
reasons why the parties could not meet and confer.” (Code Civ. Proc., section
430.41(a)(2).) A failure to meet and confer does not constitute grounds to
sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)
On August 17, 2023, Defense counsel met and conferred
telephonically with Plaintiff’s counsel and discussed the issues raised by this
Demurrer; however, parties were unable to reach a resolution. (Bell Decl., ¶
4.) Accordingly, the meet and confer requirement has been satisfied.
Legal Standard
Pursuant to Code of Civil Procedure (“CCP”) sections 430.40
and 430.50, a defendant may demur to a complaint or any of the complaint’s
causes of action if one or more defects appear on the face of the complaint. A
complaint is subject to a demurrer if it fails to state facts sufficient to
constitute a cause of action. (Code Civ. Proc. § 430.10(e).) A complaint is
subject to a demurrer if it is uncertain (“uncertain” includes ambiguous and
unintelligible). (Code Civ. Proc. § 430.10(f).)
A demurrer not only tests the sufficiency of the factual
allegations in the complaint, but also tests whether those facts are pled with
sufficient certainty and particularity. (Banerian v. O’Malley (1974) 42
Cal.App.3d 604, 610-611.) On demurrer, the plaintiff has the burden of showing
that the complaint alleges facts sufficient to establish every element of each
cause of action. (Code Civ. Proc. § 430.10(e); see also Rakestraw v. Cal.
Physicians’ Serv., 81 Cal. App. 4th 39, 43 (2000).) To test the sufficiency
of the complaint, the court accepts as true “all material facts properly
pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank
v. Kirwan (1985) 39 Cal. 3d 311, 318.)
“In ruling on a
demurrer, a court may only consider the complaint’s four corners and facts
noticeable judicially.” (Harris v. Capital Growth Invs. XIV (1989) 224
Cal. App.3d 367, 259; Saunders v. Superior Court (1994) 27 Cal. App. 4th
832, 838.) If no amendment will cure the defects in a pleading, a demurrer must
be sustained without leave to amend. (Berkeley Police Ass’n v. City of
Berkeley (1978) 76 Cal. App. 3d 931, 943.)
Discussion
Defendant VW DTLA contends that Plaintiff’s cause of action
for negligent repair fails for two separate reasons: (1) Plaintiff’s negligence
claim is barred by the economic loss rule, and (2) the Complaint fails to plead
facts sufficient to constitute a cause of action.
Plaintiff contends that the economic loss rule does not
apply here. Plaintiff argues that courts
have “clearly and consistently provided for an exception to the economic loss
rule in cases where a defendant’s alleged tortuous conduct is entirely separate
from the underlying contract …” (North American Chemical Co. v. Superior
Court (1997) 59 Cal.App.4th 764.) North American Chemical recognized
the “fundamental principle” that “accompanying every contract is a common-law
duty to perform with care, skill, reasonable expedience, and faithfulness the
thing agreed to be done, and a negligent failure to observe any of these
conditions is a tort, as well as a breach of contract.” (Id. at p.
774.)
Since North American Chemical was
decided, however, the California Supreme Court has narrowed the exceptions to
the economic loss rule. In Erlich v.
Menezes (1999) 21 Cal.4th 543, the court determined that
homeowners could not recover tort damages for emotional distress caused by a
contractor’s negligent construction of their home. A breach of contract is tortious “only when
some independent duty arising from tort law is violated. [citation] If every
negligent breach of a contract gives rise to tort damages, the limitation [upon
tort damages] would be meaningless, as would the statutory distinction between
tort and contract remedies.” (Id. at p. 554.) “The benefits of broad compensation
must be balanced against the burdens on commercial stability. ‘Courts should be careful to apply tort
remedies only when the conduct in question is so clear in its deviation from
socially useful business practices that the effect of enforcing such tort
duties will be … to aid rather than discourage commerce.’” (Ibid.
(citing Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th
85, 109).)
In Robinson, the court held “the
economic loss rule does not bar [Plaintiff’s] fraud and intentional
misrepresentation claims because they were independent of [Defendant’s] breach
of contract.” (Robinson Helicoptor v. Dana Corp, supra, 34 Cal.4th
979, 991.) The 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. (Id. 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. Nor does Plaintiff
adequately allege an independent duty giving rise to tort liability. (Erlich
v. Menezes, supra, 21 Cal.4th 543, 554.) As alleged, the
second cause of action is barred by the economic loss rule.
Defendant VW DTLA also argues Plaintiff’s fourth cause of
action fails to state facts sufficient to constitute a cause of action. Here, on the face of the Compliant, Plaintiff
does not present allegations that would be give rise to the negligent repair
claim. Plaintiff alleges that Defendants
did not “use ordinary care and skill in storage, preparation and repair of the
Subject Vehicle in accordance with industry standards.” (Complaint, ¶¶ 53 54.)
These allegations amount to contentions or conclusions of law and therefore are
not properly pleaded. (See Blank v Kirwan (1985) 39 Cal.3d 311, 318.)
Accordingly, the demurer is SUSTAINED with thirty days
leave to amend.