Judge: Lee W. Tsao, Case: 24NWCV00676, Date: 2024-05-07 Tentative Ruling
Case Number: 24NWCV00676 Hearing Date: May 7, 2024 Dept: C
Leopoldo Cabello vs Nissan North America Inc.,
et al.
Case No.: 24NWCV00676
Hearing Date: May 7, 2024 @ 9:30 AM
#8
Tentative Ruling
Defendants Nissan North America, Inc. and
Cerritos Nissan’s Demurrer to the Third Cause of Action in the Complaint is
OVERRULED.
Plaintiff to give notice.
Defendants Nissan North America, Inc. and Cerritos Nissan (“Defendants")
demur to the Third Cause of Action for Violation of Business and Professions
Code section 17200 on the grounds that it is uncertain, ambiguous and
unintelligible and fails to plead any unlawful, unfair, or fraudulent business
practices.
Background
This is a lemon law action. This lawsuit was filed on March
5, 2024 by Plaintiff Leopoldo Cabello (“Plaintiff”) against Defendants alleging
four causes of action: (1) Breach of Express Warranty; (2) Breach of Implied
Warranty; (3) Violation of Business and Professions Code § 17200; and (4)
Negligent Repair. This action involves a 2023 NISSAN ALTIMA, VIN:
1N4BL4CV2PN403981 (“Subject Vehicle”).
Legal Standard
The party against whom a complaint has been filed may
object to the pleading, by demurrer, on several grounds, including the ground
that the pleading does not state facts sufficient to constitute a cause of
action. (CCP § 430.10(e).) A party may demur to an entire complaint, or to any
causes of action stated therein. (CCP § 430.50(a).)
Discussion
Defendant
demurs only to Plaintiff’s Third Cause of Action for Violation of Business and
Professions Code section 17200. California’s
Unfair Competition Law (“UCL”) prohibits unlawful, unfair or fraudulent
business acts or practices.¿ (Bus. & Prof. Code, § 17200.)¿ “The
Legislature intended this ‘sweeping language’ to include ‘anything that can
properly be called a business practice and that at the same time is forbidden
by law.’” (Bank of the West v. Sup. Ct. (1992) 2 Cal.4th 1254,
1266.) “A plaintiff alleging unfair business practices under these
statutes must state with reasonable particularity the facts supporting the
statutory elements of the violation.” (Khoury v. Maly's of California, Inc. (1993)
14 Cal.App.4th 612, 619.)
“Because the statute is framed
in the disjunctive, a business practice need only meet one of the three
criteria to be considered unfair competition.” (Durell v. Sharp
Healthcare (2010) 183 Cal.App.4th 1350, 1359.) Section 17200’s
“unlawful” prong “borrows violations of other laws ... and makes those unlawful
practices actionable under the UCL.” (Klein v. Chevron U.S.A., Inc.
(2012) 202 Cal.App.4th 1342, 1383.) “[V]irtually any law or
regulation—federal or state, statutory or common law—can serve as [a] predicate
for a ... [section] 17200 ‘unlawful’ violation.’ ” (Ibid.)
“A business practice is “fraudulent” within the meaning of section 17200 if it
is “likely to deceive the public.” (Id. at p. 1380.) A business
practice is “unfair” within the meaning of the UCL if it violates established
public policy or if it is immoral, unethical, oppressive or unscrupulous and
causes injury to consumers which outweighs its benefits. (Nolte v.
Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1407–1408 (Nolte).)
The determination whether a business practice is unfair involves an examination
of that practice’s impact on its alleged victim, balanced against the reasons,
justifications and motives of the alleged wrongdoer. (Ibid.)
In brief, the court must weigh the utility of the defendant's conduct against
the gravity of the harm to the alleged victim. (Nolte, Supra,
236 Cal.App.4th at pp. 1407–1408; Cf. Durell v. Sharp Healthcare, supra,
183 Cal.App.4th at 1365 [“[u]nfair” business practices are those which offend
an “established public policy” that is tethered to “specific constitutional,
statutory, or regulatory provisions”]; Morgan v. AT & T Wireless
Services, Inc. (2009) 177 Cal.App.4th 1235, 1254–1255.)
Further, Plaintiff must
demonstrate economic injury derived from the economic injury. “There are
innumerable ways in which economic injury from unfair competition may be shown.
A plaintiff may (1) surrender in a transaction more, or acquire in a transaction
less, than he or she otherwise would have; (2) have a present or future
property interest diminished; (3) be deprived of money or property to which he
or she has a cognizable claim; or (4) be required to enter into a transaction,
costing money or property, that would otherwise have been unnecessary.
[Citation.]” (Kwikset Corp. v. Superior Court, supra, 51 Cal.4th at p. 323.)
The foregoing list is not exhaustive and the notion of “lost money” under the
UCL is not limited. (51 Cal.4th at p. 323.) Moreover, “the quantum of lost
money or property necessary to show standing is only so much as would suffice
to establish injury in fact” and “it suffices … to ‘ “allege [ some specific,
‘identifiable trifle’ of injury.” ’ [Citations.]” (Id. at pp. 324–325, fn. omitted.)
“ ‘ “The basic idea … is that an identifiable trifle is enough for standing to
fight out a question of principle; the trifle is the basis for standing and the
principle supplies the motivation.” ’ [Citation.]” (Id. at p. 325, fn. 7.)
Law Offices of
Mathew Higbee v. Expungement Assistance Services (2013) 214 Cal.App.4th 544, 561.
Standing
Standing under the UCL is
established only where the plaintiff “has suffered injury in fact and has lost
money or property” as a result of the alleged unfair practices. (B&P Code
section 17204.)
The Complaint alleges “[t]he
defects, malfunctions, and nonconformities were presented to Defendant’s
authorized repair facilities multiple times and continue to substantially
impair the use, value, and/or safety of the Vehicle.” (Complaint, ¶ 15.) Plaintiff also contends the “Subject Vehicle
suffered from defects which substantially affected the vehicle’s value.”
(Complaint, ¶ 38.)
Here, Plaintiff has
standing because he has sufficiently alleged the diminished value in the
Subject Vehicle.
Sufficiency of Facts to Constitute a Cause of Action
The UCL authorizes
civil suits for “unfair competition” which it defines, in relevant part to
“include any unlawful, unfair or fraudulent business act or practice.” (UCL §
17200.)
Defendants
contend that the UCL claim fails because (1) the unlawful business practice claim
does not have the requisite level of specificity; and (2) the fraudulent prong
does not rise to the requisite level of specificity. Defendants state: “Dealerships exist
entirely to sell vehicles and to repair vehicles. The mere sale of a vehicle
and subsequent repair history and repair attempts to a vehicle are not
unlawful, unusual, and are entirely insufficient to satisfy the requirements of
any fraudulent business practice assertion.” (Mot., p. 12:25-28.)
The Complaint alleges Defendant
Nissan “intentionally placed the Subject Vehicle, with defective components,
into the stream of commerce.” (Complaint, ¶ 38.) As to Defendant Cerritos, Plaintiff alleges
it was “well aware of the highly defective components in this Subject Vehicle.
Defendant intentionally failed to properly diagnose the issues in the Subject
Vehicle.” (Complaint, ¶ 38.) Given that Plaintiff alleges that Defendants were
aware of the defective components and sold the vehicle regardless of these
defects, the Court determines that these claims sufficiently plead the unlawful
prong.
In order to prevail
under the “fraudulent” prong of the UCL, a consumer must allege that the
fraudulent business practice was likely to deceive members of the public. The
Complaint alleges “Defendants’ oral misrepresentations also deceived Plaintiff
to believe that Plaintiff would receive a benefit by purchasing a Vehicle from
them under warranty.” (Complaint, ¶ 48.) The Court finds that Plaintiff has satisfied
the fraudulent prong by alleging that oral representations deceived Plaintiff.
Accordingly, the Court
finds that Plaintiff has alleged sufficient facts to constitute a cause of
action under the UCL.
Adequate Remedy at Law
Defendants
argue that the UCL provides only for equitable remedies, and Plaintiff
cannot seek injunctive relief when they have an adequate remedy under the
Song-Beverly Act. Defendants rely on Durkee
v. Ford Motor Co., No. C 14-0617 PJH, 2014 WL 4352184 (N.D. Cal. Sept. 2,
2014) which held that “[b]ecause the UCL provides for only equitable remedies,
and plaintiffs have an adequate remedy at law for the alleged Song–Beverly Act
violation, plaintiff's UCL claim must be dismissed” (Id. at 3),
Defendant cites to federal authority which is merely persuasive. (See Aleman
v. AirTouch Cellular (2012) 209 Cal.App.4th 556, 576 n.8)
Moreover, the remedies under
the Song-Beverly Act are cumulative and shall not be construed as restricting
any remedy that is otherwise available. (Cal Civil Code § 1790.4.)
Defendants’
demurrer to the Third Cause of Action is OVERRULED.
Because
the Motion to Strike relies on the same authorities as the demurrer, the Motion to Strike is DENIED.