Judge Marcella O. Mclaughlin, Case 37-2022-00050324-CU-PA-CTL 2023-11-03 Tentative Ruling

Judge: Marcella O. Mclaughlin, Case: 37-2022-00050324-CU-PA-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 02, 2023

11/03/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited PI/PD/WD - Auto Demurrer / Motion to Strike 37-2022-00050324-CU-PA-CTL DORMOUSE ENTERPRISES INC VS CARWAVE LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 09/25/2023

The demurrer to the complaint is SUSTAINED in part and OVERRULED in part.

A. Carwave's request for judicial notice is denied. Plaintiff's objection is sustained. A court may take judicial notice of '[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.' Evid.

Code § 452(h). However, '[t]he existence and terms of a private agreement are not facts that are not reasonably subject to dispute and that can be determined by indisputable accuracy.' Travelers Indemnity Company of Connecticut v. Navigators Specialty Insurance Company (2021) 70 Cal.App.5th 341, 354-55. '[A] court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show.' Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 115.

B. The demurrer to count 1 is overruled. Sufficient facts have been pled to state a claim for breach of contract. See CACI 303.

C. The demurrers to counts 2, 3, and 4 are overruled. Reading the complaint as a whole and liberally construing its allegations, the court finds that sufficient facts have been pled to state claims for violations of Commercial Code sections 2312, 2314, and 2315. '[A]gainst a general demurrer the only requirement is that upon a consideration of all the facts stated it must appear plaintiff is entitled to some relief, notwithstanding that the facts may be inartfully stated, or may be intermingled with a statement of other facts irrelevant to the cause of action, or plaintiff may demand relief to which he is not entitled under the facts alleged.' Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 123.

Whether plaintiff can produce at trial, or in response to a motion for summary judgment, evidence that will support its allegations remains to be determined.

D. The demurrer to count 5 is sustained with leave to amend. '[R]estitution is a remedy and not a freestanding cause of action.' Reid v. City of San Diego (2018) 24 Cal.App.5th 343, 362. Plaintiff may amend its prayer to add a request for restitution, to the extent permitted by law, in connection with another validly pled cause of action.

E. The demurrer to count 6 is sustained with leave amend. The implied covenant of good faith and fair dealing claim is duplicative of the breach of contract claim. 'If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion cause of action, they may be disregarded as Calendar No.: Event ID: TENTATIVE RULINGS

3037394 52 CASE NUMBER: CASE TITLE: DORMOUSE ENTERPRISES INC VS CARWAVE LLC [IMAGED] 37-2022-00050324-CU-PA-CTL superfluous as no additional claim is actually stated.' Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395. Such is the case here. (Compare Complaint at ¶¶ 17-22 with ¶¶ 38-40.) F. The demurrer to count 7 is overruled. Sufficient facts have been pled with the required particularity to state a claim for negligent misrepresentation. 'Justifiable reliance is ordinarily a question of fact that is not properly determined on demurrer[.]' Amiodarone Cases (2022) 84 Cal.App.5th 1091, 1111.

G. The demurrer to count 8 is sustained with leave to amend. Plaintiff has failed to allege that members of the public are likely to be deceived by the challenged conduct. See Rubenstein v. The Gap, Inc.

(2017) 14 Cal.App.5th 870, 876 ('An advertising statement is misleading if members of the public are likely to be deceived.').

H. The demurrer to count 9 is sustained with leave to amend. Insufficient facts have been pled showing any unlawful, unfair, or fraudulent business practices on the part of Carwave. For the reasons discussed above, plaintiff has not alleged a predicate violation of the FAL or that members of the public are likely to be deceived. See Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 951. Nor are there facts suggesting that the challenged conduct was tethered to a violation of a constitutional, statutory, or regulatory provision.

See Durrell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1366.

G. 'Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.' Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227. Accordingly, plaintiff is granted leave to amend counts 5, 6, 8, and 9. Plaintiff must file and serve the first amended complaint by November 13, 2023.

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