Judge: Margaret L. Oldendorf, Case: 23AHCV01895, Date: 2023-12-12 Tentative Ruling


Case Number: 23AHCV01895    Hearing Date: December 12, 2023    Dept: P

 

 

 

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

VALARIE B. PHILLIPS, an individual

 

                                            Plaintiff,

vs.

 

RUSNAK PASADENA dba RUSNAK VOLVO CARS, Does 1-5, inclusive,

 

                                            Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

)

Case No.: 23AHCV01895

 

 

[TENTATIVE] ORDER SUSTAINING DEMURRER WITH LEAVE TO AMEND, AND TAKING MOTION TO STRIKE OFF CALENDAR

 

Date:   December 12, 2023

Time:  8:30 a.m.

Dept.:  P

 

          I.        INTRODUCTION

          In this action, Plaintiff Valarie B. Phillips (Phillips), who is representing herself in pro per, sues Defendant Rusnak Pasadena (Rusnak). Phillips alleges that Rusnak undertook an obligation to repair her 2003 Volvo S40 in August of 2021. She apparently alleges Rusnak is liable for breach of contract, and that they were negligent for failing to notify her of the status of the vehicle and the repairs. The Complaint is prepared on Judicial Council forms, and appears to contain four causes of action for negligence, fraud, intentional tort and negligence.  (However, in the main part of the form Complaint, Phillips checked the box indicating her claim is for breach of contract.)

           

Before the Court are Rusnak’s challenges to the Complaint. For the reasons that follow, the demurrer is sustained with leave to amend. The motion to strike is denied as moot, as there is no operative complaint from which to strike any material.

 

II. REQUEST FOR JUDICIAL NOTICE

The notice of motion indicates that Defendant Rusnak will be seeking judicial notice of something. However, no request for judicial notice was submitted with the papers.

 

III.     DEMURRER

A. Legal Standard

Code Civ. Proc. Section 430.10(e) provides for a demurrer on the basis that a complaint fails to state a cause of action. (CCP § 430.10(e).) A demurrer tests the legal sufficiency of a complaint. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) 

Code Civ. Proc. Section 430.10(f) provides for a demurrer where a pleading is uncertain. (CCP § 430.10(f).) Demurrers for uncertainty are disfavored and are only sustained where a pleading is so incomprehensible a defendant cannot reasonably respond. (A.J. Fistes v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695; Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)

Per CCP Section 430.10(g) provides for a demurrer where “[i]n an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral or is implied by conduct.” (CCP § 430.10(g).)

          B. The Meet and Confer Requirement Has Been Satisfied

          The Declaration of Steven A. Garcia is offered in support of counsel’s compliance with Code Civ. Proc. Section 430.41. Garcia declares that he sent a meet and confer letter both by mail and email to Plaintiff on September 29, 2023. (Garcia Declaration ¶ 4, referencing Exh. A.) Plaintiff did not respond, nor did Garcia receive any indication that the email or mail could not be sent. (Garcia Decl., ¶¶ 5 ,6.)

          In opposition, Phillips argues that Rusnak did not meet and confer with her. (Opposition, p. 3.) However, she does not provide any evidence as to why that is the case. The meet and confer letter was sent to her correct mailing address and her correct email. If she did not receive these or there was an error, she does not indicate that clearly or support such a contention.

Consequently, the Court concludes that the meet and confer requirement has been satisfied.

          C. Demurrer to the Entirety of the Complaint

          Rusnak demurs to each of the four causes of action on the grounds that the claims are uncertain. The Complaint apparently arises from an alleged breach of a vehicle repair contract. However, Plaintiff has stated at one place in the Complaint that she is asserting a claim for breach of contract, yet she attaches four different causes of action to her pleading.  Under these circumstances, the Court agrees that it is difficult for Rusnak to reasonably respond to the allegations.   

Secondly, Rusnak urges that the demurrer should be sustained because, assuming the claim is one for breach of contract, it is unclear whether the purported contract is oral or written, whether the allegations fall within the terms of the contract, and whether a contract even existed. (Motion, p. 2: 20-22.) No contract is attached to the Complaint nor are the terms referenced. Per applicable case law, for causes of action based on an alleged contract, the Complaint must plead the essential terms of the contract, and how the present situation fits within said contract. (See Myers Building Industries, Ltd. v. Interface Tech., Inc. (1993) 13 Cal.App.4th 949, 968-969.) Per CCP Section 430.10(g), a party may demur if “[i]n an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral or is implied by conduct.” (CCP § 430.10(g).)

In opposition, Plaintiff Phillips indicates that she is suing based upon an alleged violation of the California Business and Professions Code. (Opposition, p. 2.) She urges that Defendant is required to operate in compliance with this statutory scheme. (Id.)  However, this argument does not elucidate the nature of the contract alleged between the parties.

The Court notes that Rusnak also advanced an argument as to the statute of limitations applicable to actions for breach of an oral contract. (CCP § 339(1).) However, inasmuch as the type of contract is unclear, the Court declines to consider this argument at this stage of the case.

          Accordingly, pursuant to CCP Section 430.10(f) and (g), the demurrer is sustained. Notwithstanding this ruling, the Court provides the following additional analysis to the parties.

          D. Demurrers to The First and Fourth Causes of Action Are Sustained

          Rusnak additionally demurs to the first and fourth causes of action, both for negligence, on the grounds that they fail to state facts sufficient to constitute a cause of action.

With regard to these causes of action, Rusnak urges that Plaintiff has failed to adequately allege the duty and breach of duty elements of a negligence claim. (Motion, p. 8:14-15.) The elements of a negligence claim are: duty, breach of duty, causation, and damages.  (Salinas v. Martin (2008) 166 Cal.App.4th 404, 411.)

Rusnak’s argument in this regard is well-taken. The first cause of action contains no mention of the duty Rusnak is alleged to have owed Plaintiff. The fourth cause of action also does not allege Rusnak owed a duty to Plaintiff, nor how that duty was breached. To the extent that Phillips is urging that the duty owed to her is compliance with the Business and Professions Code, she does not allege what specific duty she is complaining about, and how it was subsequently breached. (Opposition, p. 2.)

Rusnak additionally argues that Plaintiff has failed to allege the acts or omissions that constitute the purported negligence. (Motion, p.8: 10-11.) In support, Rusnak cites Guilliams v. Hollywood Hospital and Berkeley v. Dowds for the proposition that Plaintiff must allege the specific acts or omissions the plaintiff urges were negligent. (Guilliams v. Hollywood Hosp. (1941) 18 Cal.2d 97, 101; Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) This argument is less persuasive.  Rusnak is directed to ¶ GN-1 on page 7, where Phillips alleges “Defendants failed to reply to numerous requests from plaintiff[,]… failed to conduct the inspection[,] … failed to contact the plaintiff and/or respond…” (Complaint p.7, ¶ GN-1.)

          D. The Demurrer to the Second and Third Causes of Action Is Sustained

          Rusnak is correct that fraud is subject to a heightened pleading standard. Each element must be pleaded with particularity. (Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1090.) That particularity is missing here, as to the second cause of action for fraud. Additionally, the third cause of action for “intentional tort” is based on the allegation that Rusnak “intentionally fraudulently represented that repairs had been completed February 20, 2023.”(Complaint p. 6, ¶ IT-1.) This cause of action does not specifically plead each element of a claim for fraudulent misrepresentation, which is also subject to the heightened pleading standard.    

 

IV.     MOTION TO STRIKE

           As the demurrer is being sustained, there will be no operative pleading from which to strike any matter. The motion to strike is therefore denied as moot. 

 

V.       CONCLUSION AND ORDER

 Rusnak’s demurrer is sustained as to all of the causes of action asserted against it in the Complaint. The motion to strike is denied as moot.

          Phillips is given 20 days’ leave to amend her Complaint.

Rusnak is ordered to give notice of this ruling.

 

         

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT