Judge: Mark E. Windham, Case: 22STLC01632, Date: 2022-08-31 Tentative Ruling
Case Number: 22STLC01632 Hearing Date: August 31, 2022 Dept: 26
PROCEEDINGS:
DEMURRER TO COMPLAINT AND
MOVING
PARTY: Defendant ADT, LLC
RESP.
PARTY: Plaintiff Brad
Cummings
DEMURRER
(CCP § 430.10, et seq.)
TENTATIVE RULING:
Defendant
ADT, LLC’s Demurrer to the Complaint is OVERRULED AS TO THE 1ST, 2ND AND 3RD
CAUSES OF ACTION, AND REQUESTS FOR EMOTIONAL DISTRESS DAMAGES, PUNITIVE DAMAGES
AND ATTORNEY’S FEES. THE DEMURRER IS SUSTAINED WITHTOUT LEAVE TO AMEND AS TO
THE 4TH AND 5TH CAUSES OF ACTION.
DEFENDANT TO FILE ITS ANSWER WITHIN 20 DAYS OF THIS ORDER.
SERVICE OF MOTION:
[X] Proof
of Service Timely Filed (CRC 3.1300) OK
[X]
Correct Address (CCP 1013, 1013a) OK
[X] 16/21
Day Lapse (CCP 12c and 1005 (b)) OK
SUMMARY OF COMPLAINT: Action for breach of contract with
respect to installation of security system.
REQUEST FOR RELIEF: Sustain demurrer to the Complaint for
failure to allege facts sufficient to state a cause of action. The parties’
contract specifically bars the causes of action alleged against Defendant ADT
in its waiver of liability provisions. Also, damages are limited to $500.00.
Nor has Plaintiff alleged an independent duty to support the negligence and
gross negligence causes of action. Finally, the requests for emotional distress
damages, punitive damages and attorney’s fees are improper.
OPPOSITION: It is a
question of fact whether the liability waivers and damages limitations
provisions were part of the contract signed by Plaintiff. The negligence causes
of action are sorted by an independent duty. Plaintiff will strike the request
for attorney’s fees but the emotional distress and punitive damages requests
are proper.
REPLY: None filed as
of August 29, 2022.
ANALYSIS:
On March 11, 2022, Plaintiff Brad
Cummings (“Plaintiff”) filed the
Complaint in this action against Defendants Millennium Alarm Systems,
Inc., which was subsequently dismissed, and ADT, LLC (“Defendant”). Defendant filed the instant Demurrer to the
Complaint on July 13, 2022 and Plaintiff filed an opposition on August 18,
2022.
Plaintiff’s Motion to Reclassify is
concurrently set for hearing on August 31, 2022.
Discussion
Allegations in
the Complaint
The Complaint alleges the
following causes of action against Defendant: (1) breach of contract;
(2) breach of express warranty; (3) breach of implied warranty of fitness for a
particular purpose; (4) negligence; (5) gross negligence.
Defendant allegedly provides
business security services and alarm systems to its customers. (Compl., ¶7.)
Despite promising its customers “proven, reliable technology,” Defendant left
Plaintiff’s business defenseless with an unreliable alarm system. (Id.
at ¶¶7, 9.) As a result, Plaintiff was the victim of a “smash and grab”
burglary where the security system was not triggered, despite a window being
broken. (Id. at ¶9.) In fact, after Defendant was put on notice of its
defective system, Plaintiff’s business was robbed again. (Ibid.) On
March 19, 2014, Plaintiff entered into a contract with Millennium Alarm
Services, Inc., which is listed as an authorized dealer for Defendant. (Id.
at ¶11.) In exchange for monthly payments that Plaintiff personally guaranteed,
Defendant was to provide two wireless motion sensors, a high decibel siren,
door sensors, a key pad, and a CPU panel with a battery back-up. (Id. at
¶¶12-13.) Plaintiff understood from the sales representative that Defendant
would provide a reliable alarm system that it would monitor and maintain. (Id.
at ¶14.)
Plaintiff’s
business was burglarized at 3:20 am on December 20, 2021 by persons who broke
in through a glass window. (Id. at ¶15.) When the alarm did not go off,
the burglars returned again and again over the course of 55 minutes to continue
placing stolen equipment into their vehicle. (Id.) Had the alarm gone
off, the burglars would not have stayed as long and continued stealing
equipment. (Ibid.) The alarm is very loud and would have alerted the
police and private security that patrols the area. (Ibid.)
After
the burglary, Plaintiff complained to Defendant who sent out a technician to
test the alarm system. (Id. at ¶17.) The technician replaced the keypad
and batteries and informed Plaintiff the system was now working. (Ibid.)
The technician informed Plaintiff the system did not have glass breakage
sensors. (Ibid.) This was a surprise to Plaintiff because the system had
previously been triggered when the windows had been shot out by vandals. (Ibid.)
On January 20, 2022, around 3:00 am, Plaintiff business was burglarized again,
in the same manner as the first burglary. (Id. at ¶18.) Again, the alarm
did not go off and the burglar were able to steal even more equipment. (Ibid.)
Demurrer
to Complaint
The
Demurrer is supported by a meet and confer declaration as required by Code of
Civil Procedure section 430.41. (Demurrer, Spooner Decl., ¶¶3-4.) Defendant
demurs on the grounds that the Complaint fails to allege facts sufficient to
state a cause of action. (Code Civ. Proc., §430.10, subd. (e).) The Court will
address each cause of action in turn.
Request
for Judicial Notice
Defendant
demurs to the breach of contract cause of action based on particular provisions
of the contract it contends Plaintiff signed. (Demurrer, pp. 2:18-4:18.) Defendant
attaches a copy of the purported contract to the Demurrer and requests that the
Court take judicial notice of the document. (Citing Scott v. JPMorgan Chase
Bank, N.A. (2013) 214 Cal.App.4th 743, 754.) Defendant, however, admits
that only the first page of the purported contract is part of the original
contract signed by Plaintiff in 2014. (Demurrer, Gold Decl., ¶6 and Exh. B.) Defendant
concedes that the remaining three pages, which contain the relevant liability
waiver provision, are not part of the original contract and that it could not
locate those original pages from Plaintiff’s contract. (Id. at ¶7 and
Exh. A.) Rather, the remaining three pages of which Defendant requests judicial
notice are from an “exemplar contract,” which Defendant cannot verify was the
original contract signed by Plaintiff. (Id. at ¶8.) Furthermore,
Plaintiff disputes that pages 2-4 of the exemplar contract were part of the
agreement he signed with Millennium Alarm Systems, Inc. (Opp., Cummings Decl.,
¶¶3-6.) In fact, prior to this action, Defendant sent Plaintiff a contract with
different pages attached that those submitted in support of the Demurrer. (Id.
at ¶6 and Exh. A.) Where the authenticity of a request for judicial notice is
in doubt, it is error for the Court to grant the request. (See Jolley v.
Chase Home Fin., LLC (2013) 213 Cal. App. 4th 872, 890-891.)
Therefore,
Defendant’s request for judicial notice is denied.
1st
Cause of Action for Breach of Contract; 2nd Cause of Action for Breach
of Express Warranty; 3rd Cause of Action for Breach of Implied Warranty
Defendant’s
Demurrer to these causes of action is based solely on the terms of the
purported contract, of which the Court declines to take judicial notice. Therefore,
the demurrer to the first, second and third causes of action are overruled.
4th
Cause of Action for Negligence and 5th Cause of Action for Gross Negligence
In
addition to relying on the contract provisions, Defendant demurs to the
negligence causes of action for failure to allege an independent tort duty. The
elements of negligence are duty, breach, causation and damages. (County of
Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.)
To the extent Plaintiff alleges that Defendant’s conduct breaching the security
contract was also negligent, he must allege a separate duty of care. “Conduct
amounting to a breach of contract becomes tortious only when it also violates
an independent duty arising from principles of tort law.” (Applied Equipment
Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515.)
The
Complaint alleges that Defendant owed Plaintiff the “general legal duty to
avoid injury to others, because they assumed responsibility to inspect and
maintain the alarm systems, and because of their promises to exercise their
superior expertise in determining an appropriate security system for Mr.
Cummings’ business.” (Compl., ¶46.) Defendant also allegedly breached the duty
by failing to properly repair the security system after the first burglary.
Plaintiff argues that there is a growing body of law to support the tort of
negligent repair. All the cases to which Plaintiff cites, however, are federal
cases. (Opp., p. 8:4-28.) The opposition offers no authority that negligent
repair is viable cause of action in a California state court.
Therefore,
the demurrer to the fourth and fifth causes of action are sustained without
leave to amend.
Emotional
Distress Damages, Punitive Damages and Attorney’s Fees
To
the extent Defendant challenges specific types of damages sought in the
Complaint, including emotional distress damages, punitive damages and
attorney’s fees, a demurrer is not the correct vehicle. (Munoz v. Patel
(2022) 2022 WL 2981178, *11 n. 9 [demurrer does not lie as to a portion of a
cause of action].) The demurrer to the emotional distress damages, punitive
damages and attorney’s fees is overruled.
Conclusion
Defendant
ADT, LLC’s Demurrer to the Complaint is OVERRULED AS TO THE 1ST, 2ND AND 3RD
CAUSES OF ACTION, AND REQUESTS FOR EMOTIONAL DISTRESS DAMAGES, PUNITIVE DAMAGES
AND ATTORNEY’S FEES. THE DEMURRER IS SUSTAINED WITHTOUT LEAVE TO AMEND AS TO
THE 4TH AND 5TH CAUSES OF ACTION.
PROCEEDINGS:
MOTION
TO RECLASSIFY
MOVING
PARTY: Plaintiff Brad Cummings
RESP.
PARTY: None
RECLASSIFY
(CCP § 403.040)
TENTATIVE RULING: