Judge: Mark E. Windham, Case: 23STLC02367, Date: 2023-12-05 Tentative Ruling

Case Number: 23STLC02367    Hearing Date: December 5, 2023    Dept: 26

Shalurhad v. Tustin Community Bank, et al.

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendant Tustin Community Bank’s Demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

ANALYSIS:

Plaintiff Shaka Shalurhad (“Plaintiff) filed the instant action against Defendant Tustin Community Bank (“Defendant”) on April 11, 2023. On August 2, 2023, the Court sustained Defendant’s demurrer to the Complaint with leave to amend. (Minute Order, 08/02/23.)

Plaintiff filed the First Amended Complaint on August 10, 2023. Defendant filed the instant Demurrer to the First Amended Complaint on October 2, 2023. Plaintiff filed an opposition on October 20, 2023 and Defendant replied on October 27, 2023. The Demurrer was initially set for hearing on November 9, 2023 but was continued with notice waived to December 5, 2023. (Minute Order, 11/09/23.)

Discussion

The First Amended Complaint alleges causes of action for (1) violation of Consumers Legal Remedies Act, Civil Code § 1750 et seq.; and (2) violation of California Business and Professions Code § 17200, et seq., based on the following facts. On November 14, 2019, Plaintiff went to 5 Star Auto Group dba Billion Auto Group’s (“Seller”) place of business and purchased a 2018 Ford Focus (“the subject vehicle”) pursuant to a retail installment sales contract (“the Contract”). (FAC, ¶¶13, 19.) Prior to purchase, Seller made representations about the subject vehicle’s history and/or repair condition but did not disclose that it had been in a major accident, underwent substandard repair, or suffered structural damage to its frame. (Id. at ¶¶14-15.) The true condition of the subject vehicle was that it had suffered structural damage to its frame/unibody due to a major accident, or had unrepaired structural damage, frame damage, or unibody damage. (Id. at ¶16.) The true condition of the vehicle was that it had defects, including but not limited to defective tire sensor, electrical defects, and structural defects. (Id. at ¶17.)

Plaintiff would not have purchased the subject vehicle if not for Seller’s misrepresentations and was not able to discover its true condition prior to purchase. (Id. at ¶¶18, 21.) After purchase and within the last three years, Plaintiff discovered the vehicle had been involved in a major accident and/or had frame/unibody damage or it had substandard repair and any statute of limitations is tolled by the discovery rule. (Id. at ¶¶23-24.) Plaintiff has been harmed by relying on Seller’s fraudulent representations. (Id. at ¶¶30-32.) The Contract was subsequently assigned to Defendant and by accepting it, Defendant is liable for the claims and defenses pursuant to the Contract. (Id. at ¶¶34-35.)

The Demurrer is supported by a meet and confer declaration, as required by Code of Civil Procedure section 430.41. (Demurrer, Castaño, Jr., Decl., ¶2.) Defendant demurs to both causes of action in the Complaint for failure to allege facts sufficient to state a cause of action and uncertainty. (Citing Code Civ. Proc., § 430.10, subd. (e).)

1st Cause of Action for Violation of Consumers Legal Remedies Act, Civil Code § 1750 et seq.

Defendant first argues that this cause of action is not alleged with the requisite particularity. The Court of Appeals has held that “causes of action under the CLRA and UCL must be stated with reasonable particularity, which is a more lenient pleading standard than is applied to common law fraud claims.” (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1261.) The elements of the cause of action are (1) a misrepresentation; and (2) reliance on the misrepresentation. (Cohen v. DIRECTV, Inc. (2009) 178 Cal. App. 4th 966, 980.) Additionally, the pleading must identify the particular section of the statutory scheme that was violated with reasonably particular facts supporting the violation. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.)

As with the Complaint, the First Amended Complaint still does not allege what particular section(s) of the statutory scheme was violated. It alleges that Seller’s conduct violated the CLRA “in a number of respects” and provides the particular facts that demonstrate these violations. (FAC, ¶¶42-47.) However, the particular section of the CLRA, which spans four chapters, is not cited. Also, Defendant previously argued that Plaintiff has not alleged reliance with the requisite particularity because the specific alleged misrepresentations were only possible. (Citing Compl., ¶43.) By removing the term “possibly,” the First Amended Complaint now alleges Plaintiff’s reliance on Seller’s representations with the necessary particularity. However, simply removing the term “possibly” is not enough to correct the deficiency noted above regarding alleging the statute with the requisite particularity.

Based on the foregoing, the demurrer to the first cause of action is sustained.

2nd Cause of Action for Violation of Business & Professions Code section 17200, et seq.

Defendant argues that the second cause of action is entirely derivative of the first cause of action, and must fail for the same reason. The second cause of action does not allege what specific unlawful, unfair, and/or fraudulent business acts and/or practices give rise to the second cause of action other than “as is set forth in this complaint” and “as delineated above.” (Compl., ¶¶56-59.) The “unlawful, unfair, and/or fraudulent” practices, therefore, must refer to the violations of the CLRA in the first cause of action.

Therefore, the demurrer to the second cause of action is also sustained.  

Leave to Amend

Plaintiff’s opposition requests leave to amend if the demurrer is sustained but offers no facts that would be added to correct the lack of particularity noted above. (Opp., p. 4:1-6.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment but the burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Leave to amend is denied.

Conclusion

Defendant Tustin Community Bank’s Demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party to give notice.