Judge: Matthew C. Braner, Case: 37-2023-00007847-CU-PO-CTL, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - November 16, 2023

11/17/2023  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00007847-CU-PO-CTL PRIVILEGE UNDERWRITERS RECIPROCAL EXCHANGE VS TIMELESS WOOD PRODUCTS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Frost Hardwood Lumber Company's demurrer is SUSTAINED in part, and OVERRULED in part.

Defendant's request for judicial notice is granted.

A demurrer shall be sustained if the pleading 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., § 430.10, subd. (e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) The court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) As to the first cause of action for strict products liability, Defendant argues that Plaintiff has not adequately alleged property damage to the subject property independent from damage to the installed products (cabinets) and therefore the claim is barred by the economic loss doctrine. The court disagrees. Although one interpretation of Plaintiff's allegation that 'the cabinets and/or materials contained defects, specifically, post beetles, which caused property damage to the Subject Property' is that only the cabinets themselves were damaged, it is not the only interpretation, nor even the most reasonable one. Rather, the more reasonable interpretation of this allegation is that the defect (i.e., post beetles) caused damage to both the cabinets and some other area(s) of the property, as 'Subject Property' refers to the entire property, and it makes logical sense that (presumably) mobile post beetles would spread beyond the cabinets themselves.

Accordingly, the demurrer is overruled with respect to the first cause of action.

As to the second cause of action for negligent products liability, Defendant argues that Plaintiff's claim is subject to the Right to Repair Act, and the complaint has failed to adequately allege compliance with that Act's notice requirements. The court agrees. Plaintiff's claim for property damage arising from negligent products liability is subject to the Act. (McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241, 253 ['The Act, in effect, provides that construction defect claims not involving personal injury will be treated the same procedurally going forward whether or not the underlying defects gave rise to any property damage.'].) Consequently, Plaintiff must adequately allege compliance with the Act's mandatory prelitigation process, including the grant of an opportunity to repair the alleged damage, as such compliance is a prerequisite to allowing the suit to proceed. (Id. at p. 259.) Calendar No.: Event ID:  TENTATIVE RULINGS

2968345  17 CASE NUMBER: CASE TITLE:  PRIVILEGE UNDERWRITERS RECIPROCAL EXCHANGE VS  37-2023-00007847-CU-PO-CTL Accordingly, the demurrer is sustained as to the second cause of action, with leave to amend.

Plaintiff has 30 days from entry of this order to file an amended complaint.

The minute order is the order of the court.

Calendar No.: Event ID:  TENTATIVE RULINGS

2968345  17