Judge: Matthew C. Braner, Case: 37-2023-00012340-CU-NP-CTL, Date: 2023-09-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 08, 2023

09/08/2023  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Non-PI/PD/WD tort - Other Demurrer / Motion to Strike 37-2023-00012340-CU-NP-CTL PRIEBE VS ROOFTOP SOLAR INC [E-FILE] CAUSAL DOCUMENT/DATE FILED:

Defendant SolarEdge Technologies, Inc. (SolarEdge)'s demurrer to the first amended complaint is SUSTAINED in part and OVERRULED in part.

Defendant Rooftop Solar, Inc. (Rooftop Solar)'s joinder to SolarEdge's demurrer is DENIED.

A demurrer shall be sustained if 'there is a defect or misjoinder of parties,' the complaint 'does not state facts sufficient to constitute a cause of action,' or if the complaint is uncertain. (Code Civ. Proc., § 430.10, subds. (d), (e), (f).) 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.) Finally, it is not necessary to 'plead evidentiary facts supporting [an] allegation of ultimate fact,' and a pleading 'is adequate so long as it apprises the defendant of the factual basis for the claim.' (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1549.) Here, SolarEdge demurs to the entire FAC as to the class allegations therein. SolarEdge also demurs to the first, second, third, fourth, fifth, sixth, seventh, eighth, and ninth causes of action, for violation of the Consumer Legal Remedies Act, violation of the False Advertising Law, breach of express warranty under the Song-Beverly Act, breach of the implied warranty of merchantability under the Song-Beverly Act, violation of the Unfair Competition Law, negligence – failure to warn, negligence – failure to test, negligent misrepresentation, and unjust enrichment, respectively.

SolarEdge first demurs to the entire FAC on the grounds the FAC is a 'defective pleading' under Code of Civil Procedure section 430.10(d) because the class allegations cite to FRCP 23, which is inapplicable to this action. A party may demur on the grounds there is 'a defect or misjoinder of parties.' (Code Civ.

Proc., § 430.10(d).) However, 'defect' for the purposes of this section refers to the nonjoinder of parties.

(See 5 Witkin, Cal. Proc. (6th ed. 2023) Pleading, § 971; Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 22 [noting that party raised objections to nonjoinder of parties by demurrer under section 430.10(d) or by a motion to dismiss].) SolarEdge has therefore not raised a proper ground for demurrer.

Moreover, although Plaintiffs acknowledge the class allegations cite to FRCP Rule 23 instead of Code of Civil Procedure section 382, they contend that that this was a clerical error, and the parties addressed this issue in meet and confer and agreed this issue could be easily amended.

SolarEdge also demurs to the entire FAC on the grounds the facts are insufficient to state an Calendar No.: Event ID:  TENTATIVE RULINGS

2987350  11 CASE NUMBER: CASE TITLE:  PRIEBE VS ROOFTOP SOLAR INC [E-FILE]  37-2023-00012340-CU-NP-CTL ascertainable class or a well-defined community of interest for class certification. SolarEdge appears to have waived argument based on failure to allege an ascertainable class by failing to raise any. Under California law, the party seeking class certification must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) 'In turn, the 'community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.' ' (Ibid.) Demurrers to class allegations cannot be sustained unless 'there is no reasonable possibility that the requirements for class certification will be satisfied.' (Schermer v. Tatum (2016) 245 Cal.App.4th 912, 923.) Additionally, there is a policy that the 'candidate complaint for class action consideration, if at all possible, be allowed to survive the pleading stage of litigation.' (Gutierrez v. California Commerce Club, Inc. (2010) 187 Cal.App.4th 969, 976-79.) Notwithstanding the citations to FRCP Rule 23, the FAC states facts sufficient to state a well-defined community of interest for class treatment under Code of Civil Procedure section 382. The fact the FAC references a 'DIY' website as an example of online complaints does not mean Plaintiffs cannot establish typicality of their claims, as the class claims would arise from the same alleged defects of the inverters. Although SolarEdge raises the possibility of individualized damages for the CLRA claim, individualized proof of damages is not per se an obstacle to class treatment. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 335.) On the face of the FAC, it does not appear that there is no reasonable possibility Plaintiffs can establish a community of interest among class members. Accordingly, the demurrer to the entire FAC as to the class allegations is overruled.

As to the first cause of action, SolarEdge first contends this claim fails to state facts sufficient to constitute a cause of action as it is barred by the three-year statute of limitations. (Civil Code, § 1783.) SolarEdge argues the conduct allegedly giving rise to CLRA liability occurred when Plaintiffs' inverter was installed on November 7, 2018, but even if liability did not arise until the first inverter malfunctioned on April 20, 2019, these events as alleged in the FAC occurred over three years before the original complaint was filed on March 24, 2023.

In opposition, Plaintiffs argue the statute of limitations was tolled by the delayed discovery rule and/or Emergency Rule 9, and Plaintiffs were not on notice the inverter was defective the first time an inverter stopped working. As the discovery rule is an exception to the statute of limitations, Plaintiffs have the burden of proving they did not make the discovery by alleging 'facts showing 'the time and surrounding circumstances of the discovery and what the discovery was.' ' (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1472.) Plaintiffs also have the burden of pleading 'facts demonstrating [they] was not negligent in failing to make the discovery sooner and that it has no actual or presumptive knowledge of facts sufficient to put it on inquiry.' (Id.) On the face of the FAC, Plaintiffs have not adequately pleaded around the statute of limitations. Plaintiffs do not allege facts showing when they first discovered the allege defects, why they were not negligent in failing to discover those defects sooner, and why they did not have actual or presumptive knowledge of the defects. Nor do Plaintiffs cite Emergency Rule 9 in the FAC or allege how it applies. Consequently, the demurrer to the first cause of action is sustained with leave to amend. In light of this conclusion, the court need not address SolarEdge's other arguments as to this claim.

As to the second cause of action, SolarEdge contends this claim is also barred by the applicable three-year statute of limitations, as the alleged violations of the CLRA occurred when the inverter allegedly first malfunctioned on April 20, 2019, but the original complaint was not filed until March 24, 2023. (Code Civ. Proc., § 338(h).) For the same reasons set forth regarding the first cause of action, the demurrer to the second cause of action is sustained with leave to amend.

As to the third cause of action, SolarEdge contends this claim fails to state facts sufficient to constitute a cause of action, because the allegations in the FAC confirm Defendants have honored the subject warranty by replacing any and all defective inverters, and Plaintiffs' current inverter is operational. The Calendar No.: Event ID:  TENTATIVE RULINGS

2987350  11 CASE NUMBER: CASE TITLE:  PRIEBE VS ROOFTOP SOLAR INC [E-FILE]  37-2023-00012340-CU-NP-CTL court agrees. 'In order to plead a cause of action for breach of express warranty, one must allege the exact terms of the warranty, plaintiff's reasonable reliance thereon, and a breach of that warranty which proximately causes plaintiff injury.' (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 142.) As to this cause of action, the FAC alleges Defendants breached a '10-year manufacturer performance warranty,' because the inverters do not fulfill the 10-12 year 'lifespan' claimed by Defendants. However, the language cited by Plaintiffs in Rooftop Solar's limited performance warranty, attached as Exhibit B to the FAC, does not address the lifespan of the inverter itself but provides a 'a minimum 10-year manufacturer performance warranty to protect against degradation of electrical generation output of more than 15% from their originally rated electrical output.' Additionally, Rooftop Solar's limited performance warranty provides a '10-year warranty to provide for no-cost repair and replacement of the system for any expenses not otherwise covered by the manufacturer.' There are no allegations Defendants failed to replace any defective inverters; instead, the FAC alleges each of Plaintiffs' inverters have been replaced, and the latest inverter is operational. Thus, the demurrer to the third cause of action is sustained with leave to amend.

As to the fourth cause of action, SolarEdge contends this claim fails to state facts sufficient to constitute a cause of action. The court agrees. The FAC does not adequately plead allegations on the breach of the implied warranty of merchantability, as the FAC broadly cites the statutory definitions of implied warranty of merchantability but does not allege that the inverters at issue 1) did not pass without objection in the trade under the contract, are not fit for the ordinary purpose for which such goods are used, 3) are not adequately contained, packaged, and labeled, or 4) do not conform to the promises or affirmations of fact made on the container or label. (Civ. Code, § 1791.1(a).) Nor are there allegations that the inverters contain 'an inherent defect which is substantially certain to result in malfunction during the useful life of the product' such that the inverters are not fit for their ordinary purpose. (Hicks v. Kaufman and Broad Home Corp. (2001) 89 Cal.App.4th 908, 918.) Although Plaintiffs argue SolarEdge did not raise this ground for demurrer in meet and confer efforts, a determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).) Consequently, the demurrer is sustained with leave to amend as to the fourth cause of action.

SolarEdge also contends the fourth cause of action is ambiguous and unintelligible, because the FAC alleges a singular 'Defendant' is a distributor under Civil Code § 1791(e) of the Song-Beverly Act, but SolarEdge is a manufacturer of the inverters and Rooftop Solar is the distributor. Thus, SolarEdge argues it cannot be determined if this cause of action is against SolarEdge or Rooftop Solar. However, demurrers based on uncertainty are disfavored, and Plaintiffs note the parties agreed in meet and confer the FAC can be amended to allege SolarEdge is a manufacturer under § 1791(f).

As to the fifth cause of action, SolarEdge contends this claim is ambiguous and unintelligible because the FAC does not allege the 'fraudulent' prong of the Unfair Competition Law with the requisite specificity. This is insufficient to sustain a demurrer. 'A demurrer must dispose of an entire cause of action to be sustained.' (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) For the purposes of this cause of action, 'California's unfair competition law bars 'unfair competition' and defines the term as a 'business act or practice' that is (1) 'fraudulent,' (2) 'unlawful,' or (3) 'unfair.' ' (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1135, emphasis added.) SolarEdge's moving papers did not address the FAC's allegations regarding the 'unlawful' and 'unfair' prongs of the UCL. Thus, the demurrer to the fifth cause of action is overruled.

Plaintiffs do not oppose SolarEdge's demurrer to the sixth, seventh, and eighth causes of action. Thus, the demurrer to these causes of action is sustained without leave to amend.

As to the ninth cause of action, the court agrees that '[t]here is no cause of action in California for unjust enrichment.' (Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1138 [affirming trial court's ruling sustaining demurrer to unjust enrichment claim without leave to amend]; Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) Rather, it is a general principle underlying various doctrines and remedies, including quasi-contract. (Jogani v. Superior Court (2008) 165 Calendar No.: Event ID:  TENTATIVE RULINGS

2987350  11 CASE NUMBER: CASE TITLE:  PRIEBE VS ROOFTOP SOLAR INC [E-FILE]  37-2023-00012340-CU-NP-CTL Cal.App.4th 901, 911.) Plaintiffs' attempt to plead a separate cause of action for unjust enrichment based on the same conduct alleged in other causes of action adds nothing. The demurrer to the ninth cause of action is sustained without leave to amend.

Accordingly, SolarEdge's demurrer is sustained with leave to amend as to the first, second, and third causes of action; without leave to amend as to the sixth, seventh, eighth, and ninth causes of action; and overruled as to the fifth cause of action.

Plaintiffs have 30 days after entry of this order to file a second amended complaint.

The minute order is the order of the court.

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