Judge: Matthew C. Braner, Case: 37-2023-00012340-CU-NP-CTL, Date: 2024-02-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 15, 2024

02/16/2024  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:

Defendants SolarEdge Technologies, Inc. and Rooftop Solar, Inc.'s demurrers to the second amended complaint are OVERRULED as to the first, second, and fourth causes of action, and SUSTAINED as to the third cause of action.

A demurrer may 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.) 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.) In considering whether the complaint adequately states a claim, 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.) Defendants' demurrers as to the class allegations are overruled. Only in the most extreme cases should class allegations be dismissed as the pleading stage, as '[j]udicial policy in California has long discouraged trial courts from determining class sufficiency at the pleading state and directed that this issue be determined by a motion for class certification.' (Gutierrez v. California Commerce Club, Inc.

(2010) 187 Cal.App.4th 969, 976.) 'In order to effect this judicial policy, the California Supreme Court has mandated that a candidate complaint for class action consideration, if at all possible, be allowed to survive the pleading stage of litigation.' (Beckstead v. Superior Court (1971) 21 Cal.App.3d 780, 783.) Here, Plaintiffs' allegations concerning the DIY website are plainly not intended to be representative of the universe of potential class members; rather, it is an indication that similarly situated consumers of the particular solar inverter exist and that a class is ascertainable. Overall, it does not appear there is no reasonable possibility that Plaintiffs can establish a community of interest amount an ascertainable class.

Defendants also demur to the first, second, third, and fourth causes of action. As to the first and second causes of action for violation of the Consumer Legal Remedies Act and False Advertising Law, respectively, Defendants both argue the claims are barred by the three year statute of limitations, because the allegedly defective inverter was first installed on November 7, 2018, and Plaintiffs knew or should have known there was an issue no later than June 2019, when Defendant Rooftop Solar inspected the solar system and notified Plaintiffs' there was an issue. The court disagrees. Plaintiffs have adequately alleged application of both the discovery rule and Emergency Rule 9. Plaintiffs allege Calendar No.: Event ID:  TENTATIVE RULINGS

3063910  15 CASE NUMBER: CASE TITLE:  PRIEBE VS ROOFTOP SOLAR INC [E-FILE]  37-2023-00012340-CU-NP-CTL that it was not until December 1, 2022, when a fifth inverter was installed and they were told that type of inverter is 'notoriously bad' that they began to suspect that all such inverters, including the most recently installed one, are defective. At the pleading stage, these allegations are sufficient to raise application of the discovery rule.

Defendants also argue the first cause of action is subject to demurrer because the issue with the inverter was corrected via a still-functioning replacement. (Civ. Code, § 1782, subd. (b) ['Except as provided in subdivision (c), no action for damages may be maintained under Section 1780 if an appropriate correction, repair, replacement, or other remedy is given, or agreed to be given within a reasonable time, to the consumer within 30 days after receipt of the notice.'].) However, even if the fifth inverter replacement qualifies, as a matter of law, as an appropriate replacement under subdivision (b), it was given before Plaintiffs sent notice of their claim under the CLRA. Moreover, Plaintiffs' claim is necessarily founded on an allegation that even the fifth inverter is defective regardless of whether it is still (or was at the time of the SAC) functioning, and nothing on the face of the complaint otherwise shows Defendants agreed to an appropriate correction, repair, replacement, or other remedy within 30 days after receipt of the notice.

Accordingly, Defendants demurrers as to the first and second causes of action are overruled.

As to the third cause of action for breach of express warranty under Song-Beverly, Defendants argue that Plaintiffs still have not adequately alleged that the express warranties each Defendant provided were breached. The court agrees; indeed, the same defects present in the FAC with respect to this cause of action are still present in the SAC. Plaintiffs' conclusory allegations of additional express terms beyond those set forth in the written documents attached to the complaint and referenced in the complaint are not sufficient.

Accordingly, Defendants' demurrers are sustained as to the third cause of action. Plaintiffs will be afforded a final opportunity to amend their complaint as to this cause of action.

Finally, Plaintiffs' fourth cause of action for breach of implied warranty under Song-Beverly is adequately pled. Unlike with the FAC, Plaintiffs have clarified that all inverters of the type repeatedly installed in their solar system, including the fifth one, are inherently defective and are 'substantially certain to result in a malfunction during the life of the Product (which has been proven to occur with Plaintiffs and others).' (SAC, ¶ 85.) Thus, none of the inverters placed and replaced in Plaintiffs' solar system, including the most recent, are merchantable within the meaning of Song-Beverly, as they all are likely to fail early and therefore are not fit for their ordinary purpose (i.e., to allow collection and utilization of solar energy for a certain amount of time). The court also is not persuaded that Defendant SolarEdge waived all implied warranties via application of Commercial Code section 2316(2). The language of the disclaimer specifies that it applies only to 'products purchased by buyers from SolarEdge,' which is distinguishable from the earlier language setting forth the applicability of the limited warranty to 'the buyer who has purchased the Products from an authorized seller of SolarEdge for use in accordance with their intended purpose.' Given this distinction, and that any uncertainty must be interpreted against Defendant SolarEdge as drafter of the document, the disclaimer does not apply to Plaintiffs.

Accordingly, Defendants' demurrers are overruled as to the fourth cause of action.

Plaintiffs have 30 days from entry of this order to file a third amended complaint.

The minute order is the order of the court.

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