Judge: Matthew C. Braner, Case: 37-2023-00039248-CU-BC-CTL, Date: 2024-06-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 20, 2024

06/21/2024  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00039248-CU-BC-CTL RUBIO-APARICIO VS VOLKSWAGEN GROUP OF AMERICA INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Mossy Volkswagen's Demurrer as to Plaintiff's second cause of action for negligent repair is SUSTAINED with leave to amend.

On September 11, 2023, Plaintiff filed her Complaint asserting one cause of action for breach of express warranty in violation of the Song-Beverly Act against Defendant Volkswagen of America ('VGA') and a second cause of action for negligent repair against Defendant Mossy Volkswagen ('Mossy').

Defendant Mossy Volkswagen filed its Demurrer as to Plaintiff's second cause of action on the grounds that the Complaint fails to state facts sufficient to constitute a cause of action for negligent repair, that the claim is uncertain, and that the negligent repair claim is barred the economic loss rule. The court agrees that Plaintiff's second cause of action for negligent repair, as pleaded, is barred by the economic loss rule.

A demurrer shall be sustained if the complaint 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., § 430.10(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.) A demurrer may also be sustained if the complaint is uncertain, ambiguous, and/or unintelligible. (Code Civ. Proc., § 430.10(f).) 'In general, there is no recovery in tort for negligently inflicted 'purely economic losses,' meaning financial harm unaccompanied by physical or property damage.' (Sheen v. Wells Fargo Bank, N.A.

(2022) 12 Cal.5th 905, 922.) The economic loss rule 'functions to bar claims in negligence for pure economic losses in deference to a contract between litigating parties.' (Ibid.) Tort claims for monetary losses between contracting parties are barred by the economic loss rule 'when they arise from – or are not independent of – the parties' underlying contracts.' (Id. at p. 923.) There is an exception to the economic loss rule whereby a plaintiff may bring a tort claim in conjunction with a contract claim where a (1) defendant makes affirmative misrepresentations on which a plaintiff relies, and (2) plaintiff is exposed to liability for personal damages independent of purely economic loss.

(Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993 [22 Cal.Rptr.3d 352, 102 P.3d Calendar No.: Event ID:  TENTATIVE RULINGS

3054421  19 CASE NUMBER: CASE TITLE:  RUBIO-APARICIO VS VOLKSWAGEN GROUP OF AMERICA INC [IMAGED]  37-2023-00039248-CU-BC-CTL 268].) Although bare, the Complaint does allege a cause of action for negligent repair in that Plaintiff alleges she brought the vehicle to Mossy for repair, Mossy failed to exercise ordinary skill and care in accordance with industry standards during the repair period, and Plaintiff thereby suffered damages.

These allegations are reasonably intelligible if lacking in specificity.

However, Plaintiff's cause of action for negligent repair is supported only by the allegations made in connection to her first cause of action concerning breach of warranty (i.e., related to contract duties).

The only damages alleged in the Complaint are the defects and nonconformities to warranty which are the subject of the contract dispute. (See, e.g., Jimenez v. Superior Court (2002) 29 Cal.4th 473, 483 ['The law of contractual warranty governs damage to the product itself.'].) Nor does Plaintiff allege that Mossy made any misrepresentations to her about the safety or function of the vehicle.

Plaintiff argues in her Opposition that her warranty claim against VGA is separate from and in fact 'not relevant' to her negligence claim against Mossy. (Opp'n, pg. 6.) This argument is directly contradicted by paragraph 29 of the Complaint, which states that Plaintiff 'delivered the Subject Vehicle to Defendant Mossy Volkswagen DBA Mossy Mitsubishi Escondido for repair during the express warranty period for a warranted defect in the Subject Vehicle.' (emphasis added) Thus, Plaintiff took the vehicle to Mossy to have the dealership fulfill contractual warranty obligations. If Plaintiff contends that Mossy negligently caused damage to the vehicle or to herself separate and distinct from the 'defects and noncomformities to warranty' complained of in her first cause of action, Plaintiff has not clearly pleaded so.

California courts liberally grant leave to amend if there is any reasonable possibility that amendment can cure the defects in a complaint. (JPMorgan Chase Bank, N.A. v. Ward (2019) 33 Cal.App.5th 678, 684, citing Blank, supra.) Despite Defendant's insistence that any amendment would be futile, there exists a reasonable possibility that Plaintiff may be able to provide sufficient factual allegations to cure the defects in the Complaint.

Accordingly, Defendant Mossy Volkswagen's demurrer to Plaintiff's second cause of action is sustained with leave to amend.

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

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