Judge: Melvin D. Sandvig, Case: 22CHCV00621, Date: 2023-04-03 Tentative Ruling

Case Number: 22CHCV00621    Hearing Date: April 3, 2023    Dept: F47

Dept. F47

Date: 4/3/23

Case #22CHCV00621

 

DEMURRER & MOTION TO STRIKE

TO THE

ORIGINAL COMPLAINT

 

Demurrer & Motion to Strike filed on 1/5/23.

 

MOVING PARTY: Defendant Sunpower Capital, LLC

RESPONDING PARTY: Plaintiff Alicia Grandmaison

NOTICE: ok

 

Demurrer is to the entire complaint:

            1.  Breach of Contract

            2.  Breach of Warranty

            3.  Fraudulent Misrepresentation

            4.  Negligent Misrepresentation

            5.  Breach of Implied Warranty of Good Faith and Fair Dealing

 

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking allegations regarding and the prayers for punitive damages and attorneys’ fees. 

 

RULING: The demurrer as to the 1st, 2nd and 5th causes of action is overruled.  The demurrer as to the 3rd and 4th causes of action is sustained with 30 days leave to amend.  The motion to strike is moot as to portions of ¶¶60 and 64, denied as to portions of ¶¶5, 6 and 27, and granted with 30 days leave to amend as to portions of ¶69 and Prayers ¶¶3 and 4. 

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

 

This action arises out of an agreement, entered into on 5/28/16, for the installation and servicing of a solar panel system on the roof of Plaintiff Alicia Grandmaison’s (Plaintiff) property by Defendant Sunpower Capital, LLC (Defendant).  Plaintiff alleges that from the time of installation she sustained damages caused by the installation, defective equipment, failure to obtain savings and failure to obtain promised reimbursement from Defendant. 

 

On 8/8/22, Plaintiff filed her verified complaint against Defendant for: (1) Breach of Contract, (2) Breach of Warranty, (3) Fraudulent Misrepresentation, (4) Negligent Misrepresentation and (5) Breach of Implied Warranty of Good Faith and Fair Dealing.  Meet and confer efforts did not resolve the issues presented by the instant demurrer and motion to strike.  Therefore, on 1/5/23, Defendant filed this demurrer as to each of the causes of action in the complaint and the motion to strike which seeks to strike allegations in the complaint regarding and the prayers for punitive damages and attorneys’ fees.  Plaintiff has opposed the demurrer and motion to strike and Defendant has filed replies to the oppositions. 

 

ANALYSIS 

 

DEMURRER

 

A demurrer admits all properly pleaded facts but not contentions, deductions or conclusions of fact or law.  Centinela Freeman Emergency Medical Associates (2016) 1 C5th 994, 1010.  In ruling on a demurrer, a court accepts as true all facts that might be implied or inferred from those expressly alleged.  Morris (2005) 128 CA4th 1305, 1313.  A complaint should be given a reasonable interpretation, reading it as a whole and its parts in context.  Centinela, supra at 1010.

 

Statute of Limitations

 

Defendant contends that all of the causes of action in the complaint fail to allege sufficient facts to state a cause of action because they are time-barred.  CCP 430.10(e).  Where a complaint  discloses on its face that the applicable statute of limitations has run on the causes of action alleged, the claims are properly disposed of on demurrer.  See Vaca (2011) 198 CA4th 737, 746; ABF Capital Corp. (2005) 130 CA4th 825, 833; Barton (1996) 43 CA4th 1200, 1210. 

 

Generally, a cause of action accrues and the statute of limitations begins to run at the time of occurrence of the last of its essential elements.  Norgart (1999) 21 C4th 383, 397.  A plaintiff need not have knowledge of every fact and element necessary to a cause of action for it to accrue; instead, a plaintiff need only suspect a factual basis for the elements.  Fox (2005) 35 C4th 797, 807; Jolly (1988) 44 C3d 1103, 1111. 

 

Under the theory of continuous accrual, a series of wrongs or injuries may be viewed as each triggering its own limitations period, such that a lawsuit for relief may be partially time-barred as to older events but timely as to events that occurred within the limitations period.  Aryeh (2013) 55 C4th 1185, 1192.   

 

Defendant’s only argument as to the 1st, 2nd and 5th causes of action are that they are barred by the applicable statutes of limitations.  Below, the Court will address the statute of limitations argument as to each of the causes of action as well as the additional arguments regarding the fraudulent misrepresentation and negligent misrepresentation claims. 

 

1st Cause of Action – Breach of Contract

 

A breach of contract claim accrues when the promisor fails to do the thing contracted for at the time and in the manner contracted.  Professional Collection Consultants (2017) 8 CA5th 958, 966.  The statute of limitations for breach of written contract is four years.  CCP 337(a).  Plaintiff alleges that Defendant “materially breached the Contract by failing to provide electricity production as guaranteed, failing to pay Plaintiff the refunded amounts under the Limited Warranty, and failing to repair and maintain the solar panel system, including the web-based communication system.”  (Complaint ¶48). 

 

It cannot be determined from the face of the complaint or the exhibit (the contract) attached thereto that the breach of contract claim is entirely time-barred.  Plaintiff alleges that since the inception of the lease period she has not experienced the electricity savings promised by Defendant, and in fact her energy bill has increased during certain times of the lease, and that Defendant has failed to timely/adequately/properly reimburse her as promised if the solar failed to produce the estimated amount of energy.  (See Complaint ¶¶14-19, 22, 29-33).

 

Plaintiff has alleged that the solar system continually fails to provide the promised savings under the contract, which is an approximate 20-year lease term, and that Defendant has yet to correct its breaches.  (See Complaint ¶¶17-19, 21-35 and Ex.1).  As such, the Court finds that Plaintiff has alleged sufficient facts to support continual accrual of, at least part of, the breach of contract claim.  Similarly, under the contract, Defendant has an obligation to maintain and repair the solar system during the life of the lease which Plaintiff alleges Defendant has failed to do.  (See Complaint ¶48 and Ex.1, Section 4(c)(i), (ii) and Ex.A (Limited Warranty)).  As such, it cannot be determined as a matter of law that the claim as it relates to failure to repair (i.e., failure to repair the monitoring device) is time-barred.  (See Complaint ¶¶22, 25).

 

2nd Cause of Action – Breach of Warranty

 

To state a claim for breach of express warranty, a plaintiff must allege: (1) the exact terms of the warranty; (2) reasonable reliance thereon; and (3) a breach of warranty which proximately caused plaintiff’s injury.  T&M Solar & Air Conditioning, Inc. (N.D. Cal. 2015) 83 F.Supp.3d 855, 875.  The statute of limitations for a breach of warranty claim is four years. Commercial Code 2725(1),(2).  

 

The breach of warranty claim is based on similar allegations as the breach of contract claim.   (See Complaint ¶¶51-55).  As with the 1st cause of action, it cannot be determined from the face of the pleading that the entirety of the claim is time-barred. 

 

3rd Cause of Action – Intentional Misrepresentation

 

The elements of a fraud/intentional misrepresentation cause of action are: (1) a misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage.  City of Industry (2011) 198 CA4th 191, 211.  Plaintiff has failed to allege any facts to support the elements of knowledge of falsity and intent to induce reliance.  (See Complaint ¶¶58-60).

 

The statute of limitations for a cause of action for relief on the ground of fraud or mistake is 3 years.  CCP 338(d).  Such a cause of action is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.  Id.  The statute of limitations on a fraud cause of action begins to run after the plaintiff has knowledge of facts sufficient to make a reasonably prudent person suspicious of fraud, thus putting the plaintiff on inquiry notice.  Cleveland (2009) 171 CA4th 24, 31.

 

The fraud cause of action is based on the claim that Defendant made misrepresentations regarding: (1) savings the solar panels would provide Plaintiff on her electricity bill, (2) that Defendant would refund Plaintiff an amount, if the solar panels did not produce certain minimum ranges of energy production in a year, (3) the web-based communication system would allow Plaintiff to see what her solar system produces, her energy use and estimated bill savings, (4) if the communication system broke down, Defendant would repair it at no cost to Plaintiff and (5) if Plaintiff’s roof was damaged during installation, Defendant would repair it at no cost to Plaintiff.  (Complaint ¶¶58-59).  The allegations in the complaint show that Plaintiff was aware of the alleged misrepresentations at or around the time of the installation of the solar panels in 2016.  (See Complaint ¶¶17-22).

 

Plaintiff fails to explain how the fraud cause of action is saved under the continual accrual doctrine.  See  Aryeh, supra at 1201.  Nor has Plaintiff adequately explained how the arbitration filed on 12/21/21, more than three years after the contract was entered in 2016 and Plaintiff discovered the misrepresentations, “preserved” the statute of limitations as to the fraud claim. 

 

4th Cause of Action – Negligent Misrepresentation

 

The elements of a negligent misrepresentation cause of action are: (1) the defendant made a false representation as to a past or existing material fact; (2) the defendant made the representation without reasonable ground for believing it to be true; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting damages.  West (2013) 214 CA4th 780, 792. 

 

The negligent misrepresentation claim is based on the same facts as the intentional misrepresentation claim.  (Complaint ¶¶62-63).  Plaintiff has failed to allege any facts to support a finding that the alleged misrepresentations were made without any reasonable grounds for believing them to be true or that they were made with an intent to deceive Plaintiff.  (Complaint ¶¶62-64). 

 

As with a fraud/intentional misrepresentation cause of action, the statute of limitations for a negligent misrepresentation cause of action is 3 years.  CCP 338(d).  As with fraud, the statute of limitations begins to run upon the discovery by the aggrieved party of the fraud or facts that would lead a reasonably prudent person to suspect fraud.  Debro (2001) 92 CA4th 940, 950; CCP 338(d).  As with the intentional misrepresentation cause of action, Plaintiff fails to explain how the negligent misrepresentation cause of action is saved under the continual accrual doctrine.  See  Aryeh, supra at 1201.  Nor has Plaintiff adequately explained how the arbitration filed on 12/21/21, more than three years after the contract was entered in 2016 and Plaintiff discovered the misrepresentations “preserved” the statute of limitations as to the negligent misrepresentation claim. 

 

5th Cause of Action – Breach of Implied Warranty of Good Faith and Fair Dealing

 

The breach of implied warranty/breach of covenant of good faith and fair dealing claim is also governed by a 4-year statute of limitations.  CCP 337(a).  The 5th cause of action is based on the same facts as the breach of contract claim.  (See Complaint ¶¶66-69).  For the same reasons set forth above with regard to the breach of contract cause of action, it cannot be determined on the face of the pleadings that the 5th cause of action is time barred. 

 

MOTION TO STRIKE

 

Upon motion, the Court may strike out any irrelevant, false, or improper matter inserted in any pleading or all or part of a pleading not drawn in conformity with the laws of California, a court rule or an order of the Court.  See CCP 435, 436. 

 

Punitive damages are recoverable “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”  Civil Code 3294(a).  Plaintiff has failed to allege sufficient facts to support a claim for punitive damages.  As noted above, the intentional misrepresentation/fraud claim is insufficiently pled and the 5th cause of action concerns an obligation arising from contract.  (See Complaint ¶¶60, 69, Prayer ¶3).

 

Plaintiff has also failed to allege a sufficient basis for the recovery of attorneys’ fees.  (See Complaint ¶¶60, 64, 69, Prayer ¶4).  The complaint does not reference a contract, statute or law.  CCP 1021; CCP 1033.5(a)(10).  The opposition relies on a portion of the contract relating to the recovery of attorneys’ fees after  arbitration.  (See Complaint, Ex.1 ¶17).  Plaintiff fails to cite authority for the proposition that the attorney fee provision carries over to a court action.

 

With regard to the other allegations in the complaint sought to be stricken, Defendant has failed to establish that they are not properly included in the complaint.  (See Complaint ¶¶5, 6, 27).

 

CONCLUSION

 

Based on the foregoing, the demurrer as to the 1st, 2nd and 5th causes of action is overruled and the demurrer as to the 3rd and 4th causes of action is sustained. 

 

The request to strike portions of paragraphs 60 and 64 which are contained within the 3rd and 4th causes of action is moot due to the ruling on the demurrer.  The request to strike the allegations regarding attorneys’ fees and punitive damages contained in paragraph 69 is granted as is the request to strike the prayers for punitive damages (Prayer ¶3) and attorneys’ fees (Prayer ¶4).  The request to strike portions of paragraphs 5, 6 and 27 is denied.   

 

Due to the liberal policy of allowing leave to amend and because this is only the original complaint, Plaintiff is given the opportunity to try to cure the defects in the 3rd and 4th causes of action and the allegations regarding and the prayers for punitive damages and attorneys’ fees.