Judge: Michael J. Strickroth, Case: 2022-01294385, Date: 2023-07-24 Tentative Ruling

Demurrer to Complaint

Defendant Promenade Imports, LLC dba Orange Coast Infiniti’s Demurrer is SUSTAINED without leave to amend as to the first, second, and third causes of action and OVERRULED as to the fourth and fifth causes of action.

Moving Defendant is the dealership which allegedly sold Plaintiff the subject vehicle in August 2021. (Complaint, ¶¶ 3, 7, 9.) Defendant contends the first, second, and third causes of action against Defendant under the Song-Beverly Act are not viable because moving Defendant did not issue a warranty for the subject vehicle, which was used at the time of purchase. Plaintiff only opposes the demurrer as to the fourth and fifth causes of action. (See Opposition, pp. 2:13-15, 3:14-15, 4:12-13.) Plaintiff does not argue the first, second, or third causes of action are viable. Therefore, the demurrer is sustained without leave to amend as to the first, second, and third causes of action because there is no statutory basis for such claims against Defendant in this case.

The fourth cause of action is for violation of the Consumer Legal Remedies Act (CLRA), Civil Code section 1750 et seq. Plaintiff alleges Defendant violated the CLRA by misrepresenting the “certified pre-owned” status of the vehicle, which Plaintiff relied upon in purchasing the vehicle which Plaintiff alleges was defective and unmerchantable. (Complaint, ¶¶ 12, 50.) Plaintiff alleges damages of $37,296.49 including the sales price and incidental and consequential damages. (Complaint ¶ 40.)

“Under Civil Code section 1780, subdivision (a), CLRA actions may be brought only by a consumer who suffers any damage as a result of the use or employment of a proscribed method, act, or practice. This language does not create an automatic award of statutory damages upon proof of an unlawful act. Relief under the CLRA is specifically limited to those who suffer damage, making causation a necessary element of proof. Accordingly, plaintiffs in a CLRA action [must] show not only that a defendant's conduct was deceptive but that the deception caused them harm. A misrepresentation is material for a plaintiff only if there is reliance—that is, without the misrepresentation, the plaintiff would not have acted as he did.” Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1386–1387.

Here, Plaintiff has adequately alleged the elements of a CLRA claim including damage arising from Defendant’s allegedly deceptive conduct in advertising/selling the vehicle as certified pre-owned. Therefore, the demurrer is overruled as to the fourth cause of action.

The fifth cause of action is for violation of Business & Professions Code section 17200 et seq. (UCL).

“Section 17200 ‘borrows’ violations from other laws by making them independently actionable as unfair competitive practices. In addition, under section 17200, “a practice may be deemed unfair even if not specifically proscribed by some other law.” Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143–1144. Here, Plaintiff has adequately alleged unlawful or unfair business practices by Defendant, including deceptively advertising the subject vehicle as certified pre-owned in violation of the CLRA. Therefore, the demurrer is overruled as to the fifth cause of action.

Demurring Defendant to give notice

Motion to Strike

Defendant Promenade Imports, LLC dba Orange Coast Infiniti’s Motion to Strike Portions of Plaintiff’s Complaint is GRANTED.

Defendant moves to strike the reference to Code of Civil Procedure section 1021.5 in the prayer for damages. Defendant contends attorney fees under the private attorney general statute are not available here, because Plaintiff is seeking to vindicate their own personal rights or economic interest. In re Head (1986) 42 Cal.3d 223, 228.

Plaintiff does not oppose the motion to strike. The motion is granted because Plaintiff has not pled a basis for an award of attorney fees under section 1021.5.

Moving defendant to give notice.

Case Management Conference

Regardless whether the parties submit on the tentative, counsel for the parties are to appear, either remotely or in person, for the Case Management Conference.