Judge: Olivia Rosales, Case: 22NWCV00160, Date: 2022-10-06 Tentative Ruling

Case Number: 22NWCV00160    Hearing Date: October 6, 2022    Dept: SEC

YAGHOUBZADEH v. MCKENNA MOTORS NORWALK, INC.

CASE NO.:  22NWCV00160

HEARING: 10/06/22

#7

TENTATIVE ORDER

     I.        Defendant MCKENNA MOTORS NORWALK, INC.’s Demurrer to Plaintiff’s Complaint is SUSTAINED with 30 days leave to amend.  

    II.        Defendant MCKENNA MOTORS NORWALK, INC.’s Motion to Strike Portions of Plaintiff’s Complaint is MOOT.  

Moving Party to give Notice.

This PAGA action was filed by Plaintiff JOSHUA YAGHOUBZADEH, an individual on behalf of himself and the general public (“Plaintiff”) on March 4, 2022. Plaintiff alleges the following relevant facts, “On or about January 22, 2022, [Plaintiff] received an advertisement through Google.com, on which Defendants engaged in paid advertising and promotion of their business, promotions, and offers to the general and targeted public, for the lease of vehicle identified as a Porsche Taycan offered by Defendants for $999 per month with $999 cash due at signing.” (Complaint ¶12.) “Plaintiff contacted Defendants’ agent, Noah Schmerling, identified as a salesperson employed by Defendants…. After some minutes, Mr. Schmerling and Plaintiff spoke again, during which time Mr. Schmerling told Plaintiff that the vehicle was still available but that the manager told him to tell me that the Defendants were ‘not participating’ in their own advertised promotion. At the end of that conversation, Mr. Schmerling offered the vehicle to Plaintiff at several thousand dollars more cost than the advertised price.” (Complaint ¶13.)

Plaintiff’s Complaint asserts the following causes of action: (1) Unfair Bus. Practices; (2) False Advertising; and (3) Consumer Legal Remedies Act.

Defendant MCKENNA MOTORS NORWALK, INC. (“Defendant”) demurs, generally and specially, to each cause of action.

Uncertainty

Defendant specially demurs to Plaintiff’s Complaint, arguing that the causes of action asserted therein are fatally uncertain. This argument lacks merit because “[a] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.) Moreover, demurrers for uncertainty are disfavored and will only be sustained where the pleading is so bad that the defendant cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif. Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Ibid.) Here, it is clear from the Defendant’s other arguments that they understand what Plaintiff at least attempts to allege, and there is no true uncertainty. The demurrer is not properly sustained on the basis of uncertainty.

First and Second Causes of Action – Unfair Bus. Practices and False Advertising

The first and second causes of action are purportedly based on violations of California’s Business and Professions Code §17200.

To state a claim under §17200, Plaintiffs must allege whether the conduct complained of is a fraudulent, unlawful or an unfair business practice. To bring a claim under the fraud prong, Plaintiffs must allege an affirmative misrepresentation, conduct or business practice on the part of a defendant; or an omission in violation of defendant’s duty to disclose; and that is likely to deceive members of the public. (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.) To state a claim under the unfairness prong, Plaintiffs must allege that one or more of Defendant’s business practices are unfair, unlawful or fraudulent; and the remedy sought is authorized by law. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676; see also Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 337.) To state a claim under the unlawful prong, Plaintiffs must allege a violation of law and cite that law. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 610 [demurrer to SAC which failed to allege violation of a law was properly sustained without leave to amend].)

In order to assert a UCL claim, Plaintiff must have “lost money or property” as a result of the allegedly unfair, unlawful, or fraudulent practice. (See Bus. & Prof. Code §17204.)  “Proposition 64 requires that a plaintiff have ‘lost money or property’ to have standing to sue. The plain import of this is that a plaintiff now must demonstrate some form of economic injury. [Citations omitted.]” (Kwikset Corp. v. Sup. Ct. (2011) 51 Cal.4th 310, 323. As a result, the “injury in fact” must affect “a legally protected interest which is (a) concrete and particularized, [citations]; and (b) actual or imminent, not conjectural or hypothetical.” (Id. at 322.) “‘Particularized’ in this context means simply that ‘the injury must affect the plaintiff in a personal and individual way.’” (Id. at 323.) Under the UCL, the plaintiff’s injury must also be one based in harm to “money or property”—that is, it must be economic in character. (Id at 323-325.) “There are innumerable ways in which economic injury from unfair competition may be shown. A plaintiff may (1) surrender in a transaction more, or acquire in a transaction less, than he or she otherwise would have; (2) have a present or future property interest diminished; (3) be deprived of money or property to which he or she has a cognizable claim; or (4) be required to enter into a transaction, costing money or property, that would otherwise have been unnecessary.” (Id. at 323.) The injury must have been “a result of the defendant’s allegedly unlawful, unfair, or fraudulent conduct – that is, the defendant must have caused the Plaintiff’s economic injury.” (Id. at 326-327.)

The demurrer to the first and second causes of action is SUSTAINED with 30 days leave to amend. Plaintiff has not alleged standing to maintain these claims. Specifically, Plaintiff does not allege how he was purportedly damaged by Defendant’s advertisements. For example, Plaintiff does not allege that he paid more money than he would have as a result of Defendant’s advertisement.

Third Cause of Action – Consumer Legal Remedies Act

The demurrer to third cause of action is SUSTAINED with 30 days leave to amend. Plaintiff does not allege compliance with the 30-day notice requirement set forth in Cal. Civ. Code §1782(a). (See Outboard Marine Corp. v. Sup. Ct. (1975) 52 Cal.App.3d 30, 40-41.) In the interests of justice, Plaintiff is permitted to amend the complaint to show compliance with the 30-day notice requirement, in the event it is able to do so.

The Motion to Strike is rendered MOOT by the Court’s ruling on the Demurrer.