Emir Jr Angulo v. Ford of Montebello, Inc.

(1) DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT

(2) DEFENDANT’S MOTION TO STRIKE COMPLAINT

 

MOVING PARTY: Defendant Ford of Montebello

RESPONDING PARTY(S): Plaintiff Emir Jr Angulo

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Emir Jr Angulo purchased a 2023 Ford F-150 from Defendant Ford of Montebello. Plaintiff alleges Defendant defrauded Plaintiff by selling the vehicle above the advertised price and by selling an optional service contract without Plaintiff’s consent. Plaintiff asserts six causes of action for (1) fraud and deceit, (2) breach of implied covenant, (3) selling automobile above advertised price, (4) violation of Business & Professions Code section 17200, (5) violation of Business and Professions Code section 17500, and (6) violation of California Consumer Legal Remedies Act.

Defendant now demurrers to the Complaint and moves to strike portions therein. Plaintiff filed an opposition to the motion to strike but did not oppose the demurrer.  [FN 1]

TENTATIVE RULING:

Defendant’s Demurrer to the First, Second, Third, Fourth, and Fifth Causes of Action is SUSTAINED. 

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) By failing to oppose the motion, Plaintiff has not sought leave to amend or demonstrated that leave is appropriate in this case. Be that as it may, Plaintiff will be given the opportunity at the hearing to make a sufficient “offer of proof” that leave to amend is appropriate. If he cannot, no leave to amend will be given.

Defendant’s Motion to Strike is DENIED.

Moving party to give notice.

DISCUSSION:

Demurrer

I. Meet and Confer

II. Judicial Notice

Pursuant to Defendant’s request, the court takes judicial notice of Plaintiff’s Statement of Damages. (Exh. A.) 

III. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

IV. Analysis 

Defendant demurrers to the First through Fifth Causes of Action in the Complaint. The court is not in receipt of any opposition to the demurrer.  

Defendant argues the First through Fifth Causes of Action are duplicative of the Sixth Cause of Action for violation of the California Consumer Legal Remedies Act. 

 “Whether a complaint in fact asserts one or more causes of action for pleading purposes depends on whether it alleges invasion of one or more primary rights. ‘The primary rights theory is a theory of code pleading that has long been followed in California. It provides that a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. [Citation.]’” (Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1257-58.) A demurrer should be sustained where a cause of action is “merely duplicative” and “adds nothing to the complaint by way of fact or theory.” (Award Metals, Inc. v. Superior Ct. (1991) 228 Cal. App. 3d 1128, 1135.)

Here, each cause of action is based on the allegations that Defendant sold Plaintiff a vehicle for a price in excess of the advertised price on Defendant’s official website. (Compl. ¶¶ 13-23.) Plaintiff further alleges the purchase price included an “optional” service contract that Plaintiff was not given the option to refuse. (Id. ¶¶ 28, 29.) 

By failing to oppose the demurrer, Plaintiff has failed to identify any right or remedy not encompassed by his Sixth Cause of Action. Thus, the First through Fifth causes of action are subject to demurrer, as they are duplicative of the Sixth cause of action and add nothing to the Complaint by way of fact or theory of recovery.  (See Benson v. S. California Auto Sales, Inc. (2015) 239 Cal. App. 4th 1198, 1210 [where the plaintiff already asserted a claim under the CLRA, fraud claims “added nothing to [plaintiff’s] potential recovery”]; but see Valdez v. Seidner-Miller, Inc. (2019) 33 Cal. App. 5th 600, 614 [disagreeing with Benson].)

Accordingly, Defendant’s Demurrer to the First, Second, Third, Fourth, and Fifth Causes of Action is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) By failing to oppose the motion, Plaintiff has not sought leave to amend or demonstrated that leave is appropriate in this case. Be that as it may, Plaintiff will be given the opportunity at the hearing to make a sufficient “offer of proof” that leave to amend is appropriate. If he cannot, no leave to amend will be given.

Motion to Strike

I. Legal Standard

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.  (CCP § 436.)

II. Analysis

Defendant moves to strike Plaintiff’s references to punitive damages in the Complaint at paragraphs 50, 67, and the Prayer for Relief. Defendant argues Plaintiff has failed to plead facts to support an award of punitive damages.

Violation of the Consumer Legal Remedies Act—the sole remaining cause of action in the Complaint after sustaining the demurrer in full—permits the recovery of punitive damages. (See Civil Code § 1780(a)(4).)

Here, Plaintiff alleges the vehicle he vehicle he purchased was advertised on Defendant’s official website for a sale price of $52,125.00. (Compl. ¶¶ 13, 14, 15.) When Plaintiff visited the dealer, Defendant’s representatives “assured Plaintiff that he would be getting all of the available savings and the lowest and best available price for the Subject Vehicle as advertised.” (Id. ¶ 17.) Plaintiff subsequently executed an RISC for a cash price that exceeded the advertised price by $8,310.00. (Id. ¶ 23.) 

Plaintiff alleges that Defendant had a “deliberate and customary practice of advertising vehicles at a low price, inducing consumers to visit Defendant’s place of business, and then switching vehicles and/or upselling without proper disclosure.” (Id. ¶ 25.) In addition to the upcharge, Plaintiff alleges he was “charged $3,995.00 for [an] optional service contract, which he did not intend to acquire” and was not given the option to refuse. (Id. ¶¶ 28, 29.) Plaintiff alleges the advertised price was “false and misleading,” and that he was “duped” into purchasing the vehicle through “trickery, deceit, and misinterpretation.” (Id. ¶¶ 32, 34.) 

Accordingly, Defendant’s Motion to Strike is DENIED.  

Moving party to give notice.

IT IS SO ORDERED.

Dated:   May 31, 2024 ___________________________________

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.