Judge: Richard S. Whitney, Case: 37-2022-00052535-CU-BC-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2022-00052535-CU-BC-CTL ZURLAGE VS FCA US LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT DAVID J. WHEELER INC. DBA BIG BEAR AUTO REPAIR'S DEMURRER TO COMPLAINT is SUSTAINED with leave to amend.

Defendant DAVID J. WHEELER INC. dba BIG BEAR AUTO REPAIR ('Defendant') challenges Plaintiffs ASHLEY ZURLAGE and KARL ZURLAGE's ('Plaintiffs') cause of action for negligent repair.

Defendant asserts the complaint fails to specify the date of the repairs occurred, unrecoverable damages are requested, and the economic loss rule bars the claim. First, alleging when the repair took place is not an element of the cause of action. The elements of a cause of action for negligent repair are duty, breach, causation, and damages. (Lytle v. Ford Motor Company (E.D. Cal., Oct. 2, 2018, No.

2:18-CV-1628 WBS EFB) 2018 WL 4793800, at *2 citing Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) Plaintiffs allege Defendant owed them a duty 'to use ordinary care and skill in storage, preparation, and repair of the Subject Vehicle in accordance with industry standards' as they delivered their vehicle to Defendant for repair. (Complaint, ¶¶ 68-69.) Plaintiffs allege Defendant breached this duty and that such breach 'was a proximate cause of Plaintiffs' damages.' (Complaint, ¶¶ 70-71.) While these allegations may be minimally sufficient, they create a problem with the economic loss rule by failing to specify what repairs were performed. Finally, '[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.' (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) The allegations are not so uncertain that 'the complaint as a whole' does not 'contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.' (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) However, as discussed below, the allegations are not sufficiently particular to demonstrate the claim is not barred by the economic loss rule.

The economic loss rule 'requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise.' (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988.) 'California decisional law has long recognized that the economic loss rule does not necessarily bar recovery in tort for damage that a defective product (e.g., a window) causes to other portions of a larger product (e.g., a house) into which the former has been incorporated.' (Jimenez v. Superior Court (2002) 29 Cal.4th 473, 483.) 'The distinction that the law has drawn between tort recovery for physical injuries and warranty recovery for economic loss is not arbitrary and does not rest on the 'luck' of one plaintiff in having an accident causing physical injury.' (Id. at 482.) Calendar No.: Event ID:  TENTATIVE RULINGS

2949956  66 CASE NUMBER: CASE TITLE:  ZURLAGE VS FCA US LLC [IMAGED]  37-2022-00052535-CU-BC-CTL Here, Plaintiff does not allege that a repair to a particular component part caused damage to the larger product – the vehicle. Plaintiffs do not allege sufficient facts to remove this case from the consequences of the economic loss rule. However, based on Plaintiffs' representations they could do so. Therefore, the demurrer is sustained with ten (10) days leave to amend. While the Court agrees the allegations are insufficient to support the prayer for punitive damages based on negligent repair, such challenge is suited for a motion to strike. The Court notes that Defendant filed a motion to strike. (ROA # 14.) It appears that Defendant did not reserve a hearing date for its motion. Defendant's motion is not before the Court. (See Local Rule 2.1.19 [failure to reserve a date for hearing will result in motion not being heard].) Calendar No.: Event ID:  TENTATIVE RULINGS

2949956  66