Judge: Richard S. Whitney, Case: 37-2023-00015102-CU-BC-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 02, 2024

05/03/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00015102-CU-BC-CTL SANCHEZ VS FORD MOTOR COMPANY [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANTS FORD MOTOR COMPANY'S AND PENSKE LINCOLN'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT ('FAC') is SUSTAINED, in part, and OVERRULED, in part.

Defendants FORD MOTOR COMPANY and PENSKE LINCOLN ('Defendants') challenge Plaintiff EDWARD SANCHEZ's ('Plaintiffs') fifth cause of action for negligent repair and Plaintiff's sixth cause of action for violation of the Magnuson-Moss Warranty Act ('Mag-Moss').

'In determining whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact or law.' (SLPR, L.L.C. v. San Diego Unified Port District (2020) 49 Cal.App.5th 284, 316.) This Court must assume the alleged facts are true. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 996.) When considering a demurrer, '[t]he pleading must be read as if it contained all matters of which the court could properly take judicial notice even in the face of allegations in the pleading to the contrary.' (Weiner v. Mitchell, Silberberg & Knupp (1980) 114 Cal.App.3d 39, 47.) '[W]e give the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context.' (Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 564.) 'If the facts appearing in the attached exhibit contradict those expressly pleaded, those in the exhibit are given precedence.' (Id. at 567–568.) 'A complaint must contain '[a] statement of the facts constituting the cause of action, in ordinary and concise language.' (§ 425.10, subd. (a)(1).) This fact-pleading requirement obligates the plaintiff to allege ultimate facts that 'as a whole apprise[ ] the adversary of the factual basis of the claim. [Citations.]' (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 886 [Citation omitted].) 'The elements of negligence 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.) Plaintiff alleges 'Defendant PL owed a duty to Plaintiff to use ordinary care and skill in storage, preparation, and repair of the Subject Vehicle in accordance with industry standards.' (FAC, ¶ 51.) Plaintiff alleges 'Defendant PL breached its duty to Plaintiff to use ordinary care and skill by failing to properly store, prepare and repair the Subject Vehicle in accordance with industry standards.' (FAC, ¶ 52.) Finally, Plaintiff alleges 'Defendant PL's negligent breach of its duties owed to Plaintiff were a proximate cause of Plaintiff's damages.' (FAC, ¶ 53.) The Court finds these allegations, along with all reasonable inferences and the other incorporated allegations, are enough to put Defendant on notice so that it may prepare a defense.

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3057632  60 CASE NUMBER: CASE TITLE:  SANCHEZ VS FORD MOTOR COMPANY [IMAGED]  37-2023-00015102-CU-BC-CTL Defendants also assert the economic loss rule bars the fifth cause of action for negligent repair. 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, supra, 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.) ''[L]iability in negligence for purely economic losses ... is 'the exception, not the rule,' under our precedents.'' (Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 920 [Citation omitted].) However, the California Supreme Court has 'allowed for tort recovery in some cases involving insurance policies and contracts for professional services.' (Id. at 929.) Plaintiffs cite North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764 for support.

The court in North American Chemical stated: [F]or over 50 years California has also recognized the fundamental principle that ' '[a]ccompanying every contract is a common-law duty to perform with care, skill, reasonable expedience, and faithfulness the thing agreed to be done, and a negligent failure to observe any of these conditions is a tort, as well as a breach of the contract.' The rule which imposes this duty is of universal application as to all persons who by contract undertake professional or other business engagements requiring the exercise of care, skill and knowledge; the obligation is implied by law and need not be stated in the agreement [citation].' (Roscoe Moss Co. v. Jenkins (1942) 55 Cal.App.2d 369, 376 [130 P.2d 477]; see also Kuitems v. Covell (1951) 104 Cal.App.2d 482, 485 [231 P.2d 552].) Both Roscoe Moss Co. and Kuitems involved contracts for the performance of services rather than the sale of goods.

(North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774.) '[I]t does not matter whether the plaintiff and defendant are in privity or not.' (Id. at 785.) While the Court agrees Defendant can be liable for negligence based on the undertaking of professional services that were negligent, the Court finds the economic loss rule bars Plaintiff's claim to the extent Plaintiff does not allege separate damages from those of the warranty claims. Plaintiff's allegations do not indicate the repairs caused damage to other components in the vehicle besides those on which repairs were performed. Therefore, the demurrer is sustained as to the negligent repair cause of action.

Defendants asserts Plaintiff's claim for violation of Mag-Moss is legally defective because there is no allegation that Plaintiff complied with the pre-suit requirements of 15 U.S.C.A. § 2310(a)(3), which requires a plaintiff to use the informal dispute settlement procedure designated by a manufacture before filing an action. However, Plaintiff alleges 'Plaintiff has also met all of Plaintiff's obligations and preconditions to bring this claim, or alternatively it would have been futile for Plaintiff to do so.' (FAC, ¶ 60.) Plaintiff explicitly alleges compliance, or in the alternative excuse from same. The Court must accept as true this allegation. Further, whether Ford's BBB Auto Line satisfies the requirements of Mag-Moss, was properly disclosed, so as to trigger the obligation on the part of Plaintiff to participate in the informal dispute settlement procedure, and whether participation would have been futile is not something this Court can resolve at this stage. (See In re Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices, and Products Liability Litigation (C.D. Cal. 2010) 754 F.Supp.2d 1145, 1188–1189.) '[A] demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.' (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 79.) The Court cannot conclude Defendants' affirmative defense conclusively appears on the face of the FAC. The demurrer is overruled as to the sixth cause of action.

Unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion [...] Liberality in permitting amendment is the rule....' (McDonald v. Calendar No.: Event ID:  TENTATIVE RULINGS

3057632  60 CASE NUMBER: CASE TITLE:  SANCHEZ VS FORD MOTOR COMPANY [IMAGED]  37-2023-00015102-CU-BC-CTL Superior Court (1986) 180 Cal.App.3d 297, 303-04.) The face of the complaint does not indicate Plaintiff could not possibly amend the complaint as to the cause of action for negligent repair. Plaintiff is granted ten (10) days leave to amend.

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