Judge Richard S. Whitney, Case Number: 37-2023-00044526-CU-BC-CTL, Date: 2024-04-19 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2023-00044526-CU-BC-CTL, Date: 2024-04-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 17, 2024

04/19/2024 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 37-2023-00044526-CU-BC-CTL ORAM VS VOLKSWAGEN GROUP OF AMERICA INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT HERMAN COOK VOLKSWAGEN, INC.'S DEMURRER TO PLAINTIFFS' COMPLAINT is SUSTAINED with leave to amend.

Defendant Herman Cook Volkswagen, Inc. ('Defendant') challenges Plaintiffs ROBERT ORAM and CINDY ORAM's ('Plaintiffs') fifth cause of action for negligent repair. Defendant asserts Plaintiffs have not stated the necessary elements for the fifth cause of action for negligent repair. Specifically, Defendant asserts the allegations do not support causation.

'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.) 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 [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 alleges Defendant owed a duty 'to use ordinary care and skill in storage, preparation and repair of the Subject Vehicle in accordance with industry standards.' (Complaint, ¶ 57.) Plaintiffs allege Defendant 'breached its duty to Plaintiffs to use ordinary care and skill by failing to properly store, prepare and repair the Subject Vehicle in accordance with industry standards.' (Complaint, ¶ 58.) Finally, Plaintiffs allege 'Defendant HERMAN's negligent breach of its duties owed to Plaintiffs were a proximate cause of Plaintiffs' damages.' (Complaint, ¶ 59.) 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.

The Court finds Plaintiffs have alleged sufficient facts to support that Defendant had a duty to exercise Calendar No.: Event ID: TENTATIVE RULINGS

3049590 CASE NUMBER: CASE TITLE: ORAM VS VOLKSWAGEN GROUP OF AMERICA INC [IMAGED] 37-2023-00044526-CU-BC-CTL care, skill and knowledge because 'Plaintiffs delivered the Subject Vehicle to Defendant HERMAN for substantial repair on at least one occasion.' (Complaint, ¶ 56.) Defendant does not deny it undertook professional services and the reasonable inference is that Defendant undertook professional services to repair the vehicle. '[T]his Court is persuaded by the 'growing body of case law recognizing that local dealerships can be liable to plaintiffs who assert negligent repair claims.'' (Viveros v. Ford Motor Company (S.D. Cal., July 28, 2021, No. 21-CV-527 TWR (BGS)) 2021 WL 5989365, at *8 [Citation omitted].) Defendant also asserts Plaintiffs did not include a required statement of damages. 'If the recovery of money or damages is demanded, the amount demanded shall be stated.' (Code Civ. Proc., § 425.10(a)(2).) California law provides that where a plaintiff seeks to recover money or damages, the amount sought generally must be stated in the complaint. (§ 425.10, subd. (a)(2).) There are two exceptions to this rule: (1) 'where an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not be stated' (§ 425.10, subd. (b)); and (2) '[n]o claim for exemplary [i.e., punitive] damages shall state an amount or amounts' (Civ.Code, § 3295, subd. (e)).

(Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1520.) Van Sickle addressed the issue that '[n]ot only is a default judgment for an amount greater than that specifically demanded void, but when a statement of damages is required but not served, the underlying entry of default is invalid also and is subject to set-aside.' (Id. at 1521.) Van Sickle does not address whether the failure to comply with 425.10(a)(2) subjects the complaint to a demurrer.

'Although a complaint 'shall contain ... [a] demand for judgment for the relief to which the pleader claims to be entitled,' including the amount of damages demanded (Code Civ. Proc., § 425.10, subd. (a)(2).), the specific dollar amount is necessary only when a default judgment is to be entered.' (Furia v. Helm (2003) 111 Cal.App.4th 945, 957 [Citation omitted].) As this demurrer does not involve a default, the Court finds CCP section 425.10(a)(2) does not support the sustaining of a demurrer.

Finally, Defendant asserts 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 Calendar No.: Event ID: TENTATIVE RULINGS

3049590 CASE NUMBER: CASE TITLE: ORAM VS VOLKSWAGEN GROUP OF AMERICA INC [IMAGED] 37-2023-00044526-CU-BC-CTL (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 Plaintiffs' claim to the extent Plaintiffs do not allege separate damages from those of the warranty claims. Plaintiffs' 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.

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. Superior Court (1986) 180 Cal.App.3d 297, 303-04.) The face of the complaint does not indicate Plaintiffs could not possibly amend the complaint as to the cause of action for negligent repair. Plaintiffs are granted ten (10) days leave to amend.

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3049590