Judge Ronald F. Frank, Case Number: 23TRCV02563, Date: 2024-04-22 Tentative Ruling

I. BACKGROUND

A. Factual

On August 9, 2023, Plaintiff, Sadrack Ngue Ngue (“Plaintiff”) filed a Complaint against Defendant, CarMax Auto Superstores California, LLC. The Complaint alleges causes of action for: (1) Negligence; (2) Endangering Life of Others; (3) Emotional Distress; (4) Insomnia; (5) Shock; (6) Defective and Deceptive Mechanical Work; (7) Mechanical Fraud for Scam; (8) Faulty Car; (9) Anxiety; and (10) Fraud.

Defendant, CarMax Auto Superstores, Inc., successor-in-interest to CarMax Auto Superstores California, LLC (“CarMax”) now files a Motion for Judgment on the Pleadings.

B. Procedural

On February 20, 2024, Defendant, CarMax filed a Motion for Judgment on the Pleadings. To date, the Court has not received a filing of any opposition papers labeled as such, but on March 21, 2024, Plaintiff filed a document titled “Demand for Jury Trial”. After review of this document, CarMax filed a reply brief on March 28, 2024, and indicated in FN 1 that they believe this document is Plaintiff’s opposition. As such, the Court is treating Plaintiff’s March 21 filing as an opposition brief for purposes of the hearing.

II. ANALYSIS

Legal Standard

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.¿ (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.)¿ Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.)

When the moving party is a defendant, he must demonstrate either of the following exist:

The court has no jurisdiction of the subject of the cause of action alleged in the complaint.

The complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(a)(B)(i)-(ii).)

Additionally, a motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.)

Discussion

CarMax files this Motion for Judgment on the Pleadings on the grounds that it argues Plaintiff’s entire Complaint fails to state facts sufficient to constitute a cause of action. Further, CarMax notes that many of Plaintiff’s “causes of action” are not recognized legal causes of action for which to recover damages.

Negligence

First, CarMax argues that Plaintiff’s cause of action for negligence fails to state a sufficient claim. In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Here, Plaintiff’s complaint fails to contain allegations as to any of these elements. There is no discussion of CarMax or their employees and/or agent’s duty, breach, causation, or damages. As such, the Court GRANTS motion for judgment on the pleadings, but allows Plaintiff twenty (20) days leave to amend.

Endangering Life of Others

Here, the attempted cause of action for “endangering life of others” is not a legally recognized cause of action. While such a cause of action may come under the purview of a negligence cause of action or for negligent repair, there is no claim in California law for endangering the life of another. The MJOP is thus granted, but again with 20 days leave to amend.

Next, CarMax argues that Plaintiff does not plead a viable claim for Emotional Distress. Here, the Court notes that there are two common causes of action recognized for emotional distress. (1) Intentional Infliction of Emotional Distress; and (2) Negligent Infliction of Emotional Distress.

A cause of action for Intentional Infliction of Emotional Distress requires a showing of the following of a prima facie case for the tort of intentional infliction of emotional distress: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.) Here, this Court notes that Plaintiff has pleaded that he suffered emotional distress due to CarMax’s failure to cancel the contract for the Subject Vehicle, or potentially for the car stopping on the freeway, however, this is not enough to state a claim for emotional distress. As noted by CarMax’s moving papers, tort claims and claims for emotional distress damages are generally not recoverable for breach of a contract, nor are emotional distress damages recoverable under the consumer warranty statutes involving the allegedly faulty vehicles. (See Kwan v. Mercedes-Benz of North America, Inc. (1996) 23 Cal.App.4th 174, 187-92 [no emotional distress damages recoverable under the Song-Beverly Act].)

Further, the allegations of the complaint fail to specify the required elements of an intentional infliction cause of action. Plaintiff fails to allege how CarMax’s behavior was so extreme and outrageous as to exceed the bounds of the usually tolerated in a civilized community. Plaintiff has also failed to alleged misconduct that could be considered to be extreme and outrageous. As such, the Motion is GRANTED as to this claim, with 20 days leave to amend.

Negligent Infliction of Emotional Distress “is typically analyzed by reference to two theories of recovery: the ‘bystander’ theory and the ‘direct victim’ theory. The negligent causing of emotional distress is not an independent tort, but the tort of negligence with the non-economic damages category of mental distress damages being potentially recoverable. As with any other tort, the lawsuit’s allegations must outline the traditional elements of duty, breach of duty, causation, and damages. Whether a defendant owes a duty of care is a question of law.” (Spates v. Dameron Hosp. Ass’n (2003) 114 Cal.App.4th 208, 213, ellipses, quotation marks, brackets, and paragraph breaks omitted.) As noted in the above discussions, Plaintiff fails to allege duty, breach, causation, and damages. As such, this Court grants the motion on both emotional distress claims and allows twenty (20) days leave to amend.

Insomnia, Shock, and Anxiety Causes of Action

Here, the attempted cause of action for “Insomnia, Shock, and Anxiety” are not legally recognized causes of action. The Court contends that such allegations may be sought as non-economic damages for a properly pleaded tort cause of action, but that has not been alleged here. Thus these purported causes of action are not viable as alleged, so the motion is granted as to them with 20 days leave to amend.

Next, CarMax contends that Plaintiff’s fraud cause of action fails to state a viable claim. “The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege active or misrepresentation fraud against a corporation, the plaintiffs must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Here, this Court notes that while Plaintiff may loosely allege that CarMax committed fraud when they promised to talk to the bank or fix the car, and failed to do both, fraud is required to be alleged with particularity. Although Plaintiff’s complaint names individuals he spoke with and on what dates, such discussions are not framed in the ways to allege the required elements, nor meet the level of specificity required. Plaintiff’s complaint does not allege the individual’s authority to speak. Further, Plaintiff: (1) fails to allege scienter or knowledge of a false representation, concealment, or nondisclosure; (2) fails to allege that the individuals had an intent to induce his reliance on the falsity; (3) how his reliance was justifiable; and (4) his resulting damages, which this Court notes do not include humility and embarrassment. As such, this Court GRANTS the Motion for Judgment on the Pleading as to the fraud cause of action. Plaintiff is allowed twenty (20) days leave to amend.