Judge Salvatore Sirna, Case Number: 23PSCV02636, Date: 2024-01-29 Tentative Ruling

Judge: Salvatore Sirna, Case: 23PSCV02636, Date: 2024-01-29 Tentative Ruling

Case Number: 23PSCV02636 Hearing Date: February 5, 2024 Dept: G

Defendant Moss Bros. Auto Group, Inc.’s Demurrer to Plaintiffs’ Complaint

Respondent: Plaintiffs Arlene Ramirez

TENTATIVE RULING

Defendant Moss Bros. Auto Group, Inc.’s Demurrer to Plaintiffs’ Complaint is SUSTAINED with twenty (20) days leave to amend.

BACKGROUND

This is a lemon law action. In July 2021, Plaintiff Arlene Ramirez allegedly entered into a warranty contract with Defendant Volkswagen Group of America, Inc. (Volkswagen) by purchasing a 2021 Volkswagen Atlas. Subsequently, Ramirez alleges the vehicle was delivered with suspension and electrical system defects.

On August 28, 2023, Ramirez filed a complaint against Volkswagen; Moss Bros. Auto Group, Inc. (Moss Bros.); and Does 1-10, alleging (1) breach of express warranty, (2) breach of implied warranty, (3) violation of Song-Beverly Act section 1793.2, subdivision (b), and (4) negligent repair.

On November 27, 2023, Moss Bros. filed the present demurrer. Prior to filing, Moss Bros.’s counsel attempted to meet and confer with Ramirez’s counsel through emails and a phone call but was not successful. (Gamino Decl., ¶ 3-4.)

A hearing on the present demurrer is set for February 5, 2024, along with a case management conference and an informal discovery conference.

ANALYSIS

Moss Bros. demurs to Ramirez’s fourth cause of action for negligent repair on the grounds that it is (1) barred by the economic loss rule and (2) fails to allege sufficient facts to state a claim. For the following reasons, the court SUSTAINS Moss Bros.’s demurrer with leave to amend.

Legal Standard

Demurrer

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, supra, at p. 747.)

Economic Loss Rule

The economic loss rule prevents tort recovery for “‘purely economic losses,’ meaning financial harm unaccompanied by physical or property damage.” (Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 922.) This is because “conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 551.) Economic loss can include “damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profits.” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988 (Robinson), quoting Jimenez v. Superior Court (2002) 29 Cal.4th 473, 482 (Jimenez).)

Discussion

In this case, Ramirez alleges Moss Bros. owed Ramirez a duty “to use ordinary care and skill in storage, preparation, and repair of the Subject Vehicle in accordance with industry standards.” (Complaint, ¶ 66.) But it is unclear if this alleged duty is contractual or based on an independent duty. When it is unclear if an action arises from a contract or noncontractual duty, “the action will be considered based on contract rather than tort.” (Arthur L. Sachs, Inc. v. City of Oceanside (1984) 151 Cal.App.3d 315, 322.) Because Ramirez’s negligent repair action is based on a contractual duty to repair and they have not alleged any facts establishing an independent noncontractual duty, their fourth cause of action is barred by the economic loss rule.

Ramirez contends there is an exception to the economic loss rule for professional services contracts. Indeed, such an exception does exist to ensure “that the consumer receives the services the professional agreed to provide.” (Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 933.) “In such settings, professionals generally agree to provide ‘careful efforts’ in rendering contracted-for services,¿but ‘most clients do not know enough to protect themselves by inspecting the professional’s work or by other independent means.’” (Ibid, quoting Rest.3d Torts, Liability for Economic Harm (June 2020) § 4, com. a., p. 22.) Such professional services can include those offered by doctors, attorneys, accountants, and stockbrokers. (See Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 188.) But Ramirez does not provide any binding authority that establishes whether vehicle repair service contracts meet this exception.

Ramirez also relies on Jimenez which holds “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, supra, 29 Cal.4th at p. 483.) But Ramirez has failed to allege how Moss Bros.’s failure to make unspecified repairs caused damage to other subcomponents of the vehicle. (Complaint, ¶ 64-68.) Accordingly, Moss Bros.’s demurrer to this cause of action is SUSTAINED with leave to amend.

CONCLUSION

Based on the foregoing, Moss Bros.’s demurrer to Ramirez’s Complaint is SUSTAINED with twenty (20) days leave to amend as to the fourth cause of action.