Judge: Stephen P. Pfahler, Case: 22CHCV00789, Date: 2023-09-12 Tentative Ruling

Case Number: 22CHCV00789    Hearing Date: September 12, 2023    Dept: F49

Dept. F-49

Date: 9-12-23

Case #22CHCV000789

Trial Date: Not Set

DEMURRER

MOVING PARTY: Defendant, Ownerguard Corporation

RESPONDING PARTY: Unopposed/Plaintiff, Edgar Ramirez

RELIEF REQUESTED

Demurer to the Complaint

·         1^st Cause of Action: Breach of Written Contract

·         2^nd Cause of Action: Breach of Express Warranty (Song Beverly Act)

·         3^rd Cause of Action: Intentional Misrepresentation

·         5^th Cause of Action: Defamation (Libel)

Motion to Strike

SUMMARY OF ACTION

On February 25, 2019, Plaintiff Edgar Ramirez purchased a Merecedes-Benz vehicle at Defendants Keyes European and/or HAK Inc. Plaintiff maintains that the time of purchase, the purchase contract included Guaranteed Asset Protection (GAP) insurance. The GAP insurance policy exists for purposes of covering the value of the vehicle in case of loss. Plaintiff maintains defendants knowingly and fraudulently altered the purchase contract thereby indicating a “waiver” of the GAP insurance provision instead of the represented purchase.

The discovery was made following a December 22, 2019, car accident, whereby the vehicle was declared a total loss. Plaintiff sought payment on the outstanding balance due, but said claim was denied.

Plaintiff also presents a pro forma claim of Song-Beverly violations, but it’s not clear when Plaintiff demanded service for what alleged defects and any attempts to rectify. Plaintiff also offers perfunctory claims of defamation (libel) again without any specificity as to any published statement.

On September 27, 2022, plaintiff filed a complaint for Breach of Written Contract, Breach of Express Warranty (Song Beverly Act), Intentional Misrepresentation, Violation of Consumer Legal Remedies Act (CLRA), and Defamation (Libel). Defendants Keyes European and HAK Inc. answered the complaint on May 17, 2023.

RULING

Demurrer: Sustained with Leave to Amend.

Defendant Ownerguard Corporation submits a demurrer to all but the fourth cause of action in the complaint. The court electronic filing system shows no opposition to the demurrer, and the reply also attests to the lack of any service of any opposition. The court assumes, at least in part, no first amended complaint was filed at the time of the opposition due date, as result of the previously filed answer of Keyes European and HAK Inc., thereby preventing an amended complaint without necessity of leave of court.

Upon review of the demurrer, the court finds the unopposed demurrer establishes the lack of sufficient facts in support of any and all validly challenged causes of action. The court therefore sustains the demurrer with leave to amend. The motion to strike is moot.

Plaintiff is granted 30 days leave to amend. If Plaintiff fails to file any responsive pleading at the lapse of the amendment deadline, Defendant is ordered to answer the single remaining cause of action.

The unopposed demurrer of Mercedes-Benz USA, LLC challenges the exact same causes of action. The court therefore takes the demurrer and motion to strike off-calendar as moot. Mercedes is also ordered to answer the remaining cause of action should Plaintiff elect to forego filing an amended pleading.

Ownerguard to give notice to all parties.