Judge Stephen P. Pfahler, Case 22CHCV01394 2023-05-08 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 22CHCV01394, Date: 2023-05-08 Tentative Ruling

Case Number: 22CHCV01394 Hearing Date: May 8, 2023 Dept: F49

Dept. F-49

Date: 5-8-23

Case #: 22CHCV01394

Trial Date: Not Set

DEMURRER TO THE FIRST AMENDED COMPLAINT

MOVING PARTY: Defendant, Jones BH Acquisition, LLC dba Audi Beverly Hills

RESPONDING PARTY: Plaintiff, Chance Tassone, et al.

RELIEF REQUESTED

Demurrer to the First Amended Complaint

· 4^th Cause of Action: Negligent Repair

SUMMARY OF ACTION

On February 26, 2021, plaintiffs Chance Tassone and Chance of a Lifetime, Inc. entered into a “warranty contract” with defendant Volkswagen Group of America, Inc. regarding a 2021 Audio E-tron vehicle. Plaintiffs demanded repairs for unspecified problems, which remain unresolved.

On December 15, 2022, and January 17, 2023, Plaintiff filed a complaint and first amended complaint for Violations of Song-Beverly Act – Breach of Express Warranty, Violations of Song-Beverly Act – Breach of Implied Warranty, Violations of Song-Beverly Act – Civil Code section 1793.2, and Negligent Repair. On February 21, 2023, Volkswagen Group of America, Inc. answered the first amended complaint.

RULING: Sustained with Leave to Amend.

Defendant Jones BH Acquisition, LLC dba Audi Beverly Hills (Audi) bring the subject demurer to the fourth cause of action in the complaint for Negligent Repair on grounds the claims lack facts in support of the claims, is barred under the economic loss rule. Plaintiff counters that the complaint sufficiently articulates facts and is not barred by the economic loss rule. Audi in reply reiterates the insufficient facts and economic loss rule arguments.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

4^th Cause of Action: Negligent Repair

Audi challenges the negligence on grounds that the operative complaint relies on conclusions and otherwise fails to specify a basis of damages. Plaintiff counters that no heightened specificity requirement applies to negligence, and the operative complaint sufficiently alleges negligence based on failed repair efforts.

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) The complaint alleges an undertaking of a duty to repair the vehicle, and the failure to complete the repairs to industry standards. [First Amend. Comp., ¶¶ 54-57.] The prayer for relief summarizes the damages as a result of the failure to complete repairs.

Audi next challenges the claim on grounds that the economic loss rule bars recovery in that Plaintiff fails to allege a claim for damages separate and apart from the vehicle value and warranty claim in and of itself. Plaintiff maintains the cause of action arises in a separate and independent tort claim. The economic loss rule bars tort claims where a party fails to allege separate and independent damages away from claims arising in contract, such as warranty. (Erlich v. Menezes (1999) 21 Cal.4th 543, 554; North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 780-781; see Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993.) The court declines to address the description of the action as one arising in “product liability,” and requests defendants refrain from citing unpublished opinions. (Cal. Rules of Court, rule 3.1113(c), 8.1115(a).) (See Harlan v. Roadtrek Motorhomes, Inc. (S.D. Cal., Apr. 2, 2009, No. 07-CV-0686 IEGBLM) 2009 WL 928309.)

As stated above, the court finds a basis duty stated for the undertaking of repairs of the vehicle. Any arguments challenging the basis of the duty are otherwise not submitted in the instant demurrer by Audi, and the court considers such arguments beyond the scope of the demurrer either way. As for a damages claim separate and apart from the vehicle warranty claims, the court finds the allegations minimal. Although the court found the elements of the negligence claim sufficiently articulated, the court finds the vagueness in the damages allegations under scrutiny via the economic loss rule allows for consideration of finer qualitative distinctions. The court finds the allegations insufficiently articulate a damages claim separate and distinct from the economic loss (e.g. warranty contract) rule requirements.

The demurrer is therefore sustained with 30 days leave to amend. Plaintiff is only granted leave to amend the facts within the fourth cause of action in order to allege a separate and distinct claim for damages, and may not otherwise add any new causes of action.

Audi to give notice.