Judge: Timothy Patrick Dillon, Case: 22STCV22256, Date: 2022-09-15 Tentative Ruling
Case Number: 22STCV22256 Hearing Date: September 15, 2022 Dept: 73
ADONIS OCAMPO v FORD MOTOR COMPANY, ET AL.
Counsel for Plaintiff/opposing
party: Neal F. Morrow III and Michael J.
Avila (MFS Legal Inc.)
Counsel for Defendant/moving
party: Judd A. Gilefsky and Carshena P.
Culmer (Lewis Brisbois Bisgaard & Smith LLP)
Demurrer to Complaint (filed 08/12/2022)
Ford Motor Company’s demurrer to the fifth
cause of action raised in Complaint is SUSTAINED without leave to amend on the
ground that Plaintiff lacks standing.
Discussion
A.
Plaintiff’s Pleadings/Allegations
In the complaint, Plaintiff Adonis Ocampo (“Plaintiff”) allege
the following causes of action against Defendants Ford Motor Company (“Ford”)
and Star Ford Lincoln (“SFL”) (collectively, “Defendants”) :
C/A
1: Violation of the Song-Beverly Consumer Warranty Act – Breach of Express
Warranties
C/A
2: Breach of Implied Warranty in Violation of the Song-Beverly Consumer
Warranty Act
C/A
3: Breach of Express Warranty in Violation of the Commercial Code
C/A
4: Violation of the Federal Magnuson-Moss Warranty Act
C/A
5: Violation of Business and Professions Code § 17200
Plaintiff alleges that he purchased a 2017 Ford Escape on
January 16, 2020, but it possessed or developed defects and nonconformities to
its warranties.
B.
Ford’s Demurrer
On August 12, 2022, Ford filed a demurrer to the Complaint on the
following grounds:
·
The fifth cause of action raised in the complaint
is subject to demurrer because Plaintiff lacks standing; and
·
The fifth cause of action fails to
allege any unlawful, unfair or fraudulent business practices committed by Ford.
On September 2, 2022, Plaintiff filed an opposition, arguing that the fifth
cause of action has been sufficiently pleaded.
On September 8, 2022, Ford filed its reply reasserting that the fifth
cause of action is subject to demurrer.
A.
Legal Standard for Demurrer
A demurrer tests the sufficiency of whether the complaint
states a cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the
allegations liberally and in contest--any 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. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902,
905.) Therefore, it lies only where the defects appear on the face of the
pleading or are judicially noticed. (Cal. Civ. Proc. Code §§ 430.30,
430.70.) The only issue a demurrer is concerned with is whether the
complaint, as it stands, states a cause of action. (Hahn 147
Cal.App.4th at 747.)
B.
Meet and Confer
Upon review of the declaration submitted along with the instant
demurrer, the Court finds that the parties were failed to meet and confer pursuant
to Code of Civil Procedure § 430.41. (Culmer Decl. ¶ 2, Exh. A.) The declaration mere states that
correspondence was emailed to Plaintiff’s counsel on August 5, 2022 and a
response was requested. While Plaintiff’s counsel failed to respond, Code of
Civil Procedure § 430.41 clearly requires that the meet and confer to be
completed in person or over the phone. Nonetheless,
the Court will proceed to address the merits of the demurrer despite this
deficiency. (Code Civ. Proc. §§ 430.41(a)(4).) The Court cautions the parties
that a code-compliant meet and confer effort is required for each demurrer and
motion to strike on subsequent pleadings.
C.
Fifth Cause of Action: Unfair Business Practices – Lack of Standing
Ford demurs to the fifth cause of action
for unfair business practices on the ground that Plaintiff lacks standing.
“A plaintiff alleging unfair business
practices under these statutes must state with reasonable particularity the
facts supporting the statutory elements of the violation.” (Khoury v. Maly’s
of California, Inc. (1993) 14 Cal.App.4th 612, 619.) "Although section
17200 contains sweeping language as to what is considered a business practice,
standing to sue under the statute, as defined by Business and Professions Code
section 17204, is confined ` ‘to any `person who has suffered injury in fact
and has lost money or property' as a result of unfair competition.
[Citations.]’” (Bower v. AT&T Mobility, LLC (2011) 196 Cal.App.4th
1545, 1553-1554 at 1554 [quoting Kwikset Corp. v. Superior Court (2011)
51 Cal.4th 310, 320–321].)
“[S]tatutory causes of action must be pleaded
with particularity.” (Covenant Care, Inc., supra, 32 Cal.4th at 790.)
Here, Ford argues that the Complaint fails to allege any conduct
by Ford that could be construed as an unlawful, unfair or fraudulent business
practice. (Demurrer at pg. 6.) Moreover importantly, Ford argues that Plaintiff
lacks standing because the allegations fail to show that Plaintiff was
economically harmed by any alleged conduct by Ford. (Id.) It is noted
that Plaintiff’s opposition fails to address this argument entirely.
Upon review of the Complaint, the Court finds that it neither
alleges that Plaintiff suffered an injury-in-fact nor that he sustained
economic damages due to any conduct by Ford. (See Kwikset Corp., supra,
51 Cal.4th 310, 322.) Because Plaintiff fails to address this argument,
Plaintiff has not met his burden in showing how the Complaint can be amended so
as to cure this defect. (See Association of Community Organizations for
Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th
298, 302.)
A demurrer may be sustained
without leave to amend when there is no reasonable possibility that the defect
can be cured by amendment. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.)
Accordingly, the court sustains Defendants’ demurrer to the fifth
cause of action without leave to amend. In the interest of judicial economy,
the Court declines to the address Ford’s argument that the fifth cause of
action is uncertain and insufficiently pleaded.