Judge: Upinder S. Kalra, Case: 23STCV09175, Date: 2023-08-10 Tentative Ruling
Case Number: 23STCV09175 Hearing Date: August 10, 2023 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: August
10, 2023
CASE NAME: Syed A. Bhuiyan v. Volkswagen Group of
America, Inc., et al.
CASE NO.: 23STCV09175
DEMURRER
MOVING PARTY: Defendant Volkswagen Santa Monica, LLC
RESPONDING PARTY(S): Plaintiff Syed A. Bhuiyan
REQUESTED RELIEF:
1. An
order sustaining the demurrer as to the 4th cause of action.
TENTATIVE RULING:
1. Demurrer
as to the 4th Cause of Action is SUSTAINED, with leave to amend.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On April 25, 2023, Plaintiff Syed A. Bhuiyan filed a
complaint against Defendants Volkswagen Group of America, Inc., Volkswagen
Santa Monica, LLC dba Volkswagen Santa Monica (“Defendants.”) The complaint
alleged 4 causes of action: (1) Violation of the Song-Beverly Act – Breach of
Express Warranty, (2) Violation of the Song-Beverly Act – Breach of implied
Warranty, (2) Violation of the Song-Beverly Act § 1793.2, and (4) Negligent
Repair. The complaint alleges that Plaintiff purchased the Subject Vehicle from
Defendants. However, the Subject Vehicle contained defects and nonconformities,
and Defendants were unable to repair these defects after a reasonable number of
attempts.
On May 22, 2023, Defendant Volkswagen Group of America,
Inc., filed an Answer.
On May 26, 2023, Defendant Volkswagen Santa Monica, LLC,
filed a Demurrer. Plaintiff’s Opposition was filed on July 27, 2023.
Defendant’s Reply was filed on August 3, 2023.
LEGAL STANDARD
Demurrer
A demurrer for sufficiency tests 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 context. 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. ….
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 147 Cal.App.4th at 747.)
Meet and Confer:
Prior to filing a demurrer, the demurring party is required
to satisfy their meet and confer obligations pursuant to Code of Civ. Proc.
§430.41, and demonstrate that they so satisfied their meet and confer
obligation by submitting a declaration pursuant to Code of Civ. Proc.
§430.41(a)(2) & (3). The Declaration of Brandon R.
Bell indicates that counsel attempted to engage in a meet and confer with
Plaintiff’s counsel on May 17th and May 24th, but
Plaintiff did not respond to these efforts. While Plaintiff argues in their
motion that the meet and confer was deficient because only a single letter and
follow-up email was sent, this argument is unpersuasive. Defendant need not
continue to contact Plaintiff after two attempts were made. Even assuming
arguendo that the meet and confer was deficient, the Court will provide an
analysis on the merits.
ANALYSIS:
Defendant demurs on the grounds
that the fourth cause of action fails to state sufficient facts to constitute a
cause of action for negligent repair and is barred by the economic loss rule.
1. Negligent
Repair
Economic Loss Rule:
Defendant
argues that the negligent repair claim fails because it is barred by the
economic loss rule. Specifically, the Complaint does not allege that Plaintiff
sustained any injury other than an economic loss. Plaintiff argues that the
economic loss rule does not apply in cases of “negligent performance of
services.” (Opp. 4: 11-12, citing to (N.
Am. Chem. Co. v. Super. Ct. (1997) 59 Cal.App.4th 764, 777–81.)
After a review of the Complaint,
the Court finds that the cause of action for negligent repair is not barred by
the economic loss rule. “The economic loss rule requires a purchaser to recover
in contract for purely economic loss due to disappointed expectations, unless
he can demonstrate harm above and beyond a broken contractual promise.” (Robinson Helicopter Co., Inc. v. Dana Corp.
(2004) 34 Cal.4th 979, 988.)
Further, despite the economic loss rule, “tort
damages have been permitted in contract cases where a breach of duty directly
causes physical injury; for breach of the covenant of good faith and fair
dealing in insurance contracts; for wrongful discharge in violation of
fundamental public policy; or where the contract was fraudulently induced. In
each of these cases, the duty that gives rise to tort liability is either
completely independent of the contract or arises from conduct which is both
intentional and intended to harm.” (Id.
at 989-990.) “Focusing on intentional conduct gives substance to the
proposition that a breach of contract is tortious only when some independent
duty arising from tort law is violated.” (Id.)
Moreover, in North American Chemical Co. v. Superior Court, the Court of Appeal
stated that “A contract to perform services gives rise to a duty of care which
requires **471 that such services be performed in a competent and reasonable
manner. A negligent failure to do so may be both a breach of contract and a
tort.” (North American Chemical Co. v.
Superior Court (1997) 59 Cal.App.4th 764, 774.) Here, Plaintiff brought in
the Subject Vehicle to be repaired, thus there was a contract to perform
services. The Complaint alleges that Defendant did not perform those services
in a reasonable manner, and thus there was a breach of both contract and tort.
The
Economic Loss Rule does NOT bar the Fourth Cause of Action.
Failure to State a Claim:
Defendant argues that the claim
for negligent repair fails to state sufficient facts to constitute a cause of
action. Specifically, Plaintiff states legal conclusions and fails to allege
what damages are sought. Plaintiff argues that the Complaint contains the
requisite elements and sufficient facts to place Defendant on notice of the
claim for negligent repair.
“To succeed in a negligence action,
the plaintiff must show that (1) the defendant owed the plaintiff a legal duty,
(2) the defendant breached the duty, and (3) the breach proximately or legally
caused (4) the plaintiff's damages or injuries.” (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.)
After a
review of the Complaint, the Court finds that Plaintiff has failed to
sufficiently allege a cause of action for negligent repair. Specifically, the
Complaint merely contains conclusory allegations of negligent repair. Plaintiff
alleges that Defendant had a duty to use ordinary repair and breached that
duty. However, Plaintiff fails to sufficiently allege damages. The Complaint
merely states that the Defendant’s breach “was a proximate cause of Plaintiff’s
damage.” (Comp. ¶ 63.) How was Plaintiff damaged? Was it financial damage? Was
it property damage? The Complaint does not sufficiently allege how Plaintiff
was damaged.
Therefore,
Demurrer as to the Fourth Cause of Action is SUSTAINED.
Leave to Amend:
Leave to amend should be liberally
granted if there is a reasonable possibility an amendment could cure the defect. (County
of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.)
The Plaintiff has the
burden of demonstrating that leave to amend should be granted, and that the
defects can be cured by amendment. (“Plaintiff must show in what manner he can
amend his complaint and how that amendment will change the legal effect of his
pleading.” Goodman v. Kennedy (1976)
18 Cal.3d 335, 349.) Because the economic loss rule does not bar the cause of
action for negligent repair, it is likely that Plaintiff can amend the
Complaint to allege further details.
Leave to Amend is
GRANTED.
CONCLUSION:
For the foregoing reasons, the
Court decides the pending motion as follows:
Demurrer as
to the 4th Cause of Action is SUSTAINED, with leave to amend.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: August
10, 2023 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court