Judge: Upinder S. Kalra, Case: 23STCV26693, Date: 2024-03-06 Tentative Ruling
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Case Number: 23STCV26693 Hearing Date: March 6, 2024 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: March
6, 2024
CASE NAME: Samuel
Linder v. Kia America, Inc., et al.
CASE NO.: 23STCV26693
DEMURRER
TO COMPLAINT; MOTION TO STRIKE
MOVING PARTY: Defendant
Kia America, Inc.
RESPONDING PARTY(S): None as of February 29, 2024
REQUESTED RELIEF:
1. Demurrer
to the Fourth Cause of Action for failure to state sufficient facts to
constitute a cause of action and for uncertainty.
2. Motion
to Strike the Prayer requesting punitive damages.
TENTATIVE RULING:
1. Demurrer
to the Fourth Cause of Action is SUSTAINED without leave to amend;
2. Motion
to Strike is GRANTED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On October 31, 2023, Plaintiff Samuel Linder (Plaintiff)
filed a Complaint against Defendants Kia America, Inc. and 1st Kia Simi Valley
(Defendants) with five causes of action for: (1) Violation of Lemon Law, (2)
Breach of Implied Warranty of Merchantability, (3) Negligent Repair, (4)
Misrepresentation, and (5) Violation of Magnuson-Moss Warranty Federal Trade
Commission Improvement Act.
According to the Complaint, Plaintiff purchased a 2019 Kia
Niro, Vin No. KNDCC3LC8K5219242 (the subject vehicle). Plaintiff alleges that
soon after purchasing the subject vehicle, he experienced defects that could
not be repaired.
On December 29, 2023, Defendant Kia America, Inc. (Kia)
filed the instant demurrer with motion to strike. Plaintiff’s opposition was
due on or before February 22, 2024. As of February 29, 2024, no opposition has
been filed with the court.
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.)¿
Motion to Strike
The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading. (CCP § 436(a).) The court may also
strike all or any part of any pleading not drawn or filed in conformity with
the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for moving
to strike must appear on the face of the pleading or by way of judicial notice.
(Id.¿§¿437.)¿“When the defect which
justifies striking a complaint is capable of cure, the court should allow leave
to amend.” (Vaccaro v. Kaiman¿(1998)
63 Cal.App.4th 761, 768.)¿¿
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.
(CCP) §430.41 and demonstrate that they so satisfied their meet and confer
obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3).
The meet and confer requirement also applies to motions to strike. (CCP §
435.5.) Here, Kia indicates counsel sent one meet and confer letter to
Plaintiff on December 22, 2023 without receiving a response from Plaintiff’s
counsel. (Ng Decl. ¶¶ 3, 4.) The court is not convinced that one letter sent
via email satisfies the meet and confer requirement. Still, failure to meet and
confer is not a sufficient ground to overrule or sustain a demurrer. (CCP §
430.41(a)(4).)¿
ANALYSIS:
Kia contends that Plaintiff’s fourth cause of action is
barred by the economic loss rule and alternatively fails to sufficiently plead
misrepresentation.
Economic Loss Rule
The economic loss rule provides that where purchasers’
expectations in a sale are frustrated because the product they bought is not
working properly, their remedy is said to be in contract alone, for they have
suffered only ‘economic’ losses. (Robinson
Helicopter, Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988.) 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 contractual promise. (Ibid.)
The Court finds that Plaintiffs’ cause of action for fraud by misrepresentation
is not barred by the economic loss rule.
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.” (Robinson Helicopter Co., Inc. v Dana Corp. (2004) 34 Cal.4th 979,
989-990.)Thus, tort damages are permitted in contract cases where the contract
has been fraudulently induced.
Misrepresentation
“The elements of fraud, which give rise to the tort action
for deceit, are (a) misrepresentation (false representation, concealment, or
nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to
defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting
damage.” (Lazar
v. Superior Court (1996) 12 Cal.4th
631, 638.)
“In California, fraud must be pled specifically; general and
conclusory allegations do not suffice…this particularity requirements
necessitates pleading facts which
show how, when, where, to whom, and by what means the representations were
tenders.” (Lazar v. Superior Court (1996)
12 Cal.4th 631, 645.)“[W]hen averments of fraud are made, the circumstances
constituting the alleged fraud must be specific enough to give defendants
notice of the particular misconduct so that they can defend against the charge
and not just deny that they have done anything wrong.” (Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.2003)
(internal quotations and citations omitted). After a review of the Complaint,
Plaintiff has failed to allege facts that constitute fraud. Nowhere in the
complaint does it state when these alleged statements occurred, where they
occurred, or by what means.This is insufficient for a claim for fraud.
Accordingly,
the court SUSTAINS Defendant’s demurrer to the fourth cause of action.
Motion to Strike
Kia moves to strike Paragraph 2, on page 14 in the prayer
for relief: “For punitive damages in a sum as proven at trial.” Kia contends
that Plaintiff failed to sufficiently plead that Kia acted with malice, fraud,
or oppression to warrant punitive damages. Plaintiff did not file an
opposition.
Here,
without the fourth cause of action, Plaintiff cannot recover punitive damages. As
such, the court declines to analyze whether Plaintiff sufficiently alleged
oppression, fraud, or malice at this time.
Accordingly,
the court GRANTS Kia’s Motion to Strike in its entirety.
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).
Here, Plaintiff did not file an
opposition let alone demonstrate that he could cure any defects on amendment.
The court is inclined to deny leave to amend absent any explanation from
Plaintiff at the hearing supporting otherwise. As it is now, the court is
skeptical that Plaintiff could amend, in good faith, his lemon law complaint to
fit in the Economic Loss Rule exception.
Accordingly, leave to amend is
DENIED.
CONCLUSION:
For
the foregoing reasons, the Court decides the pending motion as follows:
1. Demurrer
to the Fourth Cause of Action is SUSTAINED without leave to amend;
2. Motion
to Strike is GRANTED.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: March 6, 2024 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court