JUDGMENT entered in the office of the County Clerk on February 10, 2012 February 10, 2012 (2024)

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Loconte Family, Llc, Individually And Derivatively On Behalf Of Baby Phat Holding Company, Llc v. Timothy Leissner

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Aug 06, 2024 |Linda S. Jamieson |Commercial Division |Commercial Division |66760/2024

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Jla Equipment Llc v. Alan Ram

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Ruling

CHARLES vs SAFECO INSURANCE COMPANY OF AMERICA

Aug 12, 2024 |CVRI2403138

CHARLES vs SAFECO Notice of hearing and verifiedCVRI2403138 INSURANCE COMPANY OF Application of Matthew Thomas MitchellAMERICA to Appear as Counsel Pro Hac ViceTentative Ruling: Grant.

Ruling

DAVID SUAREZ, ET AL. VS GENERAL MOTORS, LLC.

Aug 13, 2024 |23NWCV01377

Case Number: 23NWCV01377 Hearing Date: August 13, 2024 Dept: C David Suarez, et al. vs General Motors, LLC. Case No.: 23NWCV01377 Hearing Date: August 13, 2024 @ 10:30 a.m. #9 Tentative Ruling I. Defendant General Motors, LLCs Demurrer is OVERRULED. II. Defendants Motion to Strike is DENIED. Answer is due within 10 days of notice of this ruling. Plaintiff to give NOTICE. Background This is a lemon law action. Plaintiffs David Saurez and Alma Castellanos (Plaintiffs) filed this action on May 3, 2023. Plaintiffs filed their operative First Amended Complaint (FAC) on November 15, 2023. Plaintiffs allege Defendant General Motors, LLC (Defendant) did not disclose and actively concealed defects involving a 2021 Chevrolet Silverado (Vehicle). Plaintiffs Complaint asserts the following causes of action: (1) Violation of Civil Code § 1793.2(d); (2) Violation of Civil Code § 1793.2(b); (3) Violation of Civil Code § 1793.2(a)(3); (4) Breach of Implied Warranty of Merchantability; and (5) Fraudulent Inducement Concealment. Defendant demurs to the Fifth Cause of Action on the grounds that the Complaint fails to allege facts sufficient to state a cause of action and that it is barred by the lack of a transactional relationship between the parties. Legal Standard Code Civ. Proc. §430.10(e) provides for a demurrer on the basis that a complaint fails to state a cause of action. A demurrer admits, provisionally for purposes of testing the pleading, all material facts properly pleaded. (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1247.) A demurrer tests the legal sufficiency of a complaint. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. ) Discussion Agency A duty to disclose only exists where there is some relationship, whether fiduciary or transactional, between the parties, and that such relationship must be alleged. (CACI 1901; Hoffman v. 162 North Wolfe, LLC (2014) 228 Cal.App.4th 1178, 1187.) A duty to disclose does not exist in all circ*mstances. The tort of fraudulent concealment is only viable where it does. There are four circ*mstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. [Citation.] (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.) The complaint alleges that: On or about June 08, 2021, Plaintiffs entered into a warranty contract with Defendant GM regarding a 2021 Chevrolet Silverado vehicle identification number 3GCPWBEK0MG358770 (hereafter "Vehicle" or Subject Vehicle), which was manufactured and or distributed by Defendant GM. Subject Vehicle was purchased at Win Chevrolet Hyundai in Carson, CA (GMs authorized dealer). (Complaint, ¶ 7.) Together, these allegations contend that Plaintiffs purchased the vehicle from Defendant through its agent Win Chevrolet Hyundai. Defendant argues that there is no transactional relationship between itself and Plaintiff. Plaintiff argues that Defendant expects its dealerships to sell its vehicles to purchasers. Additionally, citing Khan v. Shiley Inc. (1990) 217 Cal. App. 3d 848, 850-51, Plaintiff states that privity of contract is not required for a deceit cause of action. Plaintiff cites the following holding that addresses transactional relationships and privity: At the pleading stage (and in the absence of a more developed argument by Nissan on this point), we conclude plaintiffs allegations are sufficient. Plaintiffs alleged that they bought the car from a Nissan dealership, that Nissan backed the car with an express warranty, and that Nissans authorized dealerships are its agents for purposes of the sale of Nissan vehicles to consumers. In light of these allegations, we decline to hold plaintiffs claim is barred on the ground there was no relationship requiring Nissan to disclose known defects. (Dhital v. Nissan N. Am., Inc. (2022) 84 Cal. App. 5th 828, 844 (emphasis added).) Here, Plaintiff adequately argues that Plaintiff entered into a warranty contract directly with Defendant and that Win Chevrolet Hyundai was an authorized dealer of Defendant. (Complaint, ¶7.) Accordingly, Plaintiff has properly pleaded agency. Facts Sufficient to State Cause of Action The elements of a cause of action for intentional fraud are 1) misrepresentation (false representation, concealment, or nondisclosure); 2) knowledge of falsity (scienter); 3) intent to defraud or induce reliance; 4) justifiable reliance; and 5) damages. (See Cal. Civ. Code §1709.) [T]he elements of a cause of action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (f) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.) Fraudulent inducement is a viable tort claim under California law. The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage. Fraud in the inducement is a subset of the tort of fraud. It occurs when the promisor knows what he is signing but his consent is induced by fraud, mutual assent is present and a contract is formed, which, by reason of the fraud, is voidable. (Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 838-839.) Here, Plaintiffs alleges at ¶¶ 69-77 that Defendant concealed and failed to disclose facts relating to the defects. ¶¶ 82-83 alleges scienter and intent to induce reliance based on concealment. ¶ 84 alleges Plaintiffs resulting damages. The court finds that the Complaint alleges sufficient prior knowledge at this pleading stage. Less specificity is required if it appears from the nature of allegations that defendant must necessarily possess full information, or if the facts lie more in the knowledge of opposing parties. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384-1385.) The Demurrer to the Fifth cause of action is OVERRULED. Motion to Strike Given the reasoning above as to the Fifth Cause of Action, Defendants Motion to Strike is DENIED.

Ruling

Ravioli LLC vs Master Bango Inc

Aug 14, 2024 |SCV-269767

SCV-269767, Ravioli LLC v. Master Bango Inc. The matter is CONTINUED to the law and motion calendar on September 11, 2024 at 3pm. TheCourt requests supplemental briefing from the parties on the following issues: For the plaintiff, the defendant has argued that failure to comply with Bus. & Prof. Code, § 17918precludes enforcement of the arbitration agreement. This issue was not addressed in the plaintiff’sreply. Does the plaintiff concede that failure to comply with Bus. & Prof. Code, § 17918 prevents the Courtfrom compelling arbitration in this matter? For the defendant, the defense has moved to arbitrate disputes arising out of the same contract butinvolving other pasta entities. The Court would like the defense to explain how they can now oppose theexistence of an arbitration agreement with these entities while simultaneously affirming the agreement withthe other entities by filing the arbitration action with JAMS. For all parties, CCP § 1281.2 appears to address a defense to compelling arbitration rather than amechanism to compel arbitration. Similarly, CCP § 1281.3 appears to address consolidation of separatearbitration proceedings rather than consolidation of one proceeding in superior court and another proceedingin arbitration. Please address this issue. Plaintiffs cite CCP § 1281.3 in asking the Court to consolidate this civil matter with the matterssubmitted by Defendants to arbitration. CCP § 1281.3 provides, A party to an arbitration agreement may petition the court to consolidate separate arbitration proceedings, and the court may order consolidation of separate arbitration proceedings when: (1) Separate arbitration agreements or proceedings exist between the same parties; or one party is a party to a separate arbitration agreement or proceeding with a third party; and (2) The disputes arise from the same transactions or series of related transactions; and (3) There is common issue or issues of law or fact creating the possibility of conflicting rulings by more than one arbitrator or panel of arbitrators.(Emphasis added.) CCP § 1281.3 appears to allow consolidation of separate arbitration proceedings. The statute doesnot appear to permit the consolidation of a civil proceeding with an arbitration proceeding. Plaintiffs argue that, even if the Court finds that they are not entitled to enforce the arbitrationagreement, they are third party litigants within the sense used in CCP § 1281.2. CCP § 1281.2 provides, inpertinent part, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: […] (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact…(Emphasis added.) Plaintiffs’ interpretation of the statute as allowing third parties to seek consolidation of a civil actioninto an arbitration proceeding appears to be incorrect. The statute provides that the Court must compel amatter to arbitration unless there is a pending court action with a third party that arises out of the sametransaction and there is a possibility of conflicting rulings. Accordingly, this provision appears to be adefense to enforcement of the arbitration agreement. The case relied upon by Plaintiffs does not provideotherwise. “The primary issue on appeal is whether the trial court properly refused to compel arbitration onthe ground that ‘[a] party to the arbitration agreement is also a party to a pending court action ... with a thirdparty, arising out of the same transaction or series of related transactions and there is a possibility ofconflicting rulings on a common issue of law or fact.’” (Thomas v. Westlake (2012) 204 Cal.App.4th 605,612.) Both the plaintiff and the defendant may submit a supplemental brief by Monday, August 26. Eachparty may respond to the opposing party’s brief by Friday, August 30. Replies are prohibited. Thesupplemental briefs and any responses should not exceed five pages.

Ruling

ADOLFO FLORES, ET AL. VS KIA MOTOR AMERICA, INC., A CALIFORNIA CORPORATION

Aug 12, 2024 |19STCV13270

Case Number: 19STCV13270 Hearing Date: August 12, 2024 Dept: 31 Tentative Ruling Judge Kerry Bensinger, Department 31 HEARING DATE: August 12, 2024 TRIAL DATE: Not set CASE: Adolfo Flores, et al. v. Kia Motor America, Inc. CASE NO.: 19STCV13270 MOTION FOR STAY OF PROCEEDINGS MOVING PARTY: Defendant Kia Motor America, Inc. RESPONDING PARTY: Plaintiffs Adolfo Flores and Olga Flores I. Introduction This Song-Beverly action arises out of Adolfo and Olga Floress (Plaintiffs) purchase of a used Kia Sorrento, VIN number 5XYKW4A7XEG452856 (the Subject Vehicle). The Subject Vehicle was sold with a warranty. Plaintiffs allege that, following their purchase, the engine of the Subject Vehicle had serious defects and nonconformities that made the Subject Vehicle prone to risk of an engine fire. On April 17, 2019, Plaintiffs filed a Complaint against Defendant Kia Motors America, Inc. (KIA or Defendant). The Complaint alleges causes of action for (1) Violation of Song-Beverly ActBreach of Express Warranty; (2) Violation of Song-Beverly ActBreach of Implied Warranty; (3) Violation of Song-Beverly Act Section 1793.2; (4) Fraudulent InducementConcealment; and (5) Fraudulent InducementMisrepresentation. On November 11, 2021, Defendant moved for summary adjudication of the second, third, fourth, and fifth causes of action. The court granted summary adjudication as to the fourth and fifth causes of action and denied adjudication as to the second and third causes of action. On September 9, 2022, the court denied Kias motion for judgment on the pleadings as to the first, second, and third causes of action. On October 7, 2022, Kia filed a motion for summary judgment, or summary adjudication, of the first, second, and third causes of action, based in part on the Court of Appeals opinion in Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (Rodriguez). On April 25, 2023, the court denied Kias motion. On May 16, 2024, Kia filed this Motion for a Stay of Proceedings. Plaintiff filed an opposition. Kia replied. II. Discussion & Legal Standard Kia requests a stay of this action pending the California Supreme Courts ruling in Rodriguez which may impact the viability of Plaintiffs remaining causes of action. The court has the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.¿ (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489; Code Civ. Proc., § 128, subd. (a).)¿ Here, the court finds a stay of these proceedings is appropriate because, in part, it is the most expedient use of resources. In Rodriguez, the Court of Appeal acknowledge[d] that in isolation the phrase other motor vehicle sold with a manufacturers new car warranty could arguably refer to any car sold with a manufacturers warranty still in force, but it agreed that context clearly requires a more narrow interpretation.¿ (Rodriguez, supra,¿77 Cal.App.5th at p. 220.)¿ The court noted that the phrase appears in a definition of¿new¿motor vehicles, strongly suggesting that the Legislature did not intend the phrase to refer to used (i.e., previously sold) vehicles.¿ (Ibid.)¿ The court also noted that more importantly, the phrase is preceded by a dealer-owned vehicle and demonstrator, which comprise a specific and narrow class of vehicles.¿ (Ibid.)¿ The Rodriguez court therefore concluded that the phrase other motor vehicles sold with a manufacturers new car warranty refers to cars sold with a full warranty, not to previously sold cars accompanied by some balance of the original warranty.¿ (Id.¿at p. 225.)¿ This holding conflicts with Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112.) Plaintiffs Song-Beverly claims concern the purchase of a used vehicle with a balance remaining on the express warranty. The facts of this case align with Rodriguez. Given that review of Rodriguez has been granted, and indeed the issues are fully briefed, the California Supreme Courts ruling will likely determine whether Plaintiff can maintain his Song-Beverly claims. Plaintiff opposes a stay on the following grounds: (1) this motion is an improper motion for reconsideration of the courts April 25, 2023 order wherein the court denied Kias request for a stay pending resolution of Rodriguez; and (2) Code of Civil Procedure section 128 does not a grant this court the power to grant the stay requested. Plaintiff is mistaken. First, the courts April 25, 2023 did not rule on Kias request for a stay. Indeed, the request is not mentioned at all. (See Minute Order, 4/25/23.) Second, Code of Civil Procedure section 128 expresses the courts broad power in controlling its processes. Subdivision (a)(8), in particular, states that very principle. The courts power to issue a stay such as the one requested by Kia is within the courts authority. The court, where necessary and not violative of the law, may even create new processes. (See James v. Superior Court (1978) 77 Cal.App.3d 169, 175 [referencing Code of Civil Procedure section 128(a)(8) as a source of the courts inherent power to create new forms of procedure in particular cases].) In sum, Plaintiffs arguments are unavailing. Moreover, Plaintiff fails to address the principal issue raised by Kias motion: the Supreme Courts pending decision is determinative of the viability of Plaintiffs Song-Beverly claims. A stay will serve the interests of justice by preventing potentially unnecessary litigation. IV. CONCLUSION Accordingly, the Motion For Stay of Proceedings is GRANTED. The court sets a Status Conference on January 10, 2025 at 9:00 a.m. re: California Supreme Courts ruling in Rodriguez. Moving party to give notice. Dated: August 12, 2024 Kerry Bensinger Judge of the Superior Court

Ruling

Grant Schmidt vs Cardella Merced, LLC, et al.

Aug 14, 2024 |23CV-03924

23CV-03924 Grant Schmidt v. Cardella Merced, LLC, et al.Trial Setting ConferenceAppearance required. Remote appearances are permitted. Parties who wish to appearremotely must contact the clerk of the court at (209) 725-4111 to arrange for a remoteappearance. Appear to address the status of the case.

Ruling

WELLS AVE MODESTO LLC vs HAGGERTY CONSTRUCTION INC a)

Aug 14, 2024 |CV-23-003065

CV-23-003065 – WELLS AVE MODESTO LLC vs HAGGERTY CONSTRUCTION INC – a) Defendant/Cross-Complainant Haggerty Construction, INC.’s Motion to Compel Plaintiff/Cross-Defendant Wells Ave Modesto, LLC’s Further Responses to Request for Production, Set One – CONTINUED, on the Court’s own motion; b) Defendant/Cross-Complainant Haggerty Construction, INC.’s Motion to Compel Plaintiff/Cross-Defendant Wells Ave Modesto, LLC’s Further Responses to Form Interrogatories, Set One – CONTINUED, on the Court’s own motion; c) Defendant/Cross-Complainant Haggerty Construction, INC.’s Motion to Compel Compliance with Plaintiff/Cross-Defendant Wells Ave Modesto, LLC’s Agreement to Produce Documents and for Monetary Sanctions – CONTINUED, on the Court’s own motion.a-c) The Court finds, in view of Defendant’s Counsel’s concession that due to the untimeliness of Plaintiff’s responses to said discovery relative to the motion herein, said Counsel is unable to determine Plaintiff’s complete compliance with Defendant’s discovery requests, that the efficient use of judicial resources requires a continuance for Defendant to review said discovery responses to determine if any discovery item remains outstanding.Accordingly, this matter is continued to September 17, 2024, at 8:30 am in Department 24.The parties shall file a joint status statement regarding said discovery no later than September 10, 2025.The Court will address Defendant’s objections and the issue of monetary sanctions at that time.

Ruling

SERGIO SALDIVAR VS FORD MOTOR COMPANY, ET AL.

Aug 14, 2024 |24PSCV01645

Case Number: 24PSCV01645 Hearing Date: August 14, 2024 Dept: O Tentative Ruling DEFENDANTS DEMURRER TO PLAINTIFFS COMPLAINT is OVERRULED in part (i.e., 1st-3rd COAs because express warranty claims are not patently time-barred) and SUSTAINED in part with leave to amend (i.e., as to 4th COA (implied warranty of merchantability does not have prospective application) and 5th COA (fails to allege damages). Background This is a lemon law case. On June 21, 2024, Plaintiff SERGIO SALDIVAR filed suit against Defendants Ford Motor Company and Ford of Upland arising from defects with his November 16, 2016 purchase of a 2017 Ford Explorer. On June 27, 2024, Defendant filed the instant demurrer. On August 1, 2024, Plaintiff filed an opposition. On August 7, 2024, Defendant filed a reply. Discussion Defendant demurs to the complaint on the grounds that the first through fourth causes of action for violations of the Song-Beverly Act are time-barred and therefore fail to plead facts sufficient to state a cause of action pursuant to Section 430.10(e) of the Code of Civil Procedure (Demurrer p. 2:5-9; see also Demurrer p. 8:11-12 [SBA COAs are time-barred by the four-year statute of limitations])[1] and the fifth COA fails to plead essential elements to state the claim and is otherwise barred by the economic loss rule. (Demurrer pp. 3-4; see also p. 8:21-22; p. 9:3-4.) 1. Whether Express Warranty Claims (1st-3rd COAs) are Time-Barred? (Demurrer p. 10) A plaintiff can bring a breach of express warranty claim within four years from the claims accrual date. (See Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 213-214; Cal. Com. Code, § 2725, subds. (1)-(2).) For express warranties, Song-Beverly claims accrue when the plaintiff discovers or reasonably should have discovered the breach of warranty, and such claims may accrue before an express warranty expires. (Galvez v. Ford Motor Co., No. 2:17-cv-02250-KJM-KJN, 2018 WL 4700001, at *4 (E.D. Cal. Sep. 30, 2018).)[2] Here, Defendant focus on the date of the first repair presentation dated January 13, 2017. (Complaint ¶24 [no repairs were made that day].) But, as noted by Plaintiff in opposition, a buyer cannot know of the breach until after (1) the buyer provides the defendant with a reasonable number of repair attempts and (2) the defect manifests again outside of the warranty period, thereby establishing that the defendant's repairs did not conform the vehicle to warranty. (Opp. p. 3, citing Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 148-49.) Effectively, when Fords authorized repair facilities supposedly fixed the complained of issues, representing to Plaintiff that the Vehicle and the complained of defects had been repaired (Complaint, ¶24-30), Plaintiff did not have reason to know of any defects. Even if the date of discovery of defects is unclear from the face of the complaint, the legal standard on a demurrer would ultimately resolve the issue in favor of Plaintiff. First, on a demurrer when the SOL is raised, it must be explicitly evident from the pleading itself, without requiring additional facts, that the SOL has indeed expired. (Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408; Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.4th 963.) Here, Defendant itself maintains that there are insufficient facts, making sustaining the demurrer improper. (See Reply p. 1:22-23 [However, Plaintiff does not include a single fact regarding when they discovered this breach of warranty.].) Additionally, on a demurrer, the allegations are liberally construed such that the court draws inferences favorable to the plaintiff, not the defendant. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) Here, considering that repairs were first conducted on 2/1/2017 and thereafter on 3/22/2017, 4/13/2017, 5/5/2017, and 5/16/2023 (Complaint pp. 3-4), the inferences drawn in favor of Plaintiff do not suggest that Plaintiff first discovered the defect on 1/13/2017 as there were continuing problems. Therefore, as Defendant only demurs on the grounds that the claims are time barred, the court OVERRULES the demurrer as to the 1st through 3rd COAs for breach of express warranties. 2. Whether the Implied Warranty Claim (4th COA) is Time-Barred? Under Civil Code section 1792, every consumer good sold in California is covered by an implied warranty that the goods are merchantable. A claim for breach of implied warranty accrues upon tender of delivery. (Cal. Comm. Code § 2725, subds. (1), (2), emphasis added.) That warranty is of limited duration; [t]he duration of the implied warranty of merchantability ... shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of & more than one year following the sale of new consumer goods to a retail buyer. (Civ.Code, § 1791.1, subd. (c), emphasis added; see Atkinson v. Elk Corporation of Texas (2006) 142 Cal.App.4th 212, 231.) Because an implied warranty is one that arises by operation of law rather than by an express agreement of the parties, courts have consistently held it is not a warranty that explicitly extends to future performance of the goods[.] (Demurrer p. 11, quoting Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th at 134, emphasis added.)[3] For this reason, [t]he delayed discovery doctrine does not apply to implied warranty claims. (Demurrer p. 11, quoting Nguyen v. Nissan North America, Inc., 487 F.Supp.3d 845, 854 n.3 (2020).) California, implied warranty claims are subject to a four-year statute of limitations. (Montoya v. Ford Motor Co., (2020) 46 Cal.App.5th 493, 495.) Here, with a purchase date of 11/16/2016, a claim for breach of implied warranty would have finalized by 11/16/2017, requiring suit by 11/16/2021 (4-year SOL). In opposition, Plaintiff heavily focuses on Mexia v. Rinker Boat Co. (2009) 174 Cal.App.4th 1297 wherein the court effectively expanded consumer rights by allowing for an implied warranty COA where a latent defect is discovered after tender of delivery and within a reasonable time of notifying the seller of the breach. (Id. at pp. 1310-1311.) Though Plaintiff maintains that [m]any federal courts have been persuaded by Mexia, (Opp p. 4:16-17), not necessarily. As noted in Reply (and as stated on WestLaw), the court in Marchante v. Sony Corp. of America, Inc. 801 F. Supp.2d 1013 (S.D. Cal. 2011) found that the plaintiffs reliance on Mexia unconvincing. (Marchante, supra, at p. 1022.) In doing so, the court reasoned the following: Significant to the analysis is the character of the latent defect. Mexia concerns latent defects that render the product unmerchantable from the outset. This distinction can be drawn from Mexia's reliance on Moore v. Hubbard & Johnson Lumber Co., 149 Cal.App.2d 236, 308 P.2d 794 (1957). In Moore a defendant sold lumber to a contractor for construction purposes. The lumber was infested with beetles that would eat their way out of the wood, leaving holes in the wood. And in such a situation, the latent defect, whether or not it was discovered, rendered the lumber unmerchantable from the outset. It is this distinction that renders Mexia inapplicable. Plaintiffs here do not allege that the televisions failed to work properly from the outset. They instead allege issues arising after several years of use. In relying on Mexia, Plaintiffs request this Court accept that televisions that may manifest issues after several years of use are comparably unmerchantable-from-the-outset as building lumber infested with beetles. The comparison is unconvincing. (Id. at pp. 1021-1022, emphasis added.) Here, similarly, Plaintiff does not allege that the vehicle was defective from the outset. Even if Mexia were not limited to items that are unmerchantable from the outset, the court in Marchante also spoke to that. [Mexia] renders meaningless any durational limits on implied warranties. Every defect that arises could conceivably be tied to an imperfection existing during the implied warranty period. And in that vein, Mexia enjoys the limelight as a case contrary to established California case law with respect to the duration of the implied warranty of merchantability. (Id. at p. 1022, emphasis added, quoting Hovsepian v. Apple, Inc., 2009 WL 2591445, at *8 n. 7 (N.D.Cal. Aug. 21, 2009).) Thus, echoing the Marchante court, the court determines that Plaintiffs reliance on Mexia unconvincing because there is no indication that the vehicle was unmerchantable from the outset, and even if it was unmerchantable form the outset, Mexia is an outlier of a case. Therefore, the court SUSTAINS the demurrer as to the 4th COA for breach of implied warranty with leave to amend.[4] 3. Whether the Negligent Repair COA Fails to State Sufficient Facts Re: Damages? To state a cause of action for negligence, the plaintiff must allege facts demonstrating the existence of a duty, breach of that duty, causation, and damages. (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202.) Defendant demurs on two grounds: claim is barred by economic loss rule[5] and the COA fails to state sufficient facts. The court for purposes of this demurrer will focus on the latter argument. Here, the court agrees with Defendant that Plaintiff has failed to plead damages. (See Complaint ¶68 [Defendant UPLAND's negligent breach of its duties owed to Plaintiff was a proximate cause of Plaintiff's damages.].) While Plaintiff maintains that he need not plead whether he paid out-of-pocket for any repairs performed by Upland, that may be true, but damages (e.g., out-of-pocket expenses, or any other monetary losses or property damage he may have sustained), in whatever form, must still be pled. To the extent that Plaintiff argues that pleading of such facts are not required because they are within the control of Upland (Opp. p. 6:13-15), it is unclear why Plaintiff would not be the one to know of how he was damaged. Therefore, the court SUSTAINS the demurrer as to the 5th COA with leave to amend. Conclusion Based on the foregoing, the demurrer as to the 1st-3rd COAs is OVERRULED; 4th COA is sustained with leave to amend; and 5th COA is sustained with leave to amend. [1] The court emphasizes that the warranty claims are only demurred to on the grounds that they are barred by the SOL, not that they alternatively generally fail to state sufficient facts, which may have otherwise warranted sustaining the demurrer with leave to amend. (See also Table of Contents [focusing on SOL].) [2] Both parties cite to Krieger and Galvez. [3] Without more, Plaintiff argues that these facts dont consider the policy considerations expressed in Cardinal Health 301. (Opp. 4:7-8.) [4] Should Defendant demur to the COA again, the court requests the parties to adequately the binding cases that address the issue of whether implied warranties of merchantability have prospective application. [5] Under the economic loss rule, [w]here a purchasers expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only economic losses. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988 (Robinson Helicopter), quotation marks omitted.) However, tort damages may be permitted when the breach of contract is accompanied by a tort such as fraud. (Id. at pp. 989-990.) To plead around the economic loss rule, a party must plead the existence of a duty that arises independent of any contractual duty and independent injury, other than economic loss, that arises from the breach of that duty. (Id. at pp. 988-991.) Here, briefly, the complaint expressly alleges that Plaintiffs COAs are predicated upon warranty obligations, suggesting that the complaint does not allege a duty independent of the warranty agreement/underlying contract(s).

Ruling

GOOD HOPE URBANITE PREMIUM LINKED FUND, LLC VS. BRADDOCK ROAD, LLC ET AL

Aug 14, 2024 |CGC23605848

Matter on the Law & Motion Calendar for Wednesday, August 14, 2024, Line 5. 5 - DEFENDANT DAVID PERLSTEIN's MOTION FOR WITHDRAWAL OF ATTORNEY OF RECORD. Granted as unopposed. Counsel to provide fully filled-out proposed orders on judicial council form. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/CK)

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