Case Number: BC616910 Hearing Date: March 16, 2018 Dept: 53

raul rodriguez vs. jose perez , et al.; BC616910, MARCH 16, 2018

[Tentative] Order RE: A. DEMURRER TO SECOND AMENDED COMPLAINT AND B. MOTION TO REQUEST RECLASSIFICATION

Defendants Aguilar Auto Repair, Inc., and Francisco Aguilar’s demurrer to Plaintiffs’ Second Amended Complaint is SUSTAINED WITH LEAVE TO AMEND.

Defendants’ motion to reclassify case is DENIED.

BACKGROUND

Plaintiff Raul Rodriguez (“Plaintiff”) brought this suit against various defendants on April 12, 2016. On August 10, 2016, Plaintiff filed two amendments to the Complaint, adding Defendants Aguilar Auto Repair (erroneously sued as J&J Auto Repair) (“Auto Shop”) and Francisco Aguilar (“Aguilar”) (jointly, “Defendants”) as Does 1 and 2. On December 1, 2017, Plaintiff filed the operative Second Amended Complaint (“FAC”). Plaintiff alleges that Defendants, along with the remaining defendants, promised to sell him a rebuilt engine with all new OEM parts (SAC ¶¶ 12-17), and that two of the other defendants warrantied the rebuilt engine for a year (SAC ¶ 17.) Thereafter, when Plaintiff was starting up the engine, the vehicle emitted a loud rattling sound, and Plaintiff saw a thick screen of smoke coming from underneath the truck’s hood. (SAC ¶ 19.) Plaintiff alleges the engine was defective and built with used, defective, and counterfeit parts. (Id.)

Plaintiff asserts causes of action for: (1) fraud/intentional misrepresentation, (2) strict liability – manufacturing defect; and (3) negligent repair.

Defendants now demur to the entire SAC for failure to state facts sufficient to constitute a cause of action pursuant to § 430.10(e) and each cause of action for failure to state facts sufficient to constitute a cause of action under CCP § 430.10(e). No opposition to the demurrer was filed, though Defendants have submitted a declaration from their counsel of his attempts to meet and confer with Plaintiff regarding this demurrer. Defendants also seek to reclassify the action as a limited jurisdiction case pursuant to CCP §403.040(a).

LEGAL STANDARD

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

DEMURRER

“If the second amended complaint contradicts or omits facts pleaded in [plaintiff’s] first two complaints, we will take judicial notice of the earlier complaints and disregard inconsistent allegations, absent an explanation for the inconsistency.” (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.) As an initial matter, the Court does not find the amended allegations of the SAC to be so contradictory to the allegations of the previous complaints as to constitute a “sham amendment.”

A. Fraud

To plead a cause of action for fraud, Plaintiff must plead facts showing the following elements: (1) misrepresentation, (2) knowledge of falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) Fraud must be pleaded specifically. To survive demurrer, plaintiff must plead facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614.)

Defendants argue that Plaintiff fails to allege fraud with specificity against both Auto Shop and Aguilar. The SAC’s allegations against Defendants are as follows:

11. Plaintiff alleges that . . . DOES 1-10 made their representations, they knew that the representations were false.

14. On or about Jan. 26, 2015, Defendant J&J Auto Repair’s owners and managers told Plaintiff that the he would Provide a rebuilt engine with all new O.E.M. Parts, if Plaintiff paid money to him.

16. On or about Jan. 26, 2015, Defendant Francisco Aguilar told Plaintiff that the he would Provide a rebuilt engine with all new O.E.M. Parts, if Plaintiff paid money to him.

19. Thereafter, on or about January 15, 2016, Plaintiff started up the engine on his truck, And heard a loud rattling sound, and saw a thick screen of smoke coming from under the Hood of the Truck. The engine was found to be defective and was further discovered to be the result of an engine rebuilding job with defective parts, used parts and counterfeit parts.

20. The ENGINE was, at the time plaintiff purchased it as herein alleged, defective and unsafe for its intended purpose[s] in that the Engine was not rebuilt with quality parts, and could stall and cause a vehicle collision at any time.

21. Plaintiffs relied on the representations of defendants regarding the statement they would use OEM parts to repair his truck.

The Court finds that Plaintiff has not pled fraud with sufficient specificity against Defendants. The only amendment to the first cause of action from the First Amended Complaint is the statement that Plaintiff relied on Defendants’ representations “regarding the statement they would use OEM parts to repair his truck.” (FAC, ¶ 21.) The rest of the allegations remain the same. The SAC still does not allege where the representations were made, or how, nor does it allege facts showing the rest of the elements of fraud, namely, that Defendants knew their representations were false, that they intended Plaintiff to rely on the representations, that he did in fact rely on the representations to his detriment, and that his reliance was a substantial factor in causing his harm. Accordingly, the demurrer to the fraud cause of action is sustained.

B. Strict Liability for Manufacturing Defect

The Court previously sustained the demurrer to the strict liability cause of action for failure to allege any injury to property other than the product at issue. The Court notes that although Plaintiff alleges that he suffered damage both to the defective engine as well as to his truck, Plaintiff’s timeline of events does not support a strict liability cause of action. In order to establish a strict liability – manufacturing defect claim, Plaintiff must allege that Defendants manufactured the engine, that the engine contained a manufacturing defect when it left Defendants’ possession, that Plaintiff was harmed; and that the defect was a substantial factor in causing Plaintiff’s harm. As alleged in the SAC, Plaintiff purchased his engine on January 26, 2016. However, he noticed the defect on January 15, 2016. Plaintiff alleges that Defendants’ representations were made on January 26, 2015. There is no clear allegation as to when the engine was manufactured by Defendants and when it left Defendants’ possession. There is therefore no clear allegation that anything Defendants did was a substantial factor in causing Plaintiff’s harm. For this reason, the demurrer to the strict liability – manufacturing defect cause of action is sustained.

C. Negligent Repair

The Court construes this cause of action as one for negligence. “To prevail in a negligence action, a plaintiff must show that the defendant owed a legal duty, the defendant breached that duty and the breach proximately caused injury to the plaintiff.” (J.L. v. Children’s Inst., Inc. (2009) 177 Cal.App.4th 388, 396.) As discussed above, Plaintiff’s alleged timeline does not support a negligence cause of action. Though Plaintiff alleges that Defendants undertook to perform repairs (SAC, ¶ 73), there are no allegations that demonstrate Defendants’ breach of that duty. For this reason, the demurrer to the negligent repair cause of action is sustained.

MOTION TO RECLASSIFY

Defendants also move again to reclassify this case as a limited jurisdiction case because, they argue, the maximum amount in controversy is only $15,000. Defendants’ motion was denied when it was brought concurrently with their demurrer to the First Amended Complaint. The Court notes, again, that Plaintiff also alleges that, due to the losses caused him by the alleged conduct of the various defendants, Plaintiff has also suffered a loss of income which he has estimated in one portion of the FAC to be $100,000. (FAC ¶ 43.) Moreover, “the superior court must deny the motion to reclassify the case as limited (and thus keep the matter in the unlimited civil court) unless it appears to a legal certainty that the plaintiff’s damages will necessarily be less than $25,000.” (Ytuarte v. Sup. Ct. (2005) 129 Cal. App.4th 266, 277; accord, Stern v. Sup. Ct. (2003) 105 Cal.App.4th 223, 233.) Defendants have not shown this legal certainty. Accordingly, the motion to reclassify is denied.

CONCLUSION

For the foregoing reasons, Defendants’ demurrer to the Second Amended Complaint is sustained with leave to amend. Plaintiff is ordered to file any amended complaint within twenty days of notice of this Order. The motion to reclassify is denied.

Defendants are ordered to give notice of this order.

DATED: March 16, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court