17-CIV-02816 PATRICE ELIZABETH JOY WRIGHT vs. CLUB SPORTIVA, INC., et al.

CLUB SPORTIVA, INC. craig Hansen

PATRICE ELIZABETH JOY WRIGHT JOHN C. STEIN

6. DEFENDANTS BANI AUTO GROUP AND SIAVOSH BANIHASHEMI aka SIA BANI DEMURRER TO SECOND AMENDED COMPLAINT

TENTATIVE RULING:

A. Demurrer for Uncertainty

The demurrer for uncertainty is overruled. “A demurrer for uncertainty will be sustained where the complaint is so bad that the defendant cannot reasonably respond; i.e., she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against her. (Weil & Brown, Cal. Civ. Proc. Before Trial para. 7:85 (citing Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury, supra, at 616).

Defendants acknowledge that the second and fifth causes of action are claims of product defects and likely for strict liability. (Moving P&A at 5:1-6.) Defendants contend that the second cause of action also could allege negligence liability. It could allege both. Regardless, the general legal theory is clear; the specific legal theory or theories can be determined through discovery. The fifth cause of action unequivocally alleges failure to warn as the basis of liability. (SAC para. 43 & 44.)

B. Second Cause of Action.

Demurrer to the second cause of action is overruled. The Court denies the request for judicial notice of the term “heat cycling.” Evidence Code section 451(e) does not support the request, as there appears no commonly acknowledged “true significance” of the term. Section 452(h) does not support the request, because the term is not a fact or a proposition, nor does there appear to be any source of reasonably indisputable accuracy regarding the term. Regardless, even if the Court took judicial notice of the meaning of heat cycling, the ruling on this demurrer would be unchanged, since the complaint sufficiently alleges that the automobile contained an alleged defect, regardless of what term is used to describe it.

The demurrer argues that heat cycling is a condition that results from using the tire; it is not a condition the tire is in when it leaves the manufacturer. This argument fails because the product at issue is the automobile. The tire is a component of the product, but the tire is not the product on which the complaint is based. The allegation is that if the tire was in defective condition because of heat cycling, then the automobile was in defective condition when Defendants turned over possession to Mr. Wright when he rented it. Those allegations, if proven, could allow a jury to conclude that the automobile was a product with a defect, which Defendants placed into the stream of commerce and about which Defendants allegedly failed to warn.

C. Fifth Cause of Action

Demurrer to the fifth cause of action is overruled. As with the second cause of action, the demurrer to the fifth cause of action assumes that the product at issue is the tire. The cause of action sufficiently alleges that Defendants failed to warn that the automobile was in defective condition.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiffs shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.

7. DEFENDANT CLUB SPORTIVA INC.’S JOINDER TO DEMURRER TO SECOND AMENDED COMPLAINT FILED BY DEFENDANTS BANI AUTO GROUP AND SIAVOSH BANIHASHEMI aka SIA BANI

TENTATIVE RULING:

Defendant Club Sportiva, Inc’s joinder is granted, and the demurrer is overruled as set forth above.

Defendants Bani Auto Group, Inc., Siavosh Banihashemi, and Club Sportiva, Inc. shall file and serve their respective Answers no later than April 6, 2018.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiffs shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.

8. DEFENDANTS BANI AUTO GROUP AND SIAVOSH BANIHASHEMI aka SIA BANI DEMURRER TO SECOND AMENDED COMPLAINT

TENTATIVE RULING:

Dropped from Calendar; this is an exact duplicate of line 6