Case Number: KC066561 Hearing Date: May 23, 2014 Dept: O

Bontek, Inc. v. Horizon tire Inc. (KC066561)

1. Defendant Horizon Tires’s DEMURRER TO COMPLAINT

Respondent: Plaintiff Bontek, Inc.

2. Defendant Horizon Tires’s MOTION TO STRIKE

Respondent: Plaintiff Bontek, Inc.

TENTATIVE RULING

1-2. Demurrer and Motion to Strike

Defendant Horizon Tires’s demurrer to complaint is OVERRULED as to the 1st – 2nd causes of action, and SUSTAINED with 10 days leave to amend as to the 3rd – 4th causes of action.

Defendant Horizon Tires’s motion to strike is GRANTED as to attorneys fees, and MOOT as to punitive damages.

1ST CAUSE OF ACTION: BREACH OF CONTRACT:
The elements for a breach of contract cause of action are: (1) the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damages. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) In alleging a breach of contract cause of action, it is necessary to specify whether the contract is written, oral or implied by conduct. (CCP 430.10(g).) In order to plead a written contract (the first element listed above), a plaintiff must, in addition to alleging the making of the contract, do one of the following: (1) set forth the contract in haec verba; or (2) plead the contract’s legal effect by alleging the substance of its relevant terms. (4 Witkin, California Procedure 4th Edition, ¿¿479-481.) In order to plead an oral contract, a plaintiff must plead its legal effect, i.e., allege the substance of the contractual terms. (Id., at 483.)

Par. 9 alleges that Plaintiff purchased 100 sets of tires from Defendant in the sum of $26,751.60, and also attaches written invoice as Exhibit A. Pars. 10-11 allege Plaintiff’s performance. Par. 13 alleges Defendant’s breach because the tires did not comply with EPA regulations. Par. 15 alleges breach. The complaint adequately alleges a written contract. Demurrer is OVERRULED.

2ND CAUSE OF ACTION: BREACH OF IMPLIED WARRANTY of MERCHANTABILITY:
The elements are: Plaintiff bought a product from defendant; at the time of purchase defendant was in the business of selling the goods, or by occupation was held out as having special knowledge or skill regarding the goods; the product was not of the same quality as those generally acceptable in the trade, was not fit for the ordinary purposes for which such goods are used, did not conform to the quality established by the parties’ prior dealings or by usage of trade, or another ground from Commercial Code section 2314(2) ; plaintiff took reasonable steps to notify defendant within a reasonable time that the product did not have the expected quality; plaintiff was harmed; and the failure to have the expected quality was a substantial factor in causing the harm. (CACI 1231; Comm. C. §2314 et seq.)

Par. 20 alleges that Defendant was a merchant with respect to tires. Par. 21 alleges that Defendant owes a duty that the tires are merchantable. Par. 22 alleges that the tires were not merchantable because it did not comply with EPA regulations. Par. 23 alleges Plaintiff’s steps notifying Defendant of the non-compliance and breach of warranty. Par. 24 alleges resulting damage. Demurrer is OVERRULED.

3RD CAUSE OF ACTION: NEGLIGENT MISREPRESENTATION:
The elements of a cause of action for negligent misrepresentation are: (1)The defendant must have made a representation as to a past or existing material fact; (2) the representation must have been untrue; (3) regardless of his actual belief the defendant must have made the representation without any reasonable ground for believing it to be true; (4) the representation must have been made with the intent to induce plaintiff to rely upon it; (5) the plaintiff must have been unaware of the falsity of the representation; he must have acted in reliance upon the truth of the representation and he must have been justified in relying upon the representation; (6) and, finally, as a result of his reliance upon the truth of the representation, the plaintiff must have sustained damage. (Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 402.) A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. (See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)

Par. 29 alleges that Defendant made certain misrepresentations, but the complaint fails to specifically allege who said what, in what manner, when, and under what authority to bind the corporate Defendant. Demurrer is SUSTAINED with 10 days leave to amend.

4TH CAUSE OF ACTION: BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING:
The elements are: 1) existence of contractual relationship; 2) implied duty; 3) breach; and 4) causation of damages. (E.g., Smith v. San Francisco (1990) 225 Cal.App.3d 38, 49; 1 Witkin Sum. Cal. Law (10th ed. 2005) Contracts § 800.)

The court finds Plaintiff failed to allege tortious conduct beyond mere Breach of Contract. Demurrer is SUSTAINED with 10 days leave to amend.

Motion to strike is GRANTED as to attorneys fees. Plaintiff failed to allege any right to attorneys fees per contract or law. Motion to strike punitive damages is MOOT in light of the court’s grant of leave to amend the fraud cause of action.