Case Number: EC062941    Hearing Date: November 07, 2014    Dept: B

NOTICE: Department B will be dark on November 7, 2014. Please review the following tentative ruling. If you wish to have oral argument, please contact opposing counsel and agree upon one of the following dates for argument: November 21 or December 5. Then, please send an email to lmcfarlane@lacourt.org stating your case number, the agreed upon date for argument, and which party will give notice. The email must be received by 4:30 p.m. on November 7, 2014, or the Court’s tentative ruling will be the ruling and order of the Court. You may also send an email if you submit to the tentative ruling.

TENTATIVE RULING:

Demurrer and Motion to Strike

The Complaint alleges that the Defendant leased a motor vehicle from the Plaintiff under a written agreement. When the Defendant returned the motor vehicle, the Plaintiff discovered that the odometer had been tampered with in order to prevent the Plaintiff from determining the true mileage of the motor vehicle. This was a breach of contract, fraudulent, and violated the Federal Odometer Act. Further, the tampering with the odometer reduced the value of the Plaintiff’s interest in the motor vehicle because now it must be sold with a warning that the true mileage is unknown.

The causes of action in the Verified Complaint are:
1) Breach of Contract
2) Fraud
3) Trespass to Chattels
4) Violations of Federal Odometer Act

This hearing concerns the Defendant’s demurrer and motion to strike.

1. Demurrer to Second Cause of Action for Fraud

The Defendant argues that this cause of action lacks the particular facts needed to plead a fraud claim. The elements of a fraud cause of action are the following:

1) a representation, usually of fact, which is false;
2) knowledge of its falsity;
3) intent to defraud;
4) justifiable reliance upon the misrepresentation; and
5) damage resulting from that justifiable reliance
Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 72-73.

Facts constituting each element of fraud must be alleged with particularity; the claim cannot be saved by referring to the policy favoring liberal construction of pleadings. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216. Since fraud must be pleaded with particularity, the complaint must allege facts showing how, when, where, to whom, and by what means the representations were tendered. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.

The Plaintiff alleges in paragraph 29 that the Defendant represented to the Plaintiff, upon the return of the motor vehicle, that the odometer reading was the actual mileage of the motor vehicle. There are no allegations contained in the cause of action (as opposed to in the introductory paragraphs) identifying how, when, where, to whom, and by what means the representation was tendered. This is insufficient to plead the element of a false representation.

There are no allegations demonstrating that the Defendant knew that her representation was false. This is insufficient to plead the knowledge of falsity element.

There are no allegations in the cause of action demonstrating that the Defendant made the representation with the intent to defraud. This is insufficient to plead the intent to defraud element.

Therefore, the Court sustains the demurrer to the second cause of action for fraud because it lacks sufficient facts. Since this is the original Complaint, the Court grants 10 days leave to amend.

2. Third Cause of Action for Trespass to Chattels

The Defendant argues that there are insufficient facts to plead that she intentionally interfered with the Plaintiff’s motor vehicle. The elements of a cause of action for trespass to chattel are

1) the plaintiff’s possession of the property,
2) the defendant’s intentional interference with the plaintiff’s use of the property,
3) without the plaintiff’s consent, and
4) damages.
Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566-1567.

Trespass to chattel is seldom employed as a tort theory in California and its chief use is for recovery for interferences with the possession of chattels which are not sufficiently important to be classed as conversion. Id. When the conduct complained of does not amount to a substantial interference with possession or the right thereto, but consists of intermeddling with or use of the personal property, the owner has a cause of action for trespass to chattel, but not for conversion. Id.

The third cause of action lacks any allegation that the Defendant intentionally interfered with the Plaintiff’s use of the property. The Plaintiff alleges in paragraph 35, based on information and belief that the Defendant directly or indirectly caused or knew or should have known of the odometer tampering. This is insufficient to plead that the Defendant intentionally interfered with the Plaintiff’s use of the motor vehicle.

Therefore, the Court sustains the demurrer to the third cause of action for fraud because it lacks sufficient facts. Since this is the original Complaint, the Court grants 10 days leave to amend.

3. Fourth Cause of Action for Violation of Federal Odometer Act

The Defendant argues that there are insufficient allegations to demonstrate that she acted with fraudulent intent. The Plaintiff’s fourth cause of action is based on the Odometer Act, which is enacted at 49 USC sections 32701 to 32711 (aka the Motor Vehicle Information and Cost Savings Act). The Odometer Act has the purpose of prohibiting tampering with motor vehicle odometers and providing safeguards to protect purchasers in the sale of motor vehicles with altered or reset odometers. Section 32701(b).

The Odometer Act prohibits odometer tampering with intent to change the mileage registered by the odometer. Section 32703(2). In order to plead a claim under section 32710, the plaintiff must allege that the defendant violated the Odometer Act with intent to defraud the plaintiff as to the mileage. Bodine v. Graco, Inc. (9th Cir. Ariz. 2008) 533 F.3d 1145, 1151. Further, since this is a statutory claim, the pleadings must state with reasonable particularity the facts supporting the statutory elements of the violation. Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 619.

The Plaintiff alleges in paragraphs 40 to 42 that the Defendant violated the Odometer Act by failing to disclose the actual mileage, by altering the odometer, and with the intent to defraud and operate a motor vehicle on a street knowing that the odometer was disconnected or not operating. There are no allegations that the Defendant violated the Odometer Act with the intent to defraud the Plaintiff.

Therefore, the Court sustains the demurrer to the fourth cause of action for violation of the Federal Odometer Act because it lacks sufficient facts. Since this is the original Complaint, the Court grants 10 days leave to amend.

4. Motion to Strike

The Defendant sought to strike the claim for punitive damages in the second, third, and fourth causes of action. In light of the ruling to sustain the demurrers to the second, third, and fourth causes of action the motion to strike is moot and is taken off calendar.