Case Number: BC518181 Hearing Date: June 10, 2014 Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

GEORGE and BECKY WILLIAMS, )
) Case Number BC518181
Plaintiffs, )
) ORDER AFTER HEARING
v. )
) Date of Hearing:
FORD MOTOR COMPANY, et al., ) June 10, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The demurrer of Defendant Ford Motor Company to the Complaint came on for hearing on June 10, 2014. Plaintiffs George and Becky Williams appeared through their counsel of record, ________________. Defendant Ford Motor Company appeared through its counsel of record, ___________________________.

The motion to strike of Defendant Ford Motor Company to the Complaint came on for hearing on June 10, 2014. Plaintiffs George and Becky Williams appeared through their counsel of record, ________________. Defendant Ford Motor Company appeared through its counsel of record, ___________________________.

The motion to compel further responses of Defendant Ford Motor Company to the Complaint came on for hearing on June 10, 2014. Plaintiffs George and Becky Williams appeared through their counsel of record, ________________. Defendant Ford Motor Company appeared through its counsel of record, ___________________________.

The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, hereby ORDERS:

The demurrer of Defendant Ford Motor Company is SUSTAINED without leave to amend as to the fifth and sixth causes of action, and with leave to amend through July 1, 2014 as to the seventh, eighth, and ninth causes of action. The motion to strike portions of the complaint is MOOT.

Defendant Ford Motor Company’s motion to compel further responses to Form and Special Interrogatories (set one) is DENIED.

SO ORDERED this the _____ day of June, 2014.

______________________
RANDOLPH ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

GEORGE and BECKY WILLIAMS, )
) Case Number BC518181
Plaintiffs, )
) STATEMENT OF DECISION
v. )
) Date of Hearing:
FORD MOTOR COMPANY, et al., ) June 10, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. The principal case, filed by Plaintiffs George and Becky Williams (“Plaintiffs”), relates to a 1992 Lincoln-Mercury vehicle, manufactured by Defendant Ford Motor Company (“Ford”) purchased from Defendant Sonic-Carson LM, Inc., in 1992, and destroyed by fire in an incident on August 15, 2011.

2. Apparently, the vehicle in question ignited while it was turned off and parked in the garage. The resulting fire caused personal injuries due to smoke and fire, as well as property damage to the Plaintiffs’ home and belongings.

3. Plaintiffs filed their complaint on August 13, 2013 alleging causes of action for negligence, negligent infliction of emotional distress, strict product liability, failure to warn, breach of the implied warranty of merchantability, breach of express warranty, fraud, fraudulent concealment, negligent misrepresentation, and loss of consortium.

4. On November 22, 2013, Plaintiff-in-intervention State-Farm (“State-Farm”), as the Plaintiffs’ insurer, filed a motion for leave to intervene. The motion to intervene was granted by order dated January 6, 2014, with State-Farm to file a copy of its Complaint within 5 days. A demurrer to the Complaint-in-intervention was filed in February 4th, 2014, and sustained by order dated April 30, 2014.

5. The present demurrer and motion to strike was filed on November 6, 2013. The opposition to which was filed on May 28, 2014.

6. Defendant served its Special Interrogatories (set one) on Plaintiffs on October 18, 2013. Plaintiffs responded on December 24, 2013. On January 23 and February 6, 2014, Defendant requested further responses of Plaintiffs to the interrogatories. After additional conferring between the parties, apparently to no avail, Defendant filed its motion to compel on March 19, 2014. Plaintiffs filed their opposition on May 28, 2014.

7. Standard for ruling on demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Cal. Code Civ. Proc. § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action – i.e., if the complaint pleads facts that would entitle the plaintiff to relief. Limandri v. Judkins (1997) 52 Cal.App.4th 326, 339.

8. A general demurrer admits the truth of all factual, material allegations properly pleaded in the challenged pleading, regardless of possible difficulties of proof. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.

9. Pursuant to Cal. Code Civ. Proc. §§ 430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2001) 31 Cal.4th 1074, 1082. The burden is on the plaintiff to demonstrate how the complaint can be amended to state a valid cause of action. Id.

10. Fifth and Sixth Causes of Action (Breach of Warranty) – The elements for a breach of the implied warranty of merchantability are: (1) plaintiff bought a product from defendant; (2) at time of purchase, defendant was in the business of selling the goods; (3) the product was not of the same quality generally acceptable in the trade or was not fit for its ordinary use; (4) plaintiff took reasonable steps to notify defendant the product did not have expected quality; (5) plaintiff was harmed; and (6) the failure was a substantial factor in causing the harm. Com. Code §2314 et seq.

11. Under Commercial Code §2725, which governs the sale of goods, an action for breach of any contract for sale must be brought within four years after the cause of action accrues. “A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” Cal. Com. Code §2725(2). “[T]here is no ‘duration’ of the implied warranty under the Uniform Commercial Code in any meaningful sense; the product is either merchantable or not (and a breach of the implied warranty occurs or not) only at the time of delivery.” Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304.

12. The future performance exception under §2725(2), as noted in Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, is construed such that it “must be narrowly construed, and that it applies only when the seller has expressly agreed to warrant its product for a specific and defined period of time.” Id. at 130. A warranty does not extend to future performance “merely because it contains promises regarding the manner in which the goods will perform after tender of delivery.” Id. at 131. As such, the court in Cardinal Health found that a contractual provision guaranteeing a provision for “50,000 cycles” was not a warranty for future performance because it failed to specify a specific future date and time for which the warranty would be effective.

13. An implied warranty, by definition cannot contain an express agreement to warrant a product for a specific and defined period of time. As such, without needing to consider whether there is privity between Plaintiffs and Defendant, it is clear that §2725 of the Commercial Code renders Plaintiffs’ claim under breach of the implied warranty of merchantability impossible as a matter of law.

14. A similar analysis applies to the cause of action for breach of express warranties. The Complaint does not contain any facts or allegations that show that the express warranties given by Defendant explicitly extended to future performance. Moreover, the original purchase of the vehicle was in 1992. The incident alleged occurred in 2011. In light of the almost 20 year period between delivery and the incident, any such express warranty, with the attendant period of discovery, would have long since become barred by the statute of limitations, and become unavailing to Plaintiffs.

15. Accordingly, the demurrer is SUSTAINED with respect to the fifth and sixth causes of action without leave to amend as to the fifth.

16. Seventh Cause of Action (Fraud) – The elements for fraud are: (1) a misrepresentation; (2) knowledge of falsity; (3) intent to defraud (induce reliance); (4) justifiable reliance; and (5) resulting damage. Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184. For fraud claims, the pleadings must allege facts as to the “how, when, where, to whom, and by what means the representations were tendered.” Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. Where the defendant is a corporation, the pleading must provide the names of the persons who made the allegedly fraudulent misrepresentations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. See Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.

17. The facts as alleged in the Complaint do not satisfy the heightened pleading requirements for fraud against a corporate defendant. Plaintiffs never states who specifically made which representations to them, their authority to speak on behalf of Defendant, and the exact content of the communications.

18. Accordingly, the demurrer is SUSTAINED as to the seventh cause of action with leave to amend.

19. Eighth Cause of Action (Fraudulent Concealment) – The elements for fraudulent concealment are: (1) that defendant concealed or suppressed a material fact; (2) defendant was under a duty to disclose the fact; (3) defendant intentionally concealed or suppressed the fact with the intent to defraud; (4) plaintiff was unaware of the fact and would not have acted in the same way knowing of the concealed fact; (5) causation; and (6) damage to the plaintiff. Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC. (2008) 162 Cal.App.4th 858, 868. A fraudulent concealment cause of action does not require the same degree of specificity called for under a cause of action for fraudulent misrepresentations. See Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217 (“Less specificity is required when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy”) (citations omitted) (superseded by statute on other grounds).

20. The Complaint alleges that Defendant knew of the defect, concealed it, did so to induce reliance, Plaintiffs was in fact unaware, and the defect cause damages to the Plaintiffs. Complaint at ¶¶67-73. However, the Complaint does not allege anywhere that Defendant was under a duty to the Plaintiff to disclose the defect. As such, even with a relaxed standard of pleading, Plaintiffs have not alleged facts required to meet every element of their cause of action.

21. Accordingly, the demurrer is SUSTAINED as to the eighth cause of action with leave to amend.

22. Ninth Cause of Action (Negligent Misrepresentation) – The elements for negligent misrepresentation are: (1) assertion of an untrue fact; (2) believed by defendant to be true; (3) without reasonable grounds for that belief; (4) defendant intended to induce plaintiff’s reliance on the representation; (5) plaintiff justifiably relied on that representation; and (6) resulting damage. Melican v. Regents of Univ. of Cal. (2007) 151 Cal.App.4th 168, 182.

23. Defendant contends that a cause of action for negligent misrepresentation requires the same specificity of pleading as required under a fraud cause of action, citing Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, Aspiras v. Wells Fargo Bank, N.A. (2013) 219 Cal.App.4th 948, National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, and Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513. As Aspiras has been ordered de-published by our Supreme Court, it has no precedential value.

24. Our Supreme Court in Small ruled that “a complaint for negligent misrepresentation in a holder’s action should be pled with the same specificity required in a holder’s action for fraud.” Small, supra, 30 Cal.4th at 184. More generally, the Court noted that requiring specificity in pleading a negligent misrepresentation cause of action was implied in the reasoning of Committee on Children’s Teleivision, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, and B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823. However, the Court took particular effort to note that it “express[ed] no view on whether this pleading requirement would apply in other actions for negligent misrepresentation.” Id. The Small court required the specificity in that case because of the potential for false claims.

25. The Cadlo court, in a tort action related to asbestos exposure, thereafter adopted and expanded what the Small Court merely implied, that “[e]ach element in a cause of action for fraud or negligent misrepresentation must be factually and specifically alleged.” Cadlo, supra, 125 Cal.App.4th at 519. This formed the basis of “a consensus that the causal elements, particularly the allegations of reliance, must be specifically pleaded.” National Union Fire, supra, 171 Cal.App.4th at 50. The only apparent conflict is in the “precise degree of particularity required in the pleading of a claim for negligent misrepresentation.” Id. As such, although Defendant is correct in stating that these cases do not directly stand for the proposition that specificity in pleading is required for negligent misrepresentation in the specific and exact context of the sale of automobiles, the cited cases do establish that, more generally, a cause of action for negligent misrepresentation requires specificity in pleading.

26. The Complaint as it stands does not contain the factual specificity required under the Small-Cadlo-National Union Fire Insurance line of cases.

27. Accordingly, the demurrer to the sixth cause of action is SUSTAINED with leave to amend.

28. As Plaintiffs have leave to amend the Complaint as to the fraud causes of action, the motion to strike portions of the Complaint is therefore moot.

29. Motion to Compel Further Responses – Code of Civil Procedure §2030.300 provides for a party to bring a motion to compel further responses to interrogatories where the propounding party finds that (1) answers are evasive or incomplete, (2) option to produce documents under §2030.230 is unwarranted or the required specification of those documents is inadequate, or (3) objections are without merit or too general. CCP §2030.300(a). A motion to compel must be accompanied by a meet and confer declaration under §2016.040. CCP §2030.300(b).

30. Plaintiffs have apparently agreed to provide supplemental responses to all but Special Interrogatories numbers 9 and 18. Opposition, Exhibit D. These interrogatories call for all facts supporting Plaintiffs’ contention that Defendant negligently manufactured the vehicle, and all facts supporting Plaintiffs’ contention that each part, component, or system identified by Plaintiffs was negligently or defectively manufactured.

31. Defendant argues that Plaintiffs’ responses to No. 9 and 18 are responses going specifically to a design defect, as opposed to a manufacturing defect, as is called for by the interrogatories. Plaintiffs’ responsive answer states:

Ford utilized a switch that was designed to be used in situations involving 1 to 2 amps and placed it on a circuit that receives upwards of 15 amps. Furthermore the switch did not have a separate fuse and was placed on a circuit that was continually energized even was (sic) the vehicle was off. And, despite the amps being sent to the switch and the fact that it was continually energized, Ford placed the switch immediately adjacent to flammable fluid. Then, despite knowing that the switch could cause fires in its vehicles Ford failed to take reasonable or appropriate measures to notify Plaintiffs of the dangers in its vehicle. Motion, Exhibit D.

32. As noted in Plaintiffs’ opposition, the facts stated, though lending themselves most readily to a design defect claim, could nonetheless suggest a manufacturing defect. As the interrogatory calls for facts and not legal theories, Plaintiffs’ response appear to have alleged what facts are in the Plaintiffs’ possession which suggest a manufacturing defect.

33. Accordingly, the Defendant’s motion to compel further responses to Special Interrogatories (set one) is DENIED.

SO ORDERED AND ADJUDGED this the ______ day of June, 2014.

_____________________________
RANDOLPH A. ROGERS, JUDGE