Case Number: VC063644 Hearing Date: June 12, 2014 Dept: SEC

MACDUE INTERNATIONAL, LTD. v. JAM’N PRODUCTS INC.
CASE NO.: VC063644
HEARING: 06/12/14

#6
TENTATIVE ORDER

Cross-defendant MACDUE INTERNATIONAL LTD’s demurrer to the First Amended Cross-Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.
C.C.P. § 430.10(e).

The motion to strike the claim for punitive damages is GRANTED. C.C.P. §§ 435, 436.

Cross-defendant has 20 days to file a responsive pleading to the remainder of the pleading.

In November 2013, plaintiff MACDUE filed its complaint seeking the principal sum of $177,253.32 on an open book account. In December, defendant JAM’N PRODUCTS INC. filed an answer and a cross-complaint for intentional and negligent misrepresentation, negligent manufacture and breach of implied warranty. This Court sustained cross-defendant’s prior demurrer thereto, fining that the fraud claims were not pled with the requisite specificity. Cross-defendant challenges the FAXC on the same ground, and also demurs to the negligent manufacture claim.

As alleged, in April 2011, cross-complainant JAM’N purchased some remote control cars from Macdue. FAXC, ¶7. Several named agents of Macdue represented, at the time the order was placed, that the toys were “brand-new, unopened and defect-free.” ¶8. Upon receipt of the products, JAM’N tested several and found they were “defective.” ¶9. The sole defect alleged is that the remote control unit worked only at 5 feet and should actually work at a distance of 25 feet. Cross-complainant alleges that is contrary to industry standard (but does not allege what that industry standard is, or that cross-defendant and its agents were aware of such standard).

Cross-complainant does not allege that the “authorized agents” made an representations about the distance at which the toys could perform. It also did not allege that they had the same understanding as to the applicable “industry standard,” so that their statements that the toys were “defect-free” were in fact misrepresentations intended to deceive. The facts may be sufficient to support a breach of contract, but cross-complainant has thus not stated a claim for either an intentional or negligent misrepresentation. The demurrer to the 1st and 2nd causes of action is sustained.

With respect to the 3rd cause of action for negligent manufacture, the pleading lacks any facts showing an unreasonable risk of injury due to the alleged defect and thus has not articulated a duty of care. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 57-58. Cross-complainant’s remedy for its economic loss lies in contract, not tort. Id. It did not oppose the demurrer to the 3rd cause of action.

Motion to strike
A claim for punitive damages is proper where the plaintiff alleges fraudulent conduct. C.C. § 3294. As noted above, cross-complainant has not stated a cause of action for fraud. Its punitive damages claim is thus stricken.

Cross-complainant was given an opportunity to amend the pleading to state a cause of action for fraud. It again failed to allege sufficient facts to support the claim. Because it appears from the opposing papers that such facts cannot be alleged, the demurrer is sustained without leave to amend.