Tentative Rulings

Case Number: ****0074    Hearing Date: July 28, 2020    Dept: 37

Case Number ****0074      Hearing Date: July 28, 2020     Dept: 37

HEARING DATE: July 28, 2020

CASE NUMBER: ****0074

CASE NAME: Eddie Urquiza v. BMW of North America, LLC, et al.

MOVING PARTY: Defendant, BMW of North America, LLC

OPPOSING PARTY: Plaintiff Eddie Urquiza

TRIAL DATE: June 29, 2021

PROOF OF SERVICE: OK

PROCEEDING: Defendant’s Motion for Summary Adjudication

OPPOSITION: July 14, 2020

REPLY: July 23, 2020

TENTATIVE: BMW’s motion for summary adjudication of the fifth cause of action is GRANTED. BMW is to give notice.

Background

This is a lemon law action arising out of Plaintiff, Eddie Urquiza (“Plaintiff”)’s purchase of a BMW 550i vehicle (“Subject Vehicle”) on April 1, 2014. Plaintiff contends he received an express written warranty in connection with the purchase and that during the warranty period, the Subject Vehicle developed defects including excessive oil consumption, a burnt oil smell, erroneous “low oil” light, coolant leaks, spark plus defects, and other defects. Plaintiff further alleges that Defendant, BMW North America, LLC (“BMW”) knew or should have known that the Subject Vehicle’s “twin-turbo charged engine” was defective as early as mid-2008 and that the oil defects, specifically, are safety concerns because they can cause engine failure while the Subject Vehicle is in operation.

Plaintiff’s Complaint alleges the following causes of action against BMW: (1) Violation of Civil Code ; 1793.2(d), (2) Violation of Civil Code ; 1793.2(b), (3) Violation of Civil Code ; 1793.2(a)(3), (4) Breach of Express Written Warranty, (5) Breach of Implied Warranty of Merchantability, and (6) Fraud.

BMW now moves for summary adjudication on Plaintiff’s fifth cause of action for breach of the implied warranty of merchantability on the grounds that liability for breach of the implied warranty of merchantability rests with the third-party reseller, not BMW.

Plaintiff opposes the motion.

Factual Summary

On June 10, 2013, Plaintiff purchased the Subject Vehicle from non-party Benz Boys. (Separate Statement of Material Facts in Support of Motion (“DSS”), ¶ 1; Declaration of Daniel R. Villegas (“Villegas Decl.”), Exhibit B (Plaintiff Depo) at pp. 6:10-7:10, 46:3-50:12; Villegas Decl., Exhibit C.) Benz Boys is an independent car dealer and not an authorized BMW dealer. (Villegas Decl., Exhibit B at pp. 53:12-25, 55:12-25; Declaration of Larry Koh (“Koh Decl.”), ¶ 3.)

BMW was the original distributor of the Subject Vehicle when it was new and made express warranties with respect to the Subject Vehicle when it was new. (DSS ¶ 4; Villegas Decl., Exhibit B at p. 53:13-25; Koh Decl. ¶ 4.) BMW did not make any express warranties with respect to the sale of the Subject Vehicle as a used vehicle by Benz Boys. (Id.)

Plaintiff disputes BMW’s contention that it did not make any warranties with respect to the Subject Vehicle’s sale by Benz Boys. (Separate Statement of Facts in Support of Opposition (“PSS”), ¶ 4.) According to Plaintiff, BMW offered various warranties in connection with the Subject Vehicle’s sale, with the longest one covering 15 years or 150,000 miles. Further, and according to Plaintiff, BMW’s “Warranty Information Booklet” provides as follows:

“BMW of North America, LLC (BMW NA) warrants 2011 U.S. -specification vehicles distributed by BMW NA or sold through the BMW NA European Delivery Program against defects in materials or workmanship to the first retail purchaser, and each subsequent purchaser.”

“This warranty applies to California certified vehicles distributed by BMW of North America (BMW NA) or sold through the BMW NA European Delivery Program, registered and operated primarily in California. BMW NA warrants to the original purchaser and each subsequent owner that the vehicle is: a. designed, built and equipped so as to conform with the applicable California Air Resources Board emission standards. b. free from defects in materials and workmanship which cause any part that can affect emissions to fail to conform with applicable requirements or to fail a California Smog Check test or EPA approved short test for a period of 15 years or 150,000, whichever occurs first. c. free from defects in materials and workmanship in emission related parts for a period of 15 years or 150,000, whichever occurs first.”

(Sogoyan Decl., Exhibit 2 at Bates numbers URQUIZA_BMWNA000472, 000474, 000479.)

Discussion

1. Legal Standard

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.  The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct….  The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.  The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

(Code Civ. Proc., ; 437c, subd. (a).)  A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code Civ. Proc., ; 437c, subd. (c).) 

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.  The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.  Each of the material facts stated shall be followed by a reference to the supporting evidence.  The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.”  (Code Civ. Proc., ; 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).) 

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).)  Pursuant to Code Civ. Proc., ; 437c, subdivision (p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.  Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.  The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

(Code Civ. Proc., ; 437c, subd. (p)(2).)  The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”  (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].)  A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387). 

1. Analysis

Pursuant to Civil Code section 1795.5, the Song-Beverly Act also provides enhanced remedies to consumers who buy used consumer goods accompanied by an express warranty. (Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 336 (Kiluk) [a manufacturer who offers a certified pre-owned warranty in connection with a third-party sale of a used vehicle also liable under Civil Code section 1795.5]). Specifically, Civil Code section 1795.5, subdivision (a) provides as follows: It shall be the obligation of the distributor or retail seller making express warranties with respect to used consumer goods (and not the original manufacturer, distributor, or retail seller making express warranties with respect to such goods when new) to maintain sufficient service and repair facilities within this state to carry out the terms of such express warranties.”

BMW contends that summary adjudication is warranted with respect to the fifth cause of action because it is undisputed that Plaintiff purchased the Subject Vehicle from Benz Boys, a third party independent re-seller. (Motion, 2-3.) BMW contends that because it was not the distributor or retailer with respect to Benz Boy’s sale of the Subject Vehicle, BMW is therefore not liable for breach of the implied warranty of merchantability as a matter of law. (Id.)

In opposition, Plaintiff contends that BMW’s motion must be denied because BMW is liable under Civil Code section 1795.5 by offering several warranties in connection with the Subject Vehicle, with the longest one covering 15 years or 150,000 miles. (Opposition, 2-3.) Specifically, Plaintiff contends that the Subject Vehicle was distributed with all of the following express warranties: (1) a 4-year/50,000-mile bumper-to-bumper warranty; (2) an 8-year/80,000-mile Federal Emission Warranty; and (3) a 15-year/150,000-mile California Emission Control Warranty. (Opposition, 3; Sogoyan Decl., Exhibit 2 at pp. URQUIZA_BMWNA000472, 000474, 000479.) Plaintiff relies on Kiluk for the argument that BMW is liable under Civil Code 1795.5 because it “partnered” with Benz Boys to offer various warranties for the Subject Vehicle. 

In reply, BMW contends that Plaintiff’s reliance on Kiluk is misplaced because the Defendant in Kiluk offered a certified pre-owned vehicle warranty whereas BMW did not offer any warranties in connection with the Subject Vehicle’s sale as a used vehicle. (Reply, 1-4.) BMW contends that because it did not offer any warranties in connection with the Subject Vehicle’s sale as a used vehicle, Kiluk does not apply and BMW is not liable for breached of the implied warranty of merchantability. (Id.)

As such, and viewing the evidence submitted in the light most favorable to Plaintiff, the court finds that there is no triable issue of material fact with respect to BMW’s liability under Civil Code section 1795.5. BMW has demonstrated that it was not “partnered” with Benz Boys in the sale of the Subject Vehicle.

Given the foregoing, BMW’s motion for summary adjudication is GRANTED.

Conclusion

BMW’s motion for summary adjudication is GRANTED. BMW is to give notice.

Case Number: ****0074    Hearing Date: July 08, 2020    Dept: 37

HEARING DATE: July 8, 2020

CASE NUMBER: ****0074

CASE NAME: Eddie Urquiza v. BMW of North America, LLC

MOVING PARTIES: Plaintiff, Eddie Urquiza

OPPOSING PARTY: Defendant, BMW of North America, LLC

TRIAL DATE: None

PROOF OF SERVICE: OK

PROCEEDING: Plaintiff’s Motion to Compel Deposition of Michael Murray and Production of Documents at Deposition

OPPOSITION: June 24, 2020

REPLY: June 30, 2020

TENTATIVE : Plaintiff’s Motion to Compel is DENIED. Plaintiff’s request for sanctions is also denied. Defendant is to give notice.

Background

This is a lemon law action arising out of Plaintiff, Eddie Urquiza (“Plaintiff”)’s purchase of a BMW 550i vehicle (“Subject Vehicle”) on April 1, 2014. Plaintiff contends he received an express written warranty in connection with the purchase and that during the warranty period, the Subject Vehicle developed defects including excessive oil consumption, a burnt oil smell, erroneous “low oil” light, coolant leaks, spark plus defects, and other defects. Plaintiff further alleges that Defendant, BMW North America, LLC (“BMW”) knew or should have known that the Subject Vehicle’s “twin-turbo charged engine” was defective as early as mid-2008 and that the oil defects, specifically, are safety concerns because they can cause engine failure while the Subject Vehicle is in operation.

Plaintiff’s Complaint alleges the following causes of action against BMW: (1) Violation of Civil Code ; 1793.2(d), (2) Violation of Civil Code ; 1793.2(b), (3) Violation of Civil Code ; 1793.2(a)(3), (4) Breach of Express Written Warranty, (5) Breach of Implied Warranty of Merchantability, and (6) Fraud.

On February 6, 2019, Plaintiff filed a motion to compel the deposition of Defendant’s employee Michael Murray (“Murray”), who Plaintiff alleges is a Senior Project Engineer at BMW and the individual who oversaw, was responsible for, assessed and/or directed the various countermeasure(s) that BMW allegedly implemented in its attempt to repair the engine defect in its N63 engines. The motion came on for hearing on March 6, 2019, at which time the court denied the motion without prejudice for failure to demonstrate good cause to seek Murray’s deposition.

Plaintiff now moves again to compel Murray’s deposition and production of documents at his deposition. Defendant opposes the motion.

Evidentiary Objections

Plaintiff’s objections to Arani Declaration

Overruled: 1, 7, 8,

Sustained: 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 14, 15,

Defendant’s objections to Sagoyan Decl.

Overruled:

Sustained: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10-22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32,

Request for Judicial Notice

The court “may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language….  From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.”  (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265, disapproved on other grounds by Yvanova Mortg. Corp.

Plaintiff requests, pursuant to Evidence Code sections 452 and 453, that the court take judicial notice of all of the following:

1. Declaration of Caitlin J. Scott in Support of Plaintiff’s Ex Parte Application for an Order (1) Compelling Compliance with the Court’s June 14, 2019 Discovery Order and Either (2) for Prospective Sanction of $500 Per Day, or Shortening Time for a Hearing on a Motion for Sanctions, from the McDonald v. BMW of N. Am., LLC (San Diego Superior Court, Case No. 37-2017-00025907-CU-BC-CTL) matter, and Exhibit 4 thereto.

2. Order granting in part Plaintiff’s motion to compel the deposition of Defendant’s employee, Michael Murray, in the matter of Zargarian v. BMW of N. Am., LLC, No. CV184857RSWLPLAX, 2019 WL 6111732 (C.D. Cal. Sept. 23, 2019), review denied, No. CV 18-4857-RSWL-PLA, 2019 WL 6111733 (C.D. Cal. Nov. 5, 2019).

3. Order granting in part Plaintiff’s ex part application to strike the cross-notice of deposition of Defendant’s employee, Michael Murray, and compelling a signed discovery declaration, in the matter of Zargarian v. BMW of N. Am., LLC, No. CV184857RSWLPLAX, 2019 WL 6271266 (C.D. Cal. Nov. 19, 2019).

4. Order granting in part Plaintiff’s motion to compel in the matter of Jensen v. BMW of N. Am., LLC, 328 F.R.D. 557 (S.D. Cal. 2019).

Plaintiff’s request is granted. The existence and legal effect of this order is judicially noticeable; reasonably disputable issue of fact contained therein are not.  

Meet and Confer 

A motion to compel deposition must be accompanied by a good faith meet and confer declaration under section 2016.040 or, “when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  (Code Civ. Proc., ; 2025.450, subd. (b)(2).)  A declaration under section 2016.040 must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion.  (Code Civ. Proc., ; 2016.040.)  “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel….  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 (Clement).)  “A determination of whether an attempt at informal resolution is adequate involves the exercise of discretion.”  (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016, internal ellipses omitted.) 

Because this motion has previously come on for hearing the court will not discuss Plaintiff’s meet and confer efforts as to the prior motion.

Plaintiff’s attorney, Gregory Sogoyan (“Sogoyan”) attests that on September 23, 2019, the court in the matter Henrik Zargarian v. BMW NA (US District Ct. CDCA Case No. CV18-4857) granted in part Plaintiff’s motion to compel Murray’s deposition. (Sogoyan Decl. ¶ 13, Exhibit 7.) Sogoyan further attests that on November 8, 2019, he “became aware” that Defendant had also cross-noticed Murray’s deposition in a number of other matters. (Sogoyan Decl. ¶ 14.) As a result, Sogoyan attests that on November 15, 2019, he attempted to confer with defense counsel about a date for Murray’s deposition in this instant matter but did not receive a response. (Sogoyan Decl. ¶¶ 16- 17.) Thereafter, Sogoyan attests that his office noticed Murray’s deposition on March 6, 2020. (Sogoyan Decl. ¶ 18, exhibit 12.) After defense counsel objected to the notice of deposition, the parties met and conferred on several occasions by telephone and by email through May 8, 2020 but did not come to an agreement. (Sogoyan Decl. ¶ 21, Exhibits 14-21.)

Given the foregoing, the court finds that Plaintiff has sufficiently met and conferred prior to bringing the instant motion.

Discussion 

1. Legal Standard 

   Code of Civil Procedure, section 2025.450, provides in relevant part:

   (a)  If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.  

   (Code Civ. Proc., ; 2025.450, subd. (a).)  The motion must set forth specific facts justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.  (Id. ; 2025.450, subd. (b)(1).)   

2. Analysis

   Plaintiff requests the court compel Defendant’s employee Michael J. Murray (“Murray”)’s attendance at deposition on the grounds that Murray is a senior engineer who was responsible for overseeing and/or directing the implementation of the various counter measures with respect to the alleged engine defect at issue in the Complaint.  (Mot. 11-13.) Although Plaintiff’s memorandum of points and authorities makes no reference to why he believes Murray’s deposition to be necessary, Plaintiff contends that court rulings and documents in other actions should be considered as evidence that Murray’s deposition should be compelled in the instant action. As discussed above, the truth of any other court’s findings of fact constitute inadmissible hearsay and may not be considered for the truth of the findings on the subject motion.

   In opposition, Defendant contends that Plaintiff’s motion should be denied in its entirety based on all of the following reasons: (1) Murray is not a percipient witness, and will not be designated to testify in this action, (2) because Murray has testified in other actions, Plaintiff should be required to use his testimony from other actions rather than be allowed to obtain a third deposition regarding substantially the same information, and (3) plaintiff’s requested production of documents is irrelevant and burdensome. (Opposition, 4-7.)

   Defendant submits Murray’s declaration in support of their opposition. Murray attests that he is employed by Defendant in New Jersey as a senior engineer and is not an officer, director or managing agent for Defendant. (Murray Decl. ¶ 1.) Murray attests that he has no personal knowledge of Plaintiff’s vehicle or of Plaintiff and has never inspected Plaintiff’s vehicle. (Murray Decl. ¶¶ 3-4, 6.) Further, Murray attests that he has never reviewed any documents regarding Plaintiff’s vehicle or from this action generally. (Murray Decl. ¶¶ 4-5.) Finally, Murray attests that he has been deposed by Plaintiff’s attorneys in two other matters on August 8, 2019 and November 21, 2019, and that each time he did not have any knowledge about the specific vehicles involved in each action. (Murray Decl. ¶¶ 8-11.)

   In reply, Plaintiff contends that Murray’s deposition, and not that of a PMK is warranted because Murray “knows the story behind the story.” (Reply, 3.) Plaintiff appears to reiterate their earlier contentions that Murray was deeply involved in all facets of internal investigations that gave rise to TSBs and/or recalls pertaining to the N63 engine and its various defects. (Id.) Plaintiff’s reply relies on Murray’s testimony and/or documents produced in other actions to support their contention that Murray’s testimony is required for the instant action.

   Given the foregoing, the court again finds that Plaintiff has failed to point to admissible evidence to establish that Murray is knowledgeable about the facts of the instant action. Instead, Plaintiff argues that Murray’s deposition is necessary because it has been found to be necessary in other actions. The fact that a plaintiff in a different action believed Murray had relevant information for his claims is insufficient to demonstrate that Murray actually has any knowledge of any alleged defects in the instant action.

   Plaintiff contention that Murray’s importance to this action is his knowledge of N63 engine defects, then Plaintiff’s arguments must fail because he has failed to demonstrate why his prior testimony on these subjects is insufficient. Given that Plaintiff does not contend that Murray has testimony specific to Plaintiff’s N63 engine defect, Plaintiff fails to demonstrate why additional Murray depositions as to general N63 information would be required.

   Accordingly, Plaintiff fails to demonstrate good cause for the requested deposition and as the deposition will not be taken the document production is moot.

3. Monetary Sanctions

   Code of Civil Procedure, section 2025.450, subdivision (g) requires the court to impose a monetary sanction in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc., ; 2025.480, subd. (j).)

   Plaintiff requests $1,500 in monetary sanctions against Defendant “or such other sanctions as the [c]ourt sees fit.” (Motion, 14.) However, given the circumstances, the court finds that imposition of sanctions would be unjust. As such, no sanctions will be awarded.

   Conclusion

   Plaintiff’s Motion to Compel is DENIED, subject to Plaintiff using Mr. Murray’s two prior depositions taken by Plaintiff’s counsel in other actions. Plaintiff’s request for sanctions is also denied. Defendant is to provide notice.

Case Number: ****0074    Hearing Date: February 10, 2020    Dept: 37

HEARING DATE: February 10, 2020

CASE NUMBER: ****0074

CASE NAME: Eddie Urquiza v. BMW of North America, LLC

MOVING PARTIES: Defendant BMW of North America, LLC

OPPOSING PARTY: Plaintiff, Eddie Urquiza

TRIAL DATE: None

PROOF OF SERVICE: OK

PROCEEDING: Defendant’s Motion for Judgment on the Pleadings

OPPOSITION: January 28, 2020

REPLY: January 31, 2020

TENTATIVE: BMW’s motion for judgment on the pleadings is GRANTED. Plaintiff is given leave to amend within 30 days of this date. Moving party’s counsel to give notice.

Background

This is a lemon law action arising out of Plaintiff, Eddie Urquiza (“Plaintiff”)’s purchase of a BMW 550i vehicle (“Subject Vehicle”) on April 1, 2014. Plaintiff contends he received an express written warranty in connection with the purchase and that during the warranty period, the Subject Vehicle developed defects including excessive oil consumption, a burnt oil smell, erroneous “low oil” light, coolant leaks, spark plus defects, and other defects. Plaintiff further alleges that Defendant, BMW North America, LLC (“BMW”) knew or should have known that the Subject Vehicle’s “twin-turbo charged engine” was defective as early as mid-2008 and that the oil defects, specifically, are safety concerns because they can cause engine failure while the Subject Vehicle is in operation.

Plaintiff’s Complaint alleges the following causes of action against BMW: (1) Violation of Civil Code ; 1793.2(d), (2) Violation of Civil Code ; 1793.2(b), (3) Violation of Civil Code ; 1793.2(a)(3), (4) Breach of Express Written Warranty, (5) Breach of Implied Warranty of Merchantability, and (6) Fraud.

BMW now moves for judgment on the pleadings as to Plaintiff’s sixth cause of action for fraud. Plaintiff opposes the motion.

Discussion

1. Legal Authority

A defendant may move for judgment on the pleadings if the complaint does not state facts sufficient to constitute a cause of action against the defendant. (Code Civ. Proc., ; 438, subds. (b)(1) & (c)(1)(B)(ii).) Except as provided by statute, the rules governing demurrers govern motions for judgment on the pleadings. (Cloud v. Northrup Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Therefore, the grounds for a motion for judgment on the pleadings must be apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Ibid.) The court accepts the truth of all material facts properly pleaded, but not the truth of “contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

As with demurrers, “[d]enial of leave to amend after granting a motion for judgment on the pleadings is reviewed for abuse of discretion.” (Ott v. Alfa-Laval Agri, Inc. (1995) 31 Cal.App.4th 1439, 1448.) “It is an abuse of discretion to deny a party leave to amend a complaint if there is a reasonable possibility the pleading can be cured by amendment.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 444.)

1. Analysis

The elements of a fraud cause of action are: (1) misrepresentation (false representation, concealment, or omission); (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Davis v. Southern California Edison Co. (2015) 236 Cal.App.4th 619.) Fraud must be pled in the complaint specifically. General and conclusory allegations are not sufficient. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 74; Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268.) Unlike most causes of action where the “the policy of liberal construction of the pleadings,” fraud requires particularity, that is, “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield, supra, 220 Cal.App.3d at 73; Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Every element of a fraud cause of action must be alleged both factually and specifically. (Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904; Cooper v. Equity General Insurance (1990) 219 Cal.App.3d 1252, 1262.)

The economic loss rule requires plaintiff to recover in contract for purely economic loss due to disappointed contractual expectations, unless he can demonstrate harm above and beyond a broken contractual promise. (Robinson Helicopter Co. v. Dana Corp. (2004) 34 Cal.4th 979, 988.) An “economic loss” consists of damages for inadequate value, costs of repair, and replacement, or consequent loss of profits, without any claim of personal injury or damages to other property. (Robinson, supra, 34 Cal.4th at 988; see also Jimenez v. Superior Court (2002) 29 Cal.4th 473.) “A person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations. Instead, ‘[c]ourts will generally enforce the breach of a contractual promise through contract law, except when the actions that constitute the breach violate a social policy that merits the imposition of tort remedies.’ [Citations.]” (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1041.)

BMW moves for judgment on the pleadings as to Plaintiff’s cause of action for fraud on the grounds that it is barred by the economic loss rule. (Motion, 1-4). Further, BMW contends that the Complaint fails to allege any affirmative misrepresentations by BMW. (Id.)

Plaintiff’s opposition does not argue against application of the economic loss rule or articulate how the complaint pleads the elements of fraud with particularity.

Here, the Complaint alleges that BMW committed fraud by allowing the Subject Vehicle to be sold without disclosing that the Subject Vehicle “was defective and susceptible to sudden and premature failure.” (Complaint, ¶ 35.) Plaintiff specifically contends that BMW was “well aware and knew” that the Subject Vehicle’s engine “was defective” such that the Subject Vehicle was “unable to properly utilize the engine oil.” (Complaint ¶¶ 36-37.) The Complaint also alleges that BMW acquired its knowledge about the defective nature of the Subject Vehicle’s engine well prior to Plaintiff’s purchase of the Subject Vehicle, was in a superior position to know of the true facts of the defect, and, as such, had a duty to disclose this information to Plaintiff. (Complaint ¶¶39-40, 42.) Plaintiff alleges that he “has suffered and will continue to suffer actual damages” as a result of BMW’s alleged fraud. (Complaint ¶ 46.) Plaintiff prays for actual damages, restitution, civil penalties pursuant to Civil Code section 1794, costs of suit, punitive damages and prejudgment interest in connection with all causes of action in the Complaint. (see Complaint, Prayer for Damages.)

Given the lack of a coherent opposition to the motion, the court grants BMW’s motion for judgment on the pleadings. The Complaint does not allege that Plaintiff suffered any tort damages beyond economic damages to the Subject Vehicle due to its alleged defects. Further, as BMW asserts, the Complaint fails to allege that BMW made any affirmative misrepresentations. Instead, the Complaint appears to only allege that BMW learned of alleged defects to the Subject Vehicle but failed to disclose them. As such, Plaintiff’s cause of action for fraud is insufficiently pled.

Conclusion

BMW’s motion for judgment on the pleadings is granted. Plaintiff is given leave to amend within 30 days of this date.