Gary Wei Tan V. Rebecca Barzi

Matter on the Law & Motion Calendar for Monday, July 15, 2024, Line 8. PLAINTIFF JANE KANTER AND BRYON COOPER's APPLICATION AND HEARING FOR RIGHT TO ATTACH ORDER. Plaintiffs Jane Kanter and Byron Cooper's application for right to attach is granted and denied in part. The application is denied as to Jane Kanter. The evidence indicates that she acted as counsel for defendant Grail Partners LLC, failed to comply with CRPC 1.8.1 and the restated promissory note is voidable as to her. Plaintiff may be able to pursue a restitution claim. The application is granted as to Byron Cooper. Byron Cooper's claim is one upon which attachment may be issued, the amount owed is readily ascertainable, he establishes the probable validity of the claim, and the application is sought for a proper purpose. Fergus v. Songer (2007) 150 Cal.App.4th 552, 574 indicates that he has an independent right to enforce the agreement notwithstanding co-plaintiff's alleged violation of CRPC 1.8.1. None of defendants' other affirmative defenses has merit. Plaintiff Cooper to provide a judicial council form of order and email it to contestdept302tr@sftc.org prior to the hearing. The order shall provide for attachment for $1,260,920. Plaintiff Cooper shall also post an undertaking of $10,000. Plaintiff shall also prepare an additional proposed order setting out the above and email it to contestdept302tr@sftc. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)

23CV038384: CITY OF ALAMEDA vs SHEEHAN 07/18/2024 Hearing on Demurrer Plaintiff City of Alameda’s Demurrer to Second Amended Cross-Complaint of Shelby Sheehan; filed by City of Alameda (Plaintiff) in Department 17 Tentative Ruling - 07/16/2024 Frank Roesch The Demurrer filed by City of Alameda on 05/17/2024 is Sustained. Plaintiff/Cross-Defendant City of Alameda’s (“the City”) demurrer to Defendant/Cross- Complainant Shelby Sheehan’s (“Cross-Complainant”) Second Amended Cross-Complaint (“SACC”) is SUSTAINED as to the 7th cause of action for intentional infliction of emotional distress (“IIED”) and the 9th cause of action for premises liability. (Code Civ. Proc., § 430.10, subd. (e).) Leave to amend is granted in connection with the ninth cause of action, but denied as to the seventh cause of action because facts alleged in the SACC and Cross-Complainant’s Opposition do not demonstrate a reasonable possibility that the defects identified under the seventh cause of action can be cured by amendment. Demurrer – Legal Standard A demurrer tests whether a complaint alleges facts sufficient to state a cause of action under any possible legal theory. (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1244.) The term “any” is a broad term that means “of whatever kind” or “without restriction.” (Ibid.) When considering demurrers, courts read the allegations in context. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) On demurrer, we admit all material facts properly pleaded as true, but not contentions, deductions or conclusions of fact or law. (Lauckhart v. El Macero Homeowners Association (2023) 92 Cal.App.5th 889, 898.) Any defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone, not the evidence or other extrinsic matters. (Code Civ. Proc, §§ 430.30, 430.70) The only issue involved in a demurrer is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) Where the complaint is defective, it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 970–971.) However, although leave to amend is to be liberally granted, it is not error to deny leave to amend when there is no “reasonable possibility” that the plaintiff can state a cause of action. (Tola v. Bryant (2022) 76 Cal.App.5th 746, 756.) The burden of proving the “reasonable possibility” of cure by amendment is on the plaintiff. (Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th 583, 590.) DISCUSSION SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV038384: CITY OF ALAMEDA vs SHEEHAN 07/18/2024 Hearing on Demurrer Plaintiff City of Alameda’s Demurrer to Second Amended Cross-Complaint of Shelby Sheehan; filed by City of Alameda (Plaintiff) in Department 17 Seventh Cause of Action: Intentional Infliction of Emotional Distress The City’s demurrer to the SACC’s seventh cause of action for intentional infliction of emotional distress (“IIED”) is sustained without leave to amend because the SACC has failed to allege facts sufficient to show that the City engaged in conduct that could be found to “exceed all bounds tolerated in a civilized society” and therefore fails to allege facts sufficient to satisfy the outrageous conduct element of this cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Leave to amend is denied because facts alleged in the SACC and Plaintiff’s Opposition demonstrate that the defect identified cannot be cured by amendment. (Tola, supra, 76 Cal.App.5th at p. 756.) To alleged a cause of action for IIED, a plaintiff must allege material facts to show the following: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160.) For conduct to be “outrageous” it “must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. [Citation.]” (Yau, supra, 229 Cal.App.4th at p. 160.) In order to avoid a demurrer, the plaintiff must allege with great specificity the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Id. at pp. 160-161.) Here, while the SACC alleges facts showing that the City engaged in acts and omissions that resulted in ongoing habitability violations, the alleged conduct does not “exceed all bounds tolerated in a civilized society.” (Yau, supra, 229 Cal.App.4th at p. 160.) Additionally, like the FACC, the SACC does not allege facts to support a showing of severe or extreme emotional distress as required to successfully allege an IIED cause of action. (Yau, supra, 229 Cal.App.4th at p. 160.) Severe emotional distress means emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it. (Hailey v. California Physician’s Service (2007) 158 Cal.App.4th 452, 476.) As the SACC fails to allege facts sufficient to satisfy the required elements of an IIED claim, the City’s demurrer is sustained as to the seventh cause of action without leave to amend. (Code Civ. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV038384: CITY OF ALAMEDA vs SHEEHAN 07/18/2024 Hearing on Demurrer Plaintiff City of Alameda’s Demurrer to Second Amended Cross-Complaint of Shelby Sheehan; filed by City of Alameda (Plaintiff) in Department 17 Proc., § 430.10, subd. (e).) Leave to amend is denied because facts alleged in the SACC and in Plaintiff’s Opposition to this demurrer demonstrate that the defect identified cannot be cured by amendment. (Tola, supra, 76 Cal.App.5th at p. 756.) Ninth Cause of Action: Premises Liability The City’s demurrer to the ninth cause of action is sustained with leave to amend because the SACC fails to identify what dangerous condition existed on the Premises, does not identify what physical injuries were sustained by Cross-Complainant as a result of the unidentified condition or when they were sustained, and further fails to state facts sufficient to indicate when the alleged reports of the unidentified condition(s) were received by the City. Absent this information, the SACC fails to state a valid basis for the City’s liability under the ninth cause of action. (Gov. Code, § 835; Code Civ. Proc., § 430.10, subd. (e).) Under section 835 of the Government Claims Act, public entities are directly liable “for injuries caused by maintaining dangerous conditions on their property when the condition ‘created a reasonably foreseeable risk of the kind of injury which was incurred’ and either an employee's negligence or wrongful act or omission caused the dangerous condition or the entity was on ‘actual or constructive notice’ of the condition in time to have taken preventive measures. (Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222, 1230.) A “dangerous condition” of public property is defined as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property ... is used with due care in a manner in which it is reasonably foreseeable that it will be used. (Hernandez, supra, 90 Cal.App.5th at p. 1230.) Here, the SACC fails to allege facts to identify what condition on the Premises constitutes the alleged “dangerous condition” and further fails to allege what physical injuries (if any) were suffered by Cross-Complainant as a result of the alleged unidentified condition(s) on which this cause of action are based. While the SACC alleges that “numerous inspections and reports have been received, commissioned, reported, and are in possession of City officials prior to and during the relevant time period[,]” (SACC p.13:6-8), no dates are provided for when each of these reports were received by the City; nor are any dates provided for when Cross-Complainant’s alleged physical injuries (if any) were sustained as a result of the unidentified condition. As the SACC fails to allege facts sufficient to state a claim for dangerous condition of public property (which would be the only basis for premises liability against the City), the City’s demurrer to the ninth cause of action is sustained with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, the SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV038384: CITY OF ALAMEDA vs SHEEHAN 07/18/2024 Hearing on Demurrer Plaintiff City of Alameda’s Demurrer to Second Amended Cross-Complaint of Shelby Sheehan; filed by City of Alameda (Plaintiff) in Department 17 Tentative Ruling will become the order of the court. HOW DO I CONTEST A TENTATIVE RULING? THROUGH ECOURT Notify the Court and all the other parties no later than 4:00 PM one court day before the scheduled hearing, and briefly identify the issues you wish to argue through the following steps: 1. Log into eCourt Public Portal 2. Case Search 3. Enter the Case Number and select “Search” 4. Select the Case Name 5. Select the Tentative Rulings Tab 6. Select “Click to Contest this Ruling” 7. Enter your Name and Reason for Contesting 8. Select “Proceed” BY EMAIL Send an email to the DEPARTMENT CLERK and all the other parties no later than 4:00 PM one court day before the scheduled hearing. This will permit the department clerk to send invitations to counsel to appear remotely. BOTH ECOURT AND EMAIL notices are required.

CV-21-002417 – CLEMENTS, BOBBY vs ODAY, JEFF – Defendants’ Motion for Terminating and Monetary Sanctions and in the Alternative Evidentiary Sanctions – GRANTED, in part, Denied in part, unopposed. The Court finds that Plaintiff’s failure to comply with the Court’s order of February 16, 2023, compelling Plaintiff’s responses to Defendant’s properly propounded discovery within fourteen (14) days, as well as Plaintiff’s failure to comply with the Court’s verbal admonishment in that regard at the Case Management Conference of October 30, 2023, constitutes a willful failure to comply with the Court’s orders that warrant the imposition of terminating sanctions against Plaintiff. (Code of Civil Procedure §§2023.010 and 2023.030; Department of Forestry & Fire Protection v. Howell (2017) 226 Cal.Rptr.3d 727, rehearing denied, review denied; Parker v. Wolters Kluwer United States, Inc. (2007), 149 Cal.App.4th 285; Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 6050. Monetary Sanctions of attorney’s fees and costs in the sum of $1560.00 are hereby awarded against Plaintiff payable to Defendant’s Counsel, Aleshia M. White within thirty (30) days of service of this order on Plaintiff.

JONES, ET AL. VS. TAYLOR Case Number: 22CV-0201290 This matter is on calendar trial setting. The Court designates this matter as a Plan III case and intends to set the matter for trial no later than December 16, 2024. Plaintiffs have posted jury fees but Defendant has not. Defendant is granted 10 days leave to post jury fees. A failure to post jury fees in that time will be deemed a waiver of the right to a jury. The parties are ordered to meet and confer prior to the hearing regarding proposed dates for trial. An appearance is necessary on today’s calendar.

HG21114959: Carter VS Autonation Honda Fremont 07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by Autonation Honda Fremont (Defendant) in Department 512 Tentative Ruling - 07/16/2024 Elizabeth Riles The Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion filed by Autonation Honda Fremont on 03/20/2024 is Granted in Part. This Tentative Ruling addresses defendant Edgren Motor Company, Inc. dba Autonation Honda Fremont’s (“Autonation”) two unopposed Motions to Compel plaintiffs Deborah Carter (“Carter”) and Russell Daniels (“Daniels”) (Carter and Daniels are collectively “Plaintiffs”) to Appear for their respective Depositions (the “Motions to Compel.”) The Motions to Compel are GRANTED IN PART, as set forth below. The Court ORDERS each of Carter and Daniels to appear for their respective deposition on dates mutually agreeable to the parties within forty-five days of the date on which the final Order on these Motions to Compel is entered. The Court ORDERS Plaintiffs to meet and confer with Autonation in good faith regarding dates for Plaintiffs’ respective depositions as ordered above. The Court ORDERS plaintiff Carter to pay a monetary sanction in the amount of $2,500.00 to Autonation within forty-five (45) days of the date on which Autonation serves Notice of the Court’s final Order on the Motions to Compel on Ms. Carter. The Court ORDERS plaintiff Daniels to pay a monetary sanction in the amount of $2,000.00 to Autonation within forty-five (45) days of the date on which Autonation serves Notice of the Court’s final Order on the Motions to Compel on Mr. Daniels. The Court notes possible defects in the relevant Notices of Deposition, which seek to conduct remote depositions of each of Plaintiffs by zoom videoconference but do not contain the location of the deposition officer. (See CCP §§ 2025.230, 2025.250, 2025.260 and CRC Rule 3.1010. Rule 3.1010 allows parties to conduct remote depositions, but the noticing party is required to make all arrangements to allow the deponent to participate remotely and expressly states that the deponent must appear “as required by statute.”) However, by failing to timely serve written objections to the Deposition Notices or to respond in any way to the Deposition Notices, the Court finds that Plaintiffs have waived any defects in the Notices of Deposition. Similarly, Plaintiffs have waived any objections to the present Motions to Compel by failure to timely respond. The Court has reviewed the evidence in support of Autonation’s monetary sanctions requests and finds that in the totality of the circumstances, including Plaintiffs’ in pro per status, Autonation’s out-of-pocket costs for court reporters, and the prior monetary sanctions awards against Plaintiffs in this action, the sanctions awards ordered above are appropriate. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA HG21114959: Carter VS Autonation Honda Fremont 07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by Autonation Honda Fremont (Defendant) in Department 512 The Court reminds Plaintiffs that, although they may elect to represent themselves in pro per, they must comply with the same rules of civil procedure as litigants represented by professional legal counsel. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98.) The Court advises Autonation that Plaintiffs’ correct mailing address appears to be: 1705 E. 23rd STREET [not Avenue] Merced, CA 95340 Although Plaintiffs’ Complaint lists the wrong address, Plaintiffs’ Summons appears to contain the correct address. CONTESTING TENTATIVE RULINGS PLEASE NOTE: If any party contests the tentative ruling, the hearing on the motion will occur remotely via the court’s own video-conferencing system. Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentative ruling will become the order of the Court unless it is contested before 4:00 PM on the court day preceding the noticed hearing date. To contest a tentative ruling, a party should do the following: First, the party must notify Department 512, by email at Dept512@alameda.courts.ca.gov and copy all counsel of record and self-represented parties. The contesting party must state in the subject line of the email the case name, case number and motion. Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by case number), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest this Ruling" button, enter the party's name and a brief statement of the party's reason for contesting the tentative, and click "Proceed." Parties may appear via videoconference, using the Zoom.com website or application. TO CONNECT TO ZOOM: Join the meeting using the following link: https://www.zoomgov.com/j/16057661931 Join the meeting by Phone: Meeting ID: 160 5766 1931 1 669 254 5252, 16057661931# US (San Jose) 1 669 216 1590, 16057661931# US (San Jose) SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA HG21114959: Carter VS Autonation Honda Fremont 07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by Autonation Honda Fremont (Defendant) in Department 512 833 568 8864 US Toll-free

MEMBERS 1ST VS. ESTATE OF SMITH, ET AL. Case Number: CVG21-0000494 This matter is on calendar for review of the case. The Court notes that the matter is on calendar on Monday, July 22, 2024 at 1:30 p.m. in Department 23 for hearing on a Motion to Approve Stipulation for Judgment Entered in Civil Case and Approval of Motion to Affix Attorney’s Fees as an Element of Costs in Civil Judgment. The July 22, 2024 hearing is confirmed. A future review hearing will be calendared on July 22, 2024. Today’s review hearing is dropped from calendar. No appearance is necessary on today’s calendar.

RG20061220: Luckie VS Matza 07/18/2024 Hearing on Motion for Summary Judgment filed by Vanguard Properties, INC (Defendant) + in Department 24 Tentative Ruling - 07/15/2024 Rebekah Evenson The Motion for Summary Judgment filed by Vanguard Properties, INC, Edward Deleski on 03/14/2024 is Denied. The Motion for Summary Judgment by Defendants Vanguard Properties Inc. (“VP”) and Edward Deleski (“Deleski”) is DENIED. Preliminarily, the Court observes that VP and Deleski seek summary judgment, or alternatively, summary adjudication of Plaintiffs’ Thirteenth Cause of Action for Invasion of Privacy and Fourteenth Cause of Action for Unfair Business Practices (as alleged in Plaintiffs’ First Amended Complaint filed July 31, 2020.) On October 29, 2020, the Court sustained the demurrer by VP and Deleski to Plaintiffs’ Fourteenth Cause of Action for Unfair Business Practice without leave to amend. Thus, the only remaining claim against VP and Deleski is the Thirteenth Cause of Action for Invasion of Privacy. In order to prevail on a claim for invasion of privacy, the plaintiff must show (1) an intrusion into a place, conversation, or matter as to which plaintiff has a reasonable expectation of privacy, and (2) that the intrusion occurred in a manner highly offensive to a reasonable person. (See, e.g., Hernandez v. Hillsides Inc. (2009) 47 Cal.4th 272, 286.) Plaintiffs are tenants in an apartment building owned by Defendant Sherrie Matza. In 2019, Matza decided to sell the building and entered a listing agreement with VP, for whom Deleski is a broker. (See VP’s Separate Statement Fact (“SSF”) No. 1.) The listing agreement permits the broker to photograph the interior of the property for virtual tours on the broker’s website. (SSF No. 2.) Plaintiffs, however, were not parties to the listing agreement and VP presents no evidence that Plaintiffs were notified of, or agreed to, its terms. On September 10, 2019, Deleski notified Plaintiff Colette Luckie that he intended to enter her apartment to facilitate sale of the building. (SSF Nos. 4-7.) On October 30, 2019, Deleski emailed Luckie and stated that he would be entering her apartment “to take measurements, a few photos and show the property to a couple prospective buyers.” (SSF No. 9.) VP presents no evidence that Plaintiffs were told what VP would do with those photos or that they would be posted on a publicly accessible internet site, and Plaintiffs deny they were told that the photos would be posted on the internet. (See Plaintiffs’ response to SSF No. 21.) Deleski asserts that Plaintiffs were present when he took the photos on October 31, 2019 and did not object; Plaintiffs acknowledge that they were in the apartment at the time the photos were taken but state that they were working remotely in other rooms of the apartment and did not observe what Deleski was photographing. (See SSF No. 10 and Plaintiffs’ response.) Luckie is a licensed real estate agent and has placed photographs of tenant occupied properties SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG20061220: Luckie VS Matza 07/18/2024 Hearing on Motion for Summary Judgment filed by Vanguard Properties, INC (Defendant) + in Department 24 on the MLS website. (SSF No. 26.) Luckie, however, contends she only did so after being given permission in writing by the tenants. (See Luckie’s declaration at paragraph 35.) VP submits a declaration from a purported expert witness, real estate attorney Stanley Smith, who states that in his opinion, VP’s actions in posting photographs of Plaintiffs’ apartment on the MLS website complied with industry standards and practices. Plaintiffs submit a declaration from a purported expert witness, real estate broker James Cantrell, stating that the custom and practice in the real estate industry is that a broker should obtain written consent from the tenant prior to posting photograms on the internet that show the interior of a tenant’s apartment and the tenant’s personal property and effects. He further concludes that relying on the landlord’s permission to post such photographs without explicitly confirming that the tenant has given his or her consent falls below the industry standard of care. (Cantrell’s declaration, paragraphs 7-13.) Based on the evidentiary record presented, the Court cannot conclude, as a matter of law, that no reasonable trier of fact would find Plaintiffs to have a valid claim for invasion of privacy. Plaintiffs have a reasonable expectation of privacy in their apartment. As indicated above, Plaintiffs understood that VP was retained by their landlord to sell the apartment building, that he would be entering their apartment and take measurements and photos, and prospective buyers may also enter their apartment. But VP presents no evidence that Plaintiffs were told those photos of their apartment and personal property would be posted on a publicly available website or that they agreed to that. The trier of fact will determine whether Plaintiffs have proven their claim that the posting of the photos would have been highly offensive to a reasonable person. The Court rules as follows on VP’s Objections to Evidence: Objections Nos. 1-2 are SUSTAINED as inadmissible opinion testimony. Objection No. 3 is SUSTAINED as speculation. Objection No. 4 is SUSTAINED as speculation as to the intent of the broker. Objection No. 5 is SUSTAINED, as inadmissible hearsay as to what Elijah told Luckie; in addition, Elijah’s “linking” is speculation. Objection No. 6 is SUSTAINED as an inadmissible legal conclusion that Defendants’ conduct was “outrageous”. Objections Nos. 7 and 9 are SUSTAINED as speculation and lacking foundation. Objection No. 8 is OVERRULED on the grounds asserted. A question cannot be true or false, and therefore is not being presented for its truth. Objection No. 10 is SUSTAINED as inadmissible hearsay as to what Wilson was told by his SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG20061220: Luckie VS Matza 07/18/2024 Hearing on Motion for Summary Judgment filed by Vanguard Properties, INC (Defendant) + in Department 24 aunt. Objection No. 11 is SUSTAINED as an inadmissible legal conclusion that Defendants’ conduct was “outrageous”. Objections Nos. 12-13 are OVERRULED on the grounds asserted.

Case Number: 24CMCV00299 Hearing Date: July 18, 2024 Dept: A 24CMCV00299 Eureka Young, et al. v. Ford Motor Company, et al. Thursday, July 17, 2024, at 8:30 a.m. [TENTATIVE] ORDER OVERRULING IN PART AND SUSTAINING IN PART DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT I. BACKGROUND The first amended complaint (FAC) alleges that Defendant, Ford Motor Company (Ford or Defendant) issued a written warranty in connection with Plaintiffs purchase of a 2019 Lincoln Navigator. The vehicle allegedly developed transmission and other defects, of which Ford had exclusive knowledge. Ford allegedly failed to repair or replace the vehicle. Among other causes of action, Plaintiffs allege claims for violations under the Song-Beverly Consumer Warranty Act (SBA), breach of implied warranty, fraudulent inducement --concealment against Ford (fifth cause of action), and negligent repair against South Bay Ford, Inc. (South Bay) (sixth cause of action). II. ARGUMENTS Defendant Ford demurs to the fifth cause of action for fraudulent inducement and concealment, and South Bay, demurs to the sixth cause of action for negligent repair. Defendants contend that both claims are barred by the economic loss rule. The fraud claim requires a duty owed by Ford not to disclose and must be alleged with specificity. Plaintiffs did not allege direct dealings with Ford that would give rise to a duty to disclose, and Plaintiffs did not plead facts to support the element of damages. In opposition, Plaintiffs argue that the specificity ordinarily required in alleging a claim for fraudulent misrepresentation does not apply to a claim for concealment. The alleged facts exceed the requirements for specificity. Plaintiffs alleged a transactional relationship with Ford since Ford issued a warranty contract to Plaintiffs. The exact nature of this relationship is a matter of proof, not pleading. The economic loss rule does not apply to bar either claim. In reply, Defendants argue that Plaintiffs opposition relies on dubious authority, and fails to address the multiple deficiencies identified. The alleged facts are insufficient to support both claims. III. LEGAL STANDARDS A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. ( Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) The court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may not consider contentions, deductions, or conclusions of fact or law. ( Moore v. Conliffe (1994) 7 Cal.4th 634, 638.) Plaintiff must allege facts sufficient to establish every element of each cause of action. ( Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. Code Civ. Proc., § 430.10(e); ( Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) The Plaintiff is required to allege facts "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action. ( Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) Whether the Plaintiff will be able to prove the pleaded facts is irrelevant. ( Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609610.) A demurrer may also be sustained if a complaint is uncertain. Uncertainty exists where a complaints factual allegations are so confusing, they do not sufficiently apprise a defendant of the issues it is being asked to meet. ( Williams v. Beechnut Nutrition Corp . (1986) 185 Cal.App.3d 135, 139, fn. 2; Code Civ. Proc., § 430.10 subd. (f).) IV. DISCUSSION Plaintiffs allege that Defendant Ford was aware that the transmission system was defective but failed to disclose this fact. (FAC, ¶ 87-89.) Ford had exclusive knowledge of the 10-speed transmissions defects causing hesitation, delayed acceleration, harsh and/or hard shifting, and jerking and shuddering. ( Id. ) Ford allegedly obtained this information from its testing data and data provided by its dealers among other sources of information not available to Plaintiffs. (FAC, ¶ 94.) A. The defect at issue is specifically alleged. Contrary to Fords argument, Plaintiffs allege the defects that Ford purportedly concealed. (FAC, ¶ 90.) Plaintiffs specifically describe and incorporate four technical service bulletins (TSB) associated with the defective 10-speed transmission and other defects at issue in the vehicle and cannot be described as generic. (FAC, ¶¶ 55, 57, 59; Dem. 12:6-9.) B. The allegations support Fords duty to disclose. The claim for fraudulent inducement-concealment is alleged only against Ford. The elements of a fraud claim based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. ( Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310311 .) There are four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. ( Id . at 311 .) If a fiduciary relationship does not exist, but the latter three circumstances are present, plaintiff must still show the existence of some other relationship between the plaintiff and defendant from which a duty to disclose can arise. ( Id . at 311 .) Ford argues that Plaintiffs must allege direct contact or a transactional relationship with Ford that gives rise to a duty to disclose. (Dem 12:1-4.) Such a duty may arise as a result of a transaction between the parties which necessarily arise[s] from direct dealings between the plaintiff and the defendant; it cannot arise between the defendant and the public at large." ( Bigler-Engle r at 312 [noting that the duty of a manufacturer to warn consumers of a products hazards and faults applies in the context of strict products liability actions but does not apply in a suit for intentional misrepresentation.].) However, Plaintiffs allege that Fords direct contact with Plaintiff arose from the warranty contract that Ford issued to them. (FAC, ¶ 26.) Plaintiffs cite Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828 , on which the Court relies for persuasive value given the case is pending review by the California Supreme Court although it has not been depublished. ( Cal Rules of Court, Rule 8.1115 (e)(1).) Dhital determined that the allegations were sufficient to support the existence of a buyer-seller relationship between the plaintiff and the manufacturer in support of the claim for fraudulent concealment since Plaintiffs alleged that they bought the car from a Nissan dealership, that Nissan backed the car with an express warranty, and that Nissan's authorized dealerships are [the manufacturers] agents for purposes of the sale of Nissan vehicles to consumers. In light of these allegations, we decline to hold plaintiffs claim is barred on the ground there was no relationship requiring Nissan to disclose known defects." ( Dhital at 844 .) Moreover, Plaintiffs allege that Ford had exclusive knowledge of the specifically described defects obtained from its internal testing data, data provided by its dealers and from other sources, none of which were made available to Plaintiffs. (FAC, ¶¶ 52-61.) Ford argues that Plaintiffs do not allege what the purported testing revealed. (Dem. 14:24-25.) Ford relies on a federal district court opinion granting a motion to dismiss because allegations similar to those alleged here were either legal conclusions or were insufficient to infer that Ford knew or should have known of the defect at issue. ( Roe v. Ford Motor Company (E.D. Mich., Aug. 6, 2019, No. 218CV12528LJMAPP) 2019 WL 3564589, at *7 [Plaintiffs' amended complaint does not include factual allegations that make it reasonable to infer that complaints about and repairs of the water pumps were anything more than a blip on Ford's complaints-and-repairs radar.].) The Court does not find the opinion persuasive as it is distinguishable from the allegations made in this case. Plaintiffs incorporate specific TSBs concerning the transmission defect and the specific symptoms exhibited that are allegedly identical to that experienced by Plaintiffs. Plaintiffs allege that Fords internal testing resulted in the issuance of these TSBs from which it is reasonable to infer that the testing results were more than a blip on Fords radar. ( Roe at *7.) Active concealment of these facts is also alleged. Plaintiffs allege that Ford allowed the vehicle to be sold without disclosing that the subject vehicle and its transmission were defective. (FAC, ¶ 88.) Defendant knowingly and intentionally concealed material facts. (FAC, ¶ 95-96) Despite its knowledge, Defendant actively concealed the existence and nature of defects from Plaintiffs. (FAC, ¶ 65) Accordingly, the concealment claim is adequately alleged. Ford correctly argues that fraud claims are subject to strict requirements of particularity in pleading which necessitate pleading 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.) Although the allegations meet specificity requirements, the specificity rule is intended to apply to affirmative misrepresentations and not to concealment. ( Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 89 Cal.Rptr.3d 659.) C. Defendant Ford has not established that the fraud claim is barred by the economic loss rule. The economic loss rule bars tort recovery in a transaction where the plaintiff suffers only economic losses. ( Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988 .) Such losses consist of damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profitswithout any claim of personal injury or damages to other property. ( Robinson at 988.) Ford argues that since Plaintiffs claim is based on a breach of warranty resulting only in economic loss, Plaintiffs cannot recover in tort for fraud. The Robinson court held that the plaintiffs claims for affirmative, intentional misrepresentations of fact were not barred by the economic loss rule because the tort claims were independent of the plaintiffs breach of contract. ( Robinson at 991 .) Ford construes Robinson as limiting the exception to the economic loss rule to claims for affirmative fraud as opposed to concealment, relying on federal trial court opinions reaching similar conclusions. (Dem. 16:22-25) Dhital considered Robinson and observed other instances where tort damages were permitted in contract cases where the tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to cause harm. ( Dhital v. Nissan North America at 838 .) [1] Thus, in Dhital , the economic loss rule did not apply because the duty not to disclose arose from liability independent of contract such as intentionally concealing facts about the defective transmission and fraudulently inducing plaintiffs to purchase the car. ( Dhital at 838 .) Dhital also acknowledged that despite the differing views taken by various federal district courts, the plaintiffs fraudulent inducement by concealment was exempt from the economic loss doctrine ( Dhital at 843 .) D. Plaintiff has not alleged facts to establish that the economic loss rule does not apply to the claim for negligent repair. The fifth cause of action of action for negligent repair is alleged only against South Bay. (FAC, ¶ 102-106.) Plaintiffs allege that they delivered the vehicle to South Bay for substantial repair on at least one occasion, and that South Bay breached its duty to use ordinary care and skill in storage, preparation, and repair of the vehicle in accordance with industry standards, resulting in damage to Plaintiffs. (FAC, ¶ 104-105.) To the extent the repairs were made pursuant to a service contract, the claim for negligence is barred by the economic loss rule. Plaintiffs may recover in tort in a contract case in cases where "breach of duty directly causes physical injury [citations omitted]; for breach of the covenant of good faith and fair dealing in insurance contracts [citations omitted]; for wrongful discharge in violation of fundamental public policy [citations omitted]; or where the contract was fraudulently induced [citations omitted]. In each of these cases, the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm." ( Erlich v. Menezes 21 Cal.4 th 543, 551-552 .) Plaintiffs do not allege a duty independent of contract that gives rise to tort liability for negligent repair. Instead, Plaintiffs argue that the economic loss rule allows a plaintiff to recover in strict products liability in tort when a product defect causes damage to other property, that is, property other than the product itself. ( KB Home v. Superior Court (2003) 112 Cal.App.4th 1076, 1079 .) The rule applies in component-to-component cases, where the defective component causes damage to the larger product, or component. ( KB Home v. Superior Court at 1087 .) This requires a determination of whether the defective part is a sufficiently discrete element of the larger product that it is not reasonable to expect its failure invariably to damage other portions of the finished product. ( KB Home at 1087.) In KB Home , whether the defective rods in a furnace could be considered a separate component apart from the furnace itself to permit KB Home to recover in tort for the cost of replacing the furnace, was a matter for the jury not the court. ( Id. ) Here, Plaintiffs do not allege damage to other property purportedly caused by the defective transmission. The FAC does not allege facts to assert a component-to-component exception to the economic-loss rule. V. CONCLUSION Accordingly, Fords demurrer to the claim for fraudulent inducement-concealment is OVERRULED. South Bays demurrer to the claim for negligent repair is SUSTAINED with 10 days leave to amend. ( Colvig v. RKO General, Inc. (1965) 232 Cal.App.2d 56, 6970 [noting the well-established rule that, even where the defect is one of substance, a demurrer should not be sustained without leave to amend if there is a possibility that subsequent amendments will supply omitted allegations and the plaintiff has not had a fair opportunity to so amend. [1] Whether claims for fraudulent concealment are exempted from the economic loss rule is being reviewed by the California Supreme Court in ( Rattagan v. Uber Technologies, Inc. (Feb. 9, 2022, No. S272113) ___Cal.5th___ [2022 Cal. LEXIS 490].) .