Defendant Harley-Davidson Motor Co.’s Demurrer to Second Amended Complaint
(03) Tentative Ruling
Re: Foremost Insurance Co. v. Miller-Phelen, Inc. Case No. 25CECG01570
Hearing Date: August 12, 2026 (Dept. 403)
Motion: Defendant Harley-Davidson Motor Co.’s Demurrer to Second Amended Complaint
Tentative Ruling:
To overrule defendant Harley-Davidson Motor Co.’s demurrer to the second amended complaint. (Code Civ. Proc., § 430.10, subds. (e), (f).) To order defendant to file its answer to the second amended complaint within ten days of the date of service of this order.
If oral argument is timely requested, it will be entertained on Thursday, August 13, 2026, at 3:30 p.m. in Department 403.
Explanation:
Defendant Harley-Davidson demurs to the fourth cause of action for breach of express warranty on the grounds that it fails to allege facts sufficient to constitute a cause of action and that it is ambiguous and uncertain. However, defendant has not made any attempt to show that the fourth cause of action does not allege all of the facts necessary to state a claim for breach of express warranty. It does not even discuss the elements of a breach of express warranty claim or explain why the SAC does not allege facts to support the required elements of the claim. Nor has it argued in its points and authorities brief that the fourth cause of action is so vague, ambiguous and confusing that defendant cannot reasonably respond to it. Therefore, defendant has failed to meet its burden of providing authorities or argument to support its stated grounds for the demurrer.
Instead, defendant argues that plaintiff has improperly attempted to “split” its cause of action because there is another case filed by the family of the decedent arising out of the same incident, and that decedent’s family also seeks damages for loss of the motorcycle. (See Request for Judicial Notice, Exhibit A, First Amended Complaint filed in Breazeale v. Fresno Harley-Davidson, case no. 24CECG01093. The court intends to take judicial notice of the first amended complaint filed in the related action.)
Defendant argues that plaintiff is not allowed to maintain a separate suit based on the same violation of a primary right alleged in the first action, and therefore the second action should be dismissed. (Allstate Ins. Co. v. Mel Rapton, Inc. (2000) 77 Cal.App.4th 901, 908
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However, defendant did not raise this ground in its notice of demurrer, so the contention is not properly before the court here. Even if defendant had raised the ground in its notice of demurrer, defendant has not shown that it would be entitled to a dismissal of the second-filed cause of action. At most, defendant may raise the existence of the earlier-filed action as a plea in abatement where the earlier action is still pending and no judgment has been entered in the earlier case. (Allstate v.
Mel Rapton, supra, at p. 910.) “The primary right theory has a fairly narrow field of application. It is invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits. The theory prevents this result by either of two means: (1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement; or (2) if the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata.” (Crowley v.
Katleman (1994) 8 Cal.4th 666, 682, citations omitted.)
Here, there is no final judgment in the first action filed by decedent’s family. Therefore, the plaintiff’s fourth cause of action in the present action is not barred by res judicata. Since the first action is still pending before the court, at most defendant would be entitled to raise the existence of the first action as a plea in abatement. In other words, defendant could ask the court to suspend proceedings in the present action until the earlier-filed case has been finally resolved. “[A] plea in abatement is now treated essentially as a request not that an action be terminated, but that it be continued until such time as there has been a disposition of the first action.” (1A Cal. Jur. 3d (2026) Actions, § 222.)
In the present case, however, defendant has not requested the court to abate or suspend the present action until the earlier filed action has been resolved. Instead, defendant seeks to have the fourth cause of action dismissed entirely, which is improper. Therefore, the court intends to overrule the demurrer, as defendant has failed to show that it is entitled to the relief it seeks.
Finally, the court notes that plaintiff has now filed a motion to consolidate the present action with the earlier action filed by decedent’s family. (The court intends to take judicial notice of the motion to consolidate cases filed in case no. 24CECG01093.) Assuming that the motion to consolidate is granted, there will no longer be two actions pending on the same primary right, which should eliminate any potential problems with duplicative actions being heard by separate courts on the same claim. Therefore, in light of the likelihood that the two cases will soon be consolidated and heard together, there is no need for the court to dismiss or abate the fourth cause of action in the present case.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: SMC on August 11, 2026. (Judge’s initials) (Date)
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