Deshawn Black Cunningham vs. Vanderbreek Motors, Inc

34-2022-00325485-CU-BC-GDS: Deshawn Black Cunningham vs. Vanderbreek Motors, Inc 04/11/2024 Hearing on Motion for Judgment on the Pleadings in Department 53

Tentative Ruling

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34-2022-00325485-CU-BC-GDS: Deshawn Black Cunningham vs. Vanderbreek Motors, Inc 04/11/2024 Hearing on Motion for Judgment on the Pleadings in Department 53

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TENTATIVE RULING: Defendant Vanderbeek Motors, Inc.’s motion for judgment on the pleading is denied.

In this lemon law action, Plaintiff Deshawn Black Cunningham alleges causes of action for violation of the Song-Beverly Consumer Warranty Act. Plaintiff alleges that She purchased a 2016 BMW X6 on January 21, 2022. Plaintiff alleges that the vehicle developed engine defects during the warranty period. Plaintiff alleges that the defects required that the engine be replaced less than five months after it was purchased. (Comp. ¶ 16.) Plaintiff alleges that She requested that Defendant repurchase the vehicle.

Defendant moves for judgment on the pleadings on the basis that Plaintiff’s claims are barred by res judicata due to a nationwide class action settlement which was given final approval in federal court on January 10, 2022, prior to the time that Plaintiff even purchased the subject vehicle. According to Defendant, the class action involved the identical allegations asserted in the instant lawsuit, again, which is premised on Plaintiff’s purchase of a vehicle after the claimed settlement was given final approval.

A defendant may move for judgment on the pleadings if the complaint (or cross-complaint) does not state facts sufficient to constitute a cause of action against that defendant. (CCP § 438(b)(1), (c)(1)(B)(ii).) Except as provided by statute, a motion for judgment on the pleadings is analyzed like a general demurrer. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Thus, on a motion for judgment on the pleadings, the Court may extend consideration to matters that are subject to judicial notice; in doing so, the Court performs essentially the same task as ruling on a general demurrer. (Smiley v. Citibank (1995) 11 C.4th 138, 146.) The Court therefore sets out the general rules governing demurrers below.

A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (CCP § 452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co. v.

Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) The Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d at 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint;

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00325485-CU-BC-GDS: Deshawn Black Cunningham vs. Vanderbreek Motors, Inc 04/11/2024 Hearing on Motion for Judgment on the Pleadings in Department 53

facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal. 3d at 318, William S. Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal. App. 3d 1612, 1616 fn.2.) Extrinsic evidence may not properly be considered on demurrer or on a motion to strike. (Ion Equipment Corp. v. Nelson (1980) 110 Cal. App. 3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 C. 481, 482.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . ., we are not concerned with plaintiff's possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal. App. 3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v.

Anderson Union High School Dist. (1996) 50 Cal. App. 4th 726.) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action - not whether they are true. (Serrano v. Priest (1971) 5 Cal. 3d 584, 591.)

Judicial Notice

Defendant’s entire motion is premised on a request for judicial notice. Defendant requests judicial notice of the docket of a class action lawsuit filed in Federal District Court in New Jersey, a final approval order, a settlement agreement and release, and the class action complaint. The Court must note that the request for judicial notice does not actually attach a copy of any document purporting to be the class action complaint. Instead, it only attached documents purporting to be a settlement agreement and release, and a final order. In any event, while Plaintiff did not object to the request for judicial notice, Defendant’s request is denied.

First, all of the documents purport to be Court documents from another Court. None of the documents are certified. Prior to acting on a request for judicial notice, the Court must be assured that the document or record is a true and correct copy. (People v. Preslie (1977) 70 Cal.App.3d 486, 494.) “Accordingly, when a party desires the [trial] court to take judicial notice of a document or record the parties should furnish the [trial] court with a copy of such document or record certified by its custodian.” (Id. at 495; see also Ross v.

Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 743 [declining to judicially notice a complaint filed in Nevada as it was not certified and no subpoena from a Nevada court to assure authenticity].) “[W]e cannot take judicial notice of these documents [because] no proper evidentiary foundation was laid.” (Pastoria v. Nationwide Insurance (2003) 112 Cal.App.4th 1490, 1495, n.4.) The request must be denied as the exhibits attached to the request for judicial notice purport to be records from another court and which are not certified.

In addition, even if the Court were to take judicial notice of the documents, it would only take

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00325485-CU-BC-GDS: Deshawn Black Cunningham vs. Vanderbreek Motors, Inc 04/11/2024 Hearing on Motion for Judgment on the Pleadings in Department 53

judicial notice of the existence of the documents. That is, even if the documents were properly authenticated (which they are not here), taking judicial notice of documents is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) “When judicial notice is taken of a document, however, the truthfulness and proper interpretation are disputable.” (Id.) “For a court to take judicial notice of the meaning of a document submitted by a demurring party based on the document alone, without allowing the parties an opportunity to present extrinsic evidence of the meaning of the document, would be improper.

A court ruling on a demurrer therefore cannot take judicial notice of the proper interpretation of a document submitted in support of the demurrer.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114- 115.) The “court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what the evidence appears to show.” (Id. at 115.) A hearing on a demurrer cannot be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. (Unruh-Haxton v.

Regents of Univ. of Cal. (2008) 162 Cal.App.4th 343, 365.)

The Court “cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file. A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.” (Day v. Sharp (1975) 50 Cal.App.3d 904, 914 [emphasis in original].) Defendant’s request runs afoul of this principle. For example, Defendant seeks to have the Court take judicial notice of a settlement agreement and release and a final order purporting to approve that settlement agreement and interpret those documents in order to find that Plaintiff’s claims in this action are barred by res judicata.

However, as mentioned above, Defendant did not even include a copy of the class action complaint with its request for judicial notice. Thus, Defendant would have this Court take judicial notice of a settlement agreement and release, without the benefit of the class action complaint purportedly settled, and interpret that document to find that the complaint included the same allegations in the instant action. Further, Defendant would have the Court take judicial notice of the documents and interpret them to find that Plaintiff was a member of the class certified for settlement, and even that Plaintiff was provided notice of the settlement.

This is not proper. On this additional basis, the request for judicial notice is denied. Even if the documents had been properly authenticated, at the very most, the Court could take judicial notice of the existence of the documents, but that is not the purpose for which Defendant requests judicial notice. Rather Defendant seeks judicial notice of the interpretation of documents.

The Court now turns to the challenge to the complaint and its viability given that the request for judicial notice has been denied.

Res Judicata

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00325485-CU-BC-GDS: Deshawn Black Cunningham vs. Vanderbreek Motors, Inc 04/11/2024 Hearing on Motion for Judgment on the Pleadings in Department 53

As noted above, Defendant moves for judgment on the pleadings on the basis that Plaintiff’s complaint is barred by res judicata due to a nationwide class action settlement.

Res judicata bars a party from relitigating causes of action that have been finally determined by a court of competent jurisdiction. (Mycogen Corp. v. Monsalto Co. (2002) 28 Cal.4th 888, 896- 897.) Res judicata applies where: “(1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.” (Federation of Hillside and Canyon Associates v.

City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202.) “Res judicata bars the litigation not only of issues that were actually litigated but also issues that could have been litigated.” (Id.) An order giving final approval to the class action settlement is final and on the merits for purposes of res judicata. (Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 569.) “‘[A] judgment pursuant to a class settlement can bar [subsequent] claims based on the allegations underlying the claims in the settled class action.

This is true even though the precluded claim was not presented, and could not have been presented, in the class action itself.’” (Id. at 586 [citations omitted] [emphasis in original].)

Defendant argues that the class action complaint in the federal court action contained the same allegations in Plaintiff’s complaint, and that the settlement which was finally approved by the federal court covered Plaintiff and the vehicle which is the subject of this action. Defendant thus reasons that Plaintiff’s complaint is barred by res judicata.

At the outset, Defendant’s motion must be denied because Defendant’s entire argument is dependent on the request for judicial notice which was denied.

In any event, even if the Court did not deny the request for judicial notice, the motion would still be denied. To that end, notice to the absent class member against whom res judicata is asserted is fundamental to the doctrine’s application. “Under federal and California law, a judgment in a class action is binding on class members in any subsequent litigation, though the ability to bind absent class members depends on compliance with due process regarding notice and adequate representation.” (Louie v.

BFS Retail & Commercial Operations, LLC (2009) 178 Cal. App. 4th 1544, 1555.) Here, the class was defined as “all current and former owners and lessees of a Class Vehicle.” (RJN Exh. A. at p.9 ¶ FF.) Plaintiff’s complaint alleges that he purchased the vehicle on January 22, 2021, after the final order. While the order approving the settlement purports to bind successors and assigns of settlement class members, there is nothing which would show as a matter of law that Plaintiff was a successor of any class member and/or that such class member of whom she might be a successor received notice of the settlement.

Indeed, the final order refers to a Class Notice being provided in accordance with a Class Notice Plan but there is no showing as to what that plan consisted of, and whether it involved notice being

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00325485-CU-BC-GDS: Deshawn Black Cunningham vs. Vanderbreek Motors, Inc 04/11/2024 Hearing on Motion for Judgment on the Pleadings in Department 53

provided to any owner of Plaintiff’s vehicle. These are factual issues which cannot be resolved here. Further, the final order contains a list of opt outs of individuals who are not bound by the settlement, but the list does not even indicate what type of vehicle they owned, instead only listing a VIN. (RJN Exh. B.) In order to find that Plaintiff was bound by the settlement, the Court would have to conclude among other things, that Plaintiff did not purchase one of the vehicles listed on the opt out list.

Yet to do so, the Court would have to engage in an evidentiary hearing. This underscores why judicial notice is not appropriate here on this pleading motion. Thus, [SR3] the motion must be denied, because none of the documents demonstrate who notice of the settlement was provided to, and/or whether Plaintiff or a predecessor is bound by the settlement. Thus, at least for pleading purposes, res judicata does not appear from the face of the complaint or any judicially noticeable material.

The Court further rejects Defendant’s argument that Plaintiff admitted that she was a member of the settlement class. In making that argument, Defendant points to her allegation that her engine was replaced. (Comp. ¶ 16.) In making this argument, Defendant points to a provision in the settlement agreement that 58% of an engine replacement would be paid. Defendant reasons that the allegation that Plaintiff’s engine was replaced was an admission that she accepted the benefits of the settlement. However, Plaintiff simply alleged that the engine in her vehicle was replaced within five months or its purchase. She does not in any way allege that this replacement was pursuant to any settlement, or even that Defendant paid for any portion of the replacement. (Id.) Plaintiff’s complaint in no way shows that she admitted she was a member of any settlement class.

Moreover, given that Defendant failed to even include a copy of the complaint in the federal class action with its request for judicial notice, Defendant simply cannot show that causes of action from that class action are the same as the causes of action here. Defendant’s attempt to submit that complaint in reply through an errata purporting to correct the request for judicial notice so that the federal complaint is included is entirely improper. In any event, the Court denied the request for judicial notice whether the complaint was or was not included. Thus, Defendant also failed to show that the causes of action in the federal action and the instant action are identical.

In short, even if the Court took judicial notice of the documents attached to the request for judicial notice, which it does not, the motion for judgment on the pleadings would still be denied. To that end the documents do not show for pleading purposes that Plaintiff, or any predecessor in interest, was provided notice of the settlement, that Plaintiff was a member of the class, or that the claims in the federal class action were the same causes of action alleged in this action.

Defendant’s additional arguments that the complaint is barred by collateral estoppel, a release in the settlement agreement, and/or a provision in the final order providing that the federal court

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00325485-CU-BC-GDS: Deshawn Black Cunningham vs. Vanderbreek Motors, Inc 04/11/2024 Hearing on Motion for Judgment on the Pleadings in Department 53

retained jurisdiction over the settlement class, are rejected for the same reasons. The Court also need not address any claim by Defendant that Plaintiff is in violation of a federal injunction included in the final order approving settlement. Again, these are premised on the request for judicial notice which was denied and the assertions that Plaintiff was included in the settlement class, etc.

The Court need not consider Plaintiff’s arguments in opposition that her breach of express warranty and breach of implied warranty causes of action are properly pled. Defendant did not address the sufficiency of the allegation in the causes of action, instead Defendant argued that the causes of action were barred (no matter how alleged) based on the documents included with the request for judicial notice, which again, was denied.

The Court did not consider Plaintiff’s counsel’s declaration submitted with the opposition. Plaintiff’s counsel attempted to offer evidence in support of the opposition. As set forth above, extrinsic evidence may not properly be considered on demurrer/motion for judgment on the pleadings. (Ion Equipment Corp., supra, 110 Cal. App. 3d at 881.) The Court thus need not specifically rule on Defendant’s evidentiary objections to the declaration.

Defendant’s motion is denied in its entirety.

The minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.