Request for judicial notice; Demurrer
disclose them, GM intended to defraud Alcantar, and Alcantar would not have purchased the Subject Vehicle had she known of these defects. (FAC, ¶¶ 6-13, 71-100.) These allegations are sufficient. (See Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 843-844 (Dhital).) Although the Supreme Court initially granted review in Dhital, it subsequently dismissed review, which means Dhital is precedential authority. (Cal Rules of Court, rule 8.1115(e)(2).) The court is also not convinced by GM’s economic loss rule argument. (See Dhital, supra, 84 Cal.App.5th at pp. 833, 837-841.)
Defendant Brinks Incorporated’s (“Brinks” or “Defendant”) request for judicial notice of the November 30, 2016 service contract and the contract endorsements pursuant to Evidence Code section 452, subdivision (h) is DENIED. (See Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145 (stating that “the existence of a contract between private parties cannot be established by judicial notice under Evidence Code section 452, subdivision (h)”).) Moreover, Defendant is not a party to the contract attached to the Hedrick declaration and there is no request for judicial notice of any fact that would link Defendant to the attached contract.
Defendant’s demurrer to the first cause of action is OVERRULED. Penal Code section 496 prohibits a person from either “buy[ing] or receiv[ing] any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or... conceal[ing], sell[ing], withhold[ing], or aid[ing] in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained....” (Pen. Code § 496.) Defendant’s argument only concerns the receipt of property
that has been stolen or that has been obtained in any manner constituting theft or extortion. (See Def.’s memorandum of points and authorities in support of demurrer (“Def.’s memo”), p.4:7-25, 5:1-6.) Defendant fails to address whether the first cause of action fails to allege whether it withheld or concealed property from the owner, and indeed, the first cause of action alleges that it continued to withhold Plaintiff’s property and deprive it of its ownership, knowing that the property was stolen. (See FAC, ¶¶ 8-12; see also Williams v.
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Super. Ct. (People) (1978) 81 Cal.App.3d 330, 343-344 (stating that “[c]oncealing stolen property is a distinct and separate offense from receiving stolen property precisely because receiving congeals and is completed upon taking possession with guilty knowledge, whereas concealing, by definition, continues... [o]ne reason for including both receiving and concealing stolen property within the proscription of Penal Code section 496 is that it enables prosecution of one who innocently acquires property, but later learns that it was stolen and thereafter conceals it”).)
Defendant’s demurrer to the second cause of action on the ground that it is barred by the economic loss rule is OVERRULED. As a preliminary issue, the FAC does not allege the existence of any contract, much less terms of such an agreement, such that the Court could determine the application of the economic loss rule. (See Lafferty v. Wells Fargo Bank (2013) 213 Cal.App.4th 545, 566 (stating that a “demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint”).)
Further, Defendant misunderstands the economic loss rule. The California Supreme Court has stated that “[i]n general, there is no recovery in tort for negligently inflicted ‘purely economic losses,’ meaning financial harm unaccompanied by physical or property damage.” (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 20 (italics original), 44 (stating that “the economic loss doctrine applies when the parties have entered into a contract; the plaintiff sues for tort damages, alleging the defendant failed to perform as the contract requires; and negligently caused economic losses flowing from the breach”).) “[T]he economic loss rule does not act as an absolute bar to tort recovery in every case in which the parties have a contractual relationship.” (Id. at p.23.) “The doctrine does not
apply if... the defendant violated a duty flowing, not from the contract, but from a separate, legally recognized tort obligation.” (Id. at p.44.) While Defendant characterizes the alleged injury as a “failure to credit a portion of the cash,” the second cause of action alleges that Defendant took Plaintiff’s cash for itself with the intention to deprive that money from Plaintiff. Defendant fails to explain how its intentional deprivation of Plaintiff’s property was reasonably contemplated by the parties at the time when the contract was formed. (Id. at p. 27 (stating that “if the contract reveals the consequences were not reasonably contemplated when the contract was entered and the duty to avoid causing such a harm has an independent statutory or public policy basis, exclusive of the contract, tort liability may lie”).)
Plaintiff shall submit a proposed order consistent with the tentative ruling within 10 days of the hearing.
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