Willenken Prevails at the Pleadings Stage Yet Again

July 5, 2017

Getting a California state court judge to sustain a demurrer can be a challenge—even more so when the judge has tentatively decided to overrule the demurrer and permit the plaintiff to proceed with its case.  But every challenge presents an opportunity. 

In one recent case, a plaintiff sued Willenken client, 3D Systems, Inc., the nation’s top manufacturer of 3D printers, and its local reseller for breach of express warranty and breach of implied warranty of merchantability in connection with the sale of a sophisticated 3D printer.  Plaintiff detailed several incidents when the printer at issue did not perform as expected.  Though investigation suggested the incidents were the result of “user error” and not the result of a technical deficiency, having to proceed with discovery and trial on that issue would prove costly.  The case against 3D Systems had to be knocked out at the outset.

To accomplish that, the firm filed a demurrer, arguing (i) the express warranty provided to the Plaintiff clearly established that the reseller, not 3D Systems, was the warrantor and (ii) all implied warranties were disclaimed.  In response, Plaintiff partially capitulated, filing an amended complaint dropping the claim for breach of the implied warranty of merchantability against 3D Systems.  Nevertheless, it persisted with its claim for breach of express warranty—though it did not attach the warranty to the complaint or include its terms in the complaint itself.

Willenken filed a second demurrer together with a request for judicial notice asking the Court to take judicial notice of the express warranty.  Plaintiff opposed the demurrer, arguing that it was improper for the Court to go beyond the four corners of the complaint on a demurrer.

The day before the hearing, the Court issued a tentative ruling overruling the demurrer and finding that Plaintiff had adequately alleged a claim for breach of express warranty.  Undeterred, Willenken attorney, William Delgado, pointed out to the Court that if the Court actually looked at the express warranty, the Court would have to rule in 3D Systems’ favor because the warranty made clear that the reseller was the warrantor.

Plaintiff vehemently argued against looking beyond the complaint, prompting the Court to ask Delgado why it should not simply wait until summary judgment to look at the warranty.  Delgado pointed out that there was no reason to force 3D Systems to spend time and money on either discovery or a motion for summary judgment simply to obtain a result that necessarily followed from the plain language of the express warranty.  He further pointed out that under the “doctrine of truthful pleading,” a plaintiff cannot escape demurrer simply by suppressing facts that a court can judicially notice.

The Court provided Plaintiff an opportunity to respond to those arguments but, persuaded by the defense, reversed its tentative, and sustained the demurrer with leave to amend.  Plaintiff elected not to amend the complaint and, instead, dismissed 3D Systems from the lawsuit.