Pocino v. Jostens

Filed 5/3/06 Pocino v. Jostens CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County. Richard L. Fruin, Judge. Affirmed.

Westrup Klick, R. Duane Westrup, Mark L. Van Buskirk and Christine C. Choi for Plaintiff and Appellant.

Gibson, Dunn & Crutcher, Daniel G. Swanson and Christopher Chorba for Defendant and Respondent.

INTRODUCTION

Plaintiff and appellant, Christian Pocino (Pocino), appeals a judgment in favor of defendant and respondent, Jostens, Inc. (Jostens), after the trial court sustained Jostens's demurrer to Pocino's second amended complaint without leave to amend.

We affirm. The trial court did not abuse its discretion or otherwise err by finding that Pocino failed to allege facts sufficient to state a cause of action for breach of express warranty (Com. Code, § 2313), and failed to allege facts sufficient to state causes of action for violations of Business and Professions Code sections 17200 and 17500.

STANDARD OF REVIEW

As this is an appeal from a judgment following the sustaining of a demurrer, we accept as true properly pleaded material factual allegations (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 321-322; Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1224), as well as facts that may be implied or inferred from those expressly alleged. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.)

In Roman v. County of Los Angeles, supra, 85 Cal.App.4th 316, the court set forth the appropriate standard of review: â€