Judge: Armen Tamzarian, Case: 21STCV05632, Date: 2023-05-25 Tentative Ruling
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Case Number: 21STCV05632 Hearing Date: August 22, 2023 Dept: 52
Tentative Ruling:
Defendant General Motors, LLC’s Motion for
Summary Adjudication
Defendant General Motors,
LLC (GM) moves for summary adjudication of plaintiff Saleh Abuali’s sixth cause
of action for fraud and his claim for punitive damages.
Legal Standard
Summary judgment should be granted where no triable issues
of fact exist and the moving party is entitled to judgment as a matter of
law. (CCP § 437c(c); Villa v. McFerren (1995) 35 Cal.App.4th
733, 741.) Courts use a three-step
analysis: “(1) identify the issues framed by the pleadings; (2) determine
whether the moving party has negated the opponent’s claims; and (3) determine
whether the opposition has demonstrated the existence of a triable, material
factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)
Sixth Cause of Action for Fraud
Defendant
does not meet its initial burden of negating plaintiff’s cause of action for
fraud. This cause of action requires
plaintiff to prove (1) defendant concealed or failed to disclose a material
fact, (2) defendant was under a duty to disclose the fact to plaintiff, (3)
defendant intentionally concealed, omitted, or suppressed the fact with the
intent to defraud plaintiff, (4) plaintiff was unaware of the fact and would
not have acted as he did had he known of the concealed fact, and (5) as a
result of the concealment or suppression of the fact, plaintiff must have
sustained damage. (Boschma v. Home
Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.)
Even
if plaintiff disputed none of the facts in defendant’s separate statement, defendant
would not be entitled to summary adjudication.
The “Golden Rule” of summary adjudication is that if “it is not set
forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds
LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477.) “The court may properly disregard evidence
not cited in the parties’ separate statements when it ‘is not referenced, is
hidden in voluminous papers, and is not called to the attention of the court at
all.’ ” (Food Safety Net Services v.
Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1134.)
Defendant’s
separate statement of undisputed material facts includes only six facts: (1) details
identifying the vehicle; (2) when and where plaintiff bought the vehicle; (3)
that GM issued a warranty for the vehicle; (4) when the warranty’s coverage
expired; (5) plaintiff had repairs performed under the warranty three times
from January 2016 to September 2017; and (6) plaintiff last visited a
GM-authorized dealership for repairs in June 2021, when the vehicle had about
150,000 miles.
None
of these facts negates any of the elements of fraud by omission. This cause of action is not about the
warranty or how many times plaintiff brought the vehicle in for repairs. It is about whether defendant fraudulently
concealed that the vehicle’s cooling system is defective.
Though not in the
separate statement, defendant’s memorandum of points and authorities describes
two other categories of evidence. First,
GM refers to plaintiff’s deposition testimony.
(Memo, pp. 5-7.) He testified he
“ha[s] no idea about” whether GM misrepresented anything to him about the
cooling system. (Id., p. 5.) But plaintiff alleges fraud by concealment,
not by affirmative misrepresentation.
Plaintiff also testified he had no personal knowledge that GM
misrepresented or knew something was wrong with the cooling system. (Id., p. 6.) That does not mean plaintiff has no evidence GM
knew something was wrong with the cooling system. A consumer naturally would not have personal
knowledge of what GM knew about its vehicles.
GM also relies on plaintiff’s
testimony that he “never accused General Motors of” knowing or misrepresenting
something to him about the cooling system.
(Memo, p. 6.) Testimony about
what plaintiff “accused General Motors of” is not evidence negating the
elements of this cause of action. The
allegations in plaintiff’s first amended complaint constitute what he accused GM
of doing. On summary adjudication, the
issues are whether defendant produced evidence negating those allegations and,
if so, whether plaintiff presented sufficient evidence to establish triable
issues of material fact. And regardless
of this testimony, plaintiff later testified he believed GM concealed the
defect: “When they fail to fix it right from the face or the second time, that
means they are concealing things.” (Id.,
p. 7.)
The second category of
evidence GM refers to consists of publicly available information about the
cooling system defect, including technical service bulletins and “manufacturer
communications” available on the National Highway Traffic Safety
Administration’s (NHTSA) website. (Memo,
pp. 9-13.) GM, however, provides no
evidence plaintiff ever saw these materials or that GM provided this
information to plaintiff. As one court
reasoned, “Even if the public—and therefore Plaintiffs—were aware of some
problems with” one of the vehicle’s systems, “that does not establish that
either the public or Plaintiffs knew or should have known of the severity of
the problems, including the fact that the problems could not be fixed.” (In re MyFord Touch Consumer Litigation
(N.D. Cal. 2014) 46 F.Supp.3d 936, 960; accord Falk v. General Motors Corp.
(N.D. Cal. 2007) 496 F.Supp.2d 1088, 1097 [though consumers “could have read
the many complaints about the” vehicles on the internet, they were not
“required to do so”].) Evidence that any
member of the public could have discovered information about problems with the
vehicle’s cooling system does not suffice to negate the element of concealment
or omission.
Even if this publicly
available information constituted disclosure to plaintiff himself, GM has not
shown these disclosures were sufficient as a matter of law. “Whether
the disclosure was adequate to defeat a claim of concealment depends on the
scope of the duty to disclose.” (Lovejoy
v. AT&T Corp. (2004) 119 Cal.App.4th 151, 158.) “To establish there was no concealment or
suppression of a material fact as a matter of law, [defendant] would have to
establish it made full disclosure consistent with the duty of disclosure.” (Id. at pp. 159-160.)
Here, plaintiff alleges defendant failed to disclose that 2015 Chevrolet
Cruze vehicles “contained one or more design and/or manufacturing defects in
their engine cooling systems … that results in an engine coolant leak from the
water pump, water pump weep reservoir, and/or water pump shaft seal.” (FAC, ¶ 11.)
He further alleges the omission included that “GM was unable to repair
the engine and its cooling system” such that GM “was concealing the defective
nature of the Subject Vehicle.” (FAC, ¶
46.)
The bulletins and other information GM presents do not include
disclosures that the vehicle’s cooling system has a “defective nature” or has a
design or manufacturing defect. To the
contrary, the stated purpose of these communications and bulletins is to fix
problems with the cooling system. The NHTSA
manufacturer communication dated February 26, 2014, states it “provides a
procedure to install a new coolant drain tube and clean any grease found under
the windshield cowl to correct a customer’s concern of a coolant odor inside
the vehicle.” (Memo, p. 12.) The communication dated March 12, 2014,
states it “provides information on diagnosing a water pump for what is
considered a leak and [how to] replace the pump correctly.” (Ibid.)
Punitive Damages
Defendant does not meet
its initial burden of showing plaintiff cannot succeed on his claim for
punitive damages. Defendant’s argument
relies on the premise that plaintiff cannot prove his cause of action for
fraud. This argument therefore fails for
the same reasons as defendant’s motion for summary adjudication of the fraud
claim.
Disposition
Defendant General Motors, LLC’s motion for summary
adjudication is denied.