Judge Bruce G. Iwasaki

Department 58

Hearing Date: February 25, 2025

Case Name: Abushar v. FCA US, LLC

Case No.: 24STCV27763

Matter: Demurrer to the Complaint

Moving Party: Defendant FCA US, LLC

Responding Party: Plaintiff Mary Christine Abushar

Tentative Ruling: The Demurrer to the fifth cause of action in the Complaint is sustained.

On or about February 12, 2021, Plaintiff Mary Christine Abushar (Plaintiff) purchased a 2020 Dodge Charger (Vehicle). Plaintiff alleges that, at the time of the purchase, her Vehicle contained defects covered under the vehicle warranty and that Defendant FCA US, LLC (FCA) failed to repair the Vehicle in compliance with the warranty. Plaintiff also claims that Defendant FCA’s fraudulent conduct contributed to her decision to purchase the Vehicle.

On October 23, 2024, Plaintiff sued Defendant FCA. The Complaint contains causes of action for breach of warranty claims under the Song-Beverly Act, and a fraud and negligence claim.

Defendant FCA now demurs to the fifth cause of action for fraud. Plaintiff opposes the demurrer.

The Court sustains the demurrer with leave to amend.

Legal Standard for Demurrers

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Analysis

Fifth Cause of Action for Fraud:

Defendant FCA argues that the fraudulent concealment claims contained within the fifth cause of action fails to state a claim. Defendant argues that the Complaint does not state a claim because Plaintiff has not alleged fraud with the requisite specificity.

The Complaint fails to allege facts sufficient to support fraudulent concealment.

Defendant contends that the Complaint fails to allege the “how, when, where, to whom, and by what means the fraud was tendered.” (Dem., 2:9-11.)

To state a claim for fraudulent inducement-concealment, Plaintiffs must allege: (1) the defendant “concealed or suppressed a material fact,” (2) the defendant was “under a duty to disclose the fact to the plaintiff,” (3) the defendant “intentionally concealed or suppressed the fact with the intent to defraud the plaintiff,” (4) the plaintiff was “unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact,” and (5) “as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (BiglerEngler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-311.)

As a preliminary matter, Plaintiff adequately alleges the Vehicle contained an engine defect. (Compl., ¶ 19.) Contrary to FCA’s argument, greater specificity into the technical nature of this defect is not required at the pleading stage.

Also, Defendant FCA’s argument that the concealment is not alleged with adequate specificity is also not well-taken. Here, Defendant FCA argues “Plaintiff does not allege what representations were made to Plaintiff with respect to Fraudulent Inducement or Concealment. There are no factual allegations whatsoever related to Plaintiff’s purchase of the vehicle – such as who sold the vehicle to Plaintiff’s, what was said, or what induced Plaintiff to purchase the vehicle.” (Dem., 3:5-9.)

The ordinary rule about pleading fraud with specificity is less demanding when the alleged fraud is concealing the truth. Ordinarily, “fraud must be pleaded specifically; general and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.). “This particularity requirement necessitates pleading facts which show how, where, to whom, and by what means” the alleged fraud occurred. (Id.) The purpose of the particularity requirement is to “separate meritorious and nonmeritorious cases, if possible in advance of trial.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.)

Some cases, however, conclude that this standard is less stringent when the defendant already has “ ‘full information concerning the facts of the controversy.’ ” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217, superseded by statute on other grounds as stated in Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 227.) Relaxation of the specificity requirement is particularly appropriate in a concealment case. Unlike intentional misrepresentation, which requires some affirmative representation or promise, a fraudulent concealment is the absence of something, the suppression of a fact. (Civ. Code, § 1710.)

This distinction was recognized in Turner v. Milstein (1951) 103 Cal.App.2d 651. In rejecting a demurrer based on uncertainty, the Turner court explained that the uncertainty doctrine does not apply when the facts are known by the demurring party:

“The only specification of uncertainty was that it could not be determined how, or in what manner, Milstein concealed from plaintiff the time and place of the sale of the real property. The ultimate fact is pleaded. It is an old and elemental rule of pleading that a demurrer for uncertainty does not lie if what is sought is a statement of matter already within the knowledge of the demurring party.... If, in truth, Milstein concealed from plaintiff the fact that the property was to be sold, he knows it and he knows the time and place of concealment, if there was a time and place. It would seem that concealment is negative and that it would occur without any time or place. Milstein knows the facts.” (103 Cal.App.2d at p. 658.)

Thus, based on the nature of this type of claim, a plaintiff in a fraud by omission suit will not be able to specify the time, place, and specific content of an omission as precisely as would a plaintiff in a false representation claim. Here, the Court cannot conclude that the contents of the alleged concealment was not pleaded with the adequate level of specificity.

However, the Court finds that the Complaint fails adequately to allege facts showing a duty to disclose. (Code Civ. Proc., 438, subd. (c)(3).)

Absent a fiduciary relationship between the parties (which Plaintiff does not allege here), a duty to disclose can arise in only three circumstances: (1) the defendant had exclusive knowledge of the material fact; (2) the defendant actively concealed the material fact; or (3) the defendant made partial representations while also suppressing the material fact. (BiglerEngler, supra, 7 Cal.App.5th at p. 311; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.) The California Supreme Court “has described the necessary relationship giving rise to a duty to disclose as a ‘transaction’ between the plaintiff and defendant ….” (Bigler-Engler, supra, 7 Cal.App.5th at p. 311; Warner Construction Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294 [“In transactions which do not involve fiduciary or confidential relations”]; Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1187–89 [rejecting concealment claim where plaintiffs “were not involved in a transaction with the parties they claim defrauded them”]; LiMandri, supra, 52 Cal.App.4th at p. 337 [“such a relationship can only come into being as a result of some sort of transaction between the parties”].)

Here, there are no facts alleged that would support a duty to disclose. That is, the Complaint contains no allegations of any direct dealing with FCA.

In this case, Plaintiff does not allege that she bought the Vehicle from Defendant FCA directly, which might have given rise to a transaction relationship between the parties.

Further, the Complaint does not adequately allege FCA’s exclusive knowledge of the Engine Defect in the specific Vehicle that Plaintiff purchased. That is, the Complaint contains only conclusory statements about preproduction testing data and early consumer complaints, which only suggests that some percentage of cars of the same year and model may have had a particular defect. (Compl., ¶ 61) These allegations are inadequate to demonstrate FCA’s exclusive knowledge about an Engine Defect in Plaintiff’s specific Vehicle.

Thus, Plaintiff has not pled a transactional relationship giving rise to a duty to disclose. This is a ground for sustaining the demurrer to the fifth cause of action.

Conclusion

The demurrer to the fifth cause of action is sustained. Plaintiff shall have leave to amend. An amended pleading shall be filed and served on or before March 25, 2025.