Judge: Cherol J. Nellon, Case: 23STCV20155, Date: 2024-03-27 Tentative Ruling

Case Number: 23STCV20155    Hearing Date: March 27, 2024    Dept: 14

Beltran v. General Motors

Case Background

 

Lemon law case involving Plaintiff’s 2020 Chevrolet Traverse.

 

On July 8, 2021, Plaintiffs filed their Complaint for (1) Breach of Implied Warranty of Merchantability, (2)-(3) Breach of Express Warranty, (4) Violation of Magnuson-Moss, and (5) Violation of the CLRA against Defendants General Motors LLC (“GM”) and DOES 1-10.

 

No trial date has yet been set.

 

(1)       Demurrer

 

            Defendant GM now demurs, per Code of Civil Procedure § 430.10(e) to the fifth cause of action in the Complaint on the grounds that there are no facts sufficient to support that cause of action against Defendant GM.

 

Decision

 

The demurrer is SUSTAINED, with 45 days leave to amend.

 

Fifth Cause of Action: CLRA

 

            Civil Code § 1770 provides in relevant part as follows:

 

“(a) The unfair methods of competition and unfair or deceptive acts or practices listed in this subdivision undertaken by any person in a transaction intended to result or that results in the sale or lease of goods or services to any consumer are unlawful:

…

(5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have.

…

(7) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.

…

(14) Representing that a transaction confers or involves rights, remedies, or obligations that it does not have or involve, or that are prohibited by law.

 

Civil Code § 1780 provides in relevant part as follows:

 

“(a) Any consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice declared to be unlawful by Section 1770 may bring an action against that person to recover or obtain any of the following:

(1) Actual damages, but in no case shall the total award of damages in a class action be less than one thousand dollars ($1,000).

(2) An order enjoining the methods, acts, or practices.

(3) Restitution of property.

(4) Punitive damages.

(5) Any other relief that the court deems proper.”

 

Notice

 

            Civil Code § 1782 requires that, before filing a lawsuit, a consumer give notice to the manufacturer or seller and allow them time to cure the issue. Notice must be given at least 30 days prior to filing a lawsuit. Civil Code § 1782(a). If the manufacturer or seller agrees to an “appropriate” curative measure within that period, the suit is barred. Civil Code § 1782(b). However, there is no need to comply with the notice procedure if the plaintiff is only seeking injunctive relief. Civil Code § 1782.

 

            Paragraphs 64-68 of the Complaint admit that Plaintiff has not complied with the notice period. They concede that Plaintiff sent her notice to cure simultaneously with service of the complaint, and state that “upon the expiration of thirty (30) days” the complaint will be amended “by operation of law and without leave of court” to state a proper claim for violations of the CLRA. This is not proper.

 

            Plaintiffs cite to Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1259-61. In that case, the initial versions of the complaint had made no mention of damages, instead seeking purely injunctive relief. Id. at 1260. Only in the second amended complaint was there a request for damages, and only in the third amended complaint was compliance with the notice requirement properly alleged. Id. The Court of Appeal held that the failure to allege compliance in the second amendment, and resulting sustention of the demurrer, did not result in a dismissal of the damages claim with prejudice. Id. at 1260-61.

 

            Morgan does not authorize plaintiffs to file their notices simultaneous with their complaints. Nor does it authorize any sort of amendment “by operation of law and without leave of court” once the notice period has passed. Plaintiffs cannot get around the notice period by giving notice simultaneously with their complaint, secure in the knowledge that the notice period will have passed before the defense can raise any objection. Plaintiffs are obliged to leave damages out of any CLRA claim until they can allege that compliance with the notice period occurred prior to the filing of the operative complaint.

 

Substantive Pleading

 

            As noted above, the ordinary rules of fraud pleading do not apply to a concealment claim. It is not entirely clear whether they apply to a claim under the CLRA. See Gutierrez v. CarMax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1261. However, unlike common law fraud, a claim under the CLRA cannot be based on the simple failure to disclose; it must identify some specific representation that was contrary to, or necessarily concealed, the true facts. Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 833-834; see e.g. Gutierrez, supra, 19 Cal.App.5th at 1261-63 (representation that a car subject to a safety recall for a brake light part had passed a 125-point inspection which included brake lights). And as a corollary, it must allege that the Plaintiffs were damaged by that representation. See Civil Code § 1780(a).

 

            The Complaint fails on this ground as well. It does not identify any specific representation which was made to Plaintiff, upon which Plaintiff relied, which turned out to be false.

 

Conclusion

 

            However, Plaintiffs have not properly pled a CLRA claim because (a) they have sought restitution without complying with the notice requirement, and (b) they have failed to identify any specific misrepresentation upon which they relied.

 

            Therefore, the demurrer is SUSTAINED, with 45 days leave to amend. The lengthy amendment period is necessary to give Plaintiff sufficient time to comply with the notice requirement before re-filing her damages claim.

 

(2)       Motion to Strike

 

            Defendant GM now moves this court, per Code of Civil Procedure §§ 435-436, for an order striking the punitive damages allegations from the Complaint.

 

Decision

 

The motion is GRANTED, with 45 days leave to amend. In light of the ruling above, Plaintiffs are left only with contract claims, which will not support a request for punitive damages. See Civil Code § 3294(a).