Judge Christian R. Gullon, Case Number: 22PSCV00948, Date: 2023-07-10 Tentative Ruling

Judge: Christian R. Gullon, Case: 22PSCV00948, Date: 2023-07-10 Tentative Ruling

(1) GENERAL MOTORS LLC’S DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT is SUSTAINED without leave to amend.

(2) GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF’S SECOND AMENDED COMPLAINT is GRANTED.

On August 30, 2022, Plaintiff DAVID ZAMORATEGUI filed suit against Defendant General Motors LLC (“Defendant” or “GM”).

On January 11, 2023, Plaintiff filed its First Amended Complaint (“FAC”) asserting the following causes of action (COA):

On February 14, 2023, Defendant filed a demurrer (and motion to strike (MTS)) to the FAC, which the court sustained with leave to amend.

Defendant again demurs to the SAC on identical grounds as before: the 4^th COA for violation of the CLRA based upon three grounds: (i) the COA is barred by the statute of limitations (SOL); (ii) fails to state facts relevant to the elements of the claim; and (iii) fails to allege a transactional relationship giving rise to a duty to disclose.

Previously, the court sustained the demurrer with leave to amend because the allegations were at best conclusory,[1] notably as to the requirement that Plaintiff plead that GM had knowledge about the alleged defects in Plaintiff’s Silverado at the time of purchase. Additionally, distinguishing the facts from Plaintiff’s heavily reliance upon Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, the court noted that unlike Dhital, here, Plaintiff does not predicate Defendant’s knowledge of a supposed defect based upon the same engine. As stated in the July 10, 2023 ruling, “Plaintiff is imputing knowledge based upon a defect in a different engine. In fact, a large portion of the FAC is dedicated to GM’s 6L50 (“6L”) transmission. However, the mere fact that the 8L transmissions succeeded the 6L transmission (FAC ¶36) does not bear significance for a fraud cause of action wherein a plaintiff is to plead that a defendant made a specific misrepresentation as to a specific material fact (i.e., specific misrepresentation as to 8L engine).” Thus, the court granted leave to amend for Plaintiff to plead sufficient facts that “GM concealed material information regarding the 8L transmission.” (July 10, 2023 Tentative Ruling.)

However, despite leave to amend, Plaintiff has filed a largely similar amended complaint, notably one that continues to interchange between the transmissions.

Turning to the 4^th COA in the SAC, Plaintiff alleges that “GENERAL MOTORS LLC intentionally concealed the design defect found in the 8L90 and 8L45 transmissions because of the common architecture of the transmission that causes “harsh shifts” in lower gears, which can feel like jerking, lurching, and/or hesitations.” (SAC ¶129, underline and emphasis original.) But the 8L45 transmission is not at issue because “The Subject Vehicle was manufactured by GENERAL MOTORS LLC and was equipped with a defective Hydra-Matic 8L90 transmission” (SAC ¶4, emphasis added.) Effectively, references to a different transmission are irrelevant in determining whether GM concealed the safety issues with the 8L40 transmission. With that, it is unclear whether the “pre-production testing, early consumer complaints about the Transmission Defect made directly to Defendant and its network of dealers, aggregate warranty data compiled from Defendant’s network of dealers, testing conducted by Defendant in response to these complaints, as well as warranty repair and part replacements data received by Defendant from Defendant’s network of dealers, amongst other sources of internal information” (SAC ¶133) was about the 8L90 or 8L45 transmission.

Simply put, though Plaintiff in opposition maintains it has pled sufficient facts (Opp. p. 13, citing generally to the entire 4^th COA), Plaintiff has not pled what safety issue concerns in which source, answers of which would be sufficient to allege that GM knew the 8L90 transmission could cause death or physical injury but chose to remain silent.

All in all, Plaintiff’s complaint attempts to impute fraudulent concealment based upon the mere fact that the vehicle experienced problems; but the mere fact that the vehicle had a transmission defect does not equate to GM’s knowledge of a defect and concealment of it from the public.

Based on the foregoing, the demurrer is sustained without leave to amend, and the motion to strike punitive damages is granted (as there is no fraud COA).

[1] Plaintiff contends that the heightened pleading standard for a fraud-based cause of action does not apply because this is fraud based upon nondisclosure or concealment. (Opp. pp. 1-2, citing Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384-85.) (The Reply does not address this contention.) Indeed, less particularity is required when the facts lie more in the knowledge of the opposing party, but facts are still required. Unlike Alfaro, for example, which involved a statutory duty to disclose deed restrictions in a real estate transfer disclosure statement, the plaintiffs at the very least pled facts about discussions with defendants. With that, the appellate court held that the plaintiffs were not required to plead the discussions as to each of the 38 defendants because the defendants likely had records of their dealings with plaintiffs. (Id.). Here, however, Plaintiff has not pled facts as to the specific transmission defect nor how the non-publicly available information pertained to that specific transmission defect. Therefore, absent basic facts as to fraud, the court need not distinguish between less or more facts.