Judge: Douglas W. Stern, Case: 21STCV07199, Date: 2022-09-19 Tentative Ruling

Case Number: 21STCV07199    Hearing Date: September 19, 2022    Dept: 52

Tentative Ruling:

          Defendant Ford Motor Company’s Motion for Judgment on the Pleadings

Defendant Ford Motor Company moves for judgment on the pleadings on plaintiff Raymond Gutierrez’s sixth cause of action for “fraudulent inducement – concealment.” 

Defendant also moves for judgment on the pleadings on the seventh cause of action for negligent repair—which is alleged only against former defendant Caruso Ford, which was dismissed from this action.  The motion is therefore moot as to the seventh cause of action.

Plaintiff fails to allege sufficient facts for his sixth cause of action for fraudulent concealment.  This cause of action requires that: (1) defendant omitted or concealed a material fact; (2) defendant had a duty to disclose the fact to plaintiff; (3) defendant intentionally omitted or concealed the fact with intent to defraud plaintiff; (4) plaintiff must have been unaware of the fact and would have acted otherwise if he had known of the concealed fact; and (5) the omission caused damages.  (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248 (Boschma).)  

Generally, “[e]very element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.”  (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157, internal quotes omitted.)  That requirement, however, is relaxed in claims of fraud by omission because one cannot “show ‘how’ and ‘by what means’ something didn’t happen, or ‘when’ it never happened, or ‘where’ it never happened.”  (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384 (Alfaro).   

          Plaintiff fails to specifically allege the material fact defendant omitted.  The complaint alleges, Ford “knew (or should have known) that the transmission had one or more defects that can result in various problems, including, but not limited to, hesitation upon acceleration, harsh shifting, delay upon shifting, slamming into gear, and transmission failure (‘Transmission Defect’).  These conditions present a safety hazard and are unreasonably dangerous to consumers because they can suddenly and unexpectedly affect the driver’s ability to control the vehicle’s speed, acceleration, deceleration and/or overall responsiveness of the vehicle in various driving conditions.”  (¶ 39.)  “[W]hile defendant knew about the Transmission Defect, and its safety risks, Defendant nevertheless concealed and failed to disclose the defective nature of the Vehicle and its transmission.”  (¶ 41.)

          This allegation is too vague to satisfy the heightened standard for pleading fraud.  Rather than specifically alleging a particular defect, plaintiff merely alleges that one of the vehicle’s major components does not work.  Fraud requires a more specific allegation of the omitted material fact.  Examples include failing to disclose that “products ‘contained significant concentrations of organic solvents ... and other toxic chemicals’ ” known to be toxic to the liver and kidney (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1200) and “omission of material facts showing [an artificial heart] valve had a history of strut fracture.”  (Khan v. Shiley Inc. (1990) 217 Cal.App.3d 848, 852.) 

Other examples are concealing specific facts such as “that plaintiffs were receiving a discounted initial interest rate and that making the minimum payments according to the TILDS payment schedule definitely would result in negative amortization” (Boschma, supra, 198 Cal.App.4th at p. 249), that the “site [of real property] suffered from soil instability” (Heliotis v. Schuman (1986) 181 Cal.App.3d 646, 648), and a “deed restriction” providing that all units in a housing development must “be affordable to very low, low and moderate income households as defined in Section 50093 of the California Health and Safety Code.”  (Alfaro, supra, 171 Cal.App.4th at p. 1373.)

In an automobile case, Scherer v. FCA US, LLC (S.D. Cal. 2021) 565 F.Supp.3d 1184, 1190 (attached as Exhibit 1 to plaintiff’s request for judicial notice), the complaint alleged the manufacturer failed to disclose “that the Subject Vehicle and its transmission and [powertrain control module] was defective which can cause loss of engine timing and result in shutting off or stalling without warning.”  Though a plaintiff need not “detail the granular defect within the transmission” (ibid.), there the allegedly concealed defect caused a specific mechanical effect, “loss of engine timing,” which resulted in noticeable symptoms. 

Here, plaintiff goes straight from the vague allegation that “the transmission had one or more defects” (Comp., ¶ 39) to the somewhat less vague ultimate results of “various problems, including, but not limited to hesitation upon acceleration, harsh shifting, delay upon shifting, slamming into gear, and transmission failure” (ibid.).  Both halves of this allegation are open ended: “one or more defects” causing results “including, but not limited to” the ones stated.  The complaint fails to adequately allege what Ford should have disclosed to plaintiff.  The complaint’s theory of fraudulent concealment amounts to requiring Ford to disclose that the vehicle’s transmission is lousy.

Moreover, plaintiff does not allege Ford knew the defect was widespread throughout 2017 Ford Fusion vehicles.  Unless Ford knew of a widespread or universal defect in the class of vehicles, it could not have known this vehicle—plaintiff Raymond Gutierrez’s 2017 Ford Fusion, vehicle identification number 3FA6P0HD5HR312877 (Comp., ¶ 9)—contained the alleged defect. 

Disposition

The court grants judgment on the pleadings on plaintiff’s sixth cause of action with 15 days’ leave to amend.