Judge: Douglas W. Stern, Case: 22STCV35600, Date: 2023-02-23 Tentative Ruling

Case Number: 22STCV35600    Hearing Date: February 23, 2023    Dept: 68

Adan Marin, et al. vs. General Motors, LLC., Case No. 22STCV35600


Demurrer with Motion to Strike


MOVING PARTY:                Defendant General Motors, LLC


RESPONDING PARTIES:  Plaintiffs Adan Marin and Claudia Fernandez




This is a Song-Beverly Warranty Act lawsuit regarding Plaintiffs’ allegedly defective 2021 Chevrolet Colorado. Plaintiffs have pled two causes of action related to the Song-Beverly Warranty Act, and one cause of action for fraud premised on a claimed fraudulent concealment. Defendant filed a demurrer with motion to strike on January 13, 2023, as to Plaintiffs’ third cause of action for fraudulent concealment and Plaintiffs’ claim for punitive damages. Plaintiffs oppose Defendant’s motion.




            Defendant demurs to the third cause of action for fraudulent concealment on the basis that it fails to state facts sufficient to establish the cause of action.




A. The Demurrer


As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)


Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). 


1. Third Cause of Action for Fraudulent Concealment


            “In California, fraud must be pled 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.)


            To state a claim for fraudulent inducement-concealment, a plaintiff 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.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310–11; see also Lazarsupra, 12 Cal.4th at 638.) Absent a fiduciary relationship between the parties, 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. (Bigler-Englersupra, 7 Cal.App.5th at p. 311; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.) 


Plaintiffs have not alleged any facts demonstrating any actionable omission by Defendant as to Plaintiffs’ 2021 Chevrolet Colorado. Nor have Plaintiffs alleged any facts demonstrating that fraudulent representations were made to them about their specific vehicle. Plaintiffs have also not alleged any facts demonstrating how, where, and by what means the alleged fraud occurred.


Defendant’s demurrer as to Plaintiff’s third cause of action for fraudulent concealment is sustained with 20 days leave to amend.


B. The Motion to Strike


The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (CCP § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (CCP § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (CCP § 437.)


1. Punitive Damages


Defendant requests that the Court strike Plaintiffs’ request for punitive damages from the complaint.


Punitive damages are only awarded in a narrow set of circumstances where a defendant intends to cause harm. (Woolstrum v. Mailoux (1983) 141 Cal.App.3d Supp. 1, 10 [quoting Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286].) Thus, a claim for punitive damages can be stricken if it fails to provide facts sufficient to support allegations of intent. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) Punitive damages claims are typically improper in a negligence claim because negligence is, by its very definition, unintentional. (Woolstrum, supra, 141 Cal.App.3d Supp. at p. 10 (quoting Prosser, Law of Torts (4th ed. 1971) p. 9).)


To sufficiently plead a claim for punitive damages pursuant to Civil Code §3294, a plaintiff must satisfy circumstances of "malice, oppression, or fraud," supported by facts alleged with sufficient particularity. (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) These allegations are held to a heightened pleading standard: a plaintiff may not state a mere conclusion of law to support a cause of action. (Perkins v. Sup. Ct. (1981) 117 Cal.App.3d 1, 6.) More importantly, the plaintiff may not simply "plead . . . a claim for damages in the language authorizing such damages." (Id.) While some conclusory statements may be permitted, they must make sense in the context of the Complaint taken as a whole. (Id.)


Plaintiffs have not pleaded facts sufficient to show that Defendant intended to cause harm. Additionally, Plaintiffs have not alleged facts sufficient to show that Defendant intended to defraud Plaintiffs.


The reference to punitive damages in Plaintiffs’ complaint (Comp., at p. 45:8-9) shall be stricken from the complaint. Defendant’s motion to strike as to the reference to punitive damages is GRANTED with 20 days leave to amend.


[The Court would note that the effort associated with this motion is not related to a Song-Beverly claim.  While the Court is not making any determination at this time regarding the potential for recovery of attorneys fees should Plaintiff prevail on a Song-Beverly claim that might entitled Plaintiff to recover attorneys fees, the Court orders that Plaintiff make appropriate billing notations at this time setting forth the billings/time/costs devoted to this motion.]