Judge: Edward B. Moreton, Jr., Case: 23SMCV05162, Date: 2024-02-28 Tentative Ruling

Case Number: 23SMCV05162    Hearing Date: February 28, 2024    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

NICHOLAS SCHWARCZ, Plaintiff, v. GENERAL MOTORS LLC, et al., Defendants. Case No.: 23SMCV02329 Hearing Date: February 28, 2024 [TENTATIVE] ORDER RE: DEFENDANT GENERAL MOTORS, LLC’S DEMURRER AND MOTION TO STRIKE COMPLAINT

This is a lemon law case. Plaintiff Nicholas Schwarcz bought a 2022 Chevrolet Colorado. (Compl. ¶ 4.) Defendant General Motors LLC is the manufacturer and distributor of the Colorado. (Id. ¶ 3.)

Plaintiff claims Defendant knew of and failed to disclose defects in the 8 speed automatic transmission of the Colorado. The defect caused “harsh shifts” in lower gears, which can feel like jerking, lurching and/or hesitations. (Id. ¶ 11.) The transmission also slips when driven at highway speeds. (Id. ¶ 14.)

The operative complaint alleges claims for (1) violation of Song-Beverly Act-breach of express warranty, (2) violation of Song-Beverly Act-breach of implied warranty, (3) violation of Song-Beverly Act Section 1793.2, and (4) fraud-fraudulent inducement-concealment.

This hearing is on Defendant’s demurrer and motion to strike. Defendant demurs to the fraud claim on the ground Plaintiff did not plead fraud with particularity, and Plaintiff does not

allege a transactional relationship between Defendant and Plaintiff giving rise to a duty to disclose. Defendant also moves to strike Plaintiff’s punitive damages claim on the ground Plaintiff fails to allege malice, oppression or fraud, and Plaintiff’s underlying fraud claim fails and absent that claim, Plaintiff has no basis to seek punitive damages.

Instead of filing an opposition, Plaintiff filed an amended complaint. The amended complaint moots the demurrer and motion to strike. Accordingly, the Court overrules the demurrer and denies the motion to strike as moot.

IT IS SO ORDERED.

DATED: February 28, 2024 ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court