Judge: Helen Zukin, Case: 23SMCV00780, Date: 2023-07-11 Tentative Ruling

Case Number: 23SMCV00780    Hearing Date: July 11, 2023    Dept: 207

Background

Jack Sacane (“Plaintiff”) purchased a 2021 Chevrolet Bolt EV (the “Vehicle”), produced by General Motors LLC (“Defendant”). Plaintiff alleges that the Vehicle was delivered to him with serious defects and non-conformities to the warranty that accompanied the purchase. (Complaint, ¶ 10.) These defects included the EV battery module, potential high voltage battery fire, and front seatbelt pretensioner. (Id.) Plaintiff presented his vehicle to authorized dealerships to have the defects repaired, but the dealerships failed to conform the Vehicle to its express warranties. (Complaint, ¶¶ 23-24.) Plaintiff subsequently filed his Complaint on February 2, 2023 alleging the following six causes of action:

 

1.      Fraudulent Concealment and Misrepresentation;

2.      Negligent Misrepresentation;

3.      Business & Professions Code §17200;

4.      Song-Beverly Consumer Warranty Act – Breach of Express Warranty;

5.      Song-Beverly Consumer Warranty Act – Breach of Implied Warranty;

6.      Song-Beverly Consumer Warranty Act – Civil Code §1793.2(b)

 

Defendant filed the instant Demurrer to the first, second, and third causes of action, on the basis that they fail to state a claim. Defendant also filed a motion to strike the request for punitive damages in the prayer for relief. Plaintiff opposes the demurrer and motion to strike. Given that the two motions challenge the same pleading, the Court considers the demurrer and motion to strike together in this tentative ruling.   

 

Discussion on Demurrer

 

A. Meet and Confer Standard and Analysis –

The Court finds that Defendant has complied with the meet and confer requirements imposed by the Code of Civil Procedure prior to filing the demurrer and motion to strike. (Yaraghchian Dec., ¶ 2; see also CCP § 430.41(a), § 435.5.)   

 

B.  Untimely Filing

Defendant’s demurrer and motion to strike were noticed for hearing on July 11, 2023. Pursuant to Code of Civil Procedure § 1005(b), any opposition to the demurrer and motion to strike had to be filed and served no later than nine court days before the hearing, or June 27, 2023. Plaintiff acknowledged in his opposition that his briefs were late, but his counsel’s declaration explains that the briefs are late because his office calendaring system did not properly calendar the opposition deadline. Counsel also attaches an email he sent to Defendant’s counsel the day he learned he had missed the deadline, offering to extend the hearing date so that Defendant could have time to file a reply for the demurrer and motion to strike. Defendant makes no mention of this offer in its notice of non-opposition, stating only that Plaintiff missed the deadline. The Court finds Plaintiff’s explanation for the untimely filing satisfactory and thus, in its discretion, considers the arguments in Plaintiff’s oppositions in ruling on the demurrer and motion to strike.

 

B. Demurrer Standard –

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

 

C. Demurrer Analysis –

 

                                i. First Cause of Action – Fraudulent Concealment and Misrepresentation

“The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 189 Cal.Rptr.3d 31, at 36, citing Graham v. Bank of America, N.A., supra, 226 Cal.App.4th at p. 606, 172 Cal.Rptr.3d 218.)

 

Here, the Demurrer is sustained as to the first cause of action because the Complaint does not sufficiently allege how Defendant allegedly concealed material facts. Plaintiff argues in his Opposition Papers that “Despite GM’s access to years of analysis and feedback concerning the defective battery, GM continued to conceal and suppress the information regarding the defect.” (Opposition Papers, 3:16-18.) On the contrary, with regard to the issue with the Vehicle’s battery, the Complaint itself specifies that, on August 20, 2021, GM announced it added all 2020-2022 Bolt EV models to its battery recall (Complaint, ¶ 22), and this would have included the Vehicle at issue here. Moreover, prior to Plaintiff’s purchase on June 3, 2021, (Complaint, ¶ 8), Defendant had issued the following notices:

(1)   On May 11, 2018, Defendant released a new software update for all Bolt owners to “provide additional warnings” (Complaint, ¶ 14).

(2)   In August of 2018, Defendant released another notice stating there may be issues with the software related to the battery (Complaint, ¶ 15).

(3)   November 13, 2020, Defendant announced to its dealerships that the battery pack posed a risk of fire when charged to full or close to full capacity (Complaint, ¶ 17), then informed the National Highway Traffic Safety Administration (NHTSA) that they recalled the vehicles to install software to fix an issue with the hybrid propulsion system, (Complaint, ¶ 18) and instructed owners to not park their cars in their garages until they had visited their dealer. (Id.)

 

Recalls are publicly accessible through the NHTSA’s website. When the information is published in a publicly accessible manner, it cannot be said to have been concealed. Therefore, because the concealment element remains unsatisfied, the first cause of action for fraudulent concealment and misrepresentation fails, and the Demurrer is sustained.  

 

                              ii. Second Cause of Action – Negligent Misrepresentation

The elements of a cause of action for negligent misrepresentation include “[m]isrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another’s reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage.” (Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1154, quotation marks omitted.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiff must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

 

 

Here, Defendant argues that the second cause of action fails because the Complaint does not identify an affirmative misrepresentation made by Defendant. The Court agrees. The first element within this cause of action is misrepresentation of a material fact with no reasonable ground for believing it to be true. The Complaint states that when Plaintiff arrived at the dealership and met with the salesperson, Plaintiff asked about the Vehicle and noted it was important that the vehicle purchased be able to go at least 230 miles on a single charge. (Complaint, ¶ 8). The Complaint then notes that once Plaintiff was satisfied by the representations made by the salesperson, and by Defendant’s advertisements and publications regarding the range of the vehicle on a single charge, Plaintiff purchased the vehicle. (Id.) However, nowhere in this paragraph, nor in the Complaint does Plaintiff state the exact misrepresentation the salesperson or the Defendant made to induce Plaintiff to purchase the vehicle. This is a vital element that is missing, and without it, the cause of action cannot withstand demurrer. The Demurrer to the second cause of action is sustained.    

 

                            iii. Third Cause of Action – Business & Professions Code §17200

 

To set forth a claim for a violation of Business and Professions Code section 17200 (“UCL”), Plaintiff must establish Defendant was engaged in an “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising” and certain specific acts. (Bus. & Prof. Code, § 17200.) A cause of action for unfair competition “is not an all-purpose substitute for a tort or contract action.” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.)

 

 

The Demurrer to the third cause of action will be sustained as well. The Complaint does not point to any specific act by Defendant that would fall into the gambit of prohibited behavior under BPC §17200. Paragraph 49 of the Complaint states that “GM’s fraudulent acts include knowingly and intentionally concealing from Plaintiff the existence of the defect and falsely marketing and misrepresenting the Vehicle as being functional and not possessing a defect that impedes safe and reliable driving.” As noted above there were publicly available notices and recalls made prior to Plaintiff’s purchase of the Vehicle. Paragraph 18 of the Complaint states that because of a software fix, the limit on the battery’s range dropped to 214 miles on a single charge, which per Plaintiff is approximately 10% lower than initially advertised. However, nowhere in the Complaint does Plaintiff allege that Defendant advertised the range at a higher number or allege that Defendant advertised any number at all. Conclusory statements of an act being deemed “unlawful, unfair or fraudulent” without a specific example will not survive demurrer.               

 

Discussion on Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”].) Because there is reasonable possibility of leave to amend, the Court will grant thirty (30) days leave to amend.

 

Discussion on Motion to Strike

 

A. Motion to Strike Standard

The court may, upon 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. (Code Civ. Proc., § 436, subd. (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. (Code Civ. Proc., § 436, subd. (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. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

 

A motion to strike any pleading must be filed “within the time allowed to respond to a pleading”—e.g., 30 days after service of the complaint or cross-complaint unless extended by court order or stipulation. [CCP § 435(b)(1)]. This does not affect the court's power to strike sua sponte. Courts are specifically authorized to strike a pleading upon a motion or at any time in the court's discretion. [CCP § 436]

 

B. Motion to Strike Analysis

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

 

Defendant moves to strike the request for punitive damages. Defendant’s primary contention is that Plaintiff has not demonstrated a viable claim of fraud within the first three causes of action. As stated above, the Court agrees and strikes the request for punitive damages within the Complaint. Plaintiff has been granted thirty (30) days leave to amend, and Plaintiff may reallege their fraud claims, as well as request punitive damages in their amended Complaint. 

 

Conclusion

Accordingly, the Defendant General Motors LLC’s Demurrer is SUSTAINED as to the first three causes of action with thirty days (30) leave to amend and the Motion to Strike is GRANTED.