Judge: Joel R Wohlfeil, Case: 37-2022-00045044-CU-PO-CTL, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 25, 2023

10/27/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2022-00045044-CU-PO-CTL CONNER VS MOSSY NISSAN EL CAJON [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 07/31/2023

The Demurrer (ROA # 58) of Defendant MOSSY NISSAN EL CAJON ('Mossy' or 'Defendant') to all causes of action against Mossy in the First Amended Complaint ('FAC') by Plaintiff ASHLEY CONNER ('Plaintiff'), is OVERRULED.

Defendant is ordered to file and serve its Answer within twenty (20) days of this hearing.

The Request (ROA # 63) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of the dates only on which nos. 1 and 2 were filed with the Court; otherwise, the Request is DENIED.

The Court deems the 'Declaration' filed by Plaintiff on October 4, 2023 to be Plaintiff's opposition to this Demurrer. See ROA # 70.

This Court's Order dated April 28, 2023 permitted Plaintiff leave to file and serve a First Amended Complaint ('FAC') addressing the deficiencies raised in the original Demurrer and Motion to Strike.

However, rather than file s stand-alone First Amended Complaint, Plaintiff filed a pleading titled: 'AMENDMENT OF COMPLAINT: CONCEALMENT OF ACCIDENT HISTORY & FRAUDULENT MISREPRESENTATION FROM AUTO DEALER.' An amendment to a complaint, as opposed to an amended pleading superseding the original, is generally a proper means to amend the allegations. See Code Civ. Proc. 471.5.

If a demurrer is sustained with leave to amend, the court can order the filing of an amendment or an amended pleading. Code Civ. Proc. 472a(c).

Plaintiff's decision to file an amendment to the original Complaint rather than an amended complaint is not improper and is in substantial compliance with this Court's previous order. The Court will accept this amendment as pleading additional facts in support of the claim for fraud. As it merely adds context to the original pleading, it is not a 'sham' pleading.

As alleged, Plaintiff discovered, or through reasonable diligence could have discovered, the undisclosed collision damage in either March 2019 when she learned the front bumper had been previously repaired, or in September 2022 when she learned of the prior accident. However, the pleading further alleges that in March 2019, Defendant falsely stated the bumper had undergone 'a minimal repair' after a 'bump.' Thus, it is a question of fact whether Plaintiff discovered, or could have discovered, the fraudulent Calendar No.: Event ID:  TENTATIVE RULINGS

3001968 CASE NUMBER: CASE TITLE:  CONNER VS MOSSY NISSAN EL CAJON [IMAGED]  37-2022-00045044-CU-PO-CTL concealment in March 2019 and the Demurrer is overruled on this basis.

Defendant also argues sufficient facts are not alleged supporting a claim for fraud. This argument is not persuasive. The combined pleading alleges sufficient specific facts supporting a claim for fraudulent concealment of the subject vehicle's accident history. As this is a concealment claim, specific facts regarding the person within the corporate entity making a false statement cannot be alleged. Also, any additional facts regarding the concealment would be known to Defendant. See Committee On Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 217 (less specificity is required when it appears from the nature of the allegations that defendant must necessarily possess full information concerning the facts of the controversy).

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3001968