Department 20

Hearing Date: March 29, 2023

Case Name: James, et al. v. American Honda Motor Company, Inc., et al.

Case No.: 21STCV29618

Matter: Demurrer; Motion to Strike

Moving Party: Defendant American Honda Motor Co., Inc.

Responding Party: Plaintiffs Veloria James and Steven James

Notice: OK

Ruling: The Demurrer is sustained, without leave to amend,

The Motion to Strike is granted in part, without leave to amend.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

This is a lemon law action. On November 21, 2022, Plaintiffs Veloria James and Steven James filed the operative Third Amended Complaint (“TAC”) for (1)-(4) violations of the Song-Beverly Consumer Warranty Act §§ 1793.2(d), 1793.2(b), 1793.2(a)(3), 1791.1 and 1794, and (5) fraud by omission.

Demurrer

Defendant American Honda Motor Co., Inc. demurs to the fraud claim for failure to state sufficient facts.

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.) It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.)

“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. [Citation.]” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606.)

“[F]raud must be pled specifically; general and conclusory allegations do not suffice. [Citations] Thus the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect. This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal. 4th 631, 645, internal quotation marks omitted.)

Where fraud is pled against a corporation, Plaintiff must “allege the names of the persons making the allegedly fraudulent 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 Mutual Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

The Court has already ruled two times that Plaintiffs have not pled a transactional relationship in order to establish a duty to disclose. The TAC again fails to remedy this issue, referring to various marketing materials without any real factual specificity. Therefore, the Demurrer is sustained as to the fifth cause of action, without leave to amend.

Motion to Strike

Defendant again seeks to strike the following from the TAC: (1) “conflicting” allegations; (2) allegations that there was a duty to disclose; (3) allegations as to irrelevant class actions; and (4) references to punitive damages.

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc. § 435(b)(1).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice. (Id. § 437(a).) The Court may strike out any irrelevant, false, or improper matter inserted in any pleading, and strike out 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. (Id. § 436.) An “irrelevant” matter includes any “demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Id. § 431.10(b)(3), (c); see also Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1036-1042.)

Given the ruling on the demurrer, the Motion to Strike is granted as to references to duty and punitive damages, without leave to amend.

The Motion is otherwise denied as a motion to strike is not to be used as a line item veto. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.)

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.