Judge Malcolm Mackey, Case Number: 23STCV04990, Date: 2023-09-01 Tentative Ruling

Judge: Malcolm Mackey, Case: 23STCV04990, Date: 2023-09-01 Tentative Ruling

Case Number: 23STCV04990 Hearing Date: September 1, 2023 Dept: 55

VINITSKY v. GENERAL MOTORS LLC, 23STCV04990

Hearing: 9/1/23, Dept. 55.

#2: MOTION FOR JUDGMENT ON THE PLEADINGS; MOTION TO STRIKE.

Notice: Okay

Opposition

MP: Defendant

RP: Plaintiff

Summary

On 3/6/23, Plaintiff HOPE VINITSKY filed a Complaint alleging: On or about December 18, 2020, Plaintiff travelled to Culver City Chevrolet, met with the salesperson and asked him to show a 2020 Chevrolet Bolt EV, and was satisfied by the representations made by the salesperson and the manufacturer through publications, that the vehicle’s range on a charge was 259 miles. However, the vehicle had defects including with the EV battery module, insufficient distance on a charge, potential high voltage battery fire and front seatbelt pretensioner. After Plaintiff’s repeated presentations of the vehicle authorized repair facilities, the manufacturer has been unable to conform the Vehicle to its express warranties and it remains defective.

The causes of action are:

1. FRAUD 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).

MP Positions

Moving party requests an order granting judgment on the pleadings as to the First, Second and Third Causes of Action, and granting the motion to strike as to punitive damages, on grounds including the following:

· Plaintiff does not have factual or legal grounds for the “fraud” claims asserted in Counts I, II, and III of the Complaint.

· Plaintiff failed to plead the alleged “fraud” with particularity.

· Plaintiff did not identify a representation by or from GM, nor did she allege facts showing when, where, or how GM made any representation, much less a misrepresentation, about her Bolt.

· Without viable “fraud” claims, Plaintiff has zero grounds to demand punitive damages from GM. Even if Plaintiff asserted viable “fraud” claims, the allegations do not satisfy the statutory standards required to pursue punitive damages.

RP Positions

Opposing party advocates denying, or leave to amend, for reasons including the following:

· Plaintiff pled specific facts sufficient to state a claim that Defendant fraudulently induced Plaintiff into leasing the Subject Vehicle, based on a theory of concealment. The Complaint sufficiently alleges GM concealed or suppressed the material fact that the Vehicle was equipped with a defective battery that had shorter range and can cause fire. (Complaint, ¶¶ 13-25.) GM long was aware of the problems with the vehicle prior to Plaintiff’s lease of the Subject Vehicle on December 18, 2020. (Complaint, ¶ 13.)

· The person who authored GM’s promotional advertisements is within the knowledge of Defendant. Similarly, the person who authored its recalls is also within Defendant’s knowledge.

· Plaintiff’s Complaint also alleges that GM negligently misrepresented the defective qualities of the battery in the Subject Vehicle to Plaintiff, including its range and that it was safe. (Complaint, ¶ 8.) GM was aware of the problems with the battery as early as 2017. (Complaint, ¶ 13.) GM had no reasonable grounds to represent the vehicle’s battery range as 259 miles and that it could not catch fire given the information it had regarding the battery defect. (Complaint, ¶¶ 13-23.) Plaintiff reasonably relied on Defendant’s representations related to the battery because GM was the manufacturer of the vehicle. Defendant was in a superior position of knowledge. Plaintiff was harmed by leasing a vehicle that Plaintiff would not have leased had she known the true facts about the battery and its defects. (Complaint, ¶ 27.)

· Omissions by a dealership may be imputed to the manufacturer. Daniel v. Ford Motor Company (2015) 806 F.3d 1217, 1226-27.

· Plaintiff’s Complaint adequately pleads a section 17200 claim. Plaintiff’s Complaint alleged that Defendant misrepresented the battery range and safety of the Subject Vehicle through its advertisements and publications, concealed the battery defect when it had a duty to disclose it, Plaintiff was unaware of the defect, Plaintiff would not have leased the Subject Vehicle had she been aware of the defect and she was harmed by the lease. Plaintiff presented the Subject Vehicle to Defendant for repair but Defendant admitted that it cannot repair the defective vehicle. (Complaint, ¶ 24.)

· As for punitive damages, Plaintiff’s Complaint sufficiently alleges that GM intentionally concealed the fact that the Subject Vehicle was equipped with a defective battery, which Defendant now admits has no repair. Defendant had a duty to disclose information about the battery defect because it possessed exclusive and superior knowledge of the same. GM actively concealed these important facts from Plaintiff or prevented them from discovering these facts by failing to disclose the defects in any manner and by representing that the defects could be repaired, even though it knew the defects could never be repaired. The concealed facts, had they been known, would have been material to Plaintiff’s decision to lease the Subject Vehicle, and if she would have known such facts, she would not have bought it. (Complaint, ¶ 27.)

Tentative Ruling

The motion for judgment on the pleadings is denied.

The motion to strike is denied.

The Complaint well pleads concealment or fraud in support of the causes of action and punitive damages, regarding the salesperson’s in-person representation of miles on a charge while acting as the agent of the manufacturer, concealment of a fire hazard, and misrepresenting and concealment done via manufacturer advertisements that Plaintiff relied on (e.g., Complaint ¶¶ 6, 8 and 12).

The rule of specifically pleading how, when, where, to whom, and by what means, misrepresentations were communicated, applies to affirmative misrepresentations, not to concealment. Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal. App. 4th 1356, 1384.

“[W]here a fraud claim is based upon numerous misrepresentations, such as an advertising campaign that is alleged to be misleading, plaintiffs need not allege the specific advertisements the individual plaintiffs relied upon; it is sufficient for the plaintiff to provide a representative selection of the advertisements or other statements to indicate the language upon which the implied misrepresentations are based.” Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal. App. 4th 1235, 1262 (finding sufficient allegations that defendant made misleading statements of referenced facts in advertisements and press releases).

The elements of a claim for Unfair Business Practices are:

A business practice;
that is unfair, unlawful or fraudulent; and
authorized remedy.

Bus. & Prof. Code § 17200; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676.

“[F]raudulent” in section 17200 does not mean common-law fraud, but only that members of the public likely would be deceived. Puentes v. Wells Fargo Home Mortg., Inc. (2008) 160 Cal.App.4th 638, 645.

Motions to strike punitive damages may be granted if the alleged facts do not support conclusions of malice, fraud or oppression. Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63. Fraudulent acts of concealment may support awards of punitive damages. Werschkull v. United Cal. Bank (1978) 85 Cal.App.3d 981, 1004. “‘Although punitive damages may not ordinarily be given for breach of contract, whether the breach be intentional, willful or in bad faith…, such damages may be awarded where a defendant fraudulently induces the plaintiff to enter into a contract.’” Las Palmas Assocs. v. Las Palmas Ctr. Assocs. (1991) 235 Cal. App. 3d 1220, 1239 (quoting Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal. App. 3d 101, 135). “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” Clauson v. Sup. Ct. (1998) 67 Cal. App. 4th 1253, 1255. Accord Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal. App. 4th 1004, 1055; Blegen v. Sup. Ct. (1981) 125 Cal.App.3d 959, 962.