Judge: Mark H. Epstein, Case: 23SMCV00897, Date: 2023-11-09 Tentative Ruling

Case Number: 23SMCV00897    Hearing Date: November 9, 2023    Dept: I

The demurrer is OVERRULED.  The motion to strike is DENIED.

This is a Song-Beverly case in which plaintiff also alleges fraud.  Plaintiff alleges that she was in the market for an electric vehicle, but it was important to her that it could travel 250 miles on a single charge and that the warranty would cover any repair (during the warranty period).  She leased a new Chevy Bolt on May 8, 2021.  She alleges that she saw various advertisements and publications from the defense that demonstrated that the range was satisfactory.  She also says that the dealer made similar representations to her.  She claims, though, that the car had serious defects including the potential for a battery fire, seatbelt issues, and other problems.  Further, she claims that the car did not have the promised range.  Plaintiff says she presented the car to authorized repair facilities but it has not been fixed.

Defendant previously raised similar concerns in an earlier demurrer.  The court overruled the demurrer other than as to the negligent misrepresentation cause of action.  Defendant is precluded from bringing the same argument again, at least absent a change in the law.  (Such a change might be forthcoming.  Our Supreme Court is considering a certified question from the Ninth Circuit going to the application of the economic loss rule in the context of a failure to disclose (Rattagan) and it has held another case in which the Court of Appeal suggested that a dealer is the manufacturer’s agent for purposes of representations the dealer makes (Dhital).  While this case is couched at least in part as an affirmative misrepresentation case—and therefore perhaps beyond the question in Rattagan—the Dhital case is still of interest.  But so far as the court knows, both cases remain undecided.)  While the court agrees it is not “collateral estoppel” (which requires a final judgment), the court still will not entertain serial demurrers.  Defendant claims that the allegations were changed, but they were not changed in a material way.  This is just defendant taking a second bit at the apple.  Because the court will not keep reconsidering decisions already made, the demurrer as to these causes of action is OVERRULED.  The court will not hear argument on this point as the demurrer in this regard is simply improper.  If the court erred, defendant’s remedy was to seek writ review.

That leaves negligent misrepresentation, which must be pled with specificity.  In the current operative pleading, plaintiff alleges that she met with a salesperson authorized to speak for the manufacturer; that she asked to see the Bolt because she felt based on research that it met her needs; that she reviewed the manufacturer’s advertisements and publications that said that the Bolt could go 259 miles on a single charge and that it could be safely charged indoors in her home; and that if there was a problem, it would be fixed while under warranty.  She states that all of these views were confirmed by the salesperson.  (FAC, ¶ 8.)  That is sufficient for pleading purposes.  In reply, defendant cites (for the first time) Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153.  If defendant wanted to make a Tarmann argument, it should have done so in the moving papers.  Nor would that case really apply.  Plaintiff does not allege that she called GM’s headquarters and spoke to a corporate officer; she claims she read marketing materials that GM published.  GM is in a far better position than is plaintiff to know who inked the words at issue.  Defendant also argues that it is not responsible for the dealer’s comments.  That might or might not be the case.  The court will await potential Supreme Court guidance in Dhital before making a firm decision on this.  The demurrer is OVERRULED as to this cause of action, but without prejudice to a motion for summary adjudication on this point at a later time when it becomes clearer whether plaintiff actually relied on anything stated directly by GM as opposed to relying only on statements by the dealer.  Similarly, a motion for summary adjudication might lie if the undisputed facts show that GM’s only liability is for nondisclosure and the Supreme Court’s decision in Rattagan eliminates such liability. 

The motion to strike is DENIED.  The court agrees that punitive damages per se are not specified under the Song-Beverly Act (rather, there is an enhanced recovery if certain aspects are shown).  Defendant argues from this basis that punitive damages are not available at all.  There is a case that would appear to so hold.  (Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218.)  But more recent authority suggests that both can be awarded to plaintiff so long as it does not constitute a double recovery.  (Anderson v. Ford Motor Co. (2022) 74 Cal.App.5th 946.)  The court believes that Anderson is well reasoned and the court elects to follow it.  True, a double recovery will not be permitted, but that is an issue for a later time.  And, of course, the fraud is based on conduct occurring before the sale (the allegedly false statements made); Song-Beverly is based on conduct occurring after the sale (the failure to repair or repurchase).

Defendant has 30 days to answer.