Judge: Mark H. Epstein, Case: 23SMCV05767, Date: 2024-02-28 Tentative Ruling

Case Number: 23SMCV05767    Hearing Date: February 28, 2024    Dept: I

This is a Song-Beverly Act case that also alleges fraud and a violation of B&P section 17200.  Defendant demurs to the fourth and fifth causes of action—fraud and UCL, respectively.  As to the former, defendant contends that there is no fraud that can be alleged against it because plaintiff never had any contact with any GM employee and thus GM could not have fraudulently misrepresented or concealed any fact.  Defendant also contends that there is no allegation as to how GM knew or should have known that the car could not achieve the mileage estimates given.  Defendant also contends that reliance is not pled.  Finally, defendant contends that there can be no concealment tort because it is barred by the economic loss rule.  The court is not persuaded by most of the claims.  It is unclear whether the dealer was acting as GM’s agent.  The court notes this because there is case law (currently pending before the California Supreme Court) that suggests that a dealer making representations is acting as the manufacturer’s agent.  The court believes that resolution of this issue should await resolution of the case now pending before the Supreme Court (although the Court might not reach that issue).  The court is aware of Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, which suggests that a direct transactional relationship is necessary in the fraudulent concealment context.  However, there is contrary authority as well: Dhital v. Nissan North America (2022) 84 Cal.App.5th 828.  Review in that case was granted by the California Supreme Court, but the case was not ordered depublished.  That case is apparently being held for Rattigan (briefing has been deferred pending the outcome of that case), discussed below..  As to the rest of the specificity arguments, the court does not believe that plaintiff needs to allege the facts in question with greater specificity.  That information is uniquely within defendant’s knowledge (except for reliance).  The specificity rule is relaxed in that circumstance.  Defendant’s claim that the 200 mile range estimate is not actionable also fails at this stage.  While it is true that the estimate is only an estimate, the estimate must still be a real one; it must be based on a good faith belief that the estimate is accurate.  An estimate is (of course) less than a hard and fast promise, let alone a warranty.  But one cannot make an estimate without some basis to believe that the estimate is real.  As to reliance, the court believes it is adequately pled. 

That leads to the economic loss issue.  That question is squarely before the California Supreme Court in Rattigan v. Uber Technologies, a certified question from the Ninth Circuit.  That case has been fully briefed but no argument date has been set.  This court will await that decision.

The UCL stands or falls on the other causes of action, so the court cannot resolve it at this moment either.

Accordingly, the court will CONTINUE this matter for 60 days to see what the Supreme Court does and if an argument date is set.