I. BACKGROUND 

On October 31, 2023, plaintiff Benjamin Muessig (“Plaintiff”) filed this action against defendants General Motors LLC, (“Defendant”), et al. under the Song-Beverly Consumer Warranty Act. The initial complaint set forth six causes of action for (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, and (6) Song-Beverly Consumer Warranty Act – Civil Code §1793.2(b). 

On April 2, 2024, the Court sustained Defendant’s demurrer to the cause of action for UCL violations without leave to amend, and overruled the remainder. (Min. Order, April 4, 2024.) Defendant’s demurrer on the grounds that the first three causes of action were time-barred and failed to state sufficient facts were overruled. (Ibid.) Additionally, Defendant’s motion to strike punitive damages was granted with leave to amend. (Ibid.) 

On April 19, 2024, Plaintiff filed a First Amended Complaint (“FAC”). The FAC sets forth four causes of action for (1) Fraud – concealment, (2) Song-Beverly Consumer Warranty Act – Breach of Express Warranty, (3) Song-Beverly Consumer Warranty Act – Breach of Implied Warranty, and (4) Song-Beverly Consumer Warranty Act – Civil Code §1793.2(b). 

On May 20, 2024, Defendant filed the instant demurrer on the grounds that the first cause of action is time-barred, and that it fails to state facts sufficient. Defendant also moves to strike the prayer for punitive damages.  

On July 18, 2024, Plaintiff filed his oppositions to Defendant’s motions. 

Any reply was due on or before July 24, 2024. No reply has been filed to date. 

II. DEMURRER 

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., section 430.41(a).)  

Defense counsel declares the parties met and conferred telephonically on May 14, 2024, and were unsuccessful at resolving the issues raised. (Habib Decl. ¶ 2.) The Court finds Defendant fulfilled the meet and confer requirement prior to filing its demurrer.  

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer, or cross-complaint). (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id. at 994.)  

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) 

This action involves the leasing of a 2020 Chevrolet Bolt EV (hereinafter referred to as “the vehicle”). Defendant’s demurrer is to the first cause of action only for fraudulent concealment, arguing there are insufficient facts pled and that it is time-barred. Plaintiff contends Defendant’s arguments are precluded, the action is not time-barred, and that the FAC has alleged sufficient facts. 

Plaintiff asserts that res judicata prevents Defendant from re-arguing the issue of statute of limitations and whether the fraud claim was well-pled, because of the Court’s prior ruling to Defendant’s demurrer to Plaintiff’s complaint. The argument of res judicata is misplaced. 

The doctrine of res judicata only applies when there has been a final judgment on the merits in another action. (Consumer Advocacy Group, Inc. v. ExxonMobil Corp.¿(2008) 168 Cal.App.4th 675, 683.) A prior ruling to an attack on the pleadings in this action is neither a final judgment on the merits, nor does it involve a previous lawsuit between the same parties. (Riverside County Trans. Commission v. Southern California Gas Co. (2020) 54 Cal.App.5th 823, 838 [“[N]ormally, an order is not res judicata or collateral estoppel later in the same action.”].) 

Defendant argues that the first cause of action for fraudulent concealment time-barred, and that the time ran from the date Plaintiff leased the vehicle on January 21, 2020. Defendant asserts Plaintiff had until January 21, 2023 to file this action. In opposition, Plaintiff argues that the earliest date he could have discovered the fraudulent conduct was August 20, 2021, when Defendant issued a recall calling for the replacement of defective batteries for 2020 Chevrolet Bolt vehicles. 

The statute of limitations for a cause of action for fraud is three years. (Cal. Code Civ. Proc., § 338, subd. (d).) Generally, a statute of limitations begins to run when a cause of action accrues, meaning when the cause of action is complete with all of its elements.¿(Pineda v. Bank of America, N.A.¿(2010) 50 Cal. 4th 1389, 1397.) “An important exception to the general rule of accrual is the ‘discovery¿rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.¿[Citations.]” (Fox v. Ethicon Endo-Surgery, Inc.¿(2005) 35 Cal.4th 797, 807.)  

“It has long been established that the defendant's fraud in concealing a cause of action against him tolls the applicable statute of limitations, but only for that period during which the claim is undiscovered by plaintiff or until such time as plaintiff, by the exercise of reasonable diligence, should have discovered it. [Citation.] Like the discovery rule, the rule of fraudulent concealment is an equitable principle designed to effect substantial justice between the parties; its rationale is that the culpable defendant should be estopped from profiting by his own wrong to the extent that it hindered an ‘otherwise diligent’ plaintiff in discovering his cause of action. [Citations.]” (Bernson v. Browning-Ferris Indus. (1994) 7 Cal.4th 926, 931, internal quotation marks omitted.) 

Here, the FAC alleges that (1) Plaintiff leased the vehicle on January 21, 2020 (FAC ¶ 8);  (2) Unbeknownst to Plaintiff, the battery that Manufacturer installed in the Vehicle can start a fire (Id. ¶ 11); (3) The first time Defendant made the public and Plaintiff aware of the defective battery in Chevrolet Bolt vehicles, including Plaintiff’s 2020 Bolt, was the November 13, 2020 recall (Id. ¶ 20); (4) Plaintiff’s vehicle battery did not exhibit any signs of being susceptible to catching fire prior to Defendant’s announcement of the November 13, 2020 recall (Ibid); (5) Plaintiff is neither an engineer nor vehicle service technician and even with reasonable diligence, he had no way of discovering that the battery in his Vehicle was defective and could cause fire prior to GM’s announcement of the November 13, 2020 recall (Ibid); (6) On July 23, 2021, Defendant issued another recall for 2017-2019 model year Bolts, and the recall did not apply to 2020 and later model year Bolts (Id. ¶ 23); (7) on August 20, 2021, Defendant announced it adding all remaining 2019 model Bolt EV and all 2020–2022 Bolt EV and Bolt EUV models to its battery recall (Id. ¶ 24).  

The Court disagrees with Defendant’s argument that the statute of limitation began to run from the date of the lease based on the allegation that the vehicle “was delivered to Plaintiff with serious defect and nonconformities.” (FAC ¶ 10.) This paragraph merely alleges the list of defects with the vehicle, but does not allege that the issues were apparent or had developed at the time of delivery. In reviewing the sufficiency of a complaint against a general demurrer, the court must give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) Reading the FAC as a whole, the allegations are clear that Plaintiff’s vehicle battery did not exhibit any signs of susceptibility to catching fire prior to the recall notices, such that Plaintiff would have had any awareness of the battery defect at the time of delivery. (Id. ¶ 20.) 

Plaintiff, in opposition, argues August 20, 2021 was the earliest date Plaintiff could have discovered the issue. However, the Court notes that Paragraph 20 of the FAC specifically alleges that the November 13, 2020 recall was the first time Defendant made both Plaintiff and the public aware of the defective battery in the Bolt vehicles, “including Plaintiff’s 2020 Chevrolet Bolt,” and that “Plaintiff had no knowledge of the defective nature of the battery in his Vehicle until GM announced the recall on November 13, 2020.” Under the delayed discovery rule, Plaintiff’s fraud claim did not accrue until he suspected or had reason to suspect wrongdoing. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) Plaintiff was on notice as of November 13, 2020. Further, the instant action was not filed “on June 26, 2023” as alleged (Id. ¶ 20), but was actually filed on October 21, 2023. Nonetheless, the Court finds the action timely. Plaintiff had until November 13, 2023 to file the subject action, and the action was filed prior to this deadline on October 21, 2023. 

Defendant’s demurrer is OVERRULED on this basis. 

“[T]he elements of a cause of action for fraud based on concealment are: ‘“(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.”’” (Jones v. Conoco Phillips Co. (2011) 198 Cal. App. 4th 1187, 1198, quoting Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850.) 

A duty to disclose arises in only four circumstances: “(1) when the defendant is in a fiduciary relationship with the Plaintiff, (2) when the defendant had exclusive knowledge of material facts not known to the Plaintiff, (3) when the defendant actively conceals a material fact from the Plaintiff; [or] (4) when the defendant makes partial representations but also suppresses some material facts.” (Heliotis v. Schuman (1986) 181 Cal.App.3d 646, 651.)¿“[M]ere conclusionary allegations that the omissions were intentional and for the purpose of defrauding and deceiving plaintiffs and bringing about the purchase . . . and that plaintiffs relied on the omissions in making such purchase are insufficient [to show fraud by concealment].” (Linear Tech. Corp. v. Applied Materials, Inc. (2007) 152 Cal. App. 4th 115, 132.) 

Here, the complaint alleges that (1) Defendant was aware of the defective batteries plaguing Chevrolet Bolt vehicles as early as 2017, and that despite knowledge of such, Defendant concealed the fact and included the same type of defective batteries in its 2020-2023 model year Chevrolet Bolt vehicles (FAC ¶13, 17), (2) Defendant had a duty to disclose the battery defect and its safety hazard to Plaintiff because it possessed superior and exclusive knowledge of the defect through customer complaints, internal investigations, and internal testing (Id. ¶ 34), (3) Defendant intentionally and knowingly concealed, suppressed, and/or omitted material facts of the vehicle and the presence of the battery defect to sell additional vehicles and avoid the cost of repair or replacement, and with the intent to defraud Plaintiff (Id. ¶¶ 35-36), (4)) Plaintiff would not have leased the vehicle but for Defendant’s omissions and concealment of material facts regarding the nature and quality of the vehicle and existence of the battery defect. (Id ¶ 36.); and (5) Plaintiff was damaged as a result of the concealment because he cannot fully charge or park the vehicle indoors due to the risk of fire. (FAC. ¶ 37.) 

Defendant argues the claim for fraud fails as a matter of law because Plaintiff did not identify the alleged misrepresentations with specificity, nor did Plaintiff identify who, when, where, and how the misrepresentations were made. Plaintiff argues that Defendant had exclusive knowledge of non-public information regarding the battery quality, and that the FAC alleges Plaintiff relied on Defendant’s promotional materials when he decided to lease the vehicle.  

Although there is a heightened pleading standard for fraud claims under California law, the specificity requirement based on suppression of fact is relaxed. The exception states “the requirement of specificity is relaxed when the allegations indicate that "the defendant must necessarily possess full information¿[concerning the facts of the controversy" . . . or "when the facts lie more in the knowledge of the opposite party[.]" (Tarmann v. State Farm Mut. Auto. Ins. Co.¿(1991) 2 Cal.App.4th 153, 158.) Unlike the defendant in Tarmann, who “ha[d] no more reason to know” who made the verbal allegedly false representation, here Defendant knows the people who authored its promotional advertisements and recalls. (Ibid.) The Court finds that the cause of action for fraud by concealment is pled with the required specificity. 

The demurrer to the first cause of action is OVERRULED.  

III. MOTION TO STRIKE 

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike 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(b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.) 

Punitive damages are awardable upon proof that the conduct of the defendant amounted to fraud, malice, or oppression. (Civ. Code, § 3294.) “Fraud” is defined as intentional misrepresentations, deceit, or concealment of a material fact known to the defendant with the intention to injure the plaintiff. (Civ. Code, § 3294.)