A. Factual 

On December 4, 2023, Plaintiff, Ayline A. Amirayan (“Plaintiff”) filed a Complaint against Defendants, Ford Motor Company, Autonation Ford Torrance, and DOES 1 through 10. Defendant, Ford Motor Company (“Ford”) filed a demurrer to the original complaint arguing that Plaintiff’s Fifth Cause of Action for Negligent Repair and Seventh Cause of Action for Fraudulent Inducement – Concealment failed because they are barred by the economic loss rule and failed to state sufficient facts to state a cause of action against Ford. This Court, on February 20, 2024, sustained with leave to amend the demurrer. 

On March 21, 2024, Plaintiff filed a First Amended Complaint (“FAC”). On April 23, 2024, Defendant, Ford Motor Company (“Ford”) filed a demurrer as to the Fifth and Seventh causes of action of Plaintiff’s FAC. This Court SUSTAINED, without leave to amend, the fifth cause of action, and SUSTAINED, with leave to amend, the seventh cause of action.  

On October 10, 2024, Plaintiff filed a Second Amended Complaint (“SAC”) alleging causes of action for: (1) Violation of Civil Code § 1793.2(d); (2) Violation of Civil Code § 1793.2(b); (3) Violation of Civil Code § 1793.2(a)(3); (4) Breach of the Implied Warranty of Merchantability – Civil Code § 1791.1, 1794, and 1795.5; (5) Violation of the Magnuson-Moss Warranty Act; and (6) Fraudulent Inducement – Concealment. 

Now Ford has filed a demurrer to Plaintiff’s SAC. 

B. Procedural 

On October 24, 2024, Ford Motor Company filed a Demurrer. On November 12, 2024, Plaintiff filed an opposition brief. On November 19, 2024, Ford filed a reply brief.  

II. ANALYSIS

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.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) 

A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Twice now, this court has sustained demurrer, with leave to amend, as to Plaintiff’s cause of action for Fraudulent Inducement – Concealment. On both occasions, this court found that Plaintiff had failed to sufficiently plead facts as to the Fraudulent Inducement – Concealment claim. On the most previous occasion, this court sustained demurrer as it found Plaintiff’s FAC was unclear as to whether Plaintiff would have forgone with the purchase of the Mustang if the TSB information alone had been disclosed, or whether even with knowledge of the TSB information Plaintiff would not have made the purchase had the pre-production testing and early consumer complaint information not been concealed from the public. This court also held that Plaintiff failed to allege that Ford actively concealed a material fact from Plaintiff. The court reasoned that the mere existence of knowledge that some prior models have experienced customer complaints is not, in the court’s view, sufficient by itself to establish an affirmative duty to disclose the existence of such complaints for purpose of alleging a punitive damages cause of action for fraud.  

Based on the above identified deficiencies, and interest of judicial efficiency, this court will forgo with its typical lengthy analysis section and determine whether Plaintiff’s SAC cures the identified deficiencies.  

Here, instead of directly addressing the issues identified by this court as they pertain to the TSB information and subsequently the active concealment issue, Plaintiff has removed all mentions of Technical Service Bulletins (“TSBs”) from the SAC. Despite this issue not being presented in the pleading, the question still remains as to whether Plaintiff would have purchased the vehicle based on publicly available information found in the TSBs or whether even with the knowledge of the TSB information, Plaintiff would not have made the purchase had the pre-production testing and early consumer complaint information had been concealed to the public. This issue remaining affects Plaintiff’s alleged element of active concealment of a material fact. As to the material fact issue, Plaintiff still pleads the exact same allegation as was in her FAC, stating”[a]lthough it has been fully aware of the Transmission Defect, Defendant FMC actively concealed the existence and nature of the Defect from Plaintiff at the time of purchase, repair, and thereafter.” (FAC, ¶34; SAC, ¶ 31.)  

Plaintiff’s Opposition continues to rely on Dhital, a precedent this Court has previously indicated in its rulings on prior Demurrers to be discredited and not as persuasive as more recent decisions addressing the same issue.  The Opposition also cites to a 2024 case (in which the Supreme Court has also granted review), Gilead Tenofovir Cases (2024) 98 Cal.App.5th 911, 949.  However, Gilead determined that the manufacturer there was entitled to summary adjudication as a matter of law on the fraudulent concealment claim in that prescription pharmaceutical case where the First District noted in passing that it had upheld a disclosure duty in Dhital.   

Plaintiff’s Opposition also fails to address the California Supreme Court’s (“SCOC”) most recent fraudulent concealment case, Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1.  In Rattagan, the Court issued its long-awaited ruling on the continued viability of the economic loss rule.  The SCOC held that while a plaintiff may assert a tort claim for fraudulent concealment based on conduct occurring in the course of a contractual relationship, there are two essential elements that preclude the conversion of every contract or warranty case into a fraud case: (1) the elements of the fraud cause of action must be established independently of the parties' contractual rights and obligations, and (2) the allegedly tortious conduct must have exposed the plaintiff “to a risk of harm beyond the reasonable contemplation of the parties when they entered into the agreement,” i.e., bodily injury or property damage other than to the product itself.  The SAC fails to allege these elements.  While Paragraphs 30 and 69 of the SAC allege that the manifestation of the Transmission Defect allegedly caused Plaintiff to expose themselves to a risk of accident or injury or present a safety hazard, there is no allegation of any accident or injury.  There is no allegation of non-economic damages, economic damages in the nature of physical injury or property damage, or any other risk beyond the contemplation of the parties to the Ford warranty.   Indeed if every Lemon Law plaintiff were to allege that the manifestation of a repair complaint covered by warranty exposed them to the possible future risk of an accident or injury, then every Song-Beverly Act case could be converted to a punitive damages case on the mere allegation that, for example, (a) a visual change in the Infotainment screen while driving could cause an accident, or (b) that a troubling sound that occurred while driving could cause the driver to become distracted and lead to an injury, or (c) that a defective sensor on tire pressure could cause the plaintiff to needlessly pull to the side of the road in a possibly bad neighborhood leading to the risk or injury, etc.  In this Court’s view, the SCOC requires more in a fraudulent concealment cause of action; the distraction or momentary startling effect of a warranty-covered transmission defect manifesting while driving is within the contemplation of the parties when the plaintiff purchases or leases a new motor vehicle with a promise to repair defects that many arise.  (See Rattagan, supra, 17 Cal.5th at p. 1.)  

In the Court’s view, it is for the Legislature, not the courts, to determine that every product manufacturer owes a duty to disclose at the point of sale the existence of any or every prior customer complaints or manifestation of symptoms of a warranty-covered component or system.  As this is now Plaintiff’s third bite at the apple, and she is still unable to sufficiently allege this cause of action, the court finds the demurrer as to the sixth cause of action for Fraudulent Inducement – Concealment is SUSTAINED without leave to amend.  

III. CONCLUSION 

For the foregoing reasons, Demurring Defendants’ Demurrer is SUSTAINED without leave to amend.