| Re:
? |
Howard v. General Motors LLC, Superior Court Case No. 17CECG03323 | |
| Hearing Date:
|
December 21, 2017 (Dept. 501) | |
| Motion: | Demurrer and Motion to Strike |
Tentative Ruling:
To sustain the demurrer to the Complaint?s seventh cause of action without leave to amend.? (Code Civ. Proc. ? 430.10(e).)? To grant the motion to strike the prayer for punitive damages.? (Code Civ. Proc. ? 436.)
Explanation:?
Defendant General Motors LLC (?GM?) demurs to the seventh cause of action of the Complaint for fraud by omission, and moves to strike the prayer for punitive damages.? Plaintiff has not filed any opposition to either motion.
Demurrer
GM first contends that the cause of action is barred by the statute of limitations.
The statute of limitations for fraud is three years. (Code of Civ. Proc. ? 338(d).) The delayed discovery rule tolls the accrual of the statute until a plaintiff discovers, or has reason to discover, the cause of action.? (Id.) ??[I]f an action is brought more than three years after commission of the fraud, plaintiff has the burden of pleading and proving that he did not make the discovery until within three years prior to the filing of their complaint. (Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 437.)
Plaintiff alleges that he purchased the vehicle in May of 2010.? (Complaint ? 25.)? GM seeks to use this date as the date on which the statute of limitations began to run.
However, a general demurrer only lies were the dates in alleged in the complaint show that the action is barred by the statute limitations.? (See Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300, fn. 2; Iverson, Yoakum, Papiano & Hatch v.
Berwald (1999) 76 Cal.App.4th 990, 995; Vaca v. Wachovia Mortg. Corp. (2011) 198
Cal.App.4th 737, 746.)
Plaintiff alleges that he received an express 3-year/36,000 mile basic bumper-tobumper warranty, a 5-year/100,000 mile powertrain warranty, and subsequently received a 10-year/150,000 mile extended warranty.? (Complaint ? 26.)? Plaintiff alleges that the vehicle contained or developed defects during the warranty period
(Complaint ? 27), and that plaintiff did not discovery the defect ?until well after Plaintiffs purchased the vehicle? (? 16).? The dates alleged do not clearly show that the statute of limitations expired before filing the Complaint.? Based on the allegations, it is possible that defects were not discovered until well into the warranty periods.
However, the demurrer will be sustained for failure to allege sufficient facts.
Civil Code section 1709 defines ?deceit? generally: ?One who willfully deceives another with intent to induce him to alter their position to their injury or risk, is liable for any damage which he thereby suffers.? The tort of deceit or fraud requires a plaintiff to plead and prove: ?(a) [a] misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ?scienter?); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (6) resulting damage.? (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
To establish the tort of concealment (fraud by omission), plaintiff must prove: (1) GM concealed or suppressed a material fact; (2) GM was under a duty to disclose the fact to Plaintiff; (3) GM intentionally concealed or suppressed the fact with intent to defraud Plaintiff; (4) plaintiff was unaware of the fact and would not have acted as plaintiff did if plaintiff had known of the concealed or suppressed fact; and (5) plaintiff were damaged by the concealment. (Jones v. ConocoPhillips Co. (2011) I98 Cal.App.4th 1187, 1198.)
Omitted facts are material facts where the fact implicates a safety concern.
(Daugherty v. Am. Honda. Co. 144 Cal.App.4th 824, 836; Wilson v. Hewlett-Packard (9th
Cir. 2012) 668 F.3d 1136, 1141-42.)
As it relates to GM?s alleged failure to disclose safety risks associated with the steering system in the Subject Vehicle, plaintiff alleges that the steering defect ?can have serious consequences on the handling, maneuvering and stability of the subject vehicle while in operations, thereby contributing to car accidents, which can cause personal injury or death.? (Complaint ? 68.)? However, plaintiff only concludes, but does not allege any facts that expressly or implicitly suggest how the alleged steering defect causes or results in premature failure.
?To be actionable, the [fraudulent] omission must be contrary to a representation actually made by the defendant, or an omission of a fact that defendant was obliged to disclose.? (Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 835.)
Here, plaintiff fails to allege specific facts establishing that GM was aware of an alleged material fact that allegedly affected the safety of the Subject Vehicle at the time of the sale or that Plaintiff had any direct contact with GM at the time the sale was executed. Therefore, there could not be an omission of an alleged material fact at the time of the sale on the part of GM or a failure to disclose a material alleged fact at the time of the sale.
The duty to disclose arises in 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; and (4) when the defendant makes partial representations but also suppresses some material facts.? (Heliotis v. Schuman (1986) 181 Cal.App.3d 646, 651, quoting 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, ??
459-464, pp. 2724-2728.)
There are no allegations of a fiduciary relationship, or of any partial representations made by GM.? Thus, the only circumstances that would apply here are the second and third.? Plaintiff?s Complaint merely provides a blanket conclusion that GM had knowledge of the alleged defects, but fails to plead any specific facts as to how GM would have known about the defects at the time the vehicle was sold. Plaintiff concludes in the Complaint, without providing any facts in support of their conclusion that GM ?acquired its knowledge of the steering defect prior to Plaintiff acquiring the Vehicle, though sources not available to consumers such as Plaintiff, including but not limited to pre-production and post-production testing data; early consumer complaints about the Steering Defect made directly to GM and its network of dealers ?.? (Complaint ? 69.) Plaintiff has failed to plead any specific facts as to GM?s alleged knowledge regarding Plaintiff?s specific vehicle.
Fraud must be alleged with particularity.? (Hills Transportation Co. v. Southwest Forest Ind., Inc. (1968) 266 Cal.App.2d 702, 707.)? ?[T]he policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect. [citations] This particularity requirement necessitates pleading facts which ?show how, when, where, to whom and by what means the representations were tendered.? (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73, quoting Hills Trans. Co. v. Southwest (1968) 266 Cal.App.2d 702, 707.)
Plaintiff fails to identify from whom he purchased the vehicle, the salesperson plaintiff spoke to, when plaintiff had any conversations with salespeople regarding the vehicle, or what advertisements and/or marketing brochures plaintiff reviewed or relied upon in purchasing the vehicle and whether they were prepared by GM or someone else. Most of the Complaint consists of non-case specific, conclusory statements.
Additionally, the Economic Loss Rule bars the seventh cause of action.
The economic loss rule provides that where a purchaser?s expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only economic losses. (Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1130.)? The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise. Quite simply, the economic loss rule prevents the law of contract and the law of tort from dissolving one into the other. (Id. at p. 988.)
Plaintiff?s allegations concern the merchantable quality of the subject vehicle and GM?s alleged inability to repair the vehicle. Plaintiff has not alleged personal injury or secondary property damage. (See Seely v. White Motor Co. (1965) 63 Cal.2d 9.)? Plaintiff has only claimed economic loss.? The fraud by omission and Song-Beverly causes of action are contractual and relate to the sales contract and the warranty contract themselves. Thus, plaintiff?s fraud by omission cause of action does not qualify for the exception to the economic loss rule.
Motion to Strike?
GM moves to strike the prayer for punitive damages.
Code of Civil Procedure section 436 provides, ?The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading, (b) Strike out 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 0f the court.?
A motion to strike may be used to remove a claim for punitive damages that is not adequately supported by the facts alleged in the complaint. (Cryolife, Inc. v.
Superior Court (2003) 110 CalApp.4th 1145; Kaiser Foundation Health Plan, Inc. v.
Superior Court (2012) 203 Cal.App.4th 696.)
The first six causes of action in the Complaint are based upon GM?s alleged breaches of express and implied warranties under California?s Song-Beverly Consumer Warranty Act and the federal Magnuson-Moss Warranty Act.? Punitive damages are not an available method of relief under Song-Beverly or Magnuson-Moss, as damages are limited to a refund of the purchase price paid and payable or replacement of the subject vehicle and a potential award of a Civil Penalty in an amount not to exceed two times Plaintiff?s actual damages. (Civ. Code ? 1794; 15 U.S.C. ? 2301.)? That leaves the fraud cause of action to support the prayer for punitive damages.? But since that cause of action is deficient and is being dismissed, there is no cause of action to support the prayer for punitive damages.
The motion to strike should be granted.
In light of plaintiff?s failure to oppose either motion, apparently conceding the merits thereof, and failure to even request leave to amend, no leave to amend will be granted.
Pursuant to Cal. Rules of Court, Rule 3.1312(a) and Code Civ. Proc. ? 1019.5(a), no further written order is necessary.? The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling???????? MWS????????????????????????????? 12/20/17
Issued By: ??????????????????????????????????????????????on???????????????????????????? .
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