Demurrer Filed

Cal. Super. - 5th Dist.July 14, 2021

ERSKINE LAW GROUP, APC 1576 N. BATAVIA STREET, SLUTE A, ORANGE, CA 92867 (949) 777-6032 (OFFICE) | (714) 844-9035 (FAx) A \OOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mary Arens McBride, Esq. (SBN 282459) Tavian King, Esq, (SBN 334649) ERSKINE LAW GROUP, PC 1576 N. Batavia Street, Suite A Orange, California 92867 Phone: (949) 777-6032 Fax: (714) 844-9035 Email: marensmcbride@erskinelaw.com Email: tking@erskinelawcom E-FILED 8/1 8/2021 7:09 PM Superior Court of California County of Fresno By: A. Ramos, Deputy Attorneys for Defendant, GENERAL MOTORS LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO RUTHANN LOVEJOY CUTHBERTSON, Plaintiff, VS. GENERAL MOTORS, LLC, and DOES 1 through 10, inclusive, Defendants. CASE NO. 21CECG02033 ASSIGNED FOR ALL PURPOSES TO: Honorable Rosemary McGuire Department 502 GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER T0 PLAINTIFF’S COMPLAINT; AND MEMORANDUM OF POINTS 0F AUTHORITIES [Filed concurrently with Declaration 0f Tavian King; [Proposed] Order 0n Demurrer; [Proposed] Order on Motion to Strike; and, Motion t0 Strike Punitive Damages] DATE: March 29, 2022 TIME: 3:30 pm. DEPT: 502 TO THE HONORABLE COURT, ALL PARTIES AND THELR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that 0n March 29, 2022 at 3:30 p.m., or as soon thereafter as the matter may be heard in Department 502 of the above-captioned Court located at 1130 O Street, DEMURRER TO PLAINTIFF’S COMPLAINT E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 2 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fresno, CA 93724, GENERAL MOTORS LLC (“GM”) will and hereby does move this Court for an order sustaining Defendant’s Demurrer to Plaintiff Ruthann Lovejoy Cuthbertson’s Complaint. DEMURRER TO PLAINTIFF’S COMPLAINT GM hereby demurs to Plaintiff Ruthann Lovejoy Cuthbertson’s (Plaintiff) Fraud Cause of Action within her Complaint (“Complaint”) as filed herein, on the following grounds: 1. The sixth cause of action for Fraud by Omission is barred by the applicable Statute of Limitations. (Code of Civ. Proc. § 338, subd. (d).) Therefore, the sixth cause of action fails to state a cause of action. (Code of Civ. Proc., § 430.10, subd. (e)); 2. The sixth cause of action, for Fraud by Omission, fails to state facts relevant to the elements of the claim, and therefore, does not constitute a cause of action. (Code of Civ. Proc., §430.10, subd. (e.); 3. The sixth cause of action for Fraud by Omission, is uncertain, ambiguous, and/or unintelligible. (Code of Civ. Proc., § 430.10, subd. (e)) 4. The sixth cause of action, for Fraud by Omission, is barred by the Economic Loss Rule and thus fails to state facts sufficient to constitute a cause of action. (Code of Civ. Proc., § 430.10, subd. (e)) This Demurrer is brought pursuant to California Code of Civil Procedure section 430.10 and is based on this Notice of Demurrer and the attached Demurrer, Memorandum of Points and Authorities, the Declaration of Tavian King, and the papers and pleadings and records on file in this action and such other papers, pleadings, and arguments as this Court shall admit at the time of the hearing. DATED: August 18, 2021 ERSKINE LAW GROUP, PC By: ________________________________ TAVIAN KING, ESQ. Counsel for Defendant GENERAL MOTORS LLC E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 3 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION ................................................................. Error! Bookmark not defined. II. SUMMARY OF ALLEGATIONS AND PROCEDURAL HISTORY ..... Error! Bookmark not defined. III. MEET AND CONFER PER CODE OF CIVIL PROCEDURE SECTION 430.41 ..... Error! Bookmark not defined. IV. LEGAL STANDARD ............................................................ Error! Bookmark not defined. V. ARGUMENT .......................................................................................................................... 9 A. The Economic Loss Rule Bars the Fraud Cause of Action. ............................................. 9 B. The Three-Year Statute of Limitations Bars Plaintiff’s Sixth Cause of Action for Fraud by Omission. .................................................................................................................. 13 C. Plaintiff’s Allegations Fail to State a Viable Claim for Fraud by Omission.................. 14 D. Plaintiff’s Omission Allegations Are Insufficient as a Matter of Law. ......................... 16 E. Plaintiff Fails to Allege Fraud with the Requisite Specificity. ...................................... 18 F. Concealment/Omission Cannot Be Based upon Non-actionable Puffery. ..................... 19 VI. CONCLUSION……………………………………………………………………………...Error! Bookmark not defined. E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 4 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Aas v. Superior Court (2000) 24 Cal 4th 627 ................................................................................. 9 Anunziato v. eMachines, Inc. (C.D. Cal. 2005) 402 F.Supp.2d 1133 ........................................... 18 Avalon Painting Co. v. Alert Lumber Co. (1965) 234 Cal.App.2d 178 ........................................ 17 Baba v. Hewlett-Packard Co., No. C 09-05946 RS, 2011 WL 317650………………………….15 Bardin v. DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255 ................................................. 16 Berenblat v. Apple, Inc., Nos. 08-4696 JF (PVT), 09-1649 JF (PVT), 2010 WL 1460297………15 Blank v. Kirwan (1985) 39 Cal.3d 311 ........................................................................................... 8 Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858 ................ 18 Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116 ..................... 17 Consumer Advocates v. EchoStar Satellite Corp. (2003) 113 Cal.App.4th 1351 ........................ 18 D’Acquisto v. Evola (1949) 90 Cal.App.2d 210 ........................................................................... 17 Daugherty v. Am. Honda. Co., 144 Cal.App.4th 824 .................................................................... 16 Dawson v. General Motors LLC, No. 19-8680, 2019 WL 3283046………………………………15 De Spirito v. Andrews (1957) 151 Cal.App.2d 126 ...................................................................... 16 Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968 ...................................................... 8 Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951 ............................................ 14 Finney v. Ford Motor Co., 2019 WL 79033 (N.D. Cal. 2019) ..................................................... 11 Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797........................................................... 14 Hammond v. BMW of North America, No. CV 18-226 DSF (MRWx), 2019 WL 2912232 .. 10, 11 Heliotis v. Schuman (1986) 181 Cal.App.3d 646 ......................................................................... 16 Hien Bui v. Mercedes-Benz USA, LLC, No. 20-CV-1530-CAB-WVG, 2021 WL 242936 (S.D. Cal. Jan. 25, 2021) ............................................................................................................................ 12 Hills Trans. Co. v. Southwest (1968) 266 Cal.App.2d 702 ........................................................... 18 Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412 ...................................................................... 14 Hsieh v. FCA US LLC, 440 F. Supp. 3d 1157 (S.D. Cal. 2020) ................................................... 13 E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 5 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In re Ford Motor Co. DPS6 Powershift Transmission Prod. Liab. Lit., No. CV1706656ABFFMX, 2019 WL 3000646 (C.D. Cal. May 22, 2019) .......................................................................... 12 Johnson v. Ehrgott (1934) 1 Cal.2d 136 ....................................................................................... 14 Kamen v. Lindley (2001) 94 Cal.App.4th 197 ................................................................................ 8 Kelsey v. Nissan N. Am., No. CV 20-4835 MRW, 2020 WL 4592744 (C.D. Cal. July 15, 2020) 11 La Vista Cemetery Assoc. v. American Savings & Loan Association (1970) 12 Cal.App.3d 365.. 9 Lazar v. Superior Court (1996) 12 Cal 4th 631 ............................................................................ 14 Leon v. Kia Motors America, Inc. (Orange Cnty Cal. Super. 30-2019-01093543-CU-BC-CJC) (Order 12/13/2019) ................................................................................................................... 12 Macias v. Chrysler, No. CV 17-1823, 2020 WL 4723976 ........................................................... 12 Mason v. Drug Inc. (1939) 31 Cal.App.2d 697 ............................................................................ 17 .McQueen v. BMW of N. Am., LLC, No. 12-6674 (SRC), 2013 WL 4607353…………………..15 Mel Clayton GM LLC v. GM LLC Motor Co. (2002) 104 Cal.App.4th 46 ............................ 17, 19 Moore v. Regents of University of California (1990) 51 Cal.3d 120 .............................................. 8 Mosqueda v. American Honda Motor Co., ---F. Supp. 3d ----, No. SA CV 19-839 MWF (MAAx), 2020 WL 1698710 (C.D. Cal. 2020) ......................................................................... 11 Nada Pac. Corp. v. Power Eng'g and Mfg., Ltd., 73 F. Supp. 3d 1206 (N.D. Cal. 2014) .............. 9 Osborne v. Subaru of America, Inc. (1988) 198 Cal. App. 3d 646............................................... 19 Penrose v. Winter (1901) 135 Cal. 289........................................................................................... 9 Resnick v. Hyundai Motor Am., Inc., No. CV 16-00593-BRO, 2017 WL 6549931………………15 Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal. 4th 979 ........................................... 9 Roe v. Ford Motor Co., No. 2:18-cv-12528-LJM-APP, 2019 WL 3564589……………………..15 Schechter v. Hyundai Motor Am., No. 18-13634 (FLW), 2019 WL 3616902……………………15 Sloan v. General Motors, 2020 WL 1955643 (N.D. Cal. 2020) ............................................... 9, 11 Stansfield v. Starkey (1990) 220 Cal.App.3d 59 ........................................................................... 18 Stewart v. Electrolux Home Prod., Inc., 304 F. Supp. 3d 894 (E.D. Cal. 2018) .......................... 11 Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153 ........................................ 17 Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18 ........................................................................... 18 E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 6 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Thompson v. BMW of North America, No. SA CV 17-1912 CJC (KSx), 2019 WL 988694 . 10, 11 Traba v. Ford Motor Co., No. CV 18-808 SVW (GJSx), 2018 WL 6038302 (C.D. Cal. 2018) . 11 Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256 ................................................................. 17 Wilson v. Hewlett-Packard, 668 F.3d 1136 (9th Cir. 2012) .......................................................... 15 Yi v. BMW of North America LLC, No. 2:17-cv-06467-SVW-SK (C.D. Cal. Mar. 5, 2018) ....... 11 Zagarian v. BMW of N.Am., No. CV 18-4857 RSWL (PLAx), 2019 WL 6111731 .............. 10, 11 Statutes Code of Civ. Proc., § 338(d) ......................................................................................................... 13 Code of Civ. Proc., § 430.10 (f) ...................................................................................................... 9 Code of Civ. Proc., § 430.10(e) ...................................................................................................... 8 Treatises 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, §§ 459-464, pp. 2724-2728 .................... 16 E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 7 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Ruthann Lovejoy Cuthbertson (“Plaintiff”) is attempting to turn this straightforward breach of warranty matter into a fraud case against GM. However, for a multitude of reasons Plaintiff’s fraud claim fails as a matter of law, and GM’s Demurrer to Plaintiff’s Complaint (“Complaint”) should be sustained without leave to amend. First, the fraud claim fails under the Economic Loss Rule. Second, the claim is time-barred. Third, the claim is not pled with the requisite specificity (i.e., how, when, where, by whom, and by what means the alleged “fraud” occurred). Rather than alleging facts specific to this Plaintiff (which, of course, do not exist), Plaintiff fills her Complaint with allegations made in a myriad of other lemon law cases. Those unproven allegations are not “facts,” and assuredly are not facts relevant to Plaintiff’s vehicle or the repairs to that vehicle under warranty. In short, there is no factual or legal basis for Plaintiff’s fraud claim. GM’s demurrer should be sustained without leave to amend. II. SUMMARY OF ALLEGATIONS AND PROCEDURAL HISTORY On or about March 1, 2009, Plaintiff purchased a 2009 Chevrolet Traverse, vehicle identification number 1GNER23D39S105128 (“Subject Vehicle” or “Traverse”). (Complaint at ¶ 6.) Over 12 years later, on July 14, 2021, Plaintiff filed “breach of warranty” claims under Song- Beverly, as well as a common law “Fraud by Omission” claim. GM now timely files this demurrer. Plaintiff’s Complaint fails to provide critical facts necessary to state a claim for fraud, such as (1) whether Plaintiff had any interaction with GM before or after the sale, (2) GM’s knowledge of the alleged “defects,” (3) how GM intended to “defraud” Plaintiff, (4) the lack of privity with GM, and/or (5) specifics regarding the warranties that covered the Subject Vehicle and how they relate to any alleged fraud. Instead of providing these basic details, the Complaint alleges in conclusory fashion that GM “committed fraud by allowing the Vehicle to be sold to Plaintiff E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 8 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 without disclosing that the Vehicle and its steering system was defective and susceptible to sudden and premature failure.” (Id. ¶ 86). The claim is based almost entirely on the allegation that GM did not disclose to Plaintiff prior to the sale of the vehicle that it had “defects” based upon unspecified facts GM “knew” about other vehicles. (Id. ¶¶ 87-88). That is not enough information to meet the heightened pleading standards for a fraud allegation. III. MEET AND CONFER PER CODE OF CIVIL PROCEDURE SECTION 430.41 GM made a good-faith effort to meet and confer with Plaintiff to avoid this demurrer but was unsuccessful despite its best efforts. (Declaration of Tavian King (“King Decl.”), at ¶2.) IV. LEGAL STANDARD A demurrer challenges defects that appear on the face of the Complaint or matters outside the pleadings that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In ruling on a demurrer, “the trial court . . . treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Kamen v. Lindley (2001) 94 Cal.App.4th 197, 201; see also Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) A pleading that “does not state facts sufficient to constitute a cause of action” is subject to demurrer.” (Code of Civ. Proc., § 430.10(e).) A Complaint fails to state a cause of action if it pleads essential allegations as legal conclusions rather than as ultimate facts. (Penrose v. Winter (1901) 135 Cal. 289, 290-291.) Furthermore, a pleading that is uncertain, ambiguous and/or unintelligible is subject to demurrer. (Code of Civ. Proc., § 430.10 (f).) In ruling on a demurrer, the Court must also determine if the flaws inherent in the Complaint can be remedied by the amendment; if the Plaintiff will be unable to correct its deficiencies of pleading, leave to amend should be denied. (La Vista Cemetery Assoc. v. American Savings & Loan Association (1970) 12 Cal.App.3d 365, 369.) Against this standard, Plaintiff’s fraud claim is barred by significant factual deficiencies and a number of legal doctrines such that this Court should sustain GM’s demurrer E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 9 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 without leave to amend. V. ARGUMENT A. The Economic Loss Rule Bars the Fraud Cause of Action. A person “may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations.” (Aas v. Superior Court (2000) 24 Cal 4th 627, 643, superseded by statute on other grounds.) The purchaser must “demonstrate harm above and beyond a broken contractual promise.” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal. 4th 979, 988 (noting “the economic loss rule prevents the law of contract and the law of tort from dissolving one into the other”) (internal citation and quotation marks omitted).) California courts have consistently held that the economic loss doctrine bars fraudulent omissions claims based on purely economic loss. (See Sloan v. Gen. Motors LLC, No. 16-CV-07244-EMC, 2020 WL 1955643, at *23-*24 (N.D. Cal. Apr. 23, 2020) (surveying decisions).) Plaintiff did not allege in her Complaint that GM is liable for anything other than economic loss. Despite Robinson’s holding that “the economic loss rule does not bar [a plaintiff’s] fraud and intentional misrepresentation claims [where they are] independent of breach of contract,” it expressly stated that its holding was “narrow in scope and limited to a defendant’s affirmative misrepresentations on which a plaintiff relies and which expose a plaintiff to liability for personal damages independent of the plaintiff's economic loss.” (22 Cal.Rptr.3d 352 at 991, 993. See also Nada Pac. Corp. v. Power Eng'g and Mfg., Ltd., 73 F. Supp. 3d 1206, 1225 (N.D. Cal. 2014) (“[Plaintiff] does not allege that [the defendant] made any affirmative misrepresentations on which it relied, nor does it allege that it was exposed to liability for personal damages independent of its economic loss. Without having done so, [Plaintiff] cannot fit within Robinson’s narrow and limited holding.”).) The affirmative misrepresentation that exposed the Robinson plaintiff to liability for personal damages, independent of that plaintiff’s economic loss, is regularly referred to as the “Robinson exception.” E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 10 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Multiple courts, in opinions that post-date Robinson, have confirmed that the Robinson exception only applies when the defendant has made an affirmative misrepresentation and the plaintiff has sustained damages independent of the alleged economic loss. The following courts all concluded that the Robinson exception does not extend to fraud claims based upon alleged concealment, omissions, or non-disclosures: In Zagarian, the plaintiff asserted fraud based upon allegations that BMW omitted information about an “oil consumption” defect in the subject vehicle. (Zagarian v. BMW of N.Am., No. CV 18-4857 RSWL (PLAx), 2019 WL 6111731 at *2 (C.D. Cal. 2019)). The court there recognized that “some courts have applied the economic loss rule to claims of fraudulent concealment, finding that its application is only barred where a party has made affirmative representations that are fraudulent.” (Id. at *3) Because the Zagarian plaintiff (i) had not alleged “a single affirmative misrepresentation on the part of BMW” and (ii) had not shown any exposure to “personal damages independent of his economic loss,” the court dismissed the plaintiff’s fraud claim as barred by the economic loss rule. (Id.) In Hammond, the plaintiff only sought damages associated with defects in the subject vehicle, yet still asserted fraud claims (i) without alleging that BMW made any affirmative misrepresentations and (ii) without claiming damages beyond his economic loss associated with the vehicle itself. (Hammond v. BMW of North America, No. CV 18-226 DSF (MRWx), 2019 WL 2912232 at *2 (C.D. Cal. 2019)). When the plaintiff argued that his fraud claim fell under the Robinson exception, the court rejected that argument, opining that the Robinson exception applied only to affirmative misrepresentations. (Id.) Because the plaintiff had not alleged any affirmative misrepresentations by BMW and did not seek damages other than his economic loss, the Hammond court ruled that the fraud claim based on “omissions” and “concealment” was barred by the economic loss rule. (Id. at *3.) In Thompson, the plaintiff asserted a fraud claim based upon an allegation that BMW omitted information about an “abnormally high consumption of oil” defect. (Thompson v. BMW of North America, No. SA CV 17-1912 CJC (KSx), 2019 WL 988694 at *1 (C.D. Cal. 2019)). The court there held that, because plaintiff (i) had alleged fraud due to an alleged omission, (ii) had not alleged any personal injury or damages other than economic loss, and (iii) had not alleged a “single affirmative misrepresentation” by BMW, the fraud claim was barred by the economic loss rule. (Id. at *5.) In Yi, the plaintiff asserted a fraud claim based upon allegations that BMW had omitted information about the subject vehicle “burning through oil at an excessive rate.” (Yi v. BMW of North America LLC, No. 2:17-cv-06467-SVW-SK at *1 (C.D. Cal. Mar. 5, 2018)). The Yi court ruled that, to avoid preclusion of a fraud claim under the economic loss rule, a plaintiff must show exposure to personal damages independent of the economic loss. (Id. at *2 (citing Robinson)). A plaintiff cannot satisfy this condition (i.e., personal damages independent of the economic loss) merely by arguing that the alleged “fraud” would open the door to greater damages for the plaintiff. (Id.) The Yi court noted that, if a court were to interpret the Robinson exception that broadly, it would “eviscerate the guidelines set out by the Robinson court.” (Id.) Because the Yi plaintiff’s complaint did not claim additional, non-economic damages other than the alleged damages arising from the alleged defect (i.e., damages “above and beyond a broken contractual promise”), the “fraud” claim failed as a matter of law. (Id.) E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 11 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 These four cases are not outliers. Last summer, in Kelsey v. Nissan N. Am., No. CV 20- 4835 MRW, 2020 WL 4592744, at *1-2 (C.D. Cal. July 15, 2020), the court dismissed the plaintiff’s fraud claim because the plaintiff did not claim any affirmative misrepresentations by Nissan or economic damages other than economic loss due to alleged vehicle defects. The court there noted that “numerous California federal courts sitting in diversity have applied the economic loss rule to prohibit a follow-on fraudulent inducement claim in run-of-the-mill Song-Beverly Act warranty breach actions.” (Id. at *2.) The court then provided a “monstrously-long” string cite to support its conclusion: Mosqueda v. American Honda Motor Co., ---F. Supp. 3d ----, No. SA CV 19-839 MWF (MAAx), 2020 WL 1698710 at *13 (C.D. Cal. 2020) (“Because Plaintiffs concede that they seek only economic damages and premise their fraud claim on alleged omissions [,] Plaintiffs’ fraudulent omission claim is barred by the economic loss rule.”); Hammond v. BMW of North America, No. CV 18-226 DSF (MRWx), 2019 WL 2912232 at *2 (C.D. Cal. 2019); Traba v. Ford Motor Co., No. CV 18-808 SVW (GJSx), 2018 WL 6038302 at *4 (C.D. Cal. 2018) (fraudulent concealment “resulted only in Plaintiffs’ disappointed expectations”; plaintiffs “do not claim that the vehicle's alleged defects caused any personal injury or damage to property other than the vehicle”); Thompson v. BMW of North America, No. SA CV 17-1912 CJC (KSx), 2019 WL 988694 at *5 (C.D. Cal. 2019); Zagarian v. BMW of North America, No. CV 18- 4857 RSWL (PLAx), 2019 WL 6111731 at *3 (C.D. Cal. 2019); Sloan v. General Motors, 2020 WL 1955643 at *24 (N.D. Cal. 2020) (“Robinson and the weight of authority within the Ninth Circuit suggest that the economic loss rule applies to fraudulent omission claims under California law”; “many courts within the Ninth Circuit have relied on Robinson in holding that affirmative representations are required for exceptions to the rule to apply”); Finney v. Ford Motor Co., 2019 WL 79033 at *5 (N.D. Cal. 2019) (under economic loss rule, car purchaser's “remedies are in contract and not in fraud”); Stewart v. Electrolux Home Prod., Inc., 304 F. Supp. 3d 894, 902 (E.D. Cal. 2018) (“Plaintiffs’ damages ... are limited to economic loss, precluding their strict liability and fraudulent concealment claims.”); see also, In re Ford Motor Co. DPS6 Powershift Transmission Prod. Liab. Lit., No. CV1706656ABFFMX, 2019 WL 3000646, at *6 (C.D. Cal. May 22, 2019) (finding “insufficient support in the California cases [defendant] cites for its distinction between fraudulent inducement by misrepresentation and fraudulent inducement by omission, and therefore declin[ing] to apply the economic loss rule to the omission claims at [the motion to dismiss] stage”). (Id. at *2.) E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 12 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In addition to Kelsey’s long list of authority, courts have routinely barred omission- and concealment-based fraud claims under the economic loss rule. (See Macias v. Chrysler, No. CV 17-1823, 2020 WL 4723976, at *2 (C.D. Cal. Aug. 13, 2020) (applying economic loss rule to preclude fraudulent omission claim); Leon v. Kia Motors America, Inc. (Orange Cnty Cal. Super. 30-2019-01093543-CU-BC-CJC) (Order 12/13/2019), RJN Ex. G (applying economic loss rule to preclude fraudulent concealment/omission claim).) Most notably, in a decision issued earlier this year - in a strikingly similar case - plaintiff filed a complaint against Mercedes-Benz USA alleging a fraud claim based upon an alleged omission. (Hien Bui v. Mercedes-Benz USA, LLC, No. 20-CV-1530-CAB-WVG, 2021 WL 242936, at *4 (S.D. Cal. Jan. 25, 2021)). The court barred plaintiff’s claim for fraudulent concealment because the complaint did not allege any personal injury to the plaintiff or any damage to physical property independent of the subject vehicle. (Id.) In fact, the only allegation of harm caused by the alleged omission was that “plaintiff purchased the vehicle at issue that he would not have otherwise purchased.” (Id. See also Complaint at ¶ 90.) The complaint there did not allege any facts that supported a “plausible inference” that Mercedes had any “general duty to disclose the alleged defect regardless of whether plaintiff purchased a vehicle,” so “any omissions were not independent of any warranties related to the actual purchase.” (Id.) Naturally, the court there held that the economic loss rule barred plaintiff's fraudulent concealment claim. (Id.) But the court did not stop there. It went on to say that, because plaintiff’s alleged “damages were strictly economic” and arose out of the “same conduct as the breach of warranty claims, no amendment to the complaint would be able to avoid this outcome.” (Id. (citing Hsieh v. FCA US LLC, 440 F. Supp. 3d 1157, 1162 (S.D. Cal. 2020) (dismissing fraud claim without leave to amend because the fact that the lawsuit involved “alleged omissions, not affirmative misrepresentations [precluded] Plaintiff's ability to avoid the economic loss rule.”).) The Bui court also dismissed plaintiff’s prayer for punitive damages predicated on the alleged concealment, because there was no argument to suggest that his punitive damages claim could survive without his fraudulent concealment claim. (Id.) E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 13 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This case is indistinguishable from all the cases in Kelsey’s lengthy list and nearly identical to the facts presented in Bui. Here, Plaintiff alleges that GM “committed fraud by allowing the Vehicle to be sold to Plaintiff without disclosing that the Vehicle and its steering system was defective …” (Complaint, ¶ 86.) Plaintiff has not alleged personal injuries or damages to property other than economic loss for the vehicle itself. (Id.) In fact, the only allegation of harm that Plaintiff alleges in the Complaint is that, if GM had disclosed the “Steering Defect,” then Plaintiff would not have bought the subject vehicle. (Id. at ¶ 90.) This allegation is exactly what the Bui court rejected. (2021 WL 242936, at *4.) Without an affirmative misrepresentation by GM, and without damages independent of the alleged economic loss related to her vehicle, Plaintiff’s fraud claim is barred and should be dismissed without leave to amend. B. The Three-Year Statute of Limitations Bars Plaintiff’s Sixth Cause of Action for Fraud by Omission. The three-year statute of limitations for fraud bars Plaintiff’s claim (Code of Civ. Proc., § 338(d)), and the Complaint fails to allege facts justifying its late filing. Plaintiff bought the Subject Vehicle on or about March 1, 2009. (Complaint, ¶ 6.) To assert a fraud claim based upon an alleged omission, Plaintiff had to file her claim no later than March of 2012. She did not. Plaintiff did not file until complaint until July 14, 2021-nearly A DECADE too late. Plaintiff cannot invoke the delayed discovery rule because she affirmatively states that the Subject Vehicle contained or developed the alleged “defects” “during the warranty period.” (Id. ¶ 8.) The delayed discovery rule tolls the applicable statute of limitations only if Plaintiff is unable to discover the cause of action with reasonable diligence, and to rely upon it, the Plaintiff must plead “facts showing that [they were] not negligent in failing to make the discovery sooner and that [they] had no actual or presumptive knowledge of facts sufficient to put [them] on inquiry.” (Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 437; Johnson v. Ehrgott (1934) 1 Cal.2d 136, 137.) Conclusory allegations will not withstand a demurrer. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.) E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 14 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By her own allegations in Paragraph 8 of the Complaint, Plaintiff cannot come close to carrying this burden. She concedes that she discovered the alleged “defects” “during the warranty period” (id.); therefore, she cannot sustain her burden of demonstrating that she did not discover the actions giving rise to their claim within the applicable limitations period. Plaintiff did not timely assert a Fraud Cause of Action. Therefore, Defendant’s demurrer should be sustained. C. Plaintiff’s Allegations Fail to State a Viable Claim for Fraud by Omission. Plaintiff’s fraud by omission claim attempts, but fails, to allege the tort of deceit or fraud. The torts of deceit or fraud require 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 (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal 4th 631, 638; see also Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) Plaintiff’s Complaint does not allege a single, specific, concrete omission by GM. Nor does Plaintiff allege facts regarding her experience or her vehicle. Plaintiff does not state that GM misrepresented anything about the Subject Vehicle. The Complaint also fails to allege facts about (1) whether Plaintiff communicated with GM before she bought the Subject Vehicle, (2) whether the purported “defect” was covered under the warranty, (3) which alleged representations were made to Plaintiff, (4) how the Subject Vehicle does not allegedly conform to its intended use, (5) how GM allegedly failed to repurchase or replace the vehicle, (6) how GM owed a duty to Plaintiff, and (7) what facts support Plaintiff’s allegation that the Subject Vehicle is unsafe or ever exhibited a safety concern. Plaintiff merely alleges in conclusory fashion that GM failed to disclose safety risks associated with the Subject Vehicle. Indeed, all of the alleged defects related to the Subject Vehicle, have absolutely nothing to do with the alleged “steering defect.” Plaintiff has provided nothing other than speculative and conclusory statements cloaked in broad and sweeping allegations. Specifically, Plaintiff’s Complaint alleges the following, and nothing more: GM did E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 15 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not disclose to Plaintiff prior to the sale of the subject vehicle that it had a “steering defect” based upon unspecified facts GM “knew.” (Id. ¶¶ 87-88.) To establish GM’s knowledge and intent at the time of sale, Plaintiff alleges that GM “knew” that the steering system on the Traverse vehicles was defective, failed to disclose the defects and “intentionally concealed material facts” yet she does not offer any information or source for the claim. (Id. ¶89-90.) Plaintiff presumes that other customer complaints would give rise to GM’s knowledge of a defect in Plaintiff’s vehicle. (Id. ¶20-23.) As many courts have held, however, allegations that a handful of consumers complained are insufficient as a matter of law to plausibly allege that a manufacturer knows of a purported “defect” in a product, much less that the specific Subject Vehicle that the Plaintiff in this case purchased was allegedly defective. See, e.g., Resnick v. Hyundai Motor Am., Inc., No. CV 16- 00593-BRO, 2017 WL 6549931, at *13 (C.D. Cal. ) (“Complaints on third-party websites do not, by themselves, commute knowledge to a manufacturer.”); Baba v. Hewlett-Packard Co., No. C 09-05946 RS, 2011 WL 317650, at *3 (N.D. Cal. Jan. 28, 2011) (“Awareness of a few customer complaints … does not establish knowledge of an alleged defect.”); Berenblat v. Apple, Inc., Nos. 08-4696 JF (PVT), 09-1649 JF (PVT), 2010 WL 1460297, at *9 (N.D. Cal. Apr. 9, 2010) (“[T]he complaints on Apple’s consumer website merely establish the fact that some consumers were complaining. … [T]hey are insufficient to show that Apple had knowledge that the memory slot in fact was defective and sought to conceal that knowledge from consumers.”); Roe v. Ford Motor Co., No. 2:18-cv-12528-LJM-APP, 2019 WL 3564589, at *7 (E.D. Mich. Aug. 6, 2019) (finding that allegations of consumer complaints were insufficient to establish manufacturer’s knowledge of an alleged defect where, as here, the complaint “[did] not include factual allegations that make it reasonable to infer that complaints about and repairs of the [part at issue] were anything more than a blip on [the manufacturer’s] complaints-and-repairs radar”); Schechter v. Hyundai Motor Am., No. 18-13634 (FLW), 2019 WL 3616902, at *6 (D.N.J. July 29, 2019) (finding that a handful of consumer complaints “[did] not demonstrate Defendants’ knowledge of the [alleged] [d]efect”); Dawson v. General Motors LLC, No. 19-8680, 2019 WL 3283046, at *6 (D.N.J. July 22, 20219) (“[A] company cannot be certain about a systematic part failure based on about 100 instances of E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 16 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 failure in a national market over the course of several years.”); McQueen v. BMW of N. Am., LLC, No. 12-6674(SRC), 2013 WL 4607353, at *7 (D.N.J. Aug. 29, 2013) (“[C]ustomer complaints do not constitute per se knowledge on the part of BMW that a defect exists in the [v]ehicles.”). This does not establish GM’s intent to defraud Plaintiff or demonstrate that the steering system is or was defective at the time of sale. (Id.) Plaintiff has failed to provide any factual support for her statements and allegations and has merely provided convenient conclusions that lack the foundation and specificity required to plead fraud. D. Plaintiff’s Omission Allegations Are Insufficient as a Matter of Law. 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 were 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 was damaged by the concealment. (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1198.) When dealing with a product, omitted facts are material only if they implicate a safety concern. (Daugherty v. Am. Honda. Co., 144 Cal.App.4th 824, 836; Wilson v. Hewlett-Packard, 668 F.3d 1136, 1141-42 (9th Cir. 2012).) Plaintiff pled no such facts; instead, she pled nothing other than speculative and conclusory statements. This issue was addressed in Daugherty, an action brought under the CLRA and Business and Professions Code section 17200 (“UCL”). (Daugherty, 144 Cal.App.4th at 824). In that case, several car buyers filed a class action against Honda alleging that it had failed to disclose that its F22 engine had persistent problems with respect to oil leakage. The trial court sustained Honda’s demurrer without leave to amend as to the CLRA and UCL claims because the Plaintiff failed to identify any representation made by Honda that its automobiles had any characteristics they did not have or were of a standard or quality they were not. The Daugherty court held: “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, 144 Cal.App.4th at 835; see also Bardin v. DaimlerChrysler E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 17 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Corp. (2006) 136 Cal.App.4th 1255, 1276 (no fraud can be alleged if there is no showing that the defendant was “bound to disclose” the fact at issue)). Here, there is no allegation that GM was aware of any material fact that allegedly impacted the Subject Vehicle’s safety at the time of the sale, or that Plaintiff had any direct contact with GM at the time of sale. Therefore, there could not be an omission of any material fact at the time of the sale by GM or a failure to disclose any material fact at the time of the sale as it relates to Plaintiff’s Subject Vehicle having characteristics and benefits that it did not have, or that it was of a particular standard, quality, or grade when it was of another. Further, GM did not have any duty to disclose, and is not liable for concealment. The duty to disclose arises in four circumstances: when the defendant: (1) is in a fiduciary relationship with the plaintiff, (2) had exclusive knowledge of material facts not known to the plaintiff, (3) actively conceals a material fact from the plaintiff; and/or (4) 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.) As a matter of law, there is no fiduciary relationship between GM and Plaintiff. “It is a general rule that a vendor not in a confidential relation to the buyer is not under a duty to make full disclosure concerning the object which he would sell.” (De Spirito v. Andrews (1957) 151 Cal.App.2d 126, 130.) Nor does Plaintiff allege any of the other three circumstances which would create a duty to disclose. In California, an automaker is not liable for the independent conduct of a dealership employee or another third-party entity with no relationship to GM. (Mel Clayton GM LLC v. GM LLC Motor Co. (2002) 104 Cal.App.4th 46, 49.) “A [manufacturer’s] dealer or retailer may in a layman’s view be an agent of the [manufacturer], but he is not an agent in the legal sense of that relationship.” Representations of employees at a dealership are not representations of an agent of Defendant itself. (Avalon Painting Co. v. Alert Lumber Co. (1965) 234 Cal.App.2d 178, 184 [citing Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256; Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 134 (tolling and estoppel both rely on E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 18 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 representations by defendant that repairs will be made; third party representations do not involve reliance on defendant)].) Further, Plaintiff bears the burden to prove agency, which must rest upon an agreement. (D’Acquisto v. Evola (1949) 90 Cal.App.2d 210, 213.) The Complaint fails to demonstrate any direct representations by GM to Plaintiff. E. Plaintiff Fails to Allege Fraud with the Requisite Specificity. “Fraud is never presumed.” (Mason v. Drug Inc. (1939) 31 Cal.App.2d 697, 703.) Rather, California law requires that every element of a fraud cause of action “must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.” (Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157.) “[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.) Pleading fraud with specificity is particularly important. (Tarmann v. State Farm, supra, at 157 [“The requirement of specificity in a fraud action against a corporation requires the Plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.”]; Mason v. Drug Inc., supra, at 703 [“if the Plaintiff would charge the defendant corporation with making fraudulent misrepresentations it was necessary for him to allege the name of the person who spoke, his authority to speak, to whom he spoke, what he said or wrote, and when it was said or written.”]; Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878 [“Concealment is a species of fraud, and fraud must be pleaded with specificity.”].) Here, Plaintiff fails to identify the salesperson Plaintiff spoke to when buying the vehicle, when Plaintiff had any conversations with salespeople regarding the vehicle,1 or what 1 In California, an automaker is not liable for the independent conduct of a dealership employee or another third-party entity with no relationship to GM. (Mel Clayton GM LLC v. GM LLC Motor Co. (2002) 104 Cal.App.4th 46, 49.) E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 19 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 advertisements and/or marketing brochures Plaintiff reviewed or relied upon in purchasing the vehicle and whether they were prepared by GM or someone else. The vast majority of Plaintiff’s Complaint consists of non-case specific, conclusory statements. Plaintiff fails to plead with specificity, as is required, the facts supporting any allegation that GM intended to defraud Plaintiff by either making any affirmative statements or failing to disclose any alleged facts. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30 [“something more than non-performance is required to prove the defendant’s intent not to perform his promise”].) Based on the foregoing, Plaintiff’s Fraud by Omission cause of action fails to meet the applicable pleading standard and should be dismissed. F. Omission/Concealment Cannot Be Based upon Non-actionable Puffery. Even where pled specifically, forward-looking statements, sales talk, puffery, and other generalized statements, cannot constitute facts to support a cause of action for fraud. (Consumer Advocates v. EchoStar Satellite Corp. (2003) 113 Cal.App.4th 1351, 1361; Osborne v. Subaru of America, Inc. (1988) 198 Cal. App. 3d 646, 660, n.8 [manufacturers “are permitted to ‘puff’ their products by stating opinions about the quality of the goods so long as they do not cross the line and make factual representations about important characteristics like a product's safety”]; Anunziato v. eMachines, Inc. (C.D. Cal. 2005) 402 F.Supp.2d 1133, 1140 [holding that phrases like “quality,” “reliability,” “high performance criteria,” and “latest technology” are all non- actionable puffery].) Plaintiff’s Complaint does not allege what statements she might have relied on from GM. However, to the extent she may have relied on some unspecified statement, GM asserts that such representation will likely be nothing more than standard sales talk, forward- looking statements, and statements of opinion - all of which are puffery and none of which are actionable. VI. CONCLUSION The sixth cause of action for Fraud by Omission was filed too late; it is time-barred. Further, Plaintiff has failed to state a viable claim for fraud. Putting aside these two fatal flaws, the fraud claim is precluded by the economic loss rule. For all these reasons, GM’s Demurrer to E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 20 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the sixth cause of action for fraud by omission should be sustained without leave to amend. Dated: August 18, 2021 ERSKINE LAW GROUP, PC TAVIAN KING, ESQ. Attorney for Defendant GENERAL MOTORS LLC E R S K IN E L A W G R O U P , A P C 1 5 7 6 N . B A T A V IA S T R E E T , S U IT E A , O R A N G E , C A 9 2 8 6 7 (9 4 9 ) 7 7 7 -6 0 3 2 ( O F F IC E ) | ( 7 1 4 ) 8 4 4 -9 0 3 5 ( F A X ) 21 DEMURRER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare that I am employed at the law firm ERSKINE LAW GROUP, APC in the County of Orange, State of California. I further declare that I am over the age of 18 and am not a party to the within action, and my law firm’s business address is: ERSKINE LAW GROUP, APC 1576 N. Batavia Street, Suite A Orange, California 92867 I further declare that on or about, August 18, 2021, I served on the parties, to whom are addressed below, the foregoing document(s) described as: Notice of Demurrer and Demurrer to Plaintiff’s Complaint By placing the [___] original(s), or the [XX] true copies, thereof enclosed in sealed envelopes, attached to electronic mail, and addressed to the following: STRATEGIC LEGAL PRACTICES 1840 CENTURY PARK EAST STE 430 LOS ANGELES, CA 90067 EMAILSERVICES@SLPATTORNEY.COM [ ] BY MAIL: as follows, I am "readily familiar" with the firm's practice of collection and processing of correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Encino, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [XX] BY ELECTRONIC SERVICE [Code Civ. Proc. § 1010.6; CRC 2.251]: by electronically mailing a true and correct copy through NETZAH & SHEM-TOV INC.’s electronic mail system to the email address(es) set forth above, or as stated on the attached service list per agreement in accordance with CA’s CCP § 1010.6 and CRC Rule 2.251. [___] BY PERSONAL SERVICE: to the addressee(s) above. [XX] (State): I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. [___] (Federal): I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed, August 18, 2021, in Orange, California. By: ________________________________ James Gimeno