Demurrer

Cal. Super. - 6th Dist.June 21, 2021

J; KOOONONUI 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 St., Suite A Orange, CA 92867 Tel: (949) 777-6032 Fax: (714) 844-9035 Email: marensmcbride@erskinelaw.com Email: tking@erskinelaw.com Attorneys for Defendant, GENERAL MOTORS LLC Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/21/2021 12:44 PM Reviewed By: R. Tien Case #21 CV384558 Envelope: 7308371 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA - DOWNTOWN SUPERIOR COURT CARMEN CAMACHO, an individual, Plaintiff, V. GENERAL MOTORS LLC, a Delaware Limited Liability Company; and DOES 1 through 20, inclusive, Defendants. CASE NO.: 21CV384558 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES [Filed concurrently with Declaration 0f Tavian King; [Proposed] Order; and Motion t0 Strike Punitive Damages] DATE: TIME: DEPT: 7 Page 1 of20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES 9:00am 2-03-2022 J; KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 To THE HONORABLE COURT, ALL PARTIES AND THEIR ATTORNEYS 0F RECORD: PLEASE TAKE NOTICE that on 2-03-2022 Mt 9:00am mLp-m, 0r as soon thereafter as the matter may be heard in Department 7 0f the above-captioned Court located at 191 N. First Street, San Jose, CA 95 1 13, General Motors LLC (“GM”) will and hereby does move this Court for an order sustaining GM’s demurrer t0 Plaintiff Carmen Camacho’s Complaint. DEMURRER TO PLAINTIFF’S COMPLAINT GM hereby demurs t0 Plaintiff s third cause 0f action 0n the following grounds: 1. The third cause 0f action, for Fraudulent Inducement-Concealment, is barred by the economic loss rule. (Id) 2. The third cause 0f action, for Fraudulent Inducement-Concealment, fails t0 state facts sufficient t0 establish the fraud cause 0f action. (Code CiV. Proc., § 430. 10(6).) GM brings this demurrer pursuant t0 Code 0f Civil Procedure Section 430.10, and GM based its demurrer 0n this Notice, the attached Memorandum 0f Points and Authorities, the Declaration of Tavian King, the papers and pleading 0n file in this action and such other papers, pleadings, and arguments as this Court shall admit at the time 0f the hearing. DATED: September 21, 2021 ERSKINE LAW GROUP, PCfl TAVIAN KING, Esq. Attorney for Defendant, GENERAL MOTORS LLC Page 2 0f 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES L KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................. 7 II. SUMMARY OF ALLEGATIONS ................................................................................... 7 III. MEET AND CONFER PER CODE 0F CIVIL PROCEDURE § 430.41 ...................... 8 IV. LEGAL STANDARD ON DEMURRER. ........................................................................ 8 V. ARGUMENT ......................................................................................................................9 A. The Economic Loss Rule Bars the Fraud Cause 0fAction ..................................9 B. Plaintiffs Allegations Fail t0 State a Viable Claim for Fraud by Omission ............ 13 C. Plaintiffs Concealment Allegations Are Insufficient as a Matter 0fLaw ............ 14 D. Plaintiff Fails to Allege Fraud with the Requisite Specificity ........................... 16 E. Concealment Cannot Be Based upon Non-actionable Puffery ........................... 17 VI. CONCLUSION ................................................................................................................ 18 Page 3 of 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES L KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) CASES Aas v. Superior Court, (2000) 24 Cal 4th 627 ................................................................................................................. 9 Ammziato v. eMachineS, Ina, (C.D. Cal. 2005) 402 F.Supp.2d 1133 ...................................................................................... 19 Avalon Painting C0. v. Alert Lumber C0. , (1965) 234 Cal.App.2d 178 ...................................................................................................... 17 Bardin v. DaimlerChrj/Sler C0rp., (2006) 136 Cal.App.4th 1255 ................................................................................................... 16 Blank v. Kirwan, (1985) 39 Cal.3d 311 .................................................................................................................. 8 Blickman Turkus, LP v. MFDowntown 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 ................................................................................................... 19 D ’Acquisto v. Evola, (1949) 90 Cal.App.2d 210 ........................................................................................................ 17 Daugherty v. Am. Honda. C0., 144 Cal.App.4th 824 ................................................................................................................. 16 De Spirito v. Andrews, (1957) 151 Cal.App.2d 126 ...................................................................................................... 17 Donabedian v. Mercury Ins. C0., (2004) 116 Cal.App.4th 968 ....................................................................................................... 8 Engalla v. Permanente Medical Group, Ina, (1997) 15 Cal.4th 951 ......................................................................................................... 13, 14 Finney v. Ford Motor C0., 2019 WL 79033 (ND. Cal. 2019) ............................................................................................ 11 Hammond v. BMW 0fN0rth America, N0. CV 18-226 DSF (MRWX), 2019 WL 2912232 (CD. Cal. 2019) ................................ 10, 11 Page 4 0f 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES L KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Heliotis v. Schuman, (1986) 181 Cal.App.3d 646 ...................................................................................................... 17 Hien Bui v. MercedeS-Benz USA, LLC, N0. 20-CV-1530-CAB-WVG, 2021 WL 242936 (S.D. Cal. Jan. 25, 2021) ...................... 12, 13 Hsieh v. FCA US LLC, 440 F. Supp. 3d 1157 (S.D. Cal. 2020) ..................................................................................... 13 In re Ford Motor C0. DPS6 Powershift Transmission Prod. Liab. Lit., N0. CV1706656ABFFMX, 2019 WL 3000646 (C.D. Cal. May 22, 2019) ............................. 11 Jones v. ConocoPhillipS C0., (201 1) 198 Cal.App.4th 1187 ................................................................................................... 16 Kamen v. Lindley, (2001) 94 Cal.App.4th 197 ......................................................................................................... 8 Kelsey v. Nissan N. Am., N0. CV 20-4835 MRW, 2020 WL 4592744, at *1-2 (C.D. Cal. July 15, 2020) ..................................................................................................... 11, 12 La Vista Cemetery ASSOC. v. Am. Savings & Loan Assoc, (1970) 12 Cal.App.3d 365 .......................................................................................................... 9 Lazar v. Superior Court, (1996) 12 Cal4th 631 ............................................................................................................... 13 Macias v. Chrysler, N0. CV 17-1823, 2020 WL 4723976 (CD. Cal. Aug. 13, 2020) ............................................. 12 Mason v. Drug Ina, (1939) 31 Cal.App.2d 697 ........................................................................................................ 18 Moore v. Regents 0f Univ. 0fCal., (1990) 51 Cal.3d 120 .................................................................................................................. 8 Mosqueda v. American Honda Motor C0., -F. Supp. 3d-, N0. SA CV 19-839 MWF (MAAX), 2020 WL 1698710 at *13 (CD. Cal. 2020) ............................................................. 11 Motor C0., (2002) 104 Cal.App.4th 46 ................................................................................................. 16, 17 Nada Pac. Corp. v. Power Eng’g and Mfg, Ltd. , 73 F. Supp. 3d 1206 (N.D. Cal. 2014) ........................................................................................ 9 Osborne v. Subaru OfAmerica, Ina, (1988) 198 Cal. App. 3d 646 .................................................................................................... 19 Page 5 0f20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES L KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Penrose v. Winter, (1901) 135 Cal. 289 .................................................................................................................... 8 Robinson Helicopter C0., Inc. v. Dana Corp, (2004) 34 Cal. 4th 979 .................................................................................................... 9, 10, 11 Sloan v. Gen. Motors LLC, N0. 16-CV-07244-EMC, 2020 WL 1955643 (ND. Cal. Apr. 23, 2020) ............................. 9, 11 Southwest, (1968) 266 Cal.App.2d 702 ...................................................................................................... 18 Stansfield v. Starkey, (1990) 220 Cal.App.3d 59 ........................................................................................................ 18 Stewart v. Electrolux Home Prod, Ina, 304 F. Supp. 3d 894 (E.D. Cal. 2018) ....................................................................................... 11 Tarmann v. State Farm Mut. Auto Ins. C0. , (1991) 2 Cal.App.4th 153 ......................................................................................................... 18 Tenzer v. Superscope, Ina, (1985) 39 Cal.3d 18 .................................................................................................................. 19 Thompson v. BMW 0fN0rth America, N0. SA CV 17-1912 CJC (KSX), 2019 WL 988694 (C.D. Cal. 2019) ............................... 10, 11 Traba v. Ford Motor C0., N0. CV 18-808 SVW (GJSX), 2018 WL 6038302 (C.D. Cal. 2018) ........................................ 11 Vandermark v. Ford Motor C0. , (1964) 61 Cal.2d 256 ................................................................................................................ 17 Wilson v. Hewlett-Packard, 668 F.3d 1136 (9th Cir. 2012) .................................................................................................. 16 Zagarian v. BMW 0fN.Am., N0. CV 18-4857 RSWL (PLAX), 2019 WL 61 1 1731 (C.D. Cal. 2019) ................................................................................................................................... 10, 11 STATUTES Code 0f CiV. Proc., § 430.10 (f) ...................................................................................................... 8 Code 0f CiV. Proc., § 430.10(e) ...................................................................................................... 8 TREATISES 4 Witkin, Summary 0f Cal. Law (8th ed. 1974) Torts, §§ 459-464, pp. 2724-2728 .................... 17 Page 6 0f 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES L KOOONONUI 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 Carmen Camacho is trying t0 make this rather straightforward breach 0fwarranty matter about something it is not-a case about non-existent “fraud.” Her “fraud” claim fails as a matter 0f law for two distinct reasons, both 0fwhich provide this Court ample grounds t0 dismiss the third cause 0f action with prejudice. First, the fraud claim fails under the Economic Loss Rule. Second, the complaint 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 t0 this Plaintiff (likely because they d0 not exist), Plaintiff instead lifts allegations from a completely different case. Those unproven allegations are not “facts,” and assuredly are not facts relevant t0 Plaintiff’s vehicle 0r the repairs t0 that vehicle under warranty. In short, there is n0 factual 0r legal basis for Plaintiffs fraud claim. GM’s demurrer should be sustained without leave t0 amend. II. SUMMARY OF ALLEGATIONS On October 29, 2019, Plaintiff purchased, a 2019 GMC Sierra 1500, VIN 3GTU9BED3KG222349 (the “Subject Vehicle” 0r “Sierra”). (See Complaint at 11 5.) On June 24, 2021 Plaintiff filed breach of warranty and fraud claims based upon allegations that the Sierra developed various alleged “defects” during the warranty period that GM failed t0 repair within a reasonable number 0f attempts. (See generally Complaint.) Specifically, the Complaint asserts a cause 0f action for “fraudulent inducement-concealment” against GM (“Count 3”), but, as GM explains below, Count 3 fails t0 state a Viable claim for relief. Plaintiff fails t0 provide the critical facts that would support this cause 0f action. Plaintiffs Fraudulent Inducement-Concealment claim is based upon generic allegations that GM failed t0 disclose a defect in the Sierra’s 8L90 automatic transmission. (See Complaint, at fl 14-1 8, 64-67, 101-103.) According t0 Plaintiff, GM acquired knowledge about this transmission defect based upon a handful 0f complaints posted online about other Sierra vehicles Page 7 0f 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES L KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 manufactured since 2015 (id. at 111147-40)-then knowingly and intentionally concealed material facts from Plaintiff. (See generally id.) However, Plaintiff fails t0 allege (i) the identity 0f the person who sold Plaintiff the Subject Vehicle, (ii) whether 0r not Plaintiff had any interaction with GM at 0r before Plaintiff purchased the Subject Vehicle, (iii) GM’s knowledge 0f the alleged defects in Plaintiffs Vehicle, (iv) GM’s intent t0 defraud Plaintiff, and (V) specifics about the alleged warranty that accompanied the sale 0f the Subject Vehicle and how it pertains t0 the allegations 0f fraud. Instead, Plaintiff asserts these claims in wholly conclusory fashion. Essentially, Plaintiff alleges only that the Subject Vehicle is a type 0fvehicle that may suffer from a type 0f defect and that during the unspecified warranty period, the vehicle contained various alleged defects, which Plaintiff describes only in general terms. (See generally Complaint.) As explained below, such allegations are insufficient. GM’s demurrer should be sustained. III. MEET AND CONFER PER CODE OF CIVIL PROCEDURE § 430.41 GM made a good faith effort t0 meet and confer with Plaintiff telephonically t0 resolve the issues outlined in this demurrer without court intervention, but GM was unsuccessful despite its best efforts. (Declaration of Tavian King, 11 2.) IV. APPLICABLE LEGAL STANDARD A demurrer challenges defects apparent 0n the face 0fthe complaint 0rjudicially noticeable matters outside the pleadings. (Blank v. Kirwan (1985) 39 Cal.3d 31 1, 318; Donabedian v. Mercury Ins. C0. (2004) 116 Cal.App.4th 968, 994.) In ruling 0n a demurrer, “the trial court . . . treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions 0r conclusions 0f fact 0r law.” (Kamen v. Lindley (2001) 94 Cal.App.4th 197, 201; see also Moore v. Regents 0fUm'v. ofCal. (1990) 51 Cal.3d 120, 125.) A pleading that “does not state facts sufficient t0 constitute a cause 0f action” is subj ect t0 demurrer.” (Code osz'v. Proa, § 430. 10(6)). A pleading fails t0 state a cause 0f action if it pleads essential allegations as legal conclusions rather than as facts. (Penrose v. Winter (1901) 135 Cal. 289, 290-291.) Further, a pleading that is uncertain, ambiguous and/or unintelligible is subject t0 demurrer. (Code 0f Civ. Proa, § 430.10 (D). The Court must determine if the flaws inherent in Page 8 0f 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES L KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the pleading can be remedied by the amendment; if the plaintiff cannot correct the deficiencies, leave t0 amend should be denied. (La Vista Cemetery ASSOC. v. Am. Savings & Loan ASSOC. (1970) 12 Cal.App.3d 365, 369.) Against this standard, Plaintiffs “fraud” claim is barred by significant factual deficiencies and a number 0f legal doctrines such that this Court should sustain GM’s demurrer without leave t0 amend. V. ARGUMENT A. THE ECONOMIC LOSS RULE BARS PLAINTIFF’S “FRAUD” CLAIM. A person “may not ordinarily recover in tort for the breach 0f duties that merely restate contractual obligations.” (Aas v. Superior Court (2000) 24 Cal 4th 627, 643, superseded by statute 0n other grounds.) The purchaser must “demonstrate harm above and beyond a broken contractual promise.” (Robinson Helicopter C0., Inc. v. Dana Corp. (2004) 34 Cal. 4th 979, 988 (noting “the economic loss rule prevents the law 0f contract and the law 0f tort from dissolving one into the other”) (internal citation and quotation marks 0mitted).) California courts have consistently held that the economic loss doctrine bars fraud claims based 0n purely economic loss. (See Sloan v. Gen. Motors LLC, N0. 16-CV-07244-EMC, 2020 WL 1955643, at *23-*24 (ND. Cal. Apr. 23, 2020) (surveying decisions).) Plaintiff did not allege 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 0f breach 0f contract,” it expressly stated that its holding was “narrow in scope and limited t0 a defendant’s affirmative misrepresentations 0n which a plaintiff relies and which expose a plaintiff to liability for personal damages independent 0f 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 (ND. Cal. 2014) (“[Plaintiff] does not allege that [the defendant] made any affirmative misrepresentations 0n which it relied, nor does it allege that it was exposed t0 liability for personal damages independent 0f its economic loss. Without having done so, [Plaintiff] cannot fit within Robinson’s narrow and limited Page 9 0f 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES J; KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 holding.”).) The affirmative misrepresentation that exposed the Robinson plaintiff t0 liability for personal damages, independent 0f that plaintiffs economic loss, is regularly referred t0 as the “Robinson exception.” 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 0f the alleged economic loss. The following courts all concluded that the Robinson exception does not extend t0 fraud claims based upon alleged concealment, omissions, 0r non-disclosures: In Zagarian, the plaintiff asserted fraud based upon allegations thatBMW omitted information about an “oil consumption” defect in the subject vehicle. (Zagarian v. BMW 0fN.Am., N0. 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 t0 claims 0f 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 0n the part 0f BMW” and (ii) had not shown any exposure t0 “personal damages independent 0f his economic loss,” the court dismissed the plaintiffs fraud claim as barred by the economic loss rule. (Id.) In Hammond, the plaintiff only sought damages associated with defects in the subj ect 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 0fN0rth America, N0. 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 t0 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 0n “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 0f oil” defect. (Thompson v. BMW 0f North America, N0. 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 t0 an alleged omission, (ii) had not alleged any personal injury 0r 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.” (Yz' v. BMW 0fN0rth America LLC, N0. 2: 17-CV-06467-SVW-SK at *1 (CD. Cal. Mar. 5, 2018)). The Yi court ruled that, t0 avoid preclusion 0f a fraud claim under the economic loss rule, a plaintiff must show exposure t0 personal damages independent 0f the economic loss. (Id. at *2 (citing R0binson)). A plaintiff cannot satisfy this condition (i.e., personal damages independent 0f the economic loss) merely by arguing that the alleged “fraud” would open the door t0 greater damages for the plaintiff. (Id.) The Yz' court noted that, if a court were t0 interpret the Robinson exception that broadly, it would “eviscerate the guidelines set out by the Robinson court.” (Id.) Page 10 0f 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES L KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Because the Yz' plaintiffs 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 0f law. (Id) These four cases are not outliers. Last summer, in Kelsey v. Nissan N. Am., N0. CV 20- 4835 MRW, 2020 WL 4592744, at *1-2 (C.D. Cal. July 15, 2020), the court dismissed the plaintiffs fraud claim because the plaintiff did not claim any affirmative misrepresentations by Nissan 0r economic damages other than economic loss due t0 alleged vehicle defects. The court there noted that “numerous California federal courts sitting in diversity have applied the economic loss rule t0 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 t0 support its conclusion: Mosqueda v. American Honda Motor C0., -F. Supp. 3d-, N0. 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 0n alleged omissions [,] Plaintiffs’ fraudulent omission claim is barred by the economic loss rule”); Hammond v. BMW ofNorth America, N0. CV 18-226 DSF (MRWX), 2019 WL 2912232 at *2 (C.D. Cal. 2019); Traba v. Ford Motor C0., N0. CV 18-808 SVW (GJSX), 2018 WL 6038302 at *4 (C.D. Cal. 2018) (fraudulent concealment “resulted only in Plaintiffs’ disappointed expectations”; plaintiffs “d0 not claim that the vehicle's alleged defects caused any personal injury 0r damage t0 property other than the vehicle”); Thompson v. BMW ofNorth America, N0. SA CV 17-1912 CJC (KSX), 2019 WL 988694 at *5 (CD. Cal. 2019); Zagarian v. BMW 0fN0rth America, N0. CV 18- 4857 RSWL (PLAX), 2019 WL 6111731 at *3 (CD. Cal. 2019); Sloan v. General Motors, 2020 WL 1955643 at *24 (N.D. Cal. 2020) (“Robinson and the weight 0f authority within the Ninth Circuit suggest that the economic loss rule applies t0 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 t0 the rule t0 apply”); Finney v. Ford Motor C0., 2019 WL 79033 at *5 (ND. Cal. 2019) (under economic loss rule, car purchaser's “remedies are in contract and not in fraud”); Stewart v. Electrolux Home Prod, Ina, 304 F. Supp. 3d 894, 902 (ED. Cal. 2018) (“Plaintiffs’ damages are limited t0 economic loss, precluding their strict liability and fraudulent concealment Claims”); see also, In re Ford Motor C0. DPS6 Powershift Transmission Prod. Liab. Lit., N0. CV1 706656ABFFMX, 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] t0 apply the economic loss rule t0 the omission claims at [the motion t0 dismiss] stage”). Page 11 0f 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES L KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Id. at *2.) In addition t0 Kelsey’s long list 0f authority, courts have routinely barred omission- and concealment-based fraud claims under the economic loss rule. (See Macias v. Chrysler, N0. CV 17-1823, 2020 WL 4723976, at *2 (C.D. Cal. Aug. 13, 2020) (applying economic loss rule t0 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 t0 preclude fraudulent concealment/omission claim).) Most notably, in a decision issued earlier this year - in a case that mirrors this case - plaintiff filed a complaint against Mercedes-Benz USA alleging a fraud. (Hien Bui v. Mercedes- Benz USA, LLC, N0. 20-CV-1530-CAB-WVG, 2021 WL 242936, at *4 (SD. Cal. Jan. 25, 2021)). The court barred plaintiff” s claim for fraudulent concealment because the complaint did not allege any personal injury t0 the plaintiff 0r any damage t0 physical property independent 0f the subj ect vehicle. (Id) In fact, the only allegation 0fharm caused by the alleged omission was that “plaintiff purchased the vehicle at issue that she would not have otherwise purchased.” (Id. See also Complaint at 11 21.) The complaint there did not allege any facts that supported a “plausible inference” that Mercedes had any “general duty t0 disclose the alleged defect regardless ofwhether plaintiff purchased a vehicle,” so “any omissions were not independent 0f any warranties related t0 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 0n t0 say that, because plaintiffs alleged “damages were strictly economic” and arose out 0f the “same conduct as the breach 0f warranty claims, n0 amendment t0 the complaint would be able t0 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 t0 amend because the fact that the lawsuit involved “alleged omissions, not affirmative misrepresentations [precluded] Plaintiff‘s ability t0 avoid the economic loss rule.”).) The Bui court also dismissed plaintiffs prayer for punitive damages predicated 0n the alleged concealment, because there was n0 argument t0 suggest that his punitive damages claim could survive without his fraudulent concealment claim. (Id) Page 12 0f 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES L KOOONONUI 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 t0 the facts presented in Bui. Here, Plaintiff alleges that GM committed fraud by concealing and failing t0 disclose a transmission “defect.” (Complaint, at 1W 101-108.) Plaintiff has not alleged personal injuries 0r damages t0 property other than economic loss for the vehicle itself. (Id) In fact, the only allegation of harm that Plaintiff alleged in her Complaint is that, if GM had disclosed the “defective transmission,” then Plaintiff would not have bought the subject vehicle. (Id. at 1W 21, 108.) This allegation is exactly what the Bui court rejected. (2021 WL 242936, at *4.) Without an affirmative misrepresentation by GM, and without damages independent 0f the alleged economic loss related t0 the Subject Vehicle, Plaintiffs fraud claim is barred and should be dismissed without leave t0 amend. B. PLAINTIFF’S ALLEGATIONS FAIL TO STATE A VIABLE CLAIM FOR FRAUDULENT CONCEALMENT Plaintiff” s fraud by omissions claim attempts, but fails, t0 allege the tort 0f deceit 0r fraud. The tort 0f deceit 0r fraud requires a plaintiff t0 plead and prove: “(a) [a] misrepresentation (false representation, concealment, 0r nondisclosure); (b) knowledge 0f falsity (0r “scienter”); (c) intent t0 defraud, i.e., t0 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 Ca1.4th 951, 974.) Plaintiffs Complaint does not allege a single, specific, concrete omission by GM. Plaintiff does not allegefacts stating the terms 0f the warranty 0r warranties at issue 0r allege that GM misrepresented anything about the Subj ect Vehicle. Nor does the Complaint allege facts about (1) whether Plaintiff communicated with GM before Plaintiff bought the Sierra, (2) whether the purported “defect” was covered under the warranty, (3) which alleged representations were made t0 Plaintiff, (4) how the Sierra does not conform t0 its intended use, (5) how GM allegedly failed t0 repurchase 0r replace the vehicle, (6) how GM owed a duty t0 Plaintiff, and (7) what facts support Plaintiff” s allegation that the Sierra is unsafe 0r ever exhibited a safety concern. Plaintiff merely alleges in conclusory fashion that GM failed t0 disclose safety risks associated with the Sierra. But Plaintiff has provided nothing other than speculative and Page 13 0f 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES L KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conclusory statements cloaked in broad and sweeping allegations t0 establish GM’s knowledge and intent at the time of Plaintiff” s purchase, relying primarily 0n anonymous complaints by other customers about other vehicles. (Complaint, at 11 48.) As many courts have held, however, allegations that a handful 0f consumers complained are insufficient as a matter 0f law t0 plausibly allege that a manufacturer knows 0f 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., Resm'ck v. Hyundai Motor Am., Ina, N0. CV 16-00593-BRO, 2017 WL 6549931, at *13 (CD. Cal. ) (“Complaints 0n third-party websites d0 not, by themselves, commute knowledge t0 a manufacturer.”); Baba v. Hewlett-Packard C0. , N0. C 09-05946 RS, 2011 WL 317650, at *3 (ND. Cal. Jan. 28, 201 1) (“Awareness 0f a few customer complaints does not establish knowledge 0f an alleged defect”); Berenblat v. Apple, Ina, Nos. 08-4696 JF (PVT), 09-1649 JF (PVT), 2010 WL 1460297, at *9 (N.D. Cal. Apr. 9, 2010) (“[T]he complaints 0n Apple’s consumer website merely establish the fact that some consumers were complaining. [T]hey are insufficient t0 show that Apple had knowledge that the memory slot in fact was defective and sought t0 conceal that knowledge from consumers.”); Roe v. Ford Motor C0., N0. 2:18-CV-12528-LJM-APP, 2019 WL 3564589, at *7 (ED. Mich. Aug. 6, 2019) (finding that allegations 0f consumer complaints were insufficient t0 establish manufacturer’s knowledge 0f an alleged defect where, as here, the complaint “[did] not include factual allegations that make it reasonable t0 infer that complaints about and repairs 0f the [part at issue] were anything more than a blip 0n [the manufacturer’s] complaints-and-repairs radar”); Schechter v. Hyundai Motor Am., N0. 18-13634 (FLW), 2019 WL 3616902, at *6 (D.N.J. July 29, 2019) (finding that a handful 0f consumer complaints “[did] not demonstrate Defendants’ knowledge 0f the [alleged] [d]efect”); Dawson v. General Motors LLC, N0. 19-8680, 2019 WL 3283046, at *6 (D.N.J. July 22, 20219) (“[A] company cannot be certain about a systematic part failure based 0n about 100 instances 0f failure in a national market over the course 0f several years.”); McQueen v. BMW ofN. Am., LLC, N0. 12-6674(SRC), 2013 WL 4607353, at *7 (D.N.J. Aug. 29, 20 1 3) (“[C]ust0mer complaints d0 not constitute per se knowledge 0n the part 0fBMW that a defect exists in the [V]ehicles.”). Page 14 0f 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES J; KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In any event, if such complaints were sufficient t0 establish GM’s purported knowledge (and they are not, as the cases cited above all hold), then they would also be sufficient t0 put Plaintiff on notice of the very information Plaintiff claims GM concealed. Indeed, every single complaint that Plaintiff referenced (1) pre-dates Plaintiffs purchase by several months, if not years, and (2) was pulled from a public website hosted by National Highway Traffic Safety Administration, which was equally accessible t0 Plaintiff. Plaintiff also cites Technical Service Bulletins (TSBs) t0 attempt t0 allege that GM knew 0f a “defect” in the Subj ect Vehicle. As California law makes clear, however, TSBs simply provide instructions t0 dealers about how t0 correct various issues that certain vehicles may experience; they d0 not establish that all vehicles that are subject t0 the TSB are defective, nor d0 they establish that the specific Subject Vehicle that Plaintiff purchased was defective (much less that GM knew 0f any alleged “defect”). See, e.g., Digby Adler Grp., LLC v. MercedeS-Benz U.S.A., LLC, N0. 14- CV-02349-TEH, 2015 WL 1548872, at *3 (N.D. Cal. Apr. 7, 2015) (“California law provides that an automaker’s service bulletins are not t0 be ‘construed as an admission 0f the existence 0r nonexistence 0f a vehicle defect”) (quoting Cal. CiV. Code § 1795.91). In any event, the TSBs cited in Plaintiff” s Complaint are not a secret; they are publicly available 0n NHTSA’S website. In light of this, it strains credulity for Plaintiff t0 suggest that GM told its dealers about transmission problems, but not Plaintiff. (See Complaint, 1W 43-45 & n.4.) After all, Plaintiff could have Visited NHTSA’S website before she purchased the Subject Vehicle and downloaded the TSBs for himself. Thus, the TSBs Plaintiff cites cannot support her “concealment” claim either. C. PLAINTIFF’S CONCEALMENT ALLEGATIONS ARE INSUFFICIENT AS A MATTER OF LAW. T0 establish the tort 0f concealment, Plaintiffmust prove: (1) GM concealed 0r suppressed a material fact; (2) GM was under a duty t0 disclose the fact t0 Plaintiff; (3) GM intentionally concealed 0r suppressed the fact with intent t0 defraud Plaintiff; (4) Plaintiff was unaware of the fact and would not have acted as Plaintiff did if Plaintiffhad known 0f the concealed 0r suppressed Page 15 0f 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES J; KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fact; and (5) Plaintiffwas damaged by the concealment. (Jones v. ConocoPhillips C0. (201 1) 198 Ca1.App.4th 1187, 1198.) When dealing with a product, omitted facts are material only if they implicate a safety concern. (Daugherty v. Am. Honda. C0., 144 Cal.App.4th 824, 836; Wilson v. Hewlett-Packard, 668 F.3d 1 136, 1 141-42 (9th Cir. 2012).) Plaintiffpled n0 such facts; instead, Plaintiffpled 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 t0 disclose that its F22 engine had persistent problems with respect t0 oil leakage. The trial court sustained Honda’s demurrer without leave t0 amend as t0 the CLRA and UCL claims because the plaintiffs failed t0 identify any representation made by Honda that its automobiles had any characteristics they did not have 0r were 0f a standard 0r quality they were not. The Daugherty court held: “T0 be actionable, the [fraudulent] omission must be contrary t0 a representation actually made by the defendant, 0r an omission 0f a fact that defendant was obliged t0 disclose.” (Daugherty, 144 Cal.App.4th at 835; see also Bardin v. DaimlerChrj/Sler Corp. (2006) 136 Cal.App.4th 1255, 1276 (n0 fraud can be alleged if there is n0 showing that the defendant was “bound t0 disclose” the fact at issue)) For all the reasons GM just explained- there is n0 plausible way for Plaintiff t0 pursue a “fraudulent concealment” claim. (See Argument § B, supra.) Putting aside Plaintiffs misplaced reliance on publicly available information in a futile attempt t0 allege that GM supposedly knew 0f the alleged defect in the specific vehicle she purchased, Plaintiffdoes not plead 0r allege a single fact showing that she had any direct contact with GM either before 0r at the time she bought the Sierra. Further, GM did not have any duty t0 disclose, and is not liable for concealment. The duty t0 disclose arises in four circumstances: when the defendant: (1) is in a fiduciary relationship with the plaintiff, (2) had exclusive knowledge 0f material facts not known t0 the plaintiff, (3) actively Page 16 0f 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES J; KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 0f Cal. Law (8th ed. 1974) Torts, §§ 459-464, pp. 2724-2728.) As a matter 0f law, there is n0 fiduciary relationship between GM and Plaintiff. “It is a general rule that a vendor not in a confidential relation t0 the buyer is not under a duty t0 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 0f the other three circumstances which would create a duty t0 disclose. In California, an automaker is not liable for the independent conduct 0f a dealership employee 0r another third-party entity with n0 relationship t0 GM. (Mel Clayton GMLLC v. GM LLC Motor C0. (2002) 104 Cal.App.4th 46, 49.) “A [manufacturer’s] dealer 0r retailer may in a layman’s View be an agent 0f the [manufacturer], but he is not an agent in the legal sense 0f that relationship.” Representations 0f employees at a dealership are not representations 0f an agent 0f Defendant itself. (Avalon Painting C0. v. Alert Lumber C0. (1965) 234 Cal.App.2d 178, 184 [Citing Vandermark v. Ford Motor C0. (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 representations by defendant that repairs will be made; third party representations d0 not involve reliance 0n defendant)] .) Further, Plaintiffbears the burden t0 prove agency, which must rest upon an agreement. (D ’Acquisto v. Evola (1949) 90 Cal.App.2d 210, 213.) The Complaint fails t0 plead any such agreement 0r facts supporting an agency relationship under California law. D. PLAINTIFF FAILED 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 0f a fraud cause 0f action “must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity t0 allow defendant t0 understand fully the nature 0f the charge made.” (Tarmann v. State Farm Mut. Auto Ins. C0. (1991) 2 Cal.App.4th 153, 157.) “[T]he policy 0f liberal construction 0f the pleadings . . . will not ordinarily be invoked t0 sustain a pleading defective in any material respect. [citations] Page 17 0f 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES J; KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This particularity requirement necessitates pleading facts which ‘show how, when, where, t0 whom and by what means the representations were tendered.” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73, quoting Hills Trans. C0. 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 0fspecificity in a fraud action against a corporation requires the Plaintiffs t0 allege the names 0f the persons who made the allegedly fraudulent representations, their authority t0 speak, t0 whom they spoke, what they said 0r wrote, and when it was said 0r written.”]; Mason v. Drug Ina, supra, at 703 [“if the Plaintiffs would charge the defendant corporation with making fraudulent misrepresentations it was necessary for him t0 allege the name 0f the person who spoke, her authority t0 speak, t0 whom he spoke, what he said 0r wrote, and when it was said 0r written.”]; Blickman Turkus, LP v. MFDowntown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878 [“Concealment is a species 0f fraud, and fraud must be pleaded with specificity.”].) Here, Plaintiff fails to identify the dealership salesperson Plaintiff spoke with when she bought the vehicle, when Plaintiff spoke with that person} what was said, 0r specific, false statements she reviewed about the Sierra - either before 0r during the transaction. The vast majority 0f the Complaint consists 0f non-case specific, conclusory statements and other customers’ complaints about 0 ther vehicles. Plaintiff fails t0 plead with specificity, as is required, the facts supporting any allegation that GM intended t0 defraud her either by making any affirmative statements 0r by failing t0 disclose any alleged facts. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30 [“something more than non-performance is required t0 prove the defendant’s intent not t0 perform his promise”].) Based 0n these undisputed facts, Count 3 fails t0 meet the applicable pleading standard and should be dismissed. E. PLAINTIFF HAS NOT PLED ANY ACTIONABLE MISREPRESENTATIONS. Even where pled specifically, forward-looking statements, sales talk, puffery, and other generalized statements, cannot constitute facts t0 support a cause 0f action for fraud. (Consumer 1 In California, an automaker is not liable for the independent conduct 0f a dealership employee 0r another third-party entity with n0 relationship t0 GM. (Mel Clayton GMLLC v. GM LLC Motor C0. (2002) 104 Cal.App.4th 46, 49.) Page 18 0f 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES L KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Advocates v. EchoStar Satellite Corp. (2003) 113 Cal.App.4th 1351, 1361; Osborne v. Subaru 0f America, Inc. (1988) 198 Cal. App. 3d 646, 660, n.8 [manufacturers “are permitted t0 ‘puff their products by stating opinions about the quality 0f the goods so long as they d0 not cross the line and make factual representations about important characteristics like a product's safety”]; Ammziato v. eMachineS, Inc. (CD. Cal. 2005) 402 F.Supp.2d 1133, 1140 [holding that phrases 9 like “quality,” “reliability,” “high performance criteria,’ and “latest technology” are all non- actionable puffery].) Plaintiffs Complaint alleges that she reviewed the statements in GM’s promotional marketing brochures and television commercials for the Sierra before purchasing the vehicle. However, Plaintiff does not allege that any 0f the materials she claims t0 have reviewed contain a single fraudulent statement. Moreover, t0 the extent Plaintiff may have relied 0n some unspecified statement, GM asserts that such representation will likely be nothing more than standard sales talk, forward-looking statements, and statements 0f opinion - all 0f which are puffery and none 0f which are actionable. VI. CONCLUSION For all these reasons, Plaintiffs Complaint fails t0 allege facts t0 state a Viable cause 0f action for fraudulent concealment. GM’s demurrer should be sustained without leave t0 amend. Dated: September 21, 2021 ERSKINE LAW GROUP, PC TAVIAN KING, Esq. Attorney for Defendant, GENERAL MOTORS LLC Page 19 0f 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES J; KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed in the County 0f Orange and my business address is 1576 N. Batavia St., Suite A, Orange, CA 92867. 1am over the age 0f 18 years and I am not a party t0 this action. I am readily familiar with the practices 0f Erskine Law Group for the collection and processing 0f correspondence for mailing with the United States Postal Service. Such correspondence is deposited with the United States Postal Service the same day in the ordinary course 0f business. On September 21, 2021, I served the foregoing document(s), bearing the title(s): DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES 0n the interested parties in the action as follows: [X] by placing [ ] the original [X] a true copy thereof enclosed in a sealed envelope addressed as follows: DAVID N. BARRY, Esq. THE BARRY LAW FIRM 11845 West Olympic B1Vd., Suite 1270 Los Angeles, CA 90064 Phone: (310) 684-5859; Fax: (310) 862-4539 eservicegm@mylemonrights.com [ ] (BY MAIL SERVICE) Iplaced such envelopes for collection and t0 be mailed 0n this date following ordinary business practices. (BY PERSONAL SERVICE) I caused t0 be delivered such envelope by hand t0 the office 0f the addressee. [ ] (BY FACSIMILE) The document stated herein was transmitted by facsimile transmission and the transmission was reported as complete and without error. A transmission report was properly issued by the transmitting facsimile machine and a copy 0f said transmission report is attached t0 the original proof 0f service indicating the time 0f transmission. [ ] (BY NEXT DAY DELIVERY) I caused t0 be delivered such envelope by hand t0 the office 0f the addressee. [X] (BY E-MAIL) I served the above mentioned document Via electronic transmission per agreement 0f the parties. [X] (State) I declare under penalty 0f pteury under the laws 0f the State 0f California that the foregoing is true and correct. [ ] (Federal) I declare under penalty 0fpteury that I am employed by a member 0f the Bar 0f this Court, at whose direction this service is made. Executed 0n September 21, 2021, at Orange, CA. Signed; l Stanley Chan PAGE 20 0F 20 DEFENDANT GENERAL MOTORS LLC’S NOTICE 0F DEMURRERAND DEMURRER T0 PLAINTIFF’S COMPLAINT; MEMORANDUM 0F POINTS 0F AUTHORITIES