Demurrer

Cal. Super. - 6th Dist.September 30, 2021

L \OOOQQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV3891 83 Santa Clara - Civil Mary Arens McBride, Esq. (SBN: 282459) ERSKINE LAW GROUP, PC 1576 N. Batavia Street, Suite A Orange, CA 92867 Telephone: (949) 777-6032 Facsimile: (714) 844-9035 Email: marensmcbride@erskinelaw.com Attorneys for Defendant GENERAL MOTORS LLC V. Te Electronically Filed by Superior Court of CA, County of Santa Clara, on 12/15/2021 5:31 PM Reviewed By: V. Taylor Case #21 CV3891 83 Envelope: 7875354 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA ESTHER ROSENFELD, Plaintiff, V. GENERAL MOTORS LLC; and DOES 1 through 10, inclusive, Defendants. CASE NO.: 21CV389183 GENERAL MOTORS LLC’S NOTICE OF DEMURRER; DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES [Filed concurrently with Declaration 0f Mary Arens McBride; [Proposed] Order; and Motion t0 Strike Punitive Damages] DATE:x 3-10-2022TIME: 9:00am DEPT: 20 Assignedfor all purposes t0 the Hon. Socrates P. Manoukian in Dept. 20 TO THE HONORABLE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that 0n A DATE AND TIME T0 BE ASSIGNED BY THE COURT, or as soon thereafter as the matter may be heard in Department 20 0f the above Court located at 191 North First Street, San Jose, CA, 951 13, General Motors LLC (“GM”) will and 1 GM’S DEMURRER TO PLAINTIFF’S COMPLAINT ylor L \OOOQQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 hereby does move this Court for an order sustaining GM’S Demurrer to Plaintiff Esther Rosenfeld’s Complaint. GM’S DEMURRER TO PLAINTIFF’S COMPLAINT GM hereby demurs t0 Plaintiff’s Sixth Causes 0f Action: 1. The sixth cause 0f action (for Fraud By Omission) fails t0 state facts sufficient t0 establish fraud. (Id) 2. The sixth cause 0f action (for Fraud By Omission) is also barred by the economic loss rule. (Id.) This demurrer is brought pursuant to California Code 0f Civil Procedure section 430.10 and is based 0n this Notice, the attached Demurrer, the attached Memorandum 0f Points and Authorities, the attached Declaration 0f Mary Arens McBride, the papers and pleading on file in this action, and such other papers, pleadings, and arguments as this Court shall admit at the time 0f the hearing. DATED: December 15, 2021 ERSKINE LAW GROUP, PC By: MARY ARENS MCBRIDE Counsel for Defendant GENERAL MOTORS LLC 2 GM’S DEMURRER TO PLAINTIFF’S COMPLAINT L \OOOQQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................... 6 II. RELEVANT ALLEGATIONS ............................................................................................ 6 III. MEET AND CONFER PER CODE OF CIVIL PROCEDURE § 430.41 ..........................7 IV. APPLICABLE LEGAL STANDARD ................................................................................7 V. ARGUMENT ....................................................................................................................... 8 A. THE FRAUD CLAIM FAILS AS A MATTER OF LAW BECAUSE PLAINTIFF DID NOT PLEAD “FRAUD” WITH THE REQUISITE SPECIFICITY. .................. 8 B. THE ECONOMIC LOSS RULE PRECLUDES THE FRAUD CLAIM .....................9 VI. CONCLUSION AND RELIEF REQUESTED ................................................................. 14 3 GM’S DEMURRER TO PLAINTIFF’S COMPLAINT L \OOOQQUI 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 ............................................................................... 10 Blank v. Kirwan (1985) 39 Cal.3d 311 ........................................................................................... 7 Blickman Turkus, LP v. MFDowntown Sunnyvale, LLC (2008) 162 Cal.App.4th 858 ................. 9 Donabedian v. Mercury Ins. C0. (2004) 116 Cal.App.4th 968 ...................................................... 7 Finney v. Ford Motor C0., 2019 WL 79033 (ND. Cal. 2019) ..................................................... 13 Hammond v. BMW ofNorth America, N0. CV 18-226 DSF (MRWX), 2019 WL 2912232 .. 12, 13 Hien Bui v. Mercedes-Benz USA, LLC, N0. 20-CV-1530-CAB-WVG, 2021 WL 242936 (S.D. Cal. Jan. 25, 2021) ............................................................................................................................ 13 Hsieh v. FCA US LLC, 440 F. Supp. 3d 1157 (S.D. Cal. 2020) ................................................... 14 In re FordMotor C0. DPS6 Powershift Transmission Prod. Liab. Lit., N0. CV1706656ABFFMX, 2019 WL 3000646 (C.D. Cal. May 22, 2019) .......................................................................... 13 Jones v. ConocoPhillips C0. (201 1) 198 Cal. App. 4th 1187 ............................................. 9 Kaldenbach v. Mutual Omeaha Life Ins. C0. (2009) 178 Cal.App.4th 830 ...........................9 Kamen v. Lindley (2001) 94 Cal.App.4th 197 ................................................................................ 7 Kelsey v. Nissan N. Am., N0. CV 20-4835 MRW, 2020 WL 4592744 (C.D. Cal. July 15, 2020)12 La Vista Cemetery Assoc. v. Am. Savings & Loan Assoc. (1970) 12 Cal.App.3d 365 ................... 8 Lazar v. Superior Court (1996) 12 Cal.4th 631 .............................................................................. 8 Leon v. Kia Motors America, Inc. (Orange Cnty Cal. Super. 30-2019-01093543-CU-BC-CJC) (Order 12/13/2019) ................................................................................................................... 13 Linear Tech. Corp. v. Applied Materials, Inc. (2007) 152 Cal. App. 4th 115 ...........................9 Macias v. Chrysler, N0. CV 17-1823, 2020 WL 4723976 ........................................................... 13 Mason v. Drug Inc. (1939) 31 Ca1.App.2d 697 .......................................................................... 8, 9 Moore v. Regents ofUniv. ofCal. (1990) 51 Cal.3d 120 ............................................................... 7 Mosqueda v. American Honda Motor C0., N0. SA CV 19-839 MWF (MAAX), 2020 WL 1698710 4 GM’S DEMURRER TO PLAINTIFF’S COMPLAINT L \OOOQQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (CD. Cal. 2020) ........................................................................................................................ 12 Nada Pac. Corp. v. Power Eng'g and Mfg, Ltd, 73 F. Supp. 3d 1206 (N.D. Cal. 2014) ............ 11 Penrose v. Winter (1901) 135 Cal. 289 ........................................................................................... 8 Robinson Helicopter C0., Inc. v. Dana Corp. (2004) 34 Cal. 4th 979 ................................... 10, 12 Sloan v. General Motors, 2020 WL 1955643 (N.D. Cal. 2020) ............................................. 10, 13 Stewart v. Electrolux Home Prod, Ina, 304 F. Supp. 3d 894 (ED. Cal. 2018) .......................... 13 Tarmann v. State Farm Mut. Auto Ins. C0. (1991) 2 Ca1.App.4th 153 ...................................... 8, 9 Tenet Healthsystem Desert, Inc. v. Blue Cross ofCalifornia (2016) 245 Cal. App. 4th 821 ......... 8 Thompson v. BMW ofNorth America, N0. SA CV 17-1912 CJC (KSX), 2019 WL 988694. 12, 13 Traba v. Ford Motor C0., N0. CV 18-808 SVW (GJSX), 2018 WL 6038302 (C.D. Cal. 2018). 12 Yi v. BMW ofNorth America LLC, N0. 2:17-CV-06467-SVW-SK (C.D. Cal. Mar. 5, 2018) ....... 12 Zagarian v. BMW 0fN.Am., N0. CV 18-4857 RSWL (PLAX), 2019 WL 61 1 1731 .............. 11, 13 Statutes Code ofCiv. Proa, § 430.10 ........................................................................................................... 8 5 GM’S DEMURRER TO PLAINTIFF’S COMPLAINT L \OOOQQUI 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 Esther Rosenfeld leased a Chevrolet Bolt EV in November 2018. After GM recalled the Bolt in August 202 1 , Plaintiff sued GM for breach 0f warranty based upon claims that GM was unable to service or repair it. Plaintiff did not stop there. Plaintiff also asserted a claim alleging “fraud” based upon alleged concealment 0f facts about the Bolt’s lithium-ion battery by unidentified GM personnel. As GM explains below, Plaintiff’s “fraud” cause 0f action fails as a matter 0f law and should be dismissed for two independent reasons. First, Plaintiff failed t0 plead the alleged “fraud” with particularity. Plaintiff did not allege facts showing who at GM concealed facts about her Bolt, when, where, 0r how GM concealed any facts from her, 0r that she even interacted With GM before she leased the Bolt. Second, even if Plaintiff had identified the who, the what, the where, the when, and the how for her alleged “fraud” claim - Which she did not d0 - the “fraud” Claim is barred by the Economic Loss Rule. Indeed, Plaintiff is seeking only economic relief associated With her Bolt lease, for which she has both a contract and a warranty. Because Plaintiff did not allege - and has no proof 0f - any affirmative misrepresentation by GM that resulted in harm separate and distinct from the Bolt leased, the Economic Loss Rule precludes Plaintiff’s “fraud” claim. In short, Plaintiff does not have factual 0r legal grounds for the “fraud” claim asserted in Count VI 0fthe Complaint. Accordingly, GM’S demurrer 0n Count VI should be sustained without leave to amend. II. RELEVANT ALLEGATIONS On or about November 9, 201 8, Plaintiff leased a model year 20 1 9 Chevrolet Bolt EV, VIN 1G1FY6SOOK41051 13, from an unidentified “person 0r entity.” (See Complaint, 1] 7.) Plaintiff does not claim to have spoken With any GM personnel before she decided t0 lease the Bolt. (Id) AfterGM recalled her Bolt in August 2021, Plaintiff sued GM in September 202 1 , alleging “breach 0f warranty” claims under the Song-Beverly Consumer Warranty Act, as well as a single 6 GM’S DEMURRER TO PLAINTIFF’S COMPLAINT L \OOOQQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 common law “Fraud by Omission” claim (Count VI). (See Complaint generally). GM now timely files this demurrer challenging only Count VI. Plaintiff’s Count VI seeks relief based upon allegations that GM omitted material facts about her Bolt. According t0 Plaintiff, GM “committed fraud by allowing the Vehicle t0 be sold to Plaintiff Without disclosing that the Vehicle and its lithium-ion battery were defective and susceptible t0 sudden and premature failure.” (Complaint, 1] 35.) Plaintiff also alleges that “GM failed t0 disclose the existence 0f the Battery Defect at GM’S authorized dealership and during direct calls t0 [GM].” (Id., 11 39.) Nowhere in the Complaint does Plaintiff identify when, where, 0r how anyone from GM concealed any issues With the Bolt. (See generally Complaint.) Instead, Plaintiff asserts her claims in wholly conclusory fashion. Essentially, Plaintiff alleges only that her vehicle has a defect for Which GM issued a recall. (See generally Complaint.) As a matter 0f law, Plaintiff’s allegations are insufficient t0 support Count VI. GM’S demurrer should be sustained. III. MEET AND CONFER PER CODE OF CIVIL PROCEDURE § 430.41 GM made a good faith effort to meet and confer with Plaintiff t0 resolve the issues in this demurrer without court intervention, but GM was unsuccessful despite its best efforts. (Declaration 0fMary Arens McBride, 11 2.) IV. APPLICABLE LEGAL STANDARD A demurrer challenges defects apparent on the face ofthe complaint 0rjudicially noticeable matters outside the pleadings. (Blank v. Kirwan (1985) 39 Cal.3d 31 1, 318; Donabedian v. Mercury Ins. C0. (2004) 116 Ca1.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 0r conclusions of fact 0r law.” (Kamen v. Lindley (2001) 94 Cal.App.4th 197, 201; see also Moore v. Regents 0f Univ. 0f Cal. (1990) 51 Cal.3d 120, 125.) A pleading that “does not state facts sufficient t0 constitute a cause 0f action” is subject t0 demurrer. (Code 0f CiV. Proc., § 430.10(e).) A pleading fails t0 state a cause of action if it pleads essential allegations as legal conclusions rather than facts. (Penrose v. Winter (1901) 135 Cal. 289, 290-291.) The Court must determine 7 GM’S DEMURRER TO PLAINTIFF’S COMPLAINT L \OOOQQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 if the flaws inherent in the pleading can be remedied by the amendment; if the deficiencies cannot be corrected, leave t0 amend should be denied. (La Vista Cemetery Assoc. v. Am. Savings & Loan Assoc. (1970) 12 Ca1.App.3d 365, 369.) Under this standard, GM’S demurrer t0 Count VI should be sustained without leave t0 amend. V. ARGUMENT A. THE FRAUD CLAIM FAILS AS A MATTER OF LAW BECAUSE PLAINTIFF DID NOT PLEAD “FRAUD” WITH THE REQUISITE SPECIFICITY. “Fraud is never presumed.” (Mason v. Drug Inc. (1939) 31 Ca1.App.2d 697, 703.) 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.) “[F]raud must be pled specifically; general and conclusory allegations d0 not suffice. Thus, ‘the policy 0f liberal construction 0f the pleadings will not ordinarily be invoked t0 sustain a pleading defective in any material respect.” (Tenet Healthsystem Desert, Inc. v. Blue Cross ofCalifornia (2016) 245 Cal. App. 4th 821, 838, quoting Lazar v. Superior Court (1996) 12 Ca1.4th 631, 638.) “[T]he elements 0f a cause 0f action for fraud based 0n concealment are: “‘(1) the defendant must have concealed 0r suppressed a material fact, (2) the defendant must have been under a duty t0 disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed 0r suppressed the fact With the intent t0 defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed 0r suppressed fact, and (5) as a result 0f the concealment 0r suppression of the fact, the plaintiffmust have sustained damage.”’” (Jones v. ConocoPhillips C0. (201 1) 198 Cal. App. 4th 1187, 1198, quoting Kaldenbach v. Mutual 0f0maha Life Ins. C0. (2009) 178 Cal.App.4th 830, 850.) “[M]ere conclusionary allegations that the omissions were intentional and for the purpose 0f defrauding and deceiving plaintiffs and bringing about the purchase . . . and that plaintiffs relied on the 8 GM’S DEMURRER TO PLAINTIFF’S COMPLAINT L \OOOQQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 omissions in making such purchase are insufficient [t0 show fraud by concealment] .” (Linear Tech. Corp. v. Applied Materials, Inc. (2007) 152 Cal. App. 4th 115, 132.) Plaintiff had an obligation t0 plead fraud With specificity. (Tarmann, supra, at 157 [“The requirement 0f specificity in a fraud action against a corporation requires the plaintiff t0 allege the names of the persons Who made the allegedly fraudulent representations, their authority to speak, t0 whom they spoke, what they said 0r wrote, and when it was said 0r written.”]; Mason, supra, at 703 [“[I]f 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 t0 speak, t0 whom he spoke, what he said 0r wrote, and when it was said 0r written.”]; Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878 [“Concealment is a species 0f fraud, and fraud must be pleaded with specificity.”].) She did not. Count VI fails as a matter 0f law because Plaintiff failed t0 allege (i) the identity 0f the individuals at GM who purportedly concealed material facts 0r made untrue representations about her Bolt, (ii) their authority t0 speak and act 0n behalf 0fGM, (iii) GM’S knowledge about alleged defects in Plaintiff’s Bolt at the time 0f lease, (iv) any interactions with GM before 0r during the lease 0f her Bolt, 0r (V) GM’S intent t0 induce reliance by Plaintiff t0 lease the specific Bolt at issue.1 The allegations 0f the Complaint d0 not establish GM’S intent t0 defraud Plaintiff 0r demonstrate that the Bolt was unsuitable for its intended use at the time 0f lease. (Id.) Plaintiff has failed t0 provide any factual support for her allegations; she merely provided conclusions that lack the foundation and specificity required t0 pursue a Viable fraud claim. B. THE ECONOMIC LOSS RULE PRECLUDES THE FRAUD CLAIM. Putting aside Plaintiff’s failure t0 plead facts stating a Viable cause 0f action for fraud, this Court has independent grounds t0 sustain GM’S demurrer: The Economic Loss Rule. Under 1 At best, Plaintiff might be able t0 argue that GM agreed t0 repair but was unable t0 repair the Bolt t0 conform t0 its warranty, but that alleged failure t0 conform the Bolt t0 its warranty is the subject 0f Counts I- V 0f the FAC. That alleged post-transaction failure to conform the Bolt to its warranty, however, cannot support a “fraud” claim based upon conduct before or at the time of the transaction itself. 9 GM’S DEMURRER TO PLAINTIFF’S COMPLAINT L \OOOQQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California law, 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 omitted).) California courts have consistently held that the Economic Loss Rule bars “fraud” claims seeking purely economic loss. (See Sloan v. Gen. Motors LLC (N.D. Cal. Apr. 23, 2020) N0. 16-CV-07244-EMC, 2020 WL 1955643, at *23-24 (surveying decisions).) Plaintiff did not plead any facts alleging damages 0r harm for anything other than economic loss (i.e., her decision to lease the Bolt); therefore, GM cannot be held liable for fraud under the Economic Loss Rule. 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 of contract and the law 0f 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 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 10 GM’S DEMURRER TO PLAINTIFF’S COMPLAINT L \OOOQQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 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 t0 liability for personal damages, independent 0f that plaintiff’s economic loss, is regularly referred t0 as the “Robinson exception.” Multiple courts in opinions that post-date Robinson have confirmed that the Robinson exception applies only when the defendant has made an aflirmative 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 t0 fraud claims based upon alleged concealment, omissions, 0r non-disclosures: o 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 ofN. Am., LLC (C.D.Ca1. Oct. 23, 2019) N0. CV 18-4857 RSWL (PLAX), 2019 WL 61 1 1731, at *2). 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 0n the part ofBMW and (ii) had not shown any exposure t0 personal damages independent 0f his economic loss, the court dismissed the plaintiff’s fraud claim as barred by the economic loss rule. (Id.) o 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 ofN. Am, LLC (C.D.Ca1. Jun. 26, 2019) N0. CV 18-226 DSF (MRWX), 2019 WL 2912232, at *2). 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.) 0 In Thompson, the plaintiff asserted a fraud claim based upon an allegation that BMW omitted information about a “defect” causing the vehicle t0 consume abnormally high amounts 0f oil. (Thompson v. BMW ofN. Am., LLC (C.D.Ca1. Jan. 10, 2019) N0. SA 11 GM’S DEMURRER TO PLAINTIFF’S COMPLAINT L \OOOQQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CV 17- 1912 CJC (KSX), 2019 WL 988694, at *4). The court there held that, because plaintiff (i) had alleged fraud due t0 an alleged omission, (ii) had not alleged any personal mjury 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.) 0 In Yi, the plaintiff asserted a fraud claim based upon allegations thatBMW had omitted information about the subject vehicle burning through oil at an excessive rate. (Yz' v. BMW ofN. Am. LLC (C.D.Cal. Mar. 5, 2018) No. 2:17-CV-06467-SVW-SK, 2018 WL 11148443, at *1 ). The Yi court ruled that, to avoid preclusion 0f a fraud claim under the economic loss rule, a plaintiff must show exposure t0 personal damages independent of the economic loss. (Id. at *2 (citing Robinson, 34 Ca1.4th at 993)). 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 to interpret the Robinson exception that broadly, it would “eviscerate the guidelines set out by the Robinson court.” (Id.) Because the Yz' 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 0f law. (Id) These four cases are not outliers. Last year, in Kelsey v. Nissan North America (C.D. Cal. Jul. 15, 2020) N0. CV 20-4835 MRW, 2020 WL 4592744, at *1-2, the United States District Court for the Central District 0f California dismissed a fraud claim because the plaintiff did not claim any affirmative misrepresentations by Nissan or economic damages other than economic loss due t0 alleged vehicle defects: “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 t0 support its conclusion: Mosqueda v. American Honda Motor C0, 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 (CD. 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 or damage to property other than the vehicle”); Thompson v. BMWofNorth America, N0. SA CV 17-1912 CJC (KSX), 2019 WL 988694 at *5 (C.D. Cal. 2019); Zagarian v. BMW 0f North America, No. 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 of 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 0n Robinson in holding that 12 GM’S DEMURRER TO PLAINTIFF’S COMPLAINT L \OOOQQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 affirmative representations are required for exceptions t0 the rule t0 apply”); Finney v. Ford Motor C0., 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, 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. 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] t0 apply the economic loss rule t0 the omission claims at [the motion to dismiss] stage”). (Id.) In addition to Kelsey’s list 0f authority, courts have routinely barred omission- and concealment-based fraud claims under the Economic Loss Rule. (See Macias v. Chrysler (C.D.Cal. Aug. 13, 2020) N0. CV 17-1823, 2020 WL 4723976, at *2 (applying economic loss rule t0 preclude fraudulent omission claim); Leon v. Kia Motors Am, 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 10 months ago, a plaintiff filed a complaint against Mercedes-Benz USA alleging a fraud claim based upon an alleged omission. (Hien Bui v. Mercedes-Benz USA, LLC (S.D.Ca1. Jan. 25, 2021) N0. 20-CV-1530-CAB-WVG, 2021 WL 242936, at *4.) The court barred plaintiff’s claim for fraudulent concealment because the complaint did not allege any personal injury to the plaintiff 0r any damage t0 physical property independent of the vehicle. (Id.) In fact, the only allegation 0f harm caused by the alleged omission was that “[p]laintiffpurchased the [V]ehicle that he would not have otherwise purchased” (id), which is the exact same claim that Plaintiff has made here (Complaint, fl 43). The Bui court held that the economic loss rule barred plaintiff’s fraudulent concealment claim, but the court did not stop there. It went 0n t0 say that, because plaintiff” s 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 (S.D. Cal. 2020) 440 F.Supp.3d 1157, 1162 (dismissing fraud claim without leave to amend 13 GM’S DEMURRER TO PLAINTIFF’S COMPLAINT L \OOOQQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 because the fact that the lawsuit involved “alleged omissions, not affirmative misrepresentations [precluded] [p]laintiff”s ability t0 avoid the economic loss rule”).) The Bui court also dismissed plaintiff’s prayer for punitive damages predicated 0n the alleged concealment, because there was no argument t0 suggest that his punitive damages claim could survive without his fraudulent concealment claim. (Id) Here, Plaintiff alleges that GM “concealed . . . [facts] important in deciding whether 0r not t0 purchase the Vehicle.” (Complaint, 1] 43 .) Plaintiffhas not alleged personal injuries or damages t0 property other than economic loss concerning the vehicle itself. (See generally Complaint.) The only “fraud” harm that Plaintiff alleged in the Complaint is her actual lease: Plaintiff claims that she would not have leased the Bolt. (Id. at 1H3.) This allegation is What Bui rejected as grounds for “fraud” claims. (2021 WL 242936, at *4.) Without an affirmative misrepresentation by GM, and Without damages independent 0f the alleged economic loss related t0 her Bolt, Count VI is barred. Thus, GM’S demurrer should be sustained-Without leave t0 amend. VI. CONCLUSION AND RELIEF REQUESTED For all these reasons, the Complaint fails to allege facts stating a Viable claim 0f fraud against GM, and, even if Plaintiff had alleged such facts, the claim - based upon the allegations currently in the complaint - would still fail as a matter of law under the Economic Loss Rule. Accordingly, GM respectfully requests that this Honorable Court sustain GM’S demurrer t0 Count VI without leave to amend. Dated: December 15, 2021 ERSKINE LAW GROUP, PC fl MARY ARENS MCBRIDE Counsel for Defendant GENERAL MOTORS LLC By: 14 GM’S DEMURRER TO PLAINTIFF’S COMPLAINT L \OOOQQUI 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 0fOrange and my business address is 1576 N. Batavia Street, Suite A, Orange, California 92867. I am over the age 0f 18 years and I am not a party to this action. I am readily familiar With the practices of 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 December 15, 2021, I served the foregoing document bearing the title: GENERAL MOTORS LLC’S NOTICE OF DEMURRER; DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES on 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: Strategic Legal Practices, APC 1840 Century Park East, Suite 430 Los Angeles, CA 90067 emailservices@slpattorney.com [] (BY MAIL SERVICE) I placed such envelopes for collection and t0 be mailed on this date following ordinary business practices. [] (BY PERSONAL SERVICE) I caused t0 be delivered such envelope by hand to 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 of said transmission report is attached to the original proof of service indicating the time of transmission. (BY NEXT DAY DELIVERY) I caused to be delivered such envelope by hand to the office of the addressee. [X] (BY E-MAIL) I served the above-mentioned document Via electronic transmission per agreement of the parties. [X] (State) I declare under penalty of perjury under the laws 0f the State 0f California that the foregoing is true and correct. [] (Federal) I declare under penalty of perjury that I am employed by a member of the Bar 0f this Court, at whose direction this service is made. Executed 0n December 15, 2021, in Orange, CA. Signed: James Gimeno PAGE 15 0F 15 PROOF OF SERVICE - GENERAL MOTORS LLC’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES