Notice of Hearing no fee

Cal. Super. - 6th Dist.October 14, 2021

.bUJN \DOONONUI 10 11 12 13 l4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV389841 Santa Clara - Civil Mary Arens McBride, Esq. (SBN 282459) 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 Attorneys for Defendant GENERAL MOTORS LLC DH Electronically Filed by Superior Court of CA, County of Santa Clara, on 1I5l2022 1:10 PM Reviewed By: D Harris Case #21 CV389841 Envelope: 7988364 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA DONALD MASIK, Plaintiff, vs. GENERAL MOTORS, LLC, and DOES 1 through 10, inclusive, Defendants. Case No.: 21CV389841 GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER T0 PLAINTIFF’S COMPLAINT; AND A MEMORANDUM 0F POINTS OF AUTHORITIES [Filed concurrently with Demurrer, Declaration of Mary Arens McBride, and [Proposed] Order] DATE: 3'29'22 TIME; 9:00am DEPT: 19 Assignedfor allpurposes to the Hon. Peter Kirwan in Dept. I9 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 19 0f the above Court located at 191 North First Street, San Jose, CA 951 13, General Motors LLC (“GM”) will and hereby does move this Court for an order sustaining GM’s Demurrer to Plaintiff Donald Masik’s Complaint. arris DEMURRER TO PLAINTIFF’S COMPLAINT J; QOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER TO PLAINTIFF’S COMPLAINT GM hereby demurs t0 Plaintiff’s Sixth Cause of Action 0n the following grounds: 1. The sixth cause 0f action for Fraudulent Inducement-Concealment is barred by the applicable statute of limitations. (Code 0f Civ. Proc., § 430.10(e)) 2. The sixth cause of action for Fraudulent Inducement-Concealment is barred by the Economic Loss Rule and thus fails t0 state facts sufficient t0 constitute a cause of action. (1d,) 3. The sixth cause of action for Fraudulent Inducement-Concealment fails t0 state facts relevant t0 the elements 0fthe claim, and therefore does not constitute a cause of action. (Id) This Demurrer is brought pursuant to California Code of Civil Procedure Section 430.10 and is based 0n this Notice 0f Demurrer and the attached Demurrer, Memorandum 0f Points and Authorities, the Declaration 0fMary Arens McBride, and the papers and pleadings and records 0n file in this action and such other papers, pleadings, and arguments as this Court shall admit at the time 0f the hearing. DATED: January 5, 2022 ERSKINE LAW GROUP, PC By: MARY ARENS MCBRIDE, ESQ. Attorney for Defendant GENERAL MOTORS LLC 2 DEMURRER TO PLAINTIFF’S COMPLAINT L QOONQUI 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 .......................................................................................................................... 7 A. THE THREE-YEAR STATUTE OF LIMITATIONS BARS PLAINTIFF’S SIXTH CAUSE OF ACTION FOR FRAUD. .............................................................................. 7 B. THE ECONOMIC LOSS RULE BARS THE FRAUD CAUSE OF ACTION. ............. 9 C. THE FRAUD CLAIM FAILS AS A MATTER OF LAW BECAUSE PLAINTIFF DID NOT PLEAD “FRAUD” WITH THE REQUISITE SPECIFICITY ............................. 13 D. PLAINTIFF’S FRAUD CLAIM FAILS BECAUSE PLAINTIFF DOES NOT ALLEGE A TRANSACTIONAL RELATIONSHIP BETWEEN GM AND PLAINTIFF GIVING RISE TO A DUTY TO DISCLOSE. ......................................... 15 VI. CONCLUSION ..................................................................................................................... 16 3 DEMURRER TO PLAINTIFF’S COMPLAINT L QOONQUI 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, 643 ......................................................................... 9 Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276 ........................................................... 15, 16 Blank v. Kirwan (1985) 39 Cal.3d 311, 318 ................................................................................... 7 Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Ca1.App.4th 858 ............... 14 Centaur Classic Convertible v. Countrywide Fin., (201 1) 878 F.Supp.2d, 1009, 101 8 ............... 9 Donabedian v. Mercury Ins. C0. (2004) 116 Cal.App.4th 968, 994 .............................................. 7 Finney v. Ford Motor C0., 2019 WL 79033 at *5 (N.D. Cal. 2019) ............................................ 12 Fox v. Ethicon Endo-Surgerjy, Inc. (2005) 35 Cal.4th 797, 808 ..................................................... 8 Hammond v. BMW ofNorth America, N0. CV 18-226 DSF (MRWX), 2019 WL 2912232 ........ 11 Hien Bui v. Mercedes-Benz USA, LLC, N0. 20-CV-1530-CAB-WVG, 2021 WL 242936, at *4 (SD. Cal. Jan. 25, 2021) ........................................................................................................... 12 Hobart v. Hobart Estate C0. (1945) 26 Cal.2d 412, 437 ................................................................ 8 Hofi’man v. I62 North Wolfe LLC (2014) 228 Ca1.App.4th 1178 ................................................. 16 Hsieh v. FCA US LLC, 440 F. Supp. 3d 1157, 1162 (SD. Cal. 2020) ......................................... 13 In re FordMotor C0. DPS6 Powershift Transmission Prod. Liab. Lit, No. CV1706656ABFFMX, 2019 WL 3000646, at *6 (C.D. Cal. May 22, 2019) ................................................................ 12 Johnson v. Ehrgott (1934) 1 Cal.2d 136, 137 ................................................................................. 8 Jones v. ConocoPhillips C0. (201 1) 198 Cal. App. 4th 1187 ....................................................... 14 Kaldenbach v. Mutual Omeaha Life Ins. C0. (2009) 178 Cal.App.4th 830 ............................... 14 Kamen v. Lindley (2001) 94 Cal.App.4th 197, 201 ........................................................................ 7 Kelsey v. Nissan N. Am., N0. CV 20-4835 MRW, 2020 WL 4592744 (C.D. Cal. July 15, 2020)11 La Vista Cemetery Assoc. v. American Savings & Loan Assoc. (1970) 12 Cal.App.3d 365 .......... 8 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 LiMandri v. Judkins (1997) 52 Ca1.App.4th 326 .................................................................... 15, 16 4 DEMURRER TO PLAINTIFF’S COMPLAINT L QOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Linear Tech. Corp. v. Applied Materials, Inc. (2007) 152 Cal. App. 4th 115 .............................. 14 Macias v. Chrysler, N0. CV 17-1823, 2020 WL 4723976 ........................................................... 12 Mason v. Drug Inc. (1939) 31 Cal.App.2d 697 ...................................................................... 13, 14 McDonald v. Antelope Valley Cmty. Coll. Dist. (2008) 45 Cal.4th 88, 102 ............................ 8 Moore v. Regents 0f University ofCalz'fomia (1990) 51 Cal.3d 120, 125 ...................................... 7 Mosqueda v. American Honda Motor C0., -F. Supp. 3d -, No. SA CV 19-839 MWF (MAAX), 2020 WL 1698710 at *13 (C.D. Cal. 2020) .............................................................. 11 Nada Pac. Corp. v. Power Eng'g and Mfg, Ltd, 73 F. Supp. 3d 1206, 1225 (N.D. Cal. 2014).. 10 Penrose v. Winter (1901) 135 Cal. 289, 290-291 ........................................................................... 7 Robinson Helicopter C0., Inc. v. Dana Corp. (2004) 34 Cal. 4th 979, 988 ................................... 9 Sloan v. General Motors, 2020 WL 1955643 at *24 (ND. Cal. 2020) .................................... 9, 12 Stewart v. Electrolux Home Prod, Ina, 304 F. Supp. 3d 894, 902 (ED. Cal. 2018) .................. 12 Tarmann v. State Farm Mut. Auto Ins. C0. (1991) 2 Ca1.App.4th 153 .................................. 13, 14 Tenet Healthsystem Desert, Inc. v. Blue Cross OfCalifornia (2016) 245 Cal. App. 4th 821 ....... 13 Thompson v. BMW ofNorth America, N0. SA CV 17-1912 CJC (KSX), 2019 WL 988694. 11, 12 Traba v. Ford Motor C0,, N0. CV 18-808 SVW (GJSX), 2018 WL 6038302 (C.D. Cal. 2018). 11 Warner Construction Corp. v. City ofLos Angeles (1970) 2 Cal.3d 285 ..................................... 16 Yi v. BMW ofNorth America LLC, N0. 2: 17-CV-06467-SVW-SK (C.D. Cal. Mar. 5, 2018) ....... 11 Zagarian v. BMW 0fN.Am., N0. CV 18-4857 RSWL (PLAX), 2019 WL 61 1 1731 .............. 10, 12 Statutes Code 0f CiV. Proc., § 338(d) ........................................................................................................... 7 Code of Civ. Proc., § 430.10 (t) ...................................................................................................... 7 Code of Civ. Proc., § 430.10(e) ...................................................................................................... 7 5 DEMURRER TO PLAINTIFF’S COMPLAINT L QOONQUI 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 Donald Masik is attempting t0 turn this simple lemon law action into a fraud case against GM. But that effort fails, for multiple reasons, and GM’S Demurrer should be sustained Without leave t0 amend. First, the fraud claim fails under the Economic Loss Rule. Second, the claim does not provide the requisite specificity; it has no well-pleaded facts about the how, when, where, to whom, and by What means the fraud occurred. Rather than providing these details (Which, 0f course d0 not exist), Plaintiffparrots allegations from a different case. Those unproven allegations are not “facts,” and assuredly are not facts relevant t0 Plaintiff’s vehicle or the repairs t0 that vehicle under warranty. In short, there is zero factual 0r legal basis for Plaintiff’s fraud claim. GM’s demurrer should be sustained Without leave t0 amend. II. RELEVANT ALLEGATIONS On or about March 29, 2015, Plaintiff purchased a used 2013 Chevrolet Cruze, VIN 1G1PGSSB5D73 14240 (“Subject Vehicle”). (Complaint 1] 7.) On October 14, 2021, Plaintiff filed “breach 0f warranty” claims under Song-Beverly, as well as a common law “Fraudulent Inducement-Concealment” claim. GM now timely files this demurrer. Plaintiff’s Complaint fails t0 provide critical facts necessary t0 state a claim, such as (1) Whether Plaintiffhad any interaction with GM before 0r after the sale, (2) GM’S knowledge 0f the alleged “defects,” (3) how GM intended t0 “defraud” Plaintiff, and (4) the lack ofprivity with GM. Instead of providing these basic details, the Complaint alleges in conclusory fashion that GM “committed fraud by allowing the Vehicle t0 be sold t0 Plaintiffwithout disclosing that the Vehicle and its cooling system were defective.” (Complaint 1] 55.) The claim is based almost entirely 0n the allegation that GM did not disclose to Plaintiff prior to the sale 0f the vehicle that it had “defects” based upon unspecified facts GM “knew.” (Id. 1H] 56-58.) That is not enough. 6 DEMURRER TO PLAINTIFF’S COMPLAINT L QOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. MEET AND CONFER PER CODE OF CIVIL PROCEDURE § 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 0f Mary Arens McBride, at 1] 2.) IV. APPLICABLE LEGAL STANDARD A demurrer challenges defects that appear on the face of the complaint 0r matters outside the pleadings that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 3 1 1, 318; Donabedian v. Mercury Ins. C0. (2004) 116 Ca1.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 Ca1.App.4th 197, 201; see also Moore v. Regents 0f University ofCalifomia (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(6).) A pleading fails t0 state a cause 0f 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).) The Court must determine if the flaws inherent in 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. 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 without leave to amend. V. ARGUMENT A. THE THREE-YEAR STATUTE OF LIMITATIONS BARS PLAINTIFF’S SIXTH CAUSE OF ACTION FOR FRAUD. The three-year statute 0f limitations for fraud bars Plaintiff’s claim (Code of Civ. Proc., § 338(d)), and the Complaint fails t0 allege facts justifying its late filing. Plaintiff purchased the 7 DEMURRER TO PLAINTIFF’S COMPLAINT J; QOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Subject Vehicle 0n or about March 29, 2015. (Complaint, 11 7.) T0 assert a fraud claim based upon alleged fraudulent inducement-concealment, Plaintiff had to file his claim no later than March 29, 2018. He did not. Plaintiff did not file his complaint until October 14, 2021-m0re than three and a halfyears too late. Plaintiff cannot invoke the delayed discovery rule because he affirmatively states that the Subj ect Vehicle contained 0r developed the alleged “defects” “during the warranty period.” (Id. 1] 9.) The delayed discovery rule tolls the applicable statute of limitations only if a plaintiff is unable t0 discover his cause of action with reasonable diligence, and to rely upon it, the plaintiff must plead “facts showing that [he] was not negligent in failing t0 make the discovery sooner and that [he] had n0 actual 0r presumptive knowledge 0f facts sufficient t0 put him 0n inquiry.” (Hobart v. Hobart Estate C0. (1945) 26 Cal.2d 412, 437; Johnson v. Ehrgott (1934) 1 Ca1.2d 136, 137.) Conclusory allegations Will not Withstand a demurrer. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Ca1.4th 797, 808.) By his own allegations in Paragraph 9 0f the Complaint, Plaintiff cannot come close t0 carrying this burden. He concedes that he discovered the alleged “defects” “during the warranty period.” (Complaint, 1] 9.) Plaintiff also states that he first took the Subject Vehicle for repair on 0r about August 18, 2015. (Id. 11 10.) He further states he took the vehicle in for repair again on December 8, 2016, December 27, 2016, and July 19, 2017. (Id. 1N 11-13.) Accordingly, even if the discovery rule were applicable to toll the statute 0f limitations, it would have started running when Plaintiff became aware 0f an issue with the Subject Vehicle, which by Plaintiff’s own admission was “after reasonable repair attempts.” (1d. 11 15.) Plaintiff took the Subj ect Vehicle in for multiple repairs between August 18, 20 1 5 and July 19, 20 1 7, Which was four to six years before Plaintiff filed his Complaint. Therefore, Plaintiff cannot sustain his burden of demonstrating that he did not discover the actions giving rise t0 his claim Within the applicable limitations period. Likewise, nowhere in the Complaint is there any detailed discussion that equitable tolling applies. The California Supreme Court has applied the doctrine 0f equitable tolling only Where a plaintiff can show three elements: timely notice, lack ofprejudice t0 the defendant, and reasonable and good faith conduct 0n the part 0f the plaintiff. (McDonald v. Antelope Valley ley. Coll. Dist. 8 DEMURRER TO PLAINTIFF’S COMPLAINT J; QOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2008) 45 Cal.4th 88, 102.) Plaintiff fails t0 meet the requirements for equitable tolling t0 apply, as he has not asserted his reasonable conduct or that GM has not been prejudiced by his delay. Equitable tolling applies When Plaintiff has several legal remedies and reasonably, and in good faith, pursues one. (Centaur Classic Convertible v. Countrywide Fin., (2011) 878 F.Supp.2d, 1009, 1018.) Here, rather than pursuing his rights in good faith, Plaintiff continued t0 drive the Subject Vehicle for over six years, and only now claims that GM should repurchase the Subject Vehicle. It would be inequitable for Plaintiff t0 be able to use this doctrine t0 assert her obviously stale claim. And GM has been irreparably prejudiced since the condition 0f the Subject Vehicle has changed over time since these alleged Violations occurred, evidence and documents have been lost, and witnesses’ memories have faded 0r have disappeared. Plaintiff also asserts that his statute 0f limitations was tolled by the filing of Feliciano, et al. v. General Motors LLC. (Complaint, 1] 20). However, Plaintiff was not and would not have been a party. Regardless, Plaintiffnotes that any tolling expired 0n December 6, 2016, almost five years before Plaintiff filed his Complaint. (See id. 11 22). Plaintiff did not timely assert a fraud cause 0f action. Therefore, GM’S demurrer should be sustained. B. THE ECONOMIC LOSS RULE BARS THE FRAUD CAUSE OF ACTION. Under California law, 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 0n other grounds.) The purchaser must “demonstrate harm above and beyond a broken contractual promise.” (Robinson Helicopter Ca, 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 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).) 9 DEMURRER TO PLAINTIFF’S COMPLAINT J; QOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffdid not plead any facts alleging damages 0r harm for anything other than economic loss (i.e., his decision t0 purchase the Cruze); therefore, GM cannot be held liable for fraud under the Economic Loss Rule. 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 t0 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 (N.D. 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 holding.”).) The affirmative misrepresentation that exposed the Robinson plaintiff to 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 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 to fraud claims based upon alleged concealment, omissions, or 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 0fN.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 t0 claims 0f fraudulent concealment, finding that its application is only barred Where a parry 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 0fBMW” 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 subj ect vehicle, yet still asserted fraud claims (i) without alleging thatBMW made any affirmative misrepresentations and (ii) without claiming damages beyond his economic loss associated 10 DEMURRER TO PLAINTIFF’S COMPLAINT J; QOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 With the vehicle itself. (Hammond v. BMW 0f North 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.) o 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 ofNorth 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 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 that BMW had omitted information about the subject vehicle “burning through oil at an excessive rate.” (Yi v. BMWofNorth America LLC, No. 2: 17-CV-06467-SVW-SK at *1 (C.D. Cal. Mar. 5, 20 1 8)). The Yz' court ruled that, to avoid preclusion of a fraud claim under the economic loss rule, a plaintiffmust 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 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.) Because the Yi plaintiff” s complaint did not claim additional, non-economic damages other than the alleged damages arising from the alleged defect (zle. , damages “above and beyond a broken contractual promise”), the “fraud” claim failed as a matter of law. (Id) 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 0r 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 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 (CD. 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 ofNorth America, N0. CV 18-226 DSF (MRWX), 2019 WL 2912232 at *2 (CD. Cal. 2019); Traba v. FordMotor 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 11 DEMURRER TO PLAINTIFF’S COMPLAINT J; QOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not claim that the vehicle's alleged defects caused any personal injury or damage t0 property other than the vehicle”); Thompson v. BMW ofNon‘h America, N0. SA CV 17-1912 CJC (KSX), 2019 WL 988694 at *5 (CD. Cal. 2019); Zagarian v. BMWOfNorth America, N0. CV 18-4857 RSWL (PLAX), 2019 WL 61 1 1731 at *3 (C.D. 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 0n 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 (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 (CD. 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”). (Id. at *2.) In addition t0 Kelsey’s list 0f 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, 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, No. 20-CV-1530-CAB-WVG, 2021 WL 242936, at *4 (S.D. Cal. Jan. 25, 2021)). The court there barred plaintiff’s claim for fraudulent concealment because the complaint did not allege any personal injury t0 the plaintiff 0r any damage to physical property independent 0f the subj ect vehicle. (Id) In fact, the only allegation 0fharm 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, W 59, 63). 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 12 DEMURRER TO PLAINTIFF’S COMPLAINT J; QOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 t0 amend 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 to suggest that his punitive damages claim could survive Without his fraudulent concealment claim. (1d,) Here, Plaintiff alleges that GM “committed fraud by allowing the Vehicle t0 be sold t0 Plaintiffwithout disclosing that the Vehicle and its cooling system were defective. . . .” (Complaint, 1] 55.) Plaintiff has not alleged personal injuries 0r damages to property other than economic loss concerning the vehicle itself. (See generally Complaint.) The only “fraud” harm that Plaintiff alleged in the Complaint is his actual purchase: Plaintiff claims that he would not have purchased the Cruze. (Id. at 1N 59, 63.) 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 of the alleged economic loss related t0 his Cruze, Count VI is barred. Thus, GM’S demurrer should be sustained-Without leave to amend. C. 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 Cal.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 to understand fully the nature 0f the charge made.” (Tarmann v. State Farm Mut. Auto Ins. C0. (1991) 2 Ca1.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 13 DEMURRER TO PLAINTIFF’S COMPLAINT L QOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Healthsystem Desert, Inc. v. Blue Cross ofCalz'fornia (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 to 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 or suppressed fact, and (5) as a result of the concealment 0r suppression 0f 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 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 of 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, to whom they spoke, What they said or 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 to speak, to 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.”].) He did not. Count VI fails as a matter 0f law because Plaintiff failed t0 allege (i) the identity of the individuals at GM who purportedly concealed material facts 0r made untrue representations about his Cruze, (ii) their authority t0 speak and act 0n behalf 0fGM, (iii) GM’S knowledge about alleged defects in Plaintiff s Cruze at the time 0fpurchase, (iv) any interactions With GM before 0r during 14 DEMURRER TO PLAINTIFF’S COMPLAINT J; QOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the purchase ofhis Cruze, 0r (V) GM’S intent t0 induce reliance by Plaintiff t0 purchase the specific Cruze at issue.1 The allegations 0f the Complaint d0 not establish GM’S intent t0 defraud Plaintiff 0r demonstrate that the Cruze was unsuitable for its intended use at the time of purchase. (Id.) Plaintiff has failed t0 provide any factual support for his allegations; he merely provided conclusions that lack the foundation and specificity required to pursue a Viable fraud claim. D. PLAINTIFF’S FRAUD CLAIM FAILS BECAUSE PLAINTIFF DOES NOT ALLEGE A TRANSACTIONAL RELATIONSHIP BETWEEN GM AND PLAINTIFF GIVING RISE TO A DUTY TO DISCLOSE. California law does not permit a cause of action for concealment that did not arise in a fiduciary relationship 0r in a transaction involving “direct dealings” between the plaintiff and the defendant. Because the Complaint does not allege that Plaintiffpurchased his Cruze directly from GM or otherwise entered into a transaction with GM, Plaintiff has not alleged facts demonstrating a duty t0 disclose. Absent a fiduciary relationship between the parties (Which Plaintiff does not-and could not-allege here), a duty t0 disclose can arise in only three circumstances: (1) the defendant had exclusive knowledge of the material fact; (2) the defendant actively concealed the material fact; or (3) the defendant made partial representations While also suppressing the material fact. ((Bigler- Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 311; LiMandri v. Judkins (1997) 52 Ca1.App.4th 326,336) “These three circumstances, however, ‘presuppose[ ] the existence 0f [a] relationship 3”between the plaintiff and defendant in which a duty t0 disclose can arise. (Bigler-Engler, supra, 7 Cal. App.5th at p. 3 11 [quoting Limandri, supra, 52 Cal.App.4th at pp. 336-37; citing examples including “seller and buyer”] .) Indeed, the California Supreme Court “has described the necessary relationship giving rise t0 a duty t0 disclose as a ‘transaction’ between the plaintiff and defendant 1 At best, Plaintiffs might be able t0 argue that GM agreed to repair but was unable t0 repair the Cruze t0 conform t0 its warranty, but that alleged failure t0 conform the Cruze to its warranty is the subj ect 0f Counts I-V 0f the Complaint. That alleged post-transaction failure to conform the Cruze to its warranty, however, cannot support a “fraud” claim based upon conduct before or at the time 0f the transaction itself. 15 DEMURRER TO PLAINTIFF’S COMPLAINT L QOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ....” (Bigler-Engler, supra, 7 Cal.App.5th at p. 311; Warner Construction Corp. v. Cizfy ofLos Angeles (1970) 2 Cal.3d 285, 294 [“In transactions which d0 not involve fiduciary 0r confidential relations”]; Hojj’man v. 162 North Wolfe LLC (2014) 228 Ca1.App.4th 1178, 1187-89 [rejecting concealment claim where plaintiffs “were not involved in a transaction with the parties they claim defrauded them”]; LiMandri, supra, 52 Cal.App.4th at p. 337 [“such a relationship can only come into being as a result 0f some sort 0f transaction between the parties”].) “Such a transaction must necessarily arise from direct dealings between the plaintiff and defendant; it cannot arise between the defendant and thepublic at large.” (Bigler-Engler, supra, 7 Cal.App.5th at p. 311, emphases added.) In Bigler-Engler, for example, the Court 0f Appeal reversed a verdict for fraudulent concealment against the manufacturer 0f a medical device because the manufacturer and the plaintiff (Who was injured by using the device) did not have the required direct transactional relationship. (Id. at pp. 314-15.) The plaintiff did not obtain the device directly from the manufacturer but from a medical group that sold and leased such devices. (Id. at 287, 3 14.) As the Court oprpeal explained, the lack ofdirect dealings between the plaintiff and the manufacturer was fatal t0 the plaintiff’s argument that the manufacturer had a duty t0 disclose. (Id. at 312 [“Where, as here, a sufficient relationship 0r transaction does not exist, no duty t0 disclose arises even when the defendant speaks.”].) The same is true here. The Complaint does not allege that Plaintiff purchased his Cruze directly from GM. Thus, any alleged concealment by GM did not arise in a direct transaction between Plaintiff and GM. Accordingly, under California law, there could not have been any actionable concealment by GM that allegedly induced Plaintiff’s purchase 0f the vehicle. Thus, as a matter oflaw, Plaintiffcannot establish that GM had a duty to disclose. GM’S demurrer should be sustained. VI. CONCLUSION The sixth cause 0f action for Fraudulent Inducement-Concealment is barred by the statute 0f limitations and the economic loss rule. Additionally, Plaintiff has failed t0 state a Viable claim 16 DEMURRER TO PLAINTIFF’S COMPLAINT J; QOONQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for fraud. For all these reasons, GM’S Demurrer t0 the sixth cause 0f action for Fraudulent Inducement-Concealment should be sustained Without leave to amend. Dated: January 5, 2022 ERSKINE L W GROUP MARY ARENS MCBRIDE, ESQ. Attorney for Defendant GENERAL MOTORS LLC 17 DEMURRER TO PLAINTIFF’S COMPLAINT J; QOONQUI 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, PC in the County of Orange, State of California. I further declare that I am over the age of 18 and am not a party t0 the within action, and my law firm’s business address is: ERSKINE LAW GROUP, PC 1576 N. Batavia Street, Suite A Orange, CA 92867 I further declare that on 0r about, January 5, 2022, I served on the parties, t0 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 [X] true copies, thereof enclosed in sealed envelopes, attached t0 electronic mail, and addressed t0 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 0f collection and processing 0f correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service 0n that same day With postage thereon fillly prepaid at Encino, California, in the ordinary course 0f business. I am aware that 0n motion 0f 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. [fl] BY ELECTRONIC SERVICE [Code Civ. Proc. § 1010.6; CRC 2.251]: by electronically mailing a true and correct copy through STRATEGIC LEGAL PRACTICE’S electronic mail system t0 the email address(es) set forth above, 0r as stated 0n 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. [E] (State): I declare under penalty of perjury under the laws of the State 0f California that the foregoing is true and correct. [_] (Federal): I declare that I am employed in the office 0f a member 0f the bar 0f this court at whose direction the service was made. Executed, January 5, 2022, in Orange, California. By: James Gimeno 18 DEMURRER TO PLAINTIFF’S COMPLAINT