Adriana Guicho vs General Motors, LLC.

“‘[W]hile a statute of limitations normally sets the time within which proceedings must be commenced once a cause of action accrues, [a] statute of repose limits the time within which an action may be brought and is not related to accrual. Indeed, “the injury need not have occurred, much less have been discovered. Unlike an ordinary statute of limitations which begins running upon accrual of the claim, [the] period contained in a statute of repose begins when a special event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted.” [Citation.]’” (McCann v. Foster Wheeler LLC (2010) 48 Cal.4th 68, 78–79, fn. 2 [105 Cal. Rptr. 3d 378, 225 P.3d 516], quoting Giest v. Sequoia Ventures, Inc. (2000) 83 Cal.App.4th 300, 305 [99 Cal. Rptr. 2d 476]; accord, Cossman v. DaimlerChrysler Corp. (2003) 108 Cal.App.4th 370, 379, fn. 8 [133 Cal. Rptr. 2d 376]).

Whereas statutes of limitations affect a remedy, statutes of repose extinguish a right of action after the period has elapsed. (Stuart v. American Cyanamid Co. (2d Cir. 1998) 158 F.3d 622, 627; 51 Am.Jur.2d (2011) Limitation of Actions, § 354, pp. 762–763 [“a statute of repose ... nullifies both the remedy and the right”]; 51 Am.Jur.2d, supra, Limitation of Actions, § 24, p. 507 [statute of repose “extinguishes the action, or terminates any right to action, after a fixed period of time has elapsed” (fns. omitted)]).

The effect of a statute of repose “‘is [thus] harsher than a statute of limitations in that it cuts off a right of action after a specified period of time, irrespective of accrual or even notice that a legal right has been invaded. [Citation.]’” (McCann v. Foster Wheeler LLC, supra, 48 Cal.4th at p. 78, fn. 2, quoting Giest v. Sequoia Ventures, Inc., supra, 83 Cal.App.4th at p. 305). Put another way, a statute of repose “‘does not cut off an existing right of action, but rather provides that nothing which happens thereafter can be a cause of action.’” (San Diego Unified School Dist. v.

County of San Diego (2009) 170 Cal.App.4th 288, 301 [87 Cal. Rptr. 3d 796], quoting Inco Development Corp. v. Superior Court (2005) 131 Cal.App.4th 1014, 1020 [31 Cal. Rptr. 3d 872]; accord, CTS Corp., supra, 573 U.S. at p. ___ [134 S.Ct. at p. 2187] [a statute of repose “mandates that there shall be no cause of action beyond a certain point, even if no cause of action has yet accrued. Thus, a statute of repose can prohibit a cause of action from coming into existence”]).(PGA West Residential Assn., Inc. v.

Hulven Internat., Inc. (2017) 14 Cal.App.5th 156, 177-178 (PGA)).

III. ANALYSIS A. FIRST AND FOURTH CAUSES OF ACTION UNDER THE SONG-BEVERLY ACT Defendant GM’s argues the first four causes of action of Plaintiff’s FAC are barred by a statute of repose found at Code of Civil Procedure section 871.21, subdivision (b), which states, “Notwithstanding subdivision (a), an action covered by Section 871.201 shall not be brought later than six years after the date of original delivery of the motor vehicle.”

Defendant GM invites this court to infer from the allegation that Plaintiff entered into a warranty contract for the Subject Vehicle on March 15, 2017 that March 15, 2017 is also the date of purchase and of original delivery and the six year statute of repose ended on March 15, 2023. Since Plaintiff did not commence this action until November 25, 2024, defendant GM contends the first four causes of action of Plaintiff’s FAC are barred.

1 Code of Civil Procedure section 871.20, subdivision (a) of that section (effective prior to April 2, 2025 as Plaintiff’s complaint was filed November 25, 2024) states: “Notwithstanding any other law, this chapter applies to an action to proceed under this chapter, seeking restitution or replacement of a motor vehicle pursuant to subdivision (b) or (d) of Section 1793.2, Section 1793.22, or Section 1794 of the Civil Code, or for civil penalties pursuant to subdivision (c) of Section 1794 of the Civil Code, where the request for restitution or replacement is based on noncompliance with the applicable express warranty.” Defendant GM concludes generally that Plaintiff’s FAC (and, in particular, the first four causes of action) is an action which seeks restitution or replacement of a motor vehicle pursuant to Civil Code section 1793.2, i.e., claims under the Song-Beverly Act. 7

Even assuming March 15, 2017 is the original date Plaintiff took delivery of the Subject Vehicle, the court does not find Code of Civil Procedure section 871.21, subdivision (b), operates as a statute of repose. “[U]nlike a procedural statute of limitations, substantive statutes of repose are generally not subject to statutory or equitable tolling.” (PGA, supra, 14 Cal.App.5th at p. 178). Code of Civil Procedure section 871.21, however, expressly provides, “The time periods prescribed in subdivisions (a) and (b) shall be tolled as follows. . . ” (Code Civ. Proc., §871.21, subd. (c)). Since Code of Civil Procedure section 871.21, subdivision (b), is expressly subject to statutory tolling, the court finds it to be a statute of limitation, not a statute of repose.

One of the statutory bases for tolling states that the time period is tolled, “For the time the motor vehicle is out of service by reason of repair for any nonconformity.” (Code Civ. Proc., §871.21, subd. (c)(2)). Without specifying the length of time, Plaintiff’s complaint does allege repair attempts were made. (See FAC, ¶21—“Plaintiff took the Subject Vehicle to the authorized repair facility. . . starting at 40k miles on the odometer.”). In view of such allegations, it is not clear from the face of the Plaintiff’s complaint that the first four causes of action are necessarily barred. 2

Accordingly, defendant GM’s demurrer to the first through fourth causes of action of Plaintiff’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)], i.e., barred by a statute of repose, is OVERRULED.

B. FIFTH CAUSE OF ACTION – FRAUDULENT INDUMENT/CONCEALMENT 1. Statute of Limitations In demurring to Plaintiff’s fifth cause of action for fraudulent inducement/ concealment, defendant GM contends the limitations period for a claim predicated on fraud is three years from the date Plaintiffs allege they entered into the warranty contract, or March 31, 2021. However, by its express language, the statute of limitations for fraud is three years from the date of “the discovery, by the aggrieved party, of the facts constituting the fraud.” (Code Civ. Proc., § 338, subd. (d); see Britton v. Girardi (2015) 235 Cal.App.4th 721, 734).

Defendant GM acknowledges Plaintiff attempts to plead delayed discovery of the fraud. At paragraph 26 of the FAC, Plaintiff alleges she had “no way of knowing about Defendant’s deception with respect to the defects until the defect manifested itself and Defendant was unable to repair it after a reasonable number of repair attempts.” (Emphasis added). Defendant GM then points to paragraph 11 wherein Plaintiff alleges, “Defects and nonconformities to warranty manifested themselves within the applicable express warranty period. . .”.

When evaluating whether a claim is time-barred, the court must determine: (1) which statute of limitations applies, and (2) when the claim accrued. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1316 (E- Fab)). Initially, defendant GM contends the cause of action for fraud accrued on the date Plaintiff entered into the warranty contract, i.e., March 15, 2017, and that the cause of action for fraud expired three years later on March 15, 2020. Defendant GM’s analysis is incorrect. The date Plaintiff entered into the warranty contract with defendant GM (or the date of purchase or the date of original delivery) is not the date the cause of action for fraud accrued.

Plaintiff’s allegation and acknowledgment that defects/ nonconformities manifested during the applicable express warranty period similarly does not lead to the conclusion that, from the face of the pleading, the fraud cause of action accrued or when. Plaintiff’s FAC attaches the warranty contract which provides powertrain warranty coverage “for 5 years or 60,000 miles, whichever comes first.” The FAC does not allege when along this five (5)

2 “‘[A] demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.’” (Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191 [213 Cal. Rptr. 3d 850]; accord, Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 [151 Cal. Rptr. 3d 827, 292 P.3d 871] [application on demurrer of affirmative defense of statute of limitations based on facts alleged in a complaint is a legal question subject to de novo review]; Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 224 [115 Cal. Rptr. 3d 274] [“‘It must appear clearly and affirmatively that, upon the face of the complaint [and matters of which the court may properly take judicial notice], the right of action is necessarily barred.’”]). (Heshejin v. Rostami (2020) 54 Cal.App.5th 984, 992-993). 8

year timeline the defect manifested itself. It could have been in year one (2017-2018) or in year five (2021-2022). That ambiguity alone is enough to preclude application of the statute of limitations at the demurrer stage. A demurrer is not sustainable on statute of limitations grounds if there is only a possibility that the cause of action is time-barred; the defense must be clearly and affirmatively apparent from the allegations of the pleading [and matters of which the court may properly take judicial notice]. (E-Fab, supra, 153 Cal.App.4th at pp. 1315-1316).

2. Pleading Deficiencies The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would have acted differently if the concealed or suppressed fact was known; and (5) the plaintiff sustained damage as a result of the concealment or suppression of the material fact. (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 40 (Rattagan)).

In demurring to Plaintiff’s fifth cause of action for fraudulent inducement-concealment, defendant GM contends the complaint is defective in that Plaintiff has not pleaded the claim with the requisite specificity. Though the particularity requirement generally mandates that a plaintiff plead facts establishing the aforementioned items, it is much more difficult to apply this rule in a case of non-disclosure because, as one court explained, “[h]ow does one show ‘how’ and ‘by what means’ something didn’t happen, or ‘when’ it never happened, or ‘where’ it never happened?” (Alfaro v. Community Housing Imp. System & Planning Ass’n., Inc. (2009) 171 Cal.App.4th 1356, 1384).

One of the purposes of the specificity requirement is to provide “notice to the defendant, to furnish the defendant with certain definite charged which can be intelligently met.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216, internal quotations omitted). However, when “it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy, even under strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party ....” (Id., at p. 217).

However, the Rattagan court declined to allow a more relaxed pleading standard for claims of concealment, explaining:

California courts apply the same specificity standard to evaluate the factual underpinnings of a fraudulent concealment claim at the pleading stage, even though the focus of inquiry shifts to the unique elements of the claim. [Citations omitted.] For instance, in a case such as this, the court must determine whether the plaintiff has alleged a sufficient factual basis for establishing a duty of disclosure on the part of the defendant independent of the parties' contract. If the duty allegedly arose by virtue of the parties' relationship and the defendant's exclusive knowledge or access to certain facts, as [plaintiff] has alleged here, the complaint must also include specific allegations establishing all the required elements, including (1) the content of the omitted facts, (2) the defendant's awareness of the materiality of those facts, (3) the inaccessibility of the facts to the plaintiff, (4) the general point at which the omitted facts should or could have been revealed, and (5) justifiable and actual reliance, either through action or forbearance, based on the defendant's omission. “[M]ere conclusionary allegations that the omissions were intentional and for the purpose of defrauding and deceiving plaintiff[] ... are insufficient for the foregoing purposes.” [Citation.] (Rattagan, supra, (2024) 17 Cal.5th at pp. 43-44).

Defendant GM argues Plaintiff’s complaint is lacking an allegation concerning the content of the omitted facts and intent to conceal. The court does not agree. The complaint, at paragraphs 59 - 65, define a Transmission Defect and specifically alleges defendant GM failed to disclose this defect to Plaintiff despite acquiring knowledge of the Transmission Defect. In the court’s view, these allegations sufficiently identify the content of the omitted facts as well as fraudulent intent.

Defendant GM argues additionally that the Plaintiff’s complaint is lacking any facts establishing defendant GM had a duty to disclose. “The general rule for liability for nondisclosure is that even if material facts are known to one party and not the other, failure to disclose those facts is not actionable fraud unless there is some fiduciary or confidential relationship giving rise to a duty to disclose.” (La Jolla Village Homeowners’ Assn. v. Superior Court (1989) 212 Cal.App.3d 1131, 1151). To maintain a cause of action for fraud through nondisclosure or concealment of facts, a plaintiff must demonstrate that the defendant was under a legal duty to disclose those facts. (OCM Principal Opportunities Fund, L.P. v.

CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 845). “Where ... there is no fiduciary relationship, the duty to disclose generally presupposes a relationship grounded in some sort of transaction between the parties. Thus, a duty to disclose may arise from the relationship between seller and buyer ... or parties entering into any kind of contractual agreement.” (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 337, internal citations omitted).

In Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 311-312 (Bigler) the court wrote:

Our Supreme Court has described the necessary relationship giving rise to a duty to disclose as a “transaction” between the plaintiff and the defendant: “In transactions which do not involve fiduciary or confidential relations, a cause of action for non-disclosure of material facts may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff.” (Warner Constr.

Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294 [85 Cal. Rptr. 444, 466 P.2d 996], italics added, fns. omitted). Other cases have described the requisite relationship with the same term. (See, e.g., Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4t 1178, 1187 [175 Cal. Rptr. 3d 820] (Hoffman); LiMandri, supra, 52 Cal.App.4th at p. 337 [“As a matter of common sense, such a relationship can only come into being as a result of some sort of transaction between the parties.”]). Such a transaction must necessarily arise from direct dealings between the plaintiff and the defendant; it cannot arise between the defendant and the public at large. (Emphasis added).

Defendant GM contends there is no direct relationship alleged between it and Plaintiff because Plaintiff did not purchase the Subject Vehicle directly from GM. However, earlier in Bigler, the court cites with approval the following: “ ‘A duty to disclose facts arises only when the parties are in a relationship that gives rise to the duty, such as “‘seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual arrangement.’”’ [Citation.]” (Bigler, supra, 7 Cal.App.5th at p. 311; emphasis added). Here, although Plaintiff does not allege she directly purchased the Subject Vehicle from defendant GM, Plaintiff has alleged the existence of a contractual agreement (express written warranty) with defendant GM and thus, a basis upon which a duty to disclose arises. (See FAC, ¶6 and Exh. A).

Accordingly, defendant GM’s demurrer to the fifth cause of action of Plaintiff’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is OVERRULED.

IV. CONCLUSION Based on the foregoing, the defendant’s demurrer to the first and fourth cause of actions (Song-Beverly Act) and demurrer to the fifth cause of action (fraudulent inducement/concealment) of Plaintiff’s FAC are OVRERRULED. The Court will prepare the formal Order.

MOTION TO STRIKE (LINE # 3)

In light of the court’s ruling above with regard to the fraudulent concealment fifth cause of action, Defendant GM’s motion to strike the demand for punitive damages from the FAC’s prayer for relief is DENIED.

The Court will prepare the formal Order.

Calendar Lines # 6 Case Name Halo Microelectronics Co., Ltd. et al vs Darson Zhang