Gill vs. FCA US LLC

pp. 2-3.) However, section 2023.030 is applicable only “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” (Code Civ. Proc., § 2023.030.) CCP section 425.11 is not a part of the Discovery Act or any other chapter governing a “particular discovery method.” Rather, it is a part of Title 6, Chapter 2, which is a chapter that governs pleadings in civil actions.

Request for Terminating Sanctions “Trial courts are to take an incremental approach to discovery sanctions, starting with monetary sanctions and leading up to the ultimate sanction of termination. Sanctions must be proportionate to the harm caused by the misconduct and should not provide a ‘windfall’ to the party requesting sanctions.” (Atlas v. Davidyan (2025) 113 Cal.App.5th 1086, 1095 [citations omitted].) “Once a party or witness has been ordered to attend a deposition, or to answer discovery, or to produce documents, more severe sanctions are available for continued refusal to make discovery.” (Cal.

Prac. Guide Civ. Pro. Before Trial at ¶ 8:2145 [emphasis in original].) In its moving papers, Defendant fails to point out which discovery orders Plaintiff has violated. Based on the record, the Court sees no justification for resorting to the ultimate sanction of termination at this juncture.

Defendant shall give notice of the ruling.

5 Gill vs. FCA US LLC

2025-01492739 Motion to Strike Portions Of Complaint / Demurrer to Amended Complaint A. Demurrer

The Court overrules Defendant FCA US LLC’s Demurrer to the sixth cause of action for fraud in Plaintiff Thomas W. Gill’s First Amended Complaint (FAC).

“[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or 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 or suppressed the fact with the intent to 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 or

suppression of the fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.)

Fraud, including concealment, must be pled with specificity. (Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 132.) General and conclusory allegations do not suffice. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The policy of liberal construction of pleadings will not ordinarily be invoked to sustain a pleading defective in any material respect for allegations of fraud. (Id.) However, less specificity is required of fraud claims when a defendant must necessarily have more information or knowledge concerning the facts of the controversy than a plaintiff. (Alfaro v. Community Housing System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.)

Defendant argues that it had no duty to disclose any purported defect to Plaintiff.

The Court finds that duty is properly alleged.

“There are four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 311 [internal quotations omitted.]) “Where, as here, a fiduciary relationship does not exist between the parties, only the latter three circumstances may apply.

These three circumstances, however, ‘presuppose[] the existence of some other relationship between the plaintiff and defendant in which a duty to disclose can arise.” (Ibid.) “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.’ ” (Ibid.)

“Our Supreme Court has described the necessary relationship giving rise to a duty to disclose as a ‘transaction’ between the plaintiff and 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.’ ” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 311 [emphasis added].) “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.” (Id. at 312 (cited with approval by the California Supreme Court in Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 41.)

Here, Defendant asserts there was no direct transactional relationship to establish a duty to disclose.

First, Defendant does not address the allegation Plaintiffs entered into a warranty contract with Defendant, regarding the subject vehicle. (See FAC, ¶7.)

Second, the Court in Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828 rejected a similar argument, finding allegations Plaintiff “bought the car from a Nissan dealership, that Nissan backed the car with an express warranty, and that Nissan’s authorized dealerships are its agents for purposes of the sale of Nissan vehicles to consumers,” sufficient. (Id. at p. 844.)

Here, Plaintiff has adequately pleaded that FCA had exclusive knowledge of the true extent of the E-Torque System Defect. (FAC, ¶¶31, 57, 117.) Plaintiff has sufficiently alleged the elements of a fraudulent inducement by concealment claim under Dhital. The Court accepts these allegations as true for purposes of this Demurrer. Further factual issues are properly left to discovery.

Thus, the Demurrer is overruled.

B. Motion to Strike

The Court grants Defendant’s Motion to strike punitive damages with 20 days leave to amend.

Defendant asks the Court to strike the following:

1. All references to punitive and/or exemplary damages, including but not limited to: Page 22, line 25 – “For punitive damages”.

This is the incorrect citation as there is no such request on Page 22, line 25 of the FAC. However, the Court presumes that Defendant seeks to strike punitive damages requested in the Prayer for Relief on Page 25, line 22.

A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. (Code Civ. Proc. § 436.) A motion to strike can be used to attack claims for damages that are not supported by the cause of action pleaded. (Code Civ. Proc. § 431.10(b)(3).)

Punitive Damages Civil Code § 3294 provides that punitive damages may be awarded in an action for breach of an obligation not arising from contract, if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 (“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation].”; but see Perkins v.

Superior Court (1981) 117 Cal.App.3d 1, 6 (allegations that defendant was guilty of “oppression, fraud and malice” could not be stricken where the complaint contained sufficient facts to support such allegation.).

Here, the only apparent basis for an award of punitive damages is the alleged fraudulent inducement. (See Covert v. FCA USA, LLC (2022) 73 Cal.App.5th 821, 828, fn. 3. [“Although not specified in the complaint, we assume Covert’s prayer for punitive damages was based on his cause of action for fraudulent concealment because the Song-Beverly Act provides for civil penalties, but not punitive damages.”]; see also Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 227 [“[W]e believe that by seeking a ‘civil penalty’ and also attorney’s fees and all reasonable expenses as allowed by Civil Code section 1794, plaintiff had in effect elected to waive punitive damages under section 3294.”].)

Punitive damages can be sought in a cause of action for fraudulent concealment, and punitive damages are available where a defendant is guilty of fraud. (Civ. Code, § 3294, subd. (a); see Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 845 [reversing trial court’s order granting motion to strike punitive damages allegations

where the plaintiff stated a viable fraud claim]; see Anderson v. Ford Motor Co. (2022) 74 Cal.App.5th 946, 966 [“the punitive damages and statutory penalties were based on different conduct that took place at different times,” as “[t]he punitive damages were based on conduct underlying the fraud/CLRA causes of action and took place before the sale,” while “[t]he civil penalty was based on defendant’s postsale failure to comply with its Song-Beverly Act obligations to replace the vehicle or make restitution when reasonable attempts to repair had failed”]; see Nissan Motor Acceptance Cases (2021) 63 Cal.App.5th 793, 829 [“Of course, fraudulent concealment is an intentional tort that may support a punitive damage award”].)

Here, Plaintiff has alleged that FCA knew about the E-Torque System Defect. Prior to purchase of the Subject Vehicle, Defendant was aware of the problems in a critical system that has serious safety implications. (FAC, ¶ 32.) A properly pleaded fraud claim will itself support recovery of punitive damages. No allegations of “malice” or intent to injure plaintiff are required, because fraud is an alternative basis for recovery. (Stevens v. Sup. Ct. (St. Francis Med. Ctr.)(1986) 180 Cal.App.3d 605, 610.)

However, “When the defendant is a corporation, ‘[a]n award of punitive damages against a corporation . . . must rest on the malice of the corporation’s employees. [¶] But the law does not impute every employee’s malice to the corporation.’ [Citation.] Instead, the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation. [Citation.] ‘ “[M]anaging agent” . . . include[s] only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.’ [Citation.]” (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 164.)

Here, corporate ratification or authorization is not alleged.

In opposition, Plaintiff also argues that he can seek punitive damages for the Song-Beverly claims.

However, the Song-Beverly Act does not provide for punitive damages. (Civ. Code, § 1794.) California courts have explained that civil penalties “have been likened, by courts, to punitive damages.” (Suman v. Superior Court (1995) 39 Cal.App.4th 1309, 1317, citing Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 184 [“Finally, the penalty under section 1794(c), like other civil penalties, is imposed as punishment or deterrence of the defendant,

rather than to compensate the plaintiff. In this, it is akin to punitive damages.”].)

A plaintiff may not recover both civil penalties and punitive damages “based upon substantially the same conduct.” (Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 226 [striking punitive damages award where plaintiff also recovered civil penalties under Civil Code section 1794 because “in their effect both constituted punitive damages].) It seems unlikely that the Legislature intended for a plaintiff to be able to recover an unspecified amount of punitive damages under subsection (a), when it expressly provided for civil penalties not to “exceed two times the amount of actual damages,” under subsection (c).

Thus, the Motion is granted with leave so Plaintiff can allege the correct facts required for punitive damages against a corporate entity and to clarify that these damages are only sought in the fraud claim.

Defendant is ordered to serve notice.

Case Management Conference

Continued to 11-2-2026 at 9:00 a.m. 6 Kelson vs. Marriott International, Inc.

2021-01213506 Motion for an Order to Show Cause Regarding Dismissal Pursuant to CCP 583.410

Court will hear argument. 7 Long Affair Carpet and Rug, Inc. vs. Morgan

Motions to Compel Further Responses to Form/Special Interrogatories and Production

Before the Court is Cross-Defendant Long Affair Carpet and Rug, Inc. dba LA Carpet Motins to compel further responses and documents from Defendant and Cross-Complainant Lauren Morgan as to Special