Not stated v. Ford Motor Company

was inadvertently premature due to the lis pendens remaining of record. Given the foregoing, the "well-settled" rule a trial court lacks jurisdiction after a voluntary dismissal must be qualified. Even after entering a judgment of dismissal pursuant to a party's voluntary dismissal, the court has jurisdiction to vacate such judgment under section 473. . . . Accordingly, because the superior court had power to determine the issues, we consider the merits of the parties' contentions. (Basinger v.

Rogers & Wells (1990) 220 Cal.App.3d 16, 21-23 (19.) This court has also recognized the power of the trial court independently of statute to set aside a default judgment entered through the court's inadvertence. (Citation omitted.) In 1 Freeman on Judgments (5th ed.) p. 432, it is said that where the court is deceived or is laboring under a mistake or misapprehension as to the state of the record or as to the existence of extrinsic [*188] facts upon which its action is predicated, it has inherent power to vacate a judgment which would not otherwise have been rendered.

That principle was applied by this court in setting aside one of its own judgments almost three years after it was rendered because the first order was made on the theory that the defendant had not moved for a new trial when in fact he had done so. (In re Rothrock, 14 Cal.2d 34 [92 P.2d 634].) Here the later order was in effect based on the inadvertence and mistake of the court in overlooking matters of record and facts within the court's judicial knowledge. On its face the record does not disclose invalidity for lack of jurisdiction.

The order was within the court's general jurisdiction. It was made in the exercise of its inherent power under that jurisdiction. Factual sufficiency to support the exercise of the power is not controverted by the record. The intendments which govern are controlling to support the propriety of the exercise of jurisdiction. (Phelan v. Superior Court, 35 Cal.2d 363 [217 P.2d 951].) (Key System Transit Lines v. Superior Court of Alameda County (1950) 36 Cal.2d 184, 186-188 [bold emphasis added].) [T]he court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim.

The court shall not order an undertaking to be given as a condition of expunging the notice where the court finds the pleading does not contain a real property claim. (Code Civ. Proc. Sec. 405.31.) Here, the case has been dismissed, and Plaintiff has not refiled a complaint, nor appealed the dismissal. As such, there is no real property claim or action pending to support the lis pendens. (Code Civ. Proc. Sec. 405.31.) Accordingly, the motion to expunge lis pendens is GRANTED. The case is again ordered dismissed without prejudice.

This is a Lemon Law action based on an Engine Defect. Defendant Ford Motor Company moves for judgment on the pleadings as to the First Amended Complaint.

TENTATIVE RULING Defendants Ford Motor Company's motion for judgment on the pleadings as to the First Amended Complaint is GRANTED with leave to amend as to the first through fourth causes of action. Plaintiff will only be given one final opportunity to amend. ANALYSIS Meet and Confer The Declaration of Nicole M. Peterson reflects that Defendant's counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code Sec. 439(a)(3)(B).

Discussion

The Court has reviewed the moving, opposing and reply briefs filed by the parties, but only addresses the points which the Court deems to be material to the disposition of this motion. Defendants Ford Motor Company moves for judgment on the pleadings as to the First Amended Complaint.

1. First Cause of Action (Violation of Civil Code Sec. 1793.2(d)); Second Cause of Action (Violation of Civil Code Sec. 1793.2(b); Third Cause of Action (Violation of Civil Code Sec. 1793.2(a)(3).); Fourth Cause of Action (Breach of Implied Warranty of Merchantability--Civil Code Sec. 1791.1, Sec. 1794, Sec. 1795.5) [1] . A. Re: Statute of Limitations Defendants argue that these causes of action are time-barred by the six year statute of limitations/statute of response in Civ. Proc. Code, Sec. 871.21.

Defendant argues that the 1AC alleges that Plaintiffs entered into a warranty contract with Ford for a 2017 Ford F-150 on February 18, 2017, but Plaintiffs did not file suit until more than six years later: June 17, 2025. (1AC, P. 7.) The Court addresses whether Sec. 871.20 covers Plaintiff's claims for violation of the following Civil Code Sections: Sec.1793.2(d)); 1793.2(b); Sec.1793.2; 1791.1, Sec. 1794, Sec. 1795.5. As is relevant to the foregoing, Code Civ. Proc. Sec. 871.20 applies to the following: (a) Notwithstanding any other law, this chapter applies to an action, brought against a manufacturer who has elected under Section 871.29 to proceed under this chapter, seeking restitution or replacement of a motor vehicle pursuant to subdivision (b) [repair to conform within 30 days] or (d) [replace or reimburse] of Section 1793.2 [duties of manufacturer making express warranty], Section 1793.22 [reasonable number of attempts; dispute resolution], or Section 1794 [buyer's damages, penalties and fees] 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. (b) This chapter does not apply to service contract claims under

Section 1794 of the Civil Code or any action seeking remedies that are not restitution or replacement of a motor vehicle. (Civ. Proc. Code, Sec. 871.20 [bold emphasis added].) Code Civ. Proc. Sec. 871.21 provides: (a) An action covered by Section 871.20 shall be commenced within one year after the expiration of the applicable express warranty. (b) Notwithstanding subdivision (a), an action covered by Section 871.20 shall not be brought later than six years after the date of original delivery of the motor vehicle. (c) The time periods prescribed in subdivisions (a) and (b) shall be tolled as follows: (1) As provided by tolling requirements prescribed in subdivision (c) of Section 1793.22 [2] of the Civil Code, as applicable. (2) For the time the motor vehicle is out of service by reason of repair for any nonconformity. (3) For the time period after a pre-suit notice is provided to the manufacturer in accordance with Section 871.24 [3], which time period shall not exceed 60 days. (Civ.

Proc. Code, Sec. 871.21 [bold emphasis added].) As is relevant to the foregoing, Code Civ. Proc. Sec. 871.20 applies to the following: (a) Notwithstanding any other law, this chapter applies to an action, brought against a manufacturer who has elected under Section 871.29 to proceed under this chapter, seeking restitution or replacement of a motor vehicle pursuant to subdivision (b) [repair to conform within 30 days] or (d) [replace or reimburse] of Section 1793.2 [duties of manufacturer making express warranty], Section 1793.22 [reasonable number of attempts; dispute resolution], or Section 1794 [buyer's damages, penalties and fees] 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. (b) This chapter does not apply to service contract claims under Section 1794 of the Civil Code or any action seeking remedies that are not restitution or replacement of a motor vehicle. (Civ.

Proc. Code, Sec. 871.20 [bold emphasis added].) As is discussed above Civ. Proc. Code Sec. 871.20 applies to claims for restitution or replacement pursuant to Civil Code Sec. 1793.2(b) [repair to conform to express warranty within 30 days] or (d) [replace or reimburse]; Civil Code Sec. 1793.22 [reasonable number of attempts; dispute resolution], or Civil Code Sec. 1794 [buyer's damages, penalties and fees] Notably, Civil Code Sec. 1794(a) provides: (a) Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief. (Civ.

Code Sec. 1794(a)[bold emphasis added].)

"This chapter" refers to Chapter 1 "Consumer Warranty Protection," which spans Civil Code Sec.Sec. 1790 - 1795.8. All of Plaintiff's claims arise from statutory sections contained within Chapter 1. As such, the statute of limitations set forth in Code Civ. Proc. Sec. 871.21 applies to the statutory sections upon which Plaintiff relies. Code Civ. Proc. Sec. 871.30 provides: (a) Within 30 days of the effective date of the act adding this section, a manufacturer may elect to be governed by this chapter for all actions described in subdivision (a) of Section 871.20 with respect to all of its motor vehicles sold in the year 2025 and in all prior years by providing written notice of that election to the Arbitration Certification Program within the Department of Consumer Affairs. (b) Within 60 days of the effective date of the act adding this section, the Arbitration Certification Program within the Department of Consumer Affairs shall publish to its website the list of all manufacturers that have elected under subdivision (a) to proceed under this chapter for actions related to motor vehicles sold in the year 2025 and in all prior years. (c) Unless a manufacturer has made the election described in subdivision (a), Sections 871.20 to 871.28, inclusive, shall not apply to an action described in subdivision (a) of Section 871.20, including actions already filed between January 1, 2025 and the effective date of the act adding this section, with respect to all of its vehicles sold new in the year 2025 and in all prior years. (Code Civ.

Proc., Sec. 871.30 [bold emphasis added].) The Court takes judicial notice of the list of manufacturers who have opted in to the new Lemon Law procedures set forth in Civil Code of Procedures sections 871.20 to 871.30. This list is found on the Department of Consumer Affairs, Arbitration Certification Program website page [4] located at: https://www.dca.ca.gov/acp/accepted_manufacturers.shtml The Court take judicial notice that Defendant Ford Motor Company appears on this list as having opted in.

As such, it may invoke the statute of limitations set forth in Civ. Proc. Code, Sec. 871.21(b). Code Civ. Proc. Sec. 871.21's effective date was January 1, 2025, but it was enacted on September 29, 2024. (See 2024 Cal AB 1755, History: Filed with Secretary of State September 29, 2024; Approved by the Governor September 29, 2024; Effective date: January 1, 2025.) This gave plaintiffs three months from the date of enactment until the effective date. This was a reasonable time for Plaintiff to sue prior to the effective date, so Sec. 871.21 will be applied as enacted.

Legislation that shortens a limitations period is considered procedural and is applied retroactively to preexisting causes of action, so long as parties are given a reasonable time in which to sue. (Citations omitted.) When necessary to provide a reasonable time to sue, a shortened limitations period may be applied

prospectively so that it commences on the effective date of the statute, rather than on the date the cause of action accrued. (Citations omitted.) Applying these legal principles, the Court of Appeal in this case concluded that the legislation vesting PERB with jurisdiction over MMBA unfair practice charges, effective July 1, 2001, shortened the applicable limitations period from three years to six months. This shortened limitations period applies retroactively to MMBA unfair practice charges based on conduct that occurred before July 1, 2001, provided that parties are given a reasonable time in which to file such charges with the PERB.

Concluding that six months was a reasonable time in this context, the Court of Appeal held that for MMBA unfair practices occurring before July 1, 2001, a charge filed with the PERB was timely if brought within three years of the occurrence of the unfair practice, or within six months of July 1, 2001 (in other words, before January 1, 2002), whichever was sooner. We agree that this is a correct application of the controlling legal principles. The PERB and the CSEA argue in substance that the Court of Appeal's holding retroactively extinguishes existing unfair practice claims because parties had no notice of the six-month limitations period until the Court of Appeal issued its decision.

This assertion erroneously assumes that the Court of Appeal, rather than the Legislature, shortened the limitations period to six months and that this shortened limitations period took effect only when the Court of Appeal issued its decision. To the contrary, the Legislature established the six-month limitations period, effective July 1, 2001. After that date, there was no valid legal basis for any party, or for the PERB, to rely on the previous three-year limitations period, which had applied to judicial actions to enforce the MMBA.

In determining the applicable limitations period, the Court of Appeal merely decided a legal question; it did not change any settled rule on which parties could reasonably have relied. (Citation omitted.) Its holding, which we adopt, did not constitute an unfair retroactive change in the law. (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal. 4th 1072, 1091-92. [bold emphasis and underlining added]) Even though generally, the operation of statutes of limitations is considered to be a procedural matter in California, if a limitations period has been legislatively shortened, constitutional and substantive issues will arise concerning retrospective application if: "[I]n a given case, that retrospective application may violate due process by in effect eliminating the plaintiff's right.

If the time left to file suit is reasonable, no such constitutional violation occurs, and the statute is applied as enacted. If n o time is left, or only an unreasonably short time remains, then the statute cannot be applied at all." (Aronson v. Superior Court (1987) 191 Cal. App. 3d 294, 297 [236 Cal. Rptr. 347].) It is a question of law whether a party has a reasonable time after a change in the law to file an action. (Ibid.) (Sznyter v. Malone (2007) 155 Cal.App.4th 1152, 1162 [bold emphasis and underlining added].)

Plaintiff argues that creating a new deadline that has already passed deprives a plaintiff of any meaningful opportunity to respond. Plaintiff argues that he had no way of knowing he had to file in December 2023 because the statute simply didn't exist. However, " 'California

law attributes to all citizens constructive knowledge of the content of state statutes. ...' " (Citation omitted..)" (People ex rel. Harris v. Sunset Car Wash, LLC (2012) 205 Cal.App.4th 1433, 1441.) Plaintiff does not cite any law which deems such constructive knowledge effective upon the effective date, rather than the date of enactment. As discussed above, Plaintiff had 3 months from the date of enactment until the effective date to file suit. Plaintiff argues that the Court does not need to speculate as to what a reasonable period of time would be--Section 871.21, subdivision (a) provides a one-year period.

Nowhere does Sec. 871.2(a) refer to a "reasonable period." Instead, Sec. 871.20(a) provides the general statute of limitations, thusly: "(a) An action covered by Section 871.20 shall be commenced within one year after the expiration of the applicable express warranty." (Code Civ. Proc. Sec. 871.21(a).) Importantly, this provision must be read with the more specific provisions six-year period of Code Civ. Proc. Sec. 871.21(b), which applies "[n]otwithstanding subdivision (a).) The Court finds that 3 months is reasonable for purposes of filing suit after the date of enactment.

Defendant characterizes the Code Civ. Proc., Sec. 871.21 as a statute of repose, rather than a statute of limitation. The Court starts with the observation that Code Civ. Proc. Sec. 871.21 is titled "Statute of Limitations." Moreover, Sec. 871.21 expressly provides for instances where tolling shall occur, as follows: (c) The time periods prescribed in subdivisions (a) and (b) shall be tolled as follows: (1) As provided by tolling requirements prescribed in subdivision (c) of Section 1793.22 [5] of the Civil Code, as applicable. (2) For the time the motor vehicle is out of service by reason of repair for any nonconformity. (3) For the time period after a pre-suit notice is provided to the manufacturer in accordance with Section 871.24, which time period shall not exceed 60 days. (Code Civ Proc Sec. 871.21(c).)

Sec. 871.21(c) provides for tolling of an indeterminate amount of time in subdivision (1) and (2). The express provisions for tolling weight against a finding that this is a statute of repose "because statutes of repose typically do not have tolling provisions."(Burroughs v. Precision Airmotive Corp. (2000) 78 Cal.App.4th 681, 689-90. Moreover, "a statute of repose is not subject to forfeiture." (PGA West Residential Assn., Inc. v. Hulven Internat., Inc. (2017)14 Cal.App.5th 156, 176-87 [bold emphasis added].)

Yet, Code Civ. Proc. Sec. 871.30 itself provides for forfeiture of the six year limitations period dating back to motor vehicles sold in 2025 and all prior years if the manufacturer did not timely opt-in to arbitration procedures. (Code Civ. Proc. Sec. 871.30(a).) If a manufacturer did not timely opt-in within 30 days of the effective date of the statute, then the manufacturer has the option to opt-in only as to vehicles sold in five consecutive years, as to which the six-year limitation period set forth in Code Civ.

Proc., Sec. 871.21(b) would apply. (Code Civ. Proc.,

Sec. 871.29(a).) Moreover, if the manufacturer did not opt-in at all, the six-year limitation period set forth in Code Civ. Proc., Sec. 871.21(b) would not even apply. For the foregoing reasons, the Court finds that Code Civ. Proc. Sec. 871.21 is a statute of limitations, not a statute of repose. Normally, "statutes of limitations are subject to statutory and equitable tolling." (PGA West Residential Assn., Inc. v. Hulven Internat., Inc. (2017) 14 Cal.App.5th 156, 176.) The Court will address whether the Legislature intended to foreclose tolling of Code Civ.

Proc. Sec. 871.21. First, as noted above Sec. 871.21 itself provides three tolling instances, which weighs against a basis for limiting the application of equitable tolling. Nor does the statute include an express limit on the bases for tolling. The statute does not indicate the list is exhaustive. The statute does not utilize exclusivity language such as "in no event except as specified by statute" or "for any reason except provided." Further, given the above discussion, there is nothing in the statutory text which suggests an implicit legislative intent to preclude equitable tolling, nor is there a discernable fundamental policy underlying the statute which would foreclose equitable tolling.

These principles of statutory construction are discussed in (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88: Section 12960, subdivision (d), the governing statute of limitations for this administrative process, provides in part: "No [DFEH] complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred ... ." It then identifies four exceptions: (1) a 90-day extension in instances of delayed discovery of the unlawful practice; (2) a one-year extension in certain instances of delayed discovery of the identity of the actual employer; (3) a one-to-three-year extension for Ralph Hate Crimes Act (Civ.

Code, Sec. 51.7) violations in cases of delayed discovery of the perpetrator's identity; and (4) an extension to one year after an aggrieved party achieves the age of majority if the misconduct occurred while the party was a minor (Sec. 12960, subd. (d)(1)-(4)). We discern in this provision no basis for limiting the application of equitable tolling. First, the statute does not include an express limit on the bases for tolling. While section 12960, subdivision (d) lists some bases for extending the statute of limitations, it does not indicate the list is exhaustive.

The statute is thus unlike those statutes that contain exclusivity language and that courts have interpreted as confining tolling to specific listed bases. (See, e.g., Laird v. Blacker (1992) 2 Cal.4th 606, 618 [7 Cal. Rptr. 2d 550, 828 P.2d 691] [holding Code Civ. Proc., Sec. 340.6, which "states that ' in no event ' shall the prescriptive period be tolled except under those circumstances specified in the statute," disallows tolling otherwise]; Battuello v. Battuello (1998) 64 Cal.App.4th 842, 847 [75 Cal.

Rptr. 2d 548] [recognizing Code Civ. Proc., Sec. 366.2, which bars tolling " for any reason except as provided " therein, may not otherwise be tolled].) We have never previously concluded that the legislative codification of particular tolling bases, alone, establishes a legislative intent to preclude tolling on any other basis. To the contrary, we have implicitly assumed that the Legislature's authority to declare tolling bases (see, e.g., Code Civ. Proc., Sec.Sec. 351-356) and the courts' ability to do likewise may coexist in the absence of an explicit legislative directive that they may not (see Elkins v.

Derby, supra, 12 Cal.3d at p. 420, fn. 9).

4 Second, nothing in the text of the FEHA suggests an implicit legislative intent to preclude equitable tolling. Unlike Code of Civil Procedure section 337.15, the 10-year limitations period at issue in Lantzy v. Centex Homes, supra, 31 Cal.4th 363, the limitations period here (one year) is quite brief. It is thus typical of the short limitations periods to which we and the Courts of Appeal have consistently extended equitable tolling principles. Third, we discern no fundamental policy underlying the FEHA that would dictate we categorically foreclose equitable tolling in all FEHA cases.

To the contrary, we have explained that the express provisions of the FEHA evince a legislative intent that it and its statute of limitations must be liberally interpreted in favor of both allowing attempts at reconciliation and ultimately resolving claims on the merits. (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 106-08 [bold emphasis added].) As such, the Court finds that the Legislature did not intend to foreclose the application of equitable tolling to the six-year limitations period set forth in Code Civ.

Proc. Sec. 871.21(b). The question now is whether Plaintiffs have sufficiently alleged facts which would tolling the running of Sec. Code Civ. Proc., Sec. 871.21. Here, Plaintiffs only make a generalized reference to equitable tolling, the discovery rule, the repair rule, fraudulent concealment and Judicial Council of California, App'x. I, Emergency Rules re: COVID-19. Notably, Plaintiff alleges the first repair attempt as occurring on January 3, 2024, with a second repair attempt on January 24, 2024. (1AC P.P. 14, 15.)

This was six years and ten months after Plaintiff purchased the vehicle. The six-year statute of limitations had already expired by then. Plaintiff also alleges tolling from April 6, 2020, until October 1, 2020 due to Judicial Council of California, App'x. I, Emergency Rules Related to COVID-19. (2AC, P. 58.) This tolling of five months and 26 days is in sufficient to make this action timely. Plaintiff did not factually allege how other tolling doctrines would apply prior to the February 18, 2017 expiration of the statute of limitations.

The first through fourth causes of action are time-barred by the six-year statute of limitations. As such, the Court does not address Defendant's alternate arguments as to these causes of action. As such, the motion for judgment on the pleadings as to the first through fourth causes of action is GRANTED with leave to amend. Plaintiff will only be given one final opportunity to amend.

2. Sixth Cause

of Action (Fraud). Defendant argues that this cause of action is not pled with the requisite specificity as to the element of fraudulent inducement - concealment, such as would give rise to a duty to disclose on the part of Defendant. Fraud causes of action must be pled with specificity. (Hills Transportation Co. v. Southwest Forest Ind., Inc. (1968) 266 Cal.App.2d 702, 707.) The complaint must allege facts as to "'how, when, where, to whom, and by what means the representations were tendered.'" (Stansfield v.

Starkey (1990) 220 Cal.App.3d 59, 73.) " The requirement of specificity in a fraud action against a corporation requires the plaintiff to 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 or written. (Citations omitted.)" (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4 th 153, 157.) Less specificity is required to plead fraud by concealment. (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1199.)

However, "[i]f a fraud claim is based upon failure to disclose, and 'the duty to disclose arises from the making of representations that were misleading or false, then those allegations should be described.' (Citation omitted.)" (Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1262.) Here, Plaintiff did not plead any representations made in promotional or advertising materials to the engine in the subject vehicle, exactly what was said to him, when and in what manner (orally or in writing), why such misrepresentation was known to be false or at least a half truth when made, and Plaintiffs' actual reliance on the misrepresentation which caused out-of-pocket loss.

Civil Code Sec. 1710(3)(deceit is defined to include " [t]he suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact. . . .")(bold emphasis added). In a misleading half-truth situation, where the defendant undertakes to provide some information, the defendant is "obliged to disclose all other facts which 'materially qualify' the limited facts disclosed. (Citations omitted.)" (Randi W. v.

Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1082.) [T]he elements of a cause of action for fraud based on 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. [Citation.]' [Citation.]" (Citation omitted.) (Kaldenbach v.

Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850.)

"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. [Citation.]' " (Citations omitted.) Where, as here, there is no fiduciary relationship, the duty to disclose generally presupposes a relationship grounded in "some sort of transaction between the parties. [Citations.]

Thus, a duty to disclose may arise from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement. [Citation.]" (Citation omitted.) (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 859 [bold emphasis added].) To the extent that the court in Dhital v. Nissan N. Am. Inc. (2022) 84 Cal.App.5 th 828, 844 held that less specific allegations were sufficient at the pleading stage, the California Supreme Court has recently reiterated that the specificity requirement applies to fraudulent concealment claims: As an additional point, Robinson emphasized California's pleading requirement that fraud must be alleged with specificity.

The requirement provides an important safeguard against the risk of tort recovery for fraud in every case involving conduct occurring during a contractual relationship. (Robinson, supra, 34 Cal.4th at p. 993.) When affirmative misrepresentation fraud is alleged, "'"This particularity requirement necessitates pleading facts which 'show how, when, where, to whom, and by what means the representations were tendered."'" (Ibid.; see Hills Trans. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 707 [72 Cal.

Rptr. 441].) Uber argues that, because a fraudulent concealment claim "concerns a defendant's alleged failure to speak," the pleading standard is necessarily more relaxed, thus weakening this safeguard. Not so. 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 Rattagan 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 [*44] 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 omitted.) (Rattagan v.

Uber Technologies, Inc. (2024) 17 Cal.5th

1, 43-44 [bold emphasis and underlining added].) As such, there are insufficient facts pled with the requisite specificity to give rise to a duty to disclose on behalf of Defendant. This argument is successful. The Court notes, however, that relationship between the manufacturer of medical devices in Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, cited by Defendant for the proposition that there is an insufficient transactional relationship, is different than the relationship between a car manufacturer and a car buyer.

In Bigler-Engler, the evidence did not show that the manufacturer directly advertised its products to consumers, nor that it derived any monetary benefit directly from the consumer's rental of the medical device. (Id. at 314.) Moreover, the economic loss rule does not bar Plaintiff's claim. The 1AC alleges as follows at P. 80: 80. The Engine Defect causes unsafe conditions in vehicles equipped with the 2.7L engine, including, but not limited to, the engine losing power while driving. These conditions present a safety hazard because they severely affect the driver's ability to control the vehicle, and substantially increase the likelihood that the engine will fail, lose power, and/or cut off during operation, thereby resulting in accidents involving property damage, personal injury and even death. (1AC, P. 80.)

This exposes Plaintiff to the risk of injuring other persons, and exposes Plaintiffs to liability to third parties. These facts would bring Plaintiff's' claim outside the economic loss rule for fraud which exposes the plaintiff to liability to third parties, as recognized in Robinson Helicopter and its progeny. The alleged fraud exposes Plaintiff to causing harm to third persons as a result of driving a vehicle with an undisclosed defect. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 326-29.

Because the application of the economic loss doctrine to plaintiffs' fraud cause of action depends on our interpretation of the California Supreme Court's recent decision in Robinson Helicopter Co. v. Dana Corp. (2004) 34 Cal.4th 979 [22 Cal. Rptr. 3d 352, 102 P.3d 268] (Robinson), we turn to this question first. Robinson was a breach of contract and fraud action. Dana and Robinson had contracted for Dana to supply a part for Robinson's helicopters. Their contract required the part to be manufactured to certain specifications and prohibited changes to the manufacturing process without approval.

When it delivered the parts, Dana provided Robinson with certificates required by the Federal Aviation Administration (FAA). These certificates asserted that the parts had been manufactured to the requisite specifications. (Robinson Helicopter Co. v. Dana Corp., supra, 34 Cal.4th at pp. 985-986.) After a couple of years, Dana changed its manufacturing process so that the parts did not meet Robinson's specifications and did not comport with the required certificates. However, Dana continued to supply the required certificates and did not tell Robinson about the change. (Id. at p. 986.)

After more than a year [*327] of supplying the nonconforming parts, Dana switched back to the original manufacturing process that met the required specifications. It did not notify Robinson of this change either. (Ibid.) Eventually, Robinson's helicopters began to experience

a high failure rate for this part. (Robinson Helicopter Co. v. Dana Corp., supra, 34 Cal.4th at p. 986.) It was only after Robinson complained to Dana about the high failure rate that Dana disclosed that the parts were nonconforming. (Id. at pp. 986-987.) The defective parts did not cause any physical injury to person, property or other components of the helicopters. However, Robinson was required to recall and replace the nonconforming parts. And Dana was not very cooperative in providing the information necessary to identify the nonconforming parts so that they could be rapidly replaced. (Ibid.)

Robinson incurred more than $ 1.5 million in expenses for replacement parts and employee time spent investigating the matter, identifying the nonconforming parts and replacing them. (Id. at p. 987.) The jury found that Dana had breached its contract with Robinson, breached the warranties, and committed fraud. (Robinson Helicopter Co. v. Dana Corp., supra, 34 Cal.4th at pp. 987-988.) It awarded Robinson nearly all of its claimed expenses as compensatory damages and also awarded Robinson $ 6 million in punitive damages. (Id. at p. 987.)

The Court of Appeal held that Robinson had no tort action (and therefore could not recover punitive damages) because it had suffered only economic loss. (Id. at p. 988.) The California Supreme Court granted review to decide that issue. (Ibid.) The court held that Dana's provision of false certificates of conformance supported a cause of action for fraud even absent physical injury. (Robinson Helicopter Co. v. Dana Corp., supra, 34 Cal.4th at p. 988.) Initially, the court noted that the economic loss rule was intended to separate contract from tort. (Ibid.) " '[T]he economic loss rule allows a plaintiff to recover in strict products liability in tort when a product defect causes damage to "other property", that is, property other than the product itself.

The law of contractual warranty governs damage to the product itself.' " (Id. at p. 989.) Robinson claimed that its fraud cause of action was permitted because it arose independently from the contract breach: the contract was breached by the supply of nonconforming parts; the fraud was providing false certificates claiming that the parts conformed. (Robinson Helicopter Co. v. Dana Corp., supra, 34 Cal.4th at p. 989.) Dana argued that its fraud was not independent of the breach of contract. (Id. at p. 992.)

The court concluded that, because Robinson had relied on the certificates and its lack of knowledge of the nonconformity had led to economic loss and exposed Robinson to liability if [*328] any of the affected helicopters failed and caused physical injury, the fraud was "independent" of the breach. (Id. at pp. 990-991.) The court then reasoned that the economic loss rule did not bar Robinson's fraud cause of action "because [the fraud cause of action was] independent of Dana's breach of contract." (Robinson Helicopter Co. v.

Dana Corp., supra, 34 Cal.4th at p. 991, italics added.) " 'Because of the extra measure of blameworthiness inhering in fraud, and because in fraud cases we are not concerned about the need for "predictability about the cost of contractual relationships," ... fraud plaintiffs may recover "out-of-pocket" damages in addition to benefit-of-the bargain damages.' " (Id. at p. 992, citation omitted.) " '... [a] party to a contract cannot rationally calculate the possibility that the other party will deliberately misrepresent terms critical to that contract.' ...

No rational party would enter into a contract anticipating that they are or will be lied to. 'While parties, perhaps because of their technical expertise and sophistication, can be presumed to understand and allocate the risks

relating to negligent product design or manufacture, those same parties cannot, and should not, be expected to anticipate fraud and dishonesty in every transaction.' ... Dana's argument therefore proposes to increase the certainty in contractual relationships by encouraging fraudulent conduct at the expense of an innocent party. No public policy supports such an outcome. [P.] Nor do we believe that our decision will open the floodgates to future litigation. Our holding today is narrow in scope and limited to a defendant's affirmative misrepresentations on which a plaintiff relies and which expose a plaintiff to liability for personal damages independent of the plaintiff's economic loss." (Robinson Helicopter Co. v.

Dana Corp., supra, 34 Cal.4th at p. 993, citations and fn. omitted.) The determination of whether the economic loss rule applies to plaintiffs' fraud cause of action depends on whether the California Supreme Court intended in Robinson to obviate the application of the economic loss rule to all intentional affirmative fraud causes of action where the fraud exposes the plaintiff to liability or the court intended to provide a narrow exception to the economic loss rule that applies only where that fraud cause of action also accompanies, but is independent of, a breach of contract cause of action.

We believe that the California Supreme Court's decision in Robinson precludes the application of the economic loss rule to any intentional affirmative fraud action where the plaintiff can establish that the fraud exposed the plaintiff to liability. The structure of the Robinson opinion supports this conclusion. The first part of the Robinson opinion was concerned with whether Dana's wrongful conduct constituted tortious conduct, not whether the economic loss rule [*329] applied to it. It was only after the court held that Dana's conduct was a tort independent of Dana's breach of contract that the court addressed the application of the economic loss rule. (Robinson Helicopter Co. v.

Dana Corp., supra, 34 Cal.4th at p. 991.) The analysis that followed suggested that fraud itself is immune from application of the economic loss rule because fraud is particularly blameworthy and therefore unlike both contract causes of action and products liability causes of action. Although the court suggested that its decision was a narrow one, its explicit limits did not exclude a fraud cause of action such as the one pleaded by plaintiffs. Here, plaintiffs alleged that defendants' affirmative misrepresentations about the dangers of low-level lead exposure, upon which they justifiably relied, had caused plaintiffs to fail to make timely efforts to prevent and treat low-level lead exposure.

The delay in instituting prevention and treatment caused more people to be exposed and increased the cost of treatment for those who had been exposed or continued to be exposed. In addition, plaintiffs, as the owners of numerous buildings containing unremediated lead, continued to expose people to low levels of lead that plaintiffs believed were not harmful due to defendants' misrepresentations. These people who were exposed to low levels of lead in plaintiffs' buildings may hold plaintiffs liable for the permanent damage to their bodies that no amount of prevention or treatment can now completely remediate.

Thus, plaintiffs' potential liability to these people is independent of the economic harm to plaintiffs from the additional costs of prevention and treatment. Accordingly, we conclude that the economic loss doctrine does not apply to plaintiffs' fraud cause of action, and we proceed to address whether defendants established that plaintiffs' fraud cause of action had accrued more than three years prior to the March 2000 filing of the original complaint. (Code Civ. Proc., Sec. 338, subd. (d) [three-year limitations period for fraud].)

(County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 326-29 [bold emphasis and underlining added].) The Supreme Court recently reaffirmed that exposure to risk of harm beyond the reasonable contemplation of the parties is an essential element: Therefore, we have reformed the question as follows (Cal. Rules of Court, rule 8.548(f)(5)): Can a plaintiff assert an independent claim of fraudulent concealment in the performance of a contract? The answer to this question is also yes.

A plaintiff may assert a tort claim for fraudulent concealment based on conduct occurring in the course of a contractual relationship, if the elements of the cause of action can be established independently of the parties' contractual rights and obligations and the tortious conduct exposes the plaintiff to a risk of harm beyond the reasonable contemplation of the parties when they entered into the agreement. (Rattagan, supra, 17 Cal.5th at 39 [bold emphasis and underlining added].) This ground is not persuasive.

However, as discussed elsewhere, the other grounds are persuasive. The motion for judgment on the pleadings as to the sixth cause of action is GRANTED with leave to amend. Plaintiff will only be given one final opportunity to amend. [1] Although the notice of motion indicates that Defendant is demurring the fifth cause of action for negligent repair and sixth cause of action for fraudulent inducement (Page 1:6 - 11), the Second Amended Complaint does not include those causes of action.

(c) If a qualified third-party dispute resolution process exists, and the buyer receives timely notification in writing of the availability of that qualified third-party dispute resolution process with a description of its operation and effect, the presumption in subdivision (b) may not be asserted by the buyer until after the buyer has initially resorted to the qualified third-party dispute resolution process as required in subdivision (d). Notification of the availability of the qualified third-party dispute resolution process is not timely if the buyer suffers any prejudice resulting from any delay in giving the notification.

If a qualified third-party dispute resolution process does not exist, or if the buyer is dissatisfied with that third-party decision, or if the manufacturer or its agent neglects to promptly fulfill the terms of the qualified third-party dispute resolution process decision after the decision is accepted by the buyer, the buyer may assert the presumption provided in subdivision (b) in an action to enforce the buyer's rights under subdivision (d) of Section 1793.2. The findings and decision of a qualified third-party dispute resolution process shall be admissible in evidence in the action without further foundation.

Any period of limitation of actions under any federal or California laws with respect to any person shall be extended for a period equal to the number of days between the date a complaint is filed with a third-party dispute resolution process and the date of its decision or the date before which the manufacturer or its agent is required by the decision to fulfill its terms if the decision is accepted by the buyer, whichever occurs later.

(Civ. Code, Sec. 1793.22(c).)

(a) At least 30 days prior to the commencement of an action seeking civil penalties under subdivision (c) of Section 1794 of the Civil Code, the consumer shall do all of the following: (1) Notify the manufacturer of the consumer's name, the accurate Vehicle Identification Number ("VIN") of the motor vehicle, and a brief summary of the repair history and problems with the motor vehicle. (2) Demand that the manufacturer repurchase or replace the motor vehicle. (Civ. Proc. Code, Sec. 871.24(a)(1) & (2).) [4] The Court may take judicial notice of agency websites. (See Harley-Davidson, Inc. v.

Franchise Tax Bd. (2015) 237 Cal.App.4th 193, 199 n.3; In re Israel O. (2015) 233 Cal.App.4th 279, 290 n.8.) [5] Civil Code Sec. 1793.22(c) provides in pertinent part as follows: Any period of limitation of actions under any federal or California laws with respect to any person shall be extended for a period equal to the number of days between the date a complaint is filed with a third-party dispute resolution process and the date of its decision or the date before which the manufacturer or its agent is required by the decision to fulfill its terms if the decision is accepted by the buyer, whichever occurs later. (Civ.

Code Sec. 1793.22(c).) | Home -->)" -->