Tarkington, Jeffrey vs. Kia America, Inc.

Case No.: VCU334514 Date: August 24, 2026 Time: 8:30 A.M. Dept. 9-The Honorable Nathan D. Ide Motion: (1) Demurrer and (2) Motion to Strike Tentative Ruling: (1) To sustain the demurrer with leave to amend; Plaintiff shall have ten (10) days to file an amended complaint; (2) To find the motion to strike moot by the ruling on demurrer.

Facts This matter was initially filed March 14, 2025. The first amended complaint alleges violations of Song Beverly, as well as fraudulent inducement.

Plaintiff alleges that on or about November 27, 2022, Plaintiff entered into a warranty contract with Defendant regarding a 2023 Kia Sportage, vehicle identification number KNDPZDAH4P7035366 ("Subject Vehicle"), which was manufactured and or distributed by Defendant. (FAC P.6.)

Plaintiff further alleges Defendant provided a number of warranties, that "[d]efects and nonconformities to warranty manifested themselves within the applicable express warranty period, including but not limited to engine defects, electrical defects; among other defects and non-conformities" and that such defects substantially impair the use, value or safety of the Subject Vehicle. (FAC P.P.10, 11, 12.)

As to the statute of limitations, Plaintiff alleges: "23. To the extent there are any statutes of limitation applicable to Plaintiff's claims - including, without limitation, the express warranty and implied warranty -- the running of the limitation periods have been tolled by, inter alia, the following doctrines or rules: equitable tolling, the discovery rule, equitable estoppel, the repair rule, and/or class action tolling (e.g., the American Pipe rule).

24. Plaintiff discovered Defendant's wrongful conduct alleged herein shortly before the filing of the complaint, as the Vehicle continued to exhibit symptoms of defects following KIA's unsuccessful attempts to repair them. However, KIA failed to provide restitution pursuant to the Song ~ Beverly Consumer Warranty Act." (FAC P.P.23, 24.)

As to fraudulent inducement, Plaintiff alleges Defendant concealed a known defect "that the 1.6L engine and/or its related components installed in the Subject Vehicle suffer from one or more defects that can result in loss of power, stalling, engine running rough, engine misfire(s), failure or replacement of the engine (the "Engine Defect")." (FAC P.P.46, 47.)

Further, that "The Engine Defect causes unsafe conditions in vehicles equipped with the 1.6L 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." (FAC P.49.)

Additionally, that Defendant knew or should have known of the Engine Defect "through its exclusive knowledge of non-public, internal data about the Engine Defect, including: pre- releasing testing data; early consumer complaints about the Engine Defect to Defendant KIA's dealers who are KIA's agents for vehicle repairs; dealership repair orders; testing conducted in response to those complaints; and other internal sources of information possessed exclusively by Defendant KIA and its agents." (FAC P.P.51, 57.)

Further, that "The Engine Defect was not known or reasonably discoverable by the Plaintiff before purchase and Plaintiff did not know about KIA's fraudulent conduct alleged herein until Plaintiff made a reasonable number of attempts to repair the Engine Defect." (FAC P.63.)

Defendant demurrers to the fifth cause of action for fraud, arguing it lacks the requisite specificity, failure to plead actual concealment, failure to allege misrepresentations, contradictory pleading, failure to allege a duty to disclose, and that application of the economic loss rule precludes the cause of action. Further, Defendant seeks to strike the references to punitive damages.

In opposition, Plaintiff argues, as discussed below in greater detail, the fraud cause of action has been pled sufficiently.

Authority and Analysis (1) Demurrer The purpose of a demurrer is to test whether a complaint "states facts sufficient to constitute a cause of action upon which relief may be based." (Young v. Gannon (2002) 97 Cal.App.4 th 209, 220.

To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.)

The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if "the defendants negate any essential element of a particular cause of action." (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4 th 857, 879-80)

To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4 th 634, 638.)

It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer. (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062) But "doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

Concealment "As with all fraud claims, the necessary elements of a concealment/suppression claim consist of '"(1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage."'" [citation omitted]" (Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 843.)

"Suppression of a material fact is actionable when there is a duty of disclosure, which may arise from a relationship between the parties, such as a buyer-seller relationship. [citation omitted]" (Id.)

Specificity and Actual Concealment Unlike most causes of action where the "the policy of liberal construction of the pleadings," fraud requires particularity, that is, "pleading facts which show how, when, where, to whom, and by what means the representations were tendered." (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Every element of a fraud cause of action must be alleged both factually and specifically. (Cooper v. Equity General Insurance (1990) 219 Cal.App.3d 1252, 1262.)

Dhital, supra, 84 Cal.App.5th at 844 is instructive on the issue of specificity at the pleading stage, providing in relevant part: "Plaintiffs alleged the above elements of fraud in the SAC. As we have discussed, plaintiffs alleged the CVT installed in numerous Nissan vehicles (including the one plaintiffs purchased) were defective; Nissan knew of the defects and the hazards they posed; Nissan had exclusive knowledge of the defects but intentionally concealed and failed to disclose that information; Nissan intended to deceive plaintiffs by concealing known transmission problems; plaintiffs would not have purchased the car if they had known of the defects; and plaintiffs suffered damages in the form of money paid to purchase the car....

Nissan also contends plaintiffs did not provide specifics about what Nissan should have disclosed. But plaintiffs alleged the CVT were defective in that they caused such problems as hesitation, shaking, jerking, and failure to function. The SAC also alleged Nissan was aware of the defects as a result of premarket testing and consumer complaints that were made both to National Highway Traffic Safety Administration and to Nissan and its dealers. It is not clear what additional information Nissan believes should have been included.

We decline to hold (again in the absence of a more developed argument on this point) that plaintiffs were required to include in the SAC more detailed allegations about the alleged defects in the CVT. We conclude plaintiffs' fraud claim was adequately pleaded." (Dhital, supra, 84 Cal.App.5th at 844.)

Further, the Court notes less specificity is required if it appears from the nature of allegations that defendant must necessarily possess full information, or if the facts lie more in the knowledge of opposing parties. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384-1385.

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.'" (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.)

However, unless the parties were in a fiduciary relationship, the other three circumstances "presupposes the existence of some other relationship between the plaintiff and defendant in which a duty to disclose can arise." (Id. at p. 337.)

"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." (Id.)

On this issue, the court in Dhital, supra, 84 Cal.App.5th at 844 noted: "In its short argument on this point in its appellate brief, Nissan argues plaintiffs did not adequately plead the existence of a buyer-seller relationship between the parties, because plaintiffs bought the car from a Nissan dealership (not from Nissan itself). At the pleading stage (and in the absence of a more developed argument by Nissan on this point), we conclude plaintiffs' allegations are sufficient. Plaintiffs alleged that they 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. In light of these allegations, we decline to hold plaintiffs' claim is barred on the ground there was no relationship requiring Nissan to disclose known defects." (Id.)

Here, Plaintiff fails to allege the facts found sufficient by Dhital as to allegations that Plaintiffs bough the car from a Kia dealership and that Kia's authorized dealerships are agents for purposes of the sale.

Additionally, the Court does find the allegations that the repair dealerships were both instructed to perform superficial repairs to conceal the Engine Defect as a strategy as well as failed to inform those same dealers of the Engine Defect contradictory.

However, the Court does find the allegations as to the Engine Defect and exclusive knowledge by Kia sufficiently pled.

Therefore, based on the arguments as to transactional relationship and contradictory allegations, the Court sustains the demurrer to the fifth cause of action for concealment.

Economic Loss Doctrine As to the economic loss doctrine, "economic loss consists of damage for inadequate value, costs of repair and replacement of the defective product or consequent loss of profits-without any claim of personal injury or damages to other property." (Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 118, 1130.)

As noted above, the economic loss doctrine, in some cases, bars a tort action in the absence of personal injury or physical damage to property. (Robinson, supra, 34 Cal.4th 979, 984.)

"The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can recover harm above and beyond a broken contractual promise." (Id. at 988.)

The holding of Robinson, permitting both recover under fraud and contract, "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." (Id. at 993.)

The economic loss rule, therefore, does not bar recovery as to a claim for fraudulent inducement. (Id. at 990; see also Dhital, supra, 84 Cal.App.5th at 838.)

Therefore, the Court does not find the economic loss doctrine would bar a properly pled cause of action for concealment.

Conclusion

A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4 th 1219, 1226.)

Therefore, the Court sustains the demurrer with leave to amend. Plaintiff shall have ten (10) days to file an amended complaint.

(2) Motion to Strike The motion to strike seeks to eliminate the allegations related to punitive damages as to the concealment cause of action.

Based on the Court's ruling on the demurrer and leave to amend, the Court finds the motion to strike moot.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary.

The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

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