Kevin Gerhardt vs. General Motors LLC

34-2020-00281778-CU-BC-GDS: Kevin Gerhardt vs. General Motors LLC, a Delaware Limited Liability Company 05/07/2025 Hearing on Motion - Other to Lift Stay in Department 54

Tentative Ruling

NOTICE:

PLEASE TAKE NOTICE that any oral arguments regarding this tentative ruling will be heard in Department 28, located at 720 9th Street, Sacramento, CA, the Hon. Richard C. Miadich presiding. Should argument be requested by either party, the requesting party must call the Law and Motion Oral Argument Request Line at (916) 874-2615, by 4:00 p.m. the Court day before the hearing, request the hearing, and notify the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

Any party who wishes to contest the tentative ruling below must:

(1) request a hearing by calling the Law and Motion Oral Argument Request Line at (916) 874-2615, by 4:00 p.m. the Court day before the noticed hearing date, and leave a voicemail message (a) identifying themselves as the party requesting oral argument; (b) indicating the specific matter/motion for which they are requesting oral argument; and (c) confirming that they have notified the opposing party of their intention to appear; and

(2) advise the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

If a hearing is not requested by 4:00 p.m. on the Court day before the noticed hearing date, the tentative ruling will become the final order of the Court.

If a hearing is requested, the Court prefers in-person attendance by the parties. However, parties may appear by Zoom unless the Court specifically orders in-person attendance. Parties choosing to appear by Zoom are reminded, however, that a Zoom appearance is still a formal appearance before the Court. Parties appearing via Zoom should do so from a quiet location, free from undue distractions, and wear attire suitable for an in-person court appearance.

The parties may join the Zoom session for hearing on the tentative ruling by audio and/or video through the following link:

https://saccourt-ca-gov.zoomgov.com/my/sscdept28

SIP Address:

16039062174@sip.zoomgov.com

(833) 568-8864

34-2020-00281778-CU-BC-GDS: Kevin Gerhardt vs. General Motors LLC, a Delaware Limited Liability Company 05/07/2025 Hearing on Motion - Other to Lift Stay in Department 54

ID: 16039062174

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.Pdf

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING

Plaintiffs Kevin Gerhardt and Performance Trailers, Inc.’s (collectively, “Plaintiffs”) motion to lift stay is UNOPPOSED and ruled upon as follows.

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact opposing counsel and advise of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact opposing counsel prior to the hearing, moving counsel is ordered to appear at the hearing by Zoom or in person.

This is a Lemon Law action arising from Plaintiffs’ purchase of an allegedly faulty 2016 Chevrolet Silverado on April 25, 2018. Plaintiffs filed their original complaint on July 14, 2020, alleging breach of warranty claims under the Beverly Consumer Warranty Act against Defendant General Motors, LLC (“Defendant”). Defendant demurred and Plaintiff filed a first amended complaint (“FAC”). The Court sustained Defendant’s demurrer and motion to strike punitive damages from the FAC.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2020-00281778-CU-BC-GDS: Kevin Gerhardt vs. General Motors LLC, a Delaware Limited Liability Company 05/07/2025 Hearing on Motion - Other to Lift Stay in Department 54

On September 16, 2021, Plaintiffs filed a second amended complaint (“SAC”), including a cause of action for fraudulent inducement by concealment. Defendant again responded with a demurrer and motion to strike. Plaintiff opposed. On March 16, 2022, the date scheduled for the hearing for Defendant’s challenges to the SAC, the Court issued minute orders staying the demurrer and motion to strike “pending the California Supreme Court’s ruling on the question certified to it by Rattagan v. Uber Technologies (9th Cir. Dec. 6, 2021) 2021 U.S.App. LEXIS 35874.” (03/16/2022 Minute Orders, p. 1.) The Court also stated, “Counsel are directed to place this matter back on calendar for hearing after the Supreme Court’s opinion in Rattagan is issued.” (Ibid.)

There appears to be some confusion as to the breadth of the Court’s stay order, as Plaintiffs assert that the entire case has been stayed. This is incorrect. The Court stayed the demurrer and the motion to strike only, and further noted, “This ruling shall not be construed as a stay of any other matter in this case.” (03/16/2022 Minute Orders, p. 1.) On October 7, 2022, the case management conference for this case was dropped on the basis that the March 16, 2022 order stayed the entire case. Given this, Plaintiffs’ apparent confusion is understandable. Additionally, while the stay only applied to the demurrer and motion to strike, its effect was similar to a stay of the entire case, as it left the pleadings unsettled and thus precluded the parties from obtaining a trial date.

Plaintiffs previously moved to lift the stay, but the motion was denied on August 1, 2024 as no opinion had been issued from the Supreme Court in the Rattagan case. The Court also noted that the March 16, 2022 order did not require Plaintiffs to move for an order to lift the stay, since the order directed the parties to place the demurrer and motion to strike back on calendar. Despite this, Plaintiffs have filed another motion. The Court observes that the onus would appear to be on Defendant to place the demurrer and motion to strike back on calendar, as they were filed by Defendant. While Plaintiffs’ motion does not show any attempts were made by Plaintiffs’ counsel to have Defendant place the matters back on calendar, it is again understandable that Plaintiffs filed this motion.

On August 22, 2024, the Supreme Court issued an opinion in Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1. Thus, Plaintiffs’ motion is GRANTED.

Given the amount of time that has passed since the demurrer and motion to strike the SAC were filed, the Court finds it would be beneficial to have new motion, opposition, and reply papers. Thus, the demurrer and motion to strike the SAC filed by Defendant on October 13, 2021 are DROPPED. Defendant is directed to file and serve a responsive pleading to the SAC within 10 days of this order. If Defendant intends to file a demurrer and/or motion to strike, Defendant is

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2020-00281778-CU-BC-GDS: Kevin Gerhardt vs. General Motors LLC, a Delaware Limited Liability Company 05/07/2025 Hearing on Motion - Other to Lift Stay in Department 54

directed to obtain the earliest hearing date available.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)