Marsh vs. General Motors LLC

If a motion for judgment on the pleadings is granted, it may be granted with or without leave to amend. (Code Civ. Proc. § 438(h)(1).) If leave to amend is granted, the party against whom the motion is granted must be given 30 days to file an amended pleading. (Code Civ. Proc. § 438(h)(2).)

First Through Fourth Causes of Action Civil Code section 1794 states, in relevant part: “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.” (Civil Code § 1794(a).) “The measure of the buyer’s damages in an action under this section shall include the rights of replacement or reimbursement set forth in subdivision (d) of Section 1793.2, among other damages.” (Civil Code § 1794(b).) Civil Code section 1793.2(d)(2) provides, “[i]f the manufacturer or its representative in this state is unable to service or repair a new motor vehicle, as that term is defined in paragraph (2) of subdivision (e) of Section 1793.22, to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle . . . or promptly make restitution to the buyer . . . .” (Civil Code section 1793.2(d)(2).)

“Section 1793.2, subdivision (d)(2) gives new car buyers what is known as a refund-or-replace remedy: It requires manufacturers to ‘promptly replace’ a defective new motor vehicle or ‘promptly make restitution’ to the buyer when the manufacturer is ‘unable to service or repair a new motor vehicle, as that term is defined in paragraph (2) of subdivision (e) of Section 1793.22, to conform to the applicable express warranties after a reasonable number of attempts.’ ” (Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189, 195.) “[A] motor vehicle purchased with an unexpired manufacturer’s new car warranty does not qualify as a ‘motor vehicle sold with a manufacturer’s new car warranty’ under section 1793.22, subdivision (e)(2)’s definition of ‘new motor vehicle’ unless the new car warranty was issued with the sale.” (Id. at p. 196.)

Here, the Complaint alleges, “[o]n or about July 3, 2021, Plaintiff entered into a warranty contract with [GM] regarding a 2018 GMC Yukon, vehicle identification number 1GKS1BKC8JR172187 [], which was manufactured and or distributed by [GM].” (Complaint, ¶ 6.) The Complaint purports to attach a copy of the warranty contract as Exhibit A. (Complaint, ¶ 7.) Exhibit A consists of a document dated 2018 and entitled, “Limited Warranty and Owner Assistance Information.”

While Plaintiff contends that GM issued a certified pre-owned warranty with this sale and chose to offer a new warranty with the sale of the subject 2018 GMC Yukon, these contentions are extrinsic to the Complaint. No such allegations are made in the Complaint, nor does Exhibit A support such assertion. A demurrer can only be used to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

Based on the foregoing, the first through fourth causes of action brought pursuant to Civil Code section 1794 fail to state facts sufficient to constitute causes of action. The motion for judgment on the pleadings as to the first through fourth causes of action is GRANTED, with 30 days’ leave to amend.

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Fifth Cause of Action for Fraudulent Inducement – Concealment\ Statute of Limitations In order for the statute of limitations bar to be raised by demurrer, it is not enough that the action may be time-barred, it must appear that the action is time-barred. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) “A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations.” (Roman v.

County of Los Angeles (2000) 85 Cal.App.4th 316, 324, citation omitted.) “The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred. [Citation.] If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment....’ [Citation.]” (Id. at pp. 324-325.)

Code of Civil Procedure section 338, subdivision (d), states, “Within three years: . . . [¶] (d) An action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” “A cause of action for fraud accrues when the injured party could have discovered the fraud or mistake through the exercise of reasonable diligence [citations], and actual knowledge is not required for accrual if ‘a plaintiff knows facts that should raise suspicion and trigger a further investigation.’ [Citation.]” (Medallion Film LLC v.

Loeb & Loeb LLP (2024) 100 Cal.App.5th 1272, 1291.) An action for fraud “accrues when a plaintiff first learns that a fraud may have occurred, so long as he or she could have confirmed the fraud through further investigation.” (Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 282 [finding action for fraud accrued when it was learned that there were questionable title documents related to an assignment of property].)

Here, the Complaint alleges that Plaintiff entered into a warranty contract with GM for the subject 2018 GMC Yukon on or about July 3, 2021. (Complaint, ¶ 6.) The Complaint alleges, “Defects and nonconformities to warranty manifested themselves within the applicable express warranty period, including but not limited to engine defects, transmission defects, climate control defects, electrical defects; among other defects and non-conformities.” (Complaint, ¶ 11.) The Complaint also alleges: “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).” (Complaint, ¶ 23.)

The Complaint additionally alleges: “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 GM's unsuccessful attempts to repair them.” (Complaint, ¶ 24.) The Complaint was filed on January 28, 2025.

These allegations do not clearly and affirmatively show that fifth cause of action is barred by the three-year statute of limitations. Thus, motion for judgment on the pleadings to the fifth cause of action on the ground that it is barred by the statute of limitations is DENIED.

Duty to Disclose “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) plaintiff sustained damage as a result of the concealment or suppression of the material fact. [Citation.]” (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 40 (“Rattagan”).)

“A duty to disclose a material fact can arise if (1) it is imposed by statute; (2) the defendant is acting as plaintiff's fiduciary or is in some other confidential relationship with plaintiff that imposes a disclosure duty under the circumstances; (3) the material facts are known or accessible only to defendant, and defendant knows those facts are not known or reasonably discoverable by plaintiff (i.e., exclusive knowledge); (4) the defendant makes representations but fails to disclose other facts that materially qualify the facts disclosed or render the disclosure misleading (i.e., partial concealment); or (5) defendant actively conceals discovery of material fact from plaintiff (i.e., active concealment).” (Rattagan, supra, 17 Cal.5th at p. 40.) “Circumstances (3), (4), and (5) presuppose a preexisting relationship between the parties, such as ‘between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement. [Citation.]

All of these relationships are created by transactions between parties from which a duty to disclose facts material to the transaction arises under certain circumstances.’ [Citation.]” (Id. at pp. 40-41.) Circumstances (3), (4), and (5) are at issue here.

Plaintiff argues that Plaintiff has alleged that he went to a GM dealership and purchased the subject 2018 GMC Yukon, as well that GM communicates with car buyers directly through advertising, websites, window stickers, and other marketing materials which provides opportunity for GM to make disclosures of material fact, but no such allegations are contained in the Complaint.

Instead, the Complaint alleges only that Plaintiff entered into a warranty contract with GM regarding the subject 2018 GMC Yukon, and that GM concealed its knowledge of the “defective 5.3L Engine in its marketing materials, relied upon by Plaintiff.” (Complaint, ¶¶ 6, 66.) Insufficient facts are pled to support that a buyer-seller relationship between Plaintiff and GM. Consequently, Plaintiff fails to plead facts establishing GM had a duty to disclose. Accordingly, the Court GRANTS, with 30 days’ leave to amend, the motion for judgment on the pleadings as to the fifth cause of action on this basis.

Sufficiency of Pleading “Fraud, including concealment, must be pleaded with specificity. [Citation.]” (Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 843-844 (“Dhital”).) To survive demurrer, plaintiff must plead facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614.) Plaintiff is held to an even higher standard when alleging a fraud claim against a corporate defendant.

In that case, plaintiff must “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.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) However, this level of specificity may not be required in cases involving nondisclosure. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) “One of the purposes of the specificity requirement is ‘notice to the defendant, to “furnish the defendant with certain definite charges which can be intelligently met.” ’ [Citation.]

Less specificity should be required of fraud claims ‘when “it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy,” [citation]; “[e]ven under the 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 . . . .” ’ [Citation.]” (Ibid.)

“A plaintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true [citation], and thus a pleading made on information and belief is insufficient if it merely asserts the facts so alleged without alleging such information that leads the plaintiff to believe that the allegations are true.” (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158, emphasis in original, internal quotations and citations omitted.)

The Court of Appeal in Dhital found that the plaintiffs sufficiently alleged the elements for fraudulent inducement by concealment with sufficient specificity where “plaintiffs alleged the CVT transmissions 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.” (Dhital, supra, 84 Cal.App.5th at pp. 843-844.)

Here, the fifth cause of action alleges, “Plaintiff is informed and believes, and based thereon alleges, that the 5.3L 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’).” (Complaint, ¶ 47.) It is additionally alleged on information and belief, that the Engine Defect causes premature wear to the 5.3L Engine and engine-related components, such as premature engine failure, requiring expensive repairs, and that prior to the sale of the subject 2018 GMC Yukon, GM had exclusive knowledge of the alleged Engine Defect through non-public, internal data including pre-releasing testing data, early consumer complaints about the Engine Defect to GM’s dealers who are GM’s agents for vehicle repairs, dealership repair orders, testing conducted in response to those complaint, but actively concealed the Engine Defect and failed to disclose this defect to Plaintiff at the time of purchase of the subject vehicle or thereafter. (Complaint, ¶¶ 50-51, 56-59.)

While Plaintiff has made allegations akin those that were found sufficient in Dhital, Dhital did not involve an argument that Plaintiff’s allegations were made on “information and belief” and did not allege the information that led the plaintiff to believe that the allegations were true. Plaintiff, here, makes a number of allegations only “information and belief.” In this regard, Plaintiff has not sufficiently alleged the information that leads the Plaintiff to believe that the subject 2018 GMC Yukon suffered from the alleged Engine Defect, or that leads Plaintiff to believe that that GM had prior, exclusive knowledge of the alleged Engine Defect based on pre-release testing data.

In addition, because the Complaint does not allege facts showing a transactional relationship sufficient to support a duty to disclose, intent to induce reliance and justifiable reliance is not sufficiently pled.

Economic Loss Rule The Court finds Rattagan to be distinguishable and Dhital to be controlling.

Rattagan is not a Song-Beverly case, and the California Supreme Court distinguished Rattagan from Dhital stating: “Rattagan's tort claims are, of course, based on alleged conduct committed during the contractual relationship but purportedly outside the parties' chosen rights and obligations. This court has granted review in two other cases — Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 300 Cal.Rptr.3d 715, review granted Feb. 1, 2023, S277568 and Kia America v. Superior Court (Feb. 3, 2022, D079858) [nonpub. opn.], review granted Apr. 20, 2022, S273170 — both of which involve claims of fraudulent inducement by concealment claims as well as the potential interplay with remedies available under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1791 et seq.). We do not address these issues here.” (Id. at p. 41, fn. 12.)

Under California law, the economic loss rule does not bar a plaintiff’s claim for fraudulent inducement by concealment, and fraudulent inducement claims fall within an exception to the economic loss rule recognized in Robinson. (Dhital, supra, 84 Cal.App.5th at p. 843.) “A plaintiff may assert a fraudulent concealment clause of action based on conduct occurring in the course of a contractual relationship if the elements of the claim 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 contract.” (Rattagan, supra, 17 Cal.5th at p. 13.) Based on the above authorities, the economic loss rule does not outright bar a plaintiff’s claim for fraudulent inducement-concealment.

The Court of Appeal in Dhital concluded as follows:

Applying Robinson here (and cognizant that our Supreme Court may soon provide additional guidance), we conclude plaintiffs’ claim for fraudulent inducement by concealment is not subject to demurrer on the ground it is barred by the economic loss rule. Robinson left undecided whether concealment-based claims are barred by the economic loss rule. What follows from its analysis, however, is that concealment- based claims for fraudulent inducement are not barred by the economic loss rule. The reasoning in Robinson affirmatively places fraudulent inducement by concealment outside the coverage of the economic loss rule.

We now hold that the economic loss rule does not cover such claims. First, as discussed, Robinson identified fraudulent inducement as an existing exception to the economic loss rule, before it proceeded to analyze the particular claims at issue in that case relating to fraud during the performance of a contract. (Robinson, supra, 34 Cal.4th at pp. 989–990.) For fraudulent inducement and the other existing exceptions listed in Robinson, ” ’the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm.’ ” (Id. at p. 990.)

(Dhital, supra, 84 Cal.App.5th at pp. 724–725, emphasis added.)

The Court of Appeal in Dhital further reasoned “that independence is present in the case of fraudulent inducement (whether it is achieved by intentional concealment or by intentional affirmative misrepresentations), because a defendant’s conduct in fraudulently inducing someone to enter a contract is separate from the defendant’s later breach of the contract or warranty provisions that were agreed to.” (Dhital, supra, 84 Cal.App.5th at p. 841.) Thus, the Court of Appeal found that the plaintiffs’ fraudulent inducement claim alleged presale conduct by Nissan (concealment) that was distinct from Nissan’s alleged subsequent conduct in breaching its warranty obligations, and concluded that “under California law, the economic loss rule does not bar plaintiffs’ claim here for fraudulent inducement by concealment”; that fraudulent inducement claims fall within an exception to the economic loss rule recognized in Robinson, and that the plaintiffs alleged fraudulent conduct that was independent of Nissan’s alleged warranty breaches. (Id. at pp. 841, 843.)

Here, applying Dhital, the economic loss rule does not bar Plaintiff’s fifth cause of action for fraudulent inducement – concealment. Plaintiffs’ fraudulent inducement claim alleges presale conduct by GM in concealing and failing to disclose material facts relating to the Engine Defect that were known to prior to the sale of the subject 2018 GMC Yukon, which is distinct from GM’s alleged subsequent conduct in breaching its warranty obligations. (Complaint, ¶¶ 51, 53-54, 56, 62.) The motion for judgment on the pleadings based on the economic loss rule is DENIED.

Plaintiff to file and serve a First Amended Complaint within 30 days, consistent with the ruling above.

GM to give notice.

12. 30-2024-01432573 1. Motion for Summary Judgment and/or Adjudication

Cho vs. Lennar Homes NO TENTATIVE YET, PLEASE CHECK BACK. of California, LLC

13. 30-2024-01379003 1. Motion for Summary Judgment and/or Adjudication 2. Motion for Terminating Sanctions Dib vs. Daher 3. Motion to Vacate

Motion 1- Defendant Hien Nguyen’s Motion for Summary Judgment/Adjudication

Defendant Hien Nguyen (“Defendant”) moves for summary judgment or adjudication in her favor as to the: (1) first cause of action for fraudulent transfers in violation of Civil Code section 3439.04, (2) second cause of action for conspiracy to fraudulently convey property, (3) third cause of action for aiding and abetting fraudulent conveyance of property, (4) fourth cause of action for accounting, and (5) fifth cause of action for imposition of a constructive trust and/or preliminary and permanent injunction, and accounting.

Plaintiffs Joseph Dib and R&R Life is Amazing (“Plaintiffs”) oppose the motion.

Based on applicable law, and as set forth herein, the Motion is GRANTED in its entirety.

“Summary judgment is properly granted if ‘there is no triable issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’” (Mitchell v. Hutchinson (2025) 112 Cal.App.5th 1012, 1016 [citing Code Civ. Proc., § 437c, subd. (c)].) “A defendant seeking summary judgment must show that the plaintiff cannot establish at least one element of the cause of action.” (Id. [citing Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618 and Code Civ. Proc., § 437c, subd. (p)(2)].) “If the defendant makes this showing, ‘the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.’” (Id. [citing Code Civ. Proc., § 437c, subd. (p)(2)].)

1. First Cause of Action for Fraudulent Transfers in Violation of Civil Code Section 3439.04

Defendant Nguyen argues that she is entitled to summary adjudication on the first cause of action for fraudulent transfers in violation of Civil Code section 3439.04 because she “purchased the Subject Property in good faith and for a reasonably equivalent value pursuant to Civil Code section 3439.08, which is a complete defense to Plaintiffs’ Cause of Action.”