Duran v. General Motors, LLC

# Case Name Case Name __ Tentative Tentative

50. | Duran 50. Duran v. v. Defendant General General Motors, Motors, LLC’s LLC’s Demurrer to the First General General Amended Complaint (“FAC”) Amended (“FAC”) is OVERRULED. OVERRULED. Motors, LLC 7 Defendant GM Defendant GM demurs demurs to to the fourth and the fourth and fifth fifth causes causes of of action action 2025- 2025- of the FAC. the FAC. 01493533 Fourth Cause Fourth Cause of Action – of Action - Breach Breach of of the the Implied Implied Warranty of Warranty of Merchantability Merchantability

“The “ The statute of limitations for breaches of the implied implied warranty of merchantability merchantability is four years.” years.” (Montoya v. v. Ford Ford Motor Company Motor Company (2020) (2020) 46 Cal.App.5th Cal.App.5th 493, 495.) Courts applied Commercial have applied Commercial Code section 2725 to claims claims arising from implied warranty. from an implied warranty. (Mexia v. v. Rinker Boat Co., Co., Inc. (2009) 174 Inc. (2009) 174 Cal.App.4th Cal.App.4th 1297, 1297, 1305-1306.) 1305-1306.) The The future performance exception future performance exception articulated articulated within within Commercial Commercial Code section 2725, subdivision subdivision (2), “must “must be narrowly construed.” construed.” (Cardinal Health 301, 301, Inc. Inc. v.v. Tyco Corp. (2008) 169 Electronics Corp. 169 Cal. Cal. App. App. 4 4t* 116, 130.) th 116, 130.) The

exception exception ““applies applies only whenwhen the seller has expressly expressly agreed agreed to warrant its to warrant its product product forfor aa specific specific and and defined defined period period of of time.” time. ” (Ibid.) Consequently, Consequently, the California Court of Appeal the California interpreted and has interpreted and applied applied the future performance performance exception exception almost exclusively almost exclusively inin the express warranty the express warranty context. context. (Id. (Id. at at pp. 129-131 pp. 129-131 (citing (citing cases)). cases)).

To emphasize this To emphasize point, the this point, the Cardinal Health court stated Cardinal Health stated that, “ “[b]ecause [b]ecause an an implied implied operation of law rather than warranty is one that arises by operation than by an express an express agreement agreement of of the the parties, parties, courts courts have have consistently consistently held [that] held [that] it it is is not not aa warranty warranty that explicitly extends that explicitly extends toto future future performance of the performance goods.” (Id. the goods.” (Id. at pp. pp. 133-134.) 133-134.)

Notably, however, however, “ “[o]ne [o]ne innovation innovation of the Song-Beverly Song-Beverly Act provision for a is an express provision a duration of the implied warranty of merchantability.” merchantability.” (Mexia v. v. Rinker Rinker Boat Boat Co., Co., Inc. Inc. (2009) (2009) 174 Cal.App.4th 174 Cal.App.4th 1297, 1297, 1304.) 1304.) With With respect respect to Song-Beverly to Song-Beverly Act claims, ““[t]he [t]he duration duration of the implied implied warranty of merchantability and where present merchantability present the implied warranty of fitness shall be fitness shall be coextensive coextensive in in duration duration with with an an express express warranty which warranty which accompanies accompanies the consumer goods, the consumer goods, provided provided the duration of the the duration reasonable.” (Civ. the express warranty is reasonable.” (Civ.

Code, § Code, § 1791.1, 1791.1, subd. subd. (c).) (c).)

Based on Based on the above, the the above, the reasoning reasoning articulated articulated in in Cardinal Cardinal Health does Health does not not appear appear applicable: applicable: In In the the context context of of aa Song- Song- Beverly claim, claim, an implied implied warranty has a ““specific specific and defined period period of time. time.” ” The Fourth Fourth Cause of Action Action accrued accrued “ “when when

the breach the breach [was] [was] or should should have been been discovered.” discovered.” (Cal. (Cal. U. U. Com. Code, § 2725, subd. Com. subd. (2).) (2).)

“A “A plaintiff whose complaint shows on on its face that his claim claim would be barred without the benefit of the discovery would discovery rule must specifically plead facts to show (1)(1) the time and and manner of (2) the discovery and (2) the inability to have made earlier discovery diligence. The despite reasonable diligence. burden is on The burden on the the plaintiff to show diligence, and conclusory allegations will will not withstand withstand demurrer.” demurrer.” (E-Fab, (E-Fab, Inc.

Inc. v. v. Accountants, Accountants, Inc. Inc. Services (2007) Services (2007) 153 Cal.App.4th 153 Cal.App.4th 1308, 1308, 1319.) 1319.) Here, Plaintiffs obtained the Vehicle Here, on August 25, Vehicle on 25, 2019. 2019. Thereafter, experienced defects and Thereafter, Plaintiffs allegedly experienced and non- non- including, conformities in the Vehicle including, but not limited to, harsh to, gear, jerking shifts, slipping in gear, jerking or jerky shifts, shifts, abnormal abnormal loudloud misfire, and noises, check engine lights, engine misfire, and the windows do not do not function. function. (FAC, (FAC, ¶4 12.) 12.)

From From December December 28, 28, 2019, 2019, toto October 7, October 7, 2024, 2024, Plaintiffs Plaintiffs presented presented their their Vehicle Vehicle toto Defendant’s Defendant’s authorized authorized repair facilities. facilities. (FAC, (FAC, ¶¶ 9] 13-16.) 13-16.) As to each each of these instances, instances, the FAC alleges the facility “advised “advised thethe Vehicle had had been been repaired repaired and and was working working as designed.” designed.” (Id.) (Id.)

Plaintiffs allege they had no way of uncovering Defendant’s Defendant’s deception regarding deception regarding the performed the repairs because Defendant performed various diagnostics various diagnostics and/or and/or undertook undertook repairs repairs and and claimed claimed that that nothing was nothing was wrong wrong with with the Vehicle. (FAC, the Vehicle. (FAC, ¶¶ 9] 18-19.) 18-19.)

Additionally, regardless of whether delayed delayed discovery discovery is applied, the tolling. Commercial the repair allegations support tolling. Commercial Code Code section 2725 makes clear that this section “ “does does not alter the the law on on tolling of the statute of limitations....” limitations....” (Cal. (Cal. U. U. Com. Code, Com. Code, §§ 2725, 2725, subd. subd. (4).) (4).)

““Tolling Tolling during during a a period period of repairs generally rests upon the estoppel to assert the statute of same legal basis as does an estoppel limitations, i.e., limitations, i.e., reliance reliance by by the the plaintiff plaintiff on on the the words words or or actions of the the defendant that repairs repairs will will be made.” made.” (Cardinal Health, supra, Health, supra, 169 169 Cal.App.4th Cal.App.4th at pp.pp. 133-134; 133-134; See also Aced v. Hobbs-Sesack Plumbing Co. v. Co. (1961) (1961) 55 Cal.2d Cal.2d 573, 585 [“The [‘The statute of limitations is tolled tolled where one who has breached a breached a warranty warranty claims claims that the defect that the defect can can be be repaired repaired and and attempts to make repairs.”].) repairs.”].)

In this case, In case, the and the FAC alleges consistent repairs and representations that defects were cured representations cured between December 28, 2019, 28, 2019, and and October October 7, 7, 2024. 2024. Such Such repair repair allegations allegations support tolling, support tolling, and and making making the the filing filing of of the the FAC FAC timely timely for for purposes of a a demurrer. demurrer. (Geneva Towers Ltd. Ltd. Partnership Partnership v. v. of San Francisco City of Francisco (2003) (2003) 29 Cal.4th Cal.4th 769, 781 781 [any [any statute

of limitations challenge challenge must ““clearly clearly and and affirmatively appear complaint; it is not enough that the on the face of the complaint; complaint shows that the action may be barred.”] barred.”] emphasis added; internal added; internal citation citation omitted.)

Accordingly, Accordingly, the action is the demurrer to the fourth cause of action OVERRULED. OVERRULED.

Fifth Cause Fifth Cause of Action – of Action - Fraudulent Fraudulent Inducement- Inducement- Concealment Concealment

a. Statute a. Statute ofof limitations limitations Civil Procedure Code of Civil Procedure section 338(d) 338(d) provides provides that an action action fraud must be brought within for fraud within three years. Such three years. Such a a claim claim does not accrue, accrue, however, however, “until “until the discovery, discovery, by the aggrieved party, aggrieved party, of the facts constituting constituting the fraud fraud or mistake.” mistake.” (Code Civ. Proc. Civ. Proc. § 338(d).) 338(d).)

Whereaa plaintiff Where plaintiff relies relies on on a a theory of fraudulent theory of fraudulent concealment, concealment, delayed accrual, delayed accrual, equitable equitable tolling, tolling, or or estoppel estoppel to to save save a a cause cause action that otherwise appears on of action on its its face to be time-barred, plead facts which, he or she must specifically plead which, if proved, proved, would support the theory. v. Forestex Co. theory. (Mills v. Co. (2003) (2003) 108 108 Cal.App.4th 625, Cal.App.4th 625, 641.) 641.) “When “ When aa plaintiff alleges the fraudulent concealment concealment of a a action, the same pleading cause of action, pleading andand proof is required as in fraud cases: fraud cases: the must show (1) the substantive the plaintiff must substantive elements of elements of fraud, fraud, and and (2) (2) an an excuse excuse for for late late discovery discovery of of the the facts. [Citation.] facts. [Citation.]

With With respect respect to ... the to ... the belated belated discovery, discovery, thethe complaint must allege (1) when when the the fraud fraud was discovered; discovered; (2) (2) the the circumstances under which which it was discovered; discovered; and (3) (3) that the plaintiff was the plaintiff was not not at at fault fault for for failing failing toto discover discover itit or or had had no no actual or actual or presumptive presumptive knowledge knowledge of of facts facts sufficient sufficient to to put put him him on inquiry.” inquiry.” (Community Cause v. v.

Boatwright (1981) (1981) 124124 Cal.App.3d 888, Cal.App.3d 888, 900.) 900.) Here, the Here, the FAC alleges that on August 25, 25, 2019, 2019, Plaintiffs entered into entered into aa warranty warranty contract contract with with GM. GM. (FAC, (FAC, ¶ § 6.) 6.) Plaintiffs filed Plaintiffs filed suit suit against against GM GM on on October October 7,7, 2024. 2024. As As such, such, delay unless Plaintiffs allege sufficient facts in support of delay discovery or tolling, tolling, the three-year statute of limitations for this claim expired this claim expired well well before before the the original original Complaint Complaint was was filed. filed.

Defendant argues Defendant argues the FAC does the FAC does not not include include any any allegations allegations that justify their late filing, citing filing, citing to the alleged alleged “[d]Jefects and “[d]efects nonconformities to warranty manifested manifested themselves” themselves” during during the “ the “express express warranty period.” period.” (FAC, (FAC, ¶4 23.) Therefore, Therefore, Defendant argues Defendant argues that Plaintiffs cannot that Plaintiffs cannot sustain sustain the burden of the burden of demonstrating that they did demonstrating did not discover withwith reasonable

giving rise to their claim within the diligence the actions giving applicable limitations period. applicable period.

However, However, as argued argued by Plaintiffs, even even though Plaintiffs’ Plaintiffs’ showing signs of nonconformity earlier, vehicle was showing earlier, Plaintiffs only discovered Defendant’s Defendant's fraudulent conduct of selling selling defective defective transmissions shortly before before the complaint filed. was filed. (FAC, ¶¶ (FAC, 1] 36, 36, 38, 38, 47-50.) 47-50.) Up until until that time, Defendant had that time, represented that represented there was nothing that either there nothing wrong with with the Vehicle been repaired. Vehicle or it had been repaired.

Accordingly, Accordingly, the the demurrer based on statute of limitations is OVERRULED. OVERRULED.

b. Failure to plead plead sufficient sufficient facts to state a cause of cause of action action for for fraud fraud “[T]he “[T]he necessary elements of a concealment/suppression concealment/suppression claim consist claim consist of of (1) (1) misrepresentation misrepresentation (false (false representation, representation, concealment, or concealment, or nondisclosure); nondisclosure); (2) (2) knowledge knowledge of of falsity falsity (scienter); (3) (scienter); (3) intent to defraud defraud (i.e., (i.e., to induce reliance); reliance); (4) justifiable reliance; reliance; and (5) (5) resulting damage. damage.

Suppression Suppression of a material a material fact is actionable when there is a duty of disclosure, disclosure, which may which may arise arise from from aa relationship relationship between between thethe parties, parties, such such as a buyer-seller relationship.” relationship.” (Dhital v.v. Nissan North (2022) 84 Cal.App.5th America (2022) Cal.App.5th 828, 843 [cleaned-up].) [cleaned-up].)

In Dhital, In Dhita/, the court found found aa cause of action action for fraudulent concealment was concealment was sufficiently sufficiently plead plead where the ““plaintiffs where the plaintiffs alleged the alleged CVT transmissions the CVT transmissions installed installed in in numerous numerous Nissan Nissan (including the vehicles (including plaintiffs purchased) the one plaintiffs purchased) were defective; Nissan knew of the defective; the defects and and the hazards they posed; Nissan posed; Nissan had had exclusive exclusive knowledge knowledge of of the the defects defects but but intentionally concealed intentionally concealed andand failed failed toto disclose disclose that that information; information; Nissan intended to deceive plaintiffs by concealing Nissan concealing known known transmission problems; problems; plaintiffs would would not have purchased purchased the car if the car if they had known they had known ofof the defects; and the defects; and plaintiffs plaintiffs suffered damages suffered damages in in the form of the form of money money paidpaid to to purchase purchase the the car.” car.” (Dhital, (Dhital, supra, supra, 84 Cal.App.5th Cal.App.5th at 844.) 844.)

Similarly, Plaintiffs allege defects in Similarly, in the transmission resulting in dangerous in dangerous functional functional impairments including: including: (1) hesitation hesitation or delayed or delayed acceleration, acceleration, (2) (2) harsh harsh or or hard hard shifting, shifting, (3) (3) jerking, jerking, (4) shuddering, (4) shuddering, (5) (5) surging surging and/or and/or inability inability to control the to control the vehicle’s speed, vehicle’s speed, acceleration, acceleration, or deceleration, deceleration, (6) (6) symptoms requiring reprogramming requiring reprogramming of the transmission control module the transmission control (“TCM”) (“TCM”) and/or powertrain powertrain control module (“PCM”), (“PCM”), and and (7) failure or replacement of the transmission (“Transmission (“Transmission Defect”). (FAC, Defect”). (FAC, ¶9 75.) 75.) The FAC further alleges Defendant had knowledge of such defects prior defects prior to to Plaintiffs Plaintiffs acquiring acquiring the the Vehicle Vehicle through through sources sources

such as Plaintiffs, not available to consumers such Plaintiffs, including including but not and post-production limited to pre-production and post-production testing data; data; Transmission Defect early consumer complaints about the Transmission made directly to Defendant GM GM and and its network of dealers; dealers; compiled from Defendant GM's aggregate warranty data compiled dealers; testing network of dealers; testing conducted conducted by Defendant GM in response to these complaints; response complaints; as well as warranty repair and received by Defendant GM from part replacements data received Defendant GM's network of dealers, amongst other sources of internal information. internal information. (FAC, (FAC, ¶ 4 76.) 76.)

purchasing the Prior to purchasing the Vehicle, reviewed marketing Vehicle, Plaintiffs reviewed marketing materials and GM’s GM’s advertisement, advertisement, and interacted interacted with with sales representatives. Had representatives. Had they known known about the defects, defects, Plaintiffs would not have purchased the vehicle. would vehicle. (FAC, (FAC, ¶4 77.)

transactional Defendant contends Plaintiffs failed to allege a transactional relationship that relationship would give that would give rise rise to to a a duty duty to to disclose. disclose. This This argument was argument was rejected rejected in in Dhital, Dhital, supra. supra. The The court court in Dhital, in Dhital, held held that a fraud fraud claim claim was not barred barred even even though though there relationship between there was no direct relationship between the buyer and and manufacturer, because manufacturer, because the buyer purchased the buyer purchased from from anan authorized dealership, authorized dealership, the manufacturer backed the manufacturer backed thethe vehicle vehicle with an express warranty, with warranty, and and the manufacturer's authorized authorized dealerships were its agents for purposes of vehicle sales. (Dhital, sales. (Dhital, supra, supra, 84 84 Cal.App.5th Cal.App.5th atat 844.) 844.)

AllAll such such facts facts are alleged are alleged in in the the FAC. FAC.

Accordingly, Accordingly, the on this ground the demurrer on ground is OVERRULED. OVERRULED.

c. Economic c. Economic LossLoss Rule Rule The economic loss rule “ “precludes precludes recovery for purely economic loss economic loss due due to disappointed expectations, to disappointed expectations, unless unless the the demonstrate harm above and plaintiff can demonstrate and beyond beyond a broken broken contractual promise. contractual promise. Conduct amounting amounting to a a breach breach of contract becomes tortious only when it also violates a duty independent of independent of the the contract contract arising arising from from principles principles of of tort tort law.” law.” Robinson Robinson Helicopter Helicopter Co. Co. v. v. Dana Dana Corp. Corp. (2004) (2004) 3434 Cal.4t Cal.4 988-989 (also noting th 979, 988-989 noting prior application of economic loss rule to negligence negligence cause of action). action).

Defendant relies Defendant relies on on Rattagan Rattagan v.v. Uber Uber Technologies, Technologies, Inc. (2024) 17 Inc. (2024) 17 Cal.5th Cal.5th 11 in in support support of of its its economic economic loss loss argument. However, argument. However, Rattagan is not a Song-Beverly case. case. Moreover, it was reframed Moreover, reframed as specifically about fraud-in-the- fraud-in-theperformance, and performance, and Plaintiffs Plaintiffs have have alleged alleged fraud-in-the- fraud-in-theinducement, so inducement, so the the fraud-in-the-performance fraud-in-the-performance test test in Rattagan does not apply. in apply.

Dhital is the appropriate precedent here, the appropriate here, as it specifically addressed fraudulent inducement addressed inducement by concealment claims as

within the well within the context of the Song-Beverly Act. Dhita/ held Act. Dhital that the economic that the economic loss loss rule rule does does not not bar bar claims claims for for fraudulent fraudulent inducement, including, inducement, including, as alleged alleged here, here, through fraudulent concealment. (Id., concealment. (Id., p. p. 843.) 843.)

Accordingly, Accordingly, the on this ground the demurrer on ground is OVERRULED. OVERRULED.

continued to October 12, The case management conference is continued 12, a.m. in 2026 at 9:00 a.m. in Department C28. C28.

shall give notice of this ruling. Defendant shall ruling.

51. 51. v. Gip v. Logan Tu Plaintiff Logan Gip’s motion for attorney Tu Gip’s attorney fees and costs is General General GRANTED. (Code Civ. GRANTED. Civ. Proc., Proc., §§ §§ 1032, 1032, subd. subd. (b) (b) [prevailing [prevailing Motors LLC Motors LLC entitlement to costs generally], party entitlement generally], 1033.5, 1033.5, subd. subd. (a)(10)(B) [recoverable (a)(10)(B) [recoverable costs may include include attorney attorney fees 2025- 2025- pursuant to statute; Civ. to statute; Civ. Code, § § 1794, 1794, subd. subd. (d) (d) [prevailing [prevailing 01484462 01484462 party in party in Song-Beverly Song-Beverly action action entitled entitled to to reasonable reasonable fees/costs].) fees/costs].)

awarded attorney Plaintiff is awarded attorney fees in the amount of $11,925.00, whichwhich amount the court finds was reasonably and and necessarily incurred. necessarily incurred. The court has The court has reduced reduced the fees sought the fees sought based on based on aa reduced reduced paralegal paralegal hourly hourly rate, rate, fees fees incurred incurred for for clerical tasks, and clerical tasks, and excessive fees claimed claimed for the fee motion occur; however, itself that did not occur; however, the court finds that the attorney’s attorney’s hourly rates appear proper. proper. (PLCM (PLCM Group, Group, Inc.

Inc. v. v. Drexler (2000) Drexler (2000) 22 22 Cal.4th Cal.4th 1084, 1084, 1095 1095 [reasonable [reasonable hourly hourly rate rate ““is is that prevailing prevailing in the community for similar work”]; in the work"]; Syers Properties III, III, Inc. Inc. v.v. Rankin (2014) (2014) 226 Cal.App.4th 691, 700 [“determination (“determination of the ‘ ‘market market rate’ rate’ is generally based on the rates prevalent in the community where the court is located”]; in the located”]; Nishiki v. Nishiki v.

Danko Danko Meredith, Meredith, APC (2018) 25 APC (2018) 25 Cal.App.5th Cal.App.5th 883, 883, 899 [“a [“a trial court has its own own expertise in in the value value of legal legal performed in services performed in a a case ... ... and it may rely on its own familiarity with familiarity with the the local local legal legal market market in in setting setting the the hourly hourly rate”].) rate”].)

Plaintiff’s Plaintiff's request for a ““Lodestar Lodestar Enhancement,” Enhancement,” presumably presumably a a multiplier, is DENIED. multiplier, DENIED. This appears to be a routine lemon lemon law case, with case, with no no unusual unusual facts facts or or novel novel legal legal issues issues requiring requiring exceptional skill. exceptional skill. (Mikhaeilpoor (Mikhaeilpoor v. v. BMW BMW ofof North North America, LLC America, LLC Cal.App.5th 240, 248, citing (2020) 48 Cal.App.5th citing Press v. v. Lucky Stores, Stores, Inc. (1983) 34 Cal.3d Inc. (1983) Cal.3d 311, 322, fn. fn. 12 12 [multiplier factors].) factors].)

Plaintiff’s Plaintiff's request for $835.55 $835.55 in costs is also DENIED. DENIED. Plaintiff has Plaintiff has already already filed filed aa Memorandum Memorandum of of Costs Costs for for this this amount. (ROA amount. (ROA 24.) 24.) Defendant Defendant did did not not seek seek to to strike strike or or tax tax that memorandum. memorandum. Thus, this separate request for costs is duplicative. duplicative.