Case Number: BC688815 Hearing Date: March 16, 2018 Dept: 47

Sharona Khorramian v. General Motors, LLC

(1) DEMURRER TO COMPLAINT

(2) MOTION TO STRIKE

MOVING PARTY: (1) & (2) Defendant General Motors, LLC

RESPONDING PARTY(S): (1) & (2) Plaintiff Sharona Khorramian

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that there were steering, engine and other defects with the 2010 Chevrolet Equinox she purchased.

Defendant General Motors, LLC demurs to the complaint and moves to strike portions thereof.

TENTATIVE RULING:

Defendant General Motors, LLC’s demurrer to the complaint is SUSTAINED with 30 days leave to amend as to the seventh cause of action.

The hearing on the motion to strike is CONTINUED to April 16, 2018. Defendant is to submit a meet and confer declaration regarding the motion to strike by April 9, 2018. If Plaintiff files an amended complaint prior to that time, the motion to strike portions of the Complaint shall be deemed moot.

DISCUSSION:

Demurrer

Meet and Confer

The Declaration of Sean Morrissey reflects that the meet and confer requirement set forth in CCP § 430.41 was satisfied.

Discussion:

1. Seventh Cause of Action (Fraud by Omission).

A. Re: Statute of Limitations.

A cause of action for relief on the ground of fraud or mistake is subject to a three-year statute of limitations. CCP § 338(d). “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.” Id. However, if the facts pled in the complaint show that discovery occurred outside of the limitations period, the plaintiff must allege the date and manner of such discovery and why the delay in discovery is excused:

It is true that the three-year statute does not commence to run against an action for fraud or mistake until discovery thereof (Code Civ. Proc. § 338, subd. 4; Hobart v. Hobart Estate Co., 26 Cal.2d 412 [159 P.2d 958]). But the burden is upon plaintiff to allege and prove facts which show the date and manner of such discovery.

As it is often stated, plaintiff must plead facts to excuse the late discovery (Johnson v. Ehrgott, 1 Cal.2d 136, 137 [34 P.2d 144]; Lady Washington Consol. Co. v. Wood, 113 Cal. 482 [45 P. 809]). It is not sufficient merely to allege ignorance at one time and discovery at another (Burke v. Maguire, 154 Cal. 456, 465 [98 P. 21]). Rather, the circumstances of the claimed discovery must be pleaded (English v. City of Long Beach, 126 Cal.App.2d 414, 420 [272 P.2d 875]), and it is then for the court to determine from such allegations whether the delay was excusable (Bank of America v. Vannini, 140 Cal.App.2d 120 [295 P.2d 102]).

Wilson v. Wilson (1962) 199 Cal.App.2d 542, 544-45 (bold emphasis added).

Here, Plaintiff purchased the subject vehicle in October 2010 (the exact date is not specified). Complaint ¶ 17. Plaintiff alleges at ¶ 19 that during the warranty period the vehicle contained or developed defects, including but not limited to, engine defects. The seventh cause of action for fraud by omission is based on the alleged concealment by Defendant that that engine was defective and susceptible to sudden and premature failure. ¶¶ 58 – 78. Here, because Plaintiff alleges that her vehicle actually manifested engine defects, she must allege when she discovered the existence of the engine defect, and why should could not have reasonably discovered such defect, and Defendant’s concealment of such defect, earlier than she did.

Plaintiff alleges that the applicable statute of limitations for her fraudulent omission claims was tolled by equitable tolling in the matter of the class action, Parenteau v. General Motors, LLC (C.D, Cal. No. 14-04961), filed on June 25, 2014, on behalf of owners of 2010 Chevrolet Equinox vehicles equipped with a 2.4L engine, which included Plaintiff as a class member. Complaint, ¶¶ 8 – 13. Parenteau was filed more than three years after Plaintiff purchased her vehicle in October 2010—3 years and 7 months, if one assumes Plaintiff purchased the vehicle on October 31, 2010. As such, Plaintiff must allege when she discovered the existence of the engine defect, and why should could not have reasonably discovered such defect earlier than she did, because the statute of limitations on her fraud claim may have expired before the Parenteau class action was even filed.

In San Francisco Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 2446-53, the court applied cross-jurisdictional tolling by virtue of the filing of a class action in federal court as to later state court claims which are substantially similar such that the class action would have placed the defendant on notice of the claims at issue later asserted in the individual action, for the period of time that the individual was a member of the class action.

Plaintiff alleges that Parenteau was dismissed on September 17, 2015, which would mean the statute of limitations may have continued to run for an additional 2 years and 3 months until Plaintiff filed this lawsuit on January 5, 2018. In light of the above, there are 5 years and 10 months during which the statute of limitations on Plaintiff’s claim could possibly have run, depending on when she discovered, or with reasonable diligence should have discovered, the existence of the engine defect, and Defendant’s concealment thereof. As such, Plaintiff must plead this date of discovery.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. Such is the case here for this particular cause of action.

The demurrer to the seventh cause of action is SUSTAINED with 30 days leave to amend.

Motion To Strike

Meet and Confer

Defendant did not present a declaration reflecting that the meet and confer requirement set forth in CCP § 435.5 (effective January 1, 2018) was satisfied. Indeed, the Declaration of Sean Morrissey in support of the demurrer attaches a meet and confer letter dated January 10, 2018, which does not reflect a meet and confer effort regarding the motion to strike punitive damages.

Accordingly, the hearing on the motion to strike is CONTINUED to April 16, 2018. Defendant is to submit a meet and confer declaration regarding the motion to strike by April 9, 2018. If Plaintiff files an amended complaint prior to that time, the motion to strike portions of the Complaint shall be deemed moot.

Defendant to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 16, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court