2013-00139601-CU-PL

James Gennaro vs. General Motors

Nature of Proceeding: Hearing on Demurrer

Filed By: MacMillan, David D.

Defendants Kuni Hubacher Motors, LLC’s and Kuni Buick GMC Cadillac’s (“Kuni
Defendants”) demurrer to the fourth cause of action in Plaintiff James Gennaro’s
second amended complaint (“SAC”) is overruled.

Plaintiff alleges that he was injured when a fire occurred in the engine compartment of
his 2000 Buick Regal. In the fourth cause of action for negligence against the Kuni
Defendants, he alleges that they failed to determine whether his vehicle was subject to
the relevant recall and warn him regarding the severity of the defects in the event that
it was.

The Kuni Defendants demur to the fourth cause of action on the basis that Plaintiff
failed to allege facts establishing any duty or a breach of any duty. The Court
previously sustained the Kuni Defendants’ demurrer on the basis that Plaintiff had not
alleged that they were put on notice that he required the recall service and thus no
duty to perform the service or warn of the severity of the defects could have arisen.
The Court granted leave noting that it appeared Plaintiff could cure the deficiency. He
has.

Plaintiff alleges that he received a postcard from the Buick Recall Information
Processing Center which directed him to schedule an appointment with the Kuni Buick
GMC Cadillac dealership for recall service related to engine compartment fires. (SAC
¶ 51.) He alleges that he contacted the Sacramento dealership and spoke with a
woman named “Jennifer.” Unlike in the first amended complaint, Plaintiff now alleges
that when he spoke with “Jennifer,” he informed her that he received the postcard
advising him that there was a recall on his vehicle and that he was instructed to
contact the dealership for an appointment. (Id. ¶ 53.) The Court thus finds that
Plaintiff has now alleged sufficient facts demonstrating that the Kuni Defendants had
either a duty to attempt to determine whether Plaintiff’s vehicle was subject to recall
and if so, schedule the vehicle for service and warn him regarding the severity of the
subject defects.
Duty

The Kuni Defendants first argue that Plaintiff’s failure to specifically allege the status
and capacity of “Jennifer” renders any duty allegations insufficient because without
such allegations, nothing Plaintiff allegedly told her can be attributed to them.
Defendants’ argument seeks to impose upon Plaintiff a level of specificity in pleading a
negligence cause of action that is generally required for a fraud cause of action. They
cite no authority for their contentions. In any event, a fair reading of the SAC shows
Plaintiff alleged facts sufficient to demonstrate that any information he provided to her
is fairly attributed to the Kuni Defendants. Indeed, he alleged that he called the Kuni
dealership, that he spoke with a woman named “Jennifer”, that “Jennifer” informed him
that the dealership’s service department was busy and to call back later in the week to
schedule an appointment. (SAC ¶ 53.) A reasonable inference from these allegations
is that “Jennifer” was an employee or representative of the Kuni dealership, given
Plaintiff spoke with her when he called the dealership, that she provided information
regarding the status of the dealership’s service department and told Plaintiff to call
back. The Court therefore rejects the argument that no duty has been alleged
because Plaintiff failed to specifically allege the status and capacity of “Jennifer.”

The Kuni Defendants next argue that Plaintiff was required to “tender” his vehicle prior
to any duty arising on their part. In the SAC, Plaintiff cited to a 2009 GM Recall
Bulletin indicating that dealerships were obligated pursuant to the US National Traffic
and Motor Vehicle Safety Act to repair vehicles subject to a recall within a reasonable
time after the customer tendered it for repair. (SAC ¶ 54.) They claim that the
“obvious functional equivalent of the required tender here is for the plaintiff to either (a)
make an appointment for the recall service and bring the car to the dealer or (b) just
simply bring the car in to the dealer for service.” (Dem. 7:1-3.) This argument is
flawed in a number of respects. First, it appears that the Kuni Defendants are seeking
to argue that any duty they have is governed solely by a statute (e.g., US National
Traffic and Motor Vehicle Safety Act) which while referred to generally in the SAC,
within the context of a Recall Bulletin, is not even specifically cited in the demurrer.
The Court rejects the argument that the trigger for any duty on their part is governed
solely by statute. “Although it is true that some exceptions have been made to the
general principle that a person is liable for injuries caused by his failure to exercise
reasonable care in the circumstances, it is clear that in the absence of statutory
provision declaring an exception to the fundamental principle enunciated by section
1714 of the Civil Code, no such exception should be made unless clearly supported by
public policy.” (Rowland v. Christian (1968) 69 Cal.2d 108, 112.) Here, the uncited
statute imposing an obligation to repair a vehicle subject to recall within a reasonable
time does not purport to fully absolve a dealership from any duty, specifically, a duty to
warn of a defect when a consumer contacts the dealership to attempt to schedule a
repair for a defect.

In any event, the Kuni Defendants do not accurately summarize the allegations with
respect to the Recall Bulletin in the SAC. Indeed, the Recall Bulletin cited in the SAC,
while stating that there is an obligation to repair upon tender, also states that “every
effort must be made to promptly schedule an appointment with each customer to repair
their vehicle as soon as possible.” (Id.) Here, Plaintiff alleged that he attempted to
make an appointment but was told the service department was too busy and that it
was up to him to call back later to try and schedule an appointment. While the Kuni
Defendants latch on to the allegation that Plaintiff was told by “Jennifer” to call back to schedule the appointment and he did not allege that he followed up to do so, such
argument would at most go towards a question of comparative negligence, not
whether a duty was owed in the first instance. Thus, at least for pleading purposes,
even if tender was somehow required to trigger a duty on the Kuni Defendants part,
Plaintiff has essentially alleged such facts showing that he attempted to make such a
tender when he called the dealership but was told they were too busy and that he
should call back.

Further, Defendants’ tender argument overlooks that Plaintiff has also alleged that they
owed him a duty to warn of the nature of the defects and not to operate his vehicle
other than to bring it in for a repair after he called and informed “Jennifer” that he had
received a recall notice. The existence of such a duty would not turn on whether
Plaintiff tendered his vehicle for repair. Thus, the argument that Plaintiff failed to
allege facts establishing a duty because he failed to allege he tendered his vehicle for
repair is rejected.

The Kuni Defendants next argue that the Fourth Cause of Action is deficient because
Plaintiff failed to allege breach. Here, the argument is that given that no duty has been
alleged, no duty could have been breached. This argument is rejected given the Court
concluded above that Plaintiff alleged facts showing the Kuni Defendants owed a duty.
Further, the repeated argument that Plaintiff failed to allege that he called the
dealership back to schedule the appointment as instructed by “Jennifer” does not
demonstrate a lack of breach. Indeed, again, as already discussed, this argument
may go towards Plaintiff’s comparative negligence, which Defendants themselves at
least implicitly recognize as they argue that in failing to call back he “breach[ed] his
own duty of care to himself.” (Dem. 8:9-11.) Next, the argument that Plaintiff
mistakenly attempts to allege the Kuni Defendants are liable in negligence based on
an agency theory with defendant General Motors has no bearing on the instant
demurrer. While Plaintiff alleged in the Fourth Cause of Action that the Kuni
Defendants were the agents of GM, the duty alleged by Plaintiff with respect to the
subject fourth cause of action is not based upon an agency theory but rather based
entirely on their own actions, independent of any agency relationship. (SAC ¶¶ 53-56)
The demurrer based on a failure to allege breach is therefore overruled.

Finally, the demurrer on the basis that the Fourth Cause of Action is uncertain is
overruled. Demurrers for uncertainty are disfavored and only sustained where the
complaint is so muddled that the defendant cannot reasonably respond. The favored
approach is to clarify theories in the complaint through discovery. (Khoury v. Maly’s of
th
Calif., Inc. (1993) 14 Cal.App.4 612, 616.) The Court has reviewed the SAC and
finds that the Kuni Defendants can reasonably respond. Indeed, their instant demurrer
demonstrates they are capable of sufficiently understanding the allegations.
Defendants can easily clarify any perceived uncertainty through discovery.

The demurrer is overruled. No later than February 18, 2014, Defendants shall file and
serve their answers to the SAC.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or other notice is required.