17-CIV-01400 CARRIE L. CARRILLO vs. FORD MOTOR COMPANY

CARRIE L. CARRILLO STEVE MIKHOV

FORD MOTOR COMPANY SPENCER P. HUGRET

2. DEFENDANT’S demurrer to PLAINTIFF’S SECOND AMENDED COMPLAINT

· SUSTAINED WITHOUT LEAVE TO AMEND. Defendant FORD MOTOR COMPANY’s Demurrer to Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to the Third Cause of Action for Fraudulent Inducement – Concealment; Fourth Cause of Action for Fraudulent Inducement – Intentional Misrepresentation; and Fifth Cause of Action for Fraudulent Inducement – Negligent Misrepresentation.

Facts Alleged / Claims Made:

· This is a lemon law case. Plaintiff CARRIE CARRILLO purchased a new 2013 Ford Focus on May 22, 2013, and claims that the vehicle has a transmission defect with respect to the DPS6 PowerShift Transmission. Plaintiff alleges that Defendant FORD MOTOR COMPANY fraudulently marketed and presented the vehicle as having an “automatic transmission” option. However, the PowerShift Transmission is neither a traditional manual transmission nor a typical automatic transmission. Instead, it is a computerized “automated manual” transmission.

· In this action, Plaintiff alleges that the PowerShift Transmission is defective in its design and/or manufacture in that, among other problems, the transmission consistently slips, bucks, kicks, jerks, harshly engages, has premature internal wear, sudden acceleration, delay in downshifts, delayed acceleration, difficulty stopping the vehicle, and eventually, premature transmission failure.

· Plaintiff claims that Ford knew or should have known about the transmission defect as early as 2010, prior to her purchase of the vehicle. Ford allegedly had exclusive knowledge of such defects based on non-public internal data, including pre-release testing data, early consumer complaints to Ford’s dealers for vehicle repairs, dealership repair orders, testing conducted in response to complaints, and technical service bulletins (“TSBs”) developed by Ford and communicated to its dealers and authorized repair facilities.

Prior Demurrers to Complaint:

· Defendant FORD MOTOR COMPANY previously demurred to the Third, Fourth, and Fifth fraud-based causes of action as set forth in the original Complaint and First Amended Complaint. On both occasions, Ford’s demurrers were sustained with leave to amend. (See Order on Demurrer to First Amended Complaint dated October 2, 2017 (“Order”), sustaining demurrer on statute of limitations and sufficiency grounds.)

Current Demurrer:

· Ford once again demurs to these causes of action in the Second Amended Complaint on the grounds that: (1) these claims are time-barred; (2) they fail to state facts sufficient to constitute a cause of action; and (3) they are barred by the Economic Loss Rule. Ford’s counsel submits a Code Civ. Proc. § 430.41 declaration stating that prior to filing this demurrer, she attempted to meet-and-confer with Plaintiff’s counsel via telephone, but the parties were unable to informally resolve their dispute. (Decl. Gaye ¶ 10.)

Despite having been given specific instructions by this Court and multiple opportunities to amend her complaint, Plaintiff continues to fail to sufficiently allege facts supporting why these claims are not time-barred by the three-year statute of limitations for fraud claims. Civil Code § 338(d).

The demurrer is further sustained without leave to amend on the ground that Plaintiff’s Third, Fourth, and Fifth causes of action do not allege facts sufficient to support all elements of these claims, including a duty to disclose to support concealment (see Heliotis v. Schuman (1986) 181 Cal.App.3d 646, 651), and the specific misrepresentation(s) made by Defendant to support fraud (see Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157-158).

· Defendant’s Request for Judicial Notice is GRANTED as to Exhibits A-C, and GRANTED to the extent that Exhibits D-G were filed Court documents, but not as to the truth of any matters asserted therein. Evid. Code § 452. Judicial notice is GRANTED as to Exhibit H.

· If the Tentative Ruling is uncontested, it shall stand as the Court’s decision. Moving party’s Counsel is directed to prepare a written Order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and to provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court. The Order is to be submitted directly to Judge Gerald J. Buchwald, Department 10.

3. DEFENDANT’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF’S SECOND AMENDED COMPLAINT

· GRANTED. Defendant FORD MOTOR COMPANY’s Motion to Strike Punitive Damages is GRANTED WITHOUT LEAVE TO AMEND. As previously ruled by this Court, Plaintiff’s First and Second causes of action for violations of the Song-Beverly Act do not support a claim for punitive damages. Civil Code § 1794. The demurrer is sustained without leave to amend as to Plaintiff’s remaining fraud-based causes of action, as set forth above.