2014-00162318-CU-FR

Nabil Samaan vs. Folsom Buick GMC

Nature of Proceeding: Motion to Dismiss Plaintiff’s Fourth Amended Complaint

Filed By: Britton, John A.

Defendant Shawn Vishney’s motion to dismiss the Fourth Amended Complaint (“4AC”) as to him is GRANTED without leave to amend, as follows.

The notice of motion does not comply with Code of Civil Procedure §1010 or CRC Rule 3.1110(a).

The opposition to this motion was not timely filed (since 2/12/2018 was a court holiday) but it was nevertheless considered.

Factual Background

This case arises from plaintiff’s purchase of a GMC truck from a Roseville dealership in 2008. Plaintiff alleges he purchased a General Motors Protection Plan, Major Guard Insurance Policy (“GMPP”) at the same time. According to plaintiff, defendants other than JS Folsom Automotive dba Folsom Buick GMC’s (“JSFA”) are parties to this GMPP and are liable for a failure to perform after he sought vehicle repairs in 2012. Plaintiff maintains that JSFA is an agent of these other defendants and that JSFA is an authorized service provider under the GMPP, thereby being authorized to submit claims and invoices for payment under the GMPP.

Plaintiff took the vehicle to JSFA for repairs in 2012, when JSFA allegedly indicated it was authorized to submit claims and make repairs under the GMPP. JSFA thereafter made repairs and issued invoices for payment by plaintiff even though JSFA had submitted claims for work it previously done on the truck pursuant to the GMPP. According to plaintiff, JSFA employee Vishney promised he would handle diagnostics, repairs and invoices in 2012 and these promises are part of oral and written agreements with JSFA, with the written portions being JSFA’s invoices. Plaintiff adds that JSFA did not properly diagnose problems with the vehicle, failed to submit invoices for his claims under the GMPP, forged plaintiff’s signature, wrongfully disposed of vehicle parts and engaged in other fraudulent conduct.

This action was commenced on 4/21/2014 and on 11/9/2017, plaintiff completed a Doe Amendment naming Vishney as Doe 3. This amendment was filed on 11/13/2017. Shortly thereafter, plaintiff filed the 4AC on 11/20/2017. While the 4AC refers to Vishney by name in various paragraphs, he is not listed in the caption on Page 1 nor is he identified in the opening allegations under the heading, “The Parties and Jurisdiction.” Moreover, not one of the nine causes of action is, by its own terms, directed against Vishney. Instead, each is directed against one or more of the other

defendants named in this case.

The 4AC spans nearly 250 pages including exhibits (e.g., deposition transcripts, discovery responses) and it purports to state several causes of action against JSFA including breach of contract, “fraud” (consisting of mixed allegations of false promise, concealment and misrepresentation), negligence, violation of Business & Professions Code §17200 et seq., interference with contract and conspiracy plus similar causes of action against other defendants.

Moving Papers. Defendant Vishney now moves to dismiss the 4AC against him because plaintiff’s failure to include Vishney as a defendant in the 4AC and to assert a single cause of action against him operates as a dismissal of Vishney under California law.

Opposition. Plaintiff opposes, arguing primarily that JSFA has throughout this litigation engaged in “wrongful gamesmanship” by “impeding Plaintiff’s attempts to locate and depose…Vishney, who was an employee of [JSFA],” refusing to produce him for deposition and delayed in making a decision on whether JSFA’s counsel would represent Vishney, all of which left plaintiff “with no choice but to file a Doe amendment” naming Vishney.

Analysis

Because the 4AC does not specifically identify Vishney as a party or a defendant and because the 4AC contains no single cause of action which is directed against Vishney, the court will grant the motion to dismiss as to defendant Vishney.

Since the court has also granted defendant Vishney’s motion to strike plaintiff’s 11/13/2017 Doe Amendment naming Vishney as Doe 3, leave to amend is denied.

To the extent Vishney also seeks by this motion to quash service of summons, the motion is denied since such relief was not actually specified in the notice of motion.