Demurrer in MEAGAN BURNETT ET AL VS. NISSAN NORTH AMERICA, INC. ET AL| Trellis.Law

On January 06, 2020 a Motion,Ex Parte was filed involving a dispute between Burnett, Meagan, Burnett, Raimahr C, and Does 1 To 10 Inclusive, Nissan North America, Inc., for CONTRACT/WARRANTY in the District Court of San Francisco County.

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1 Paul S. Lecky (SBN 154480)
plecky@bhc.law
2 BHC LAW GROUP LLP
5900 Hollis Street, Suite O ELECTRONICALLY
3 Emeryville, CA 94608-2604 F I L E D
Telephone: (510) 658-3600 Superior Court of California,
4 Facsimile: (510) 658-1151 County of San Francisco

03/23/2020
5 Attorneys for Defendant Clerk of the Court
NISSAN NORTH AMERICA, INC. BY: ERNALYN BURA
6 Deputy Clerk

8 SUPERIOR COURT OF CALIFORNIA

9 COUNTY OF SAN FRANCISCO

11 MEAGAN BURNETT fka Case No.: CGC-20-581974
MEAGAN MAFNAS and (Civil Unlimited Jurisdiction)
12 RAIMAHR C BURNETT,
REPLY IN SUPPORT OF DEFENDANT
13 Plaintiff, NISSAN NORTH AMERICA, INC.’S
DEMURRER AND DEMURRER TO FOURTH
14 v. CAUSE OF ACTION OF PLAINTIFFS’
COMPLAINT
15 NISSAN NORTH AMERICA, INC., a
California Corporation, and DOES 1 Date: March 30, 2020
16 through 10, inclusive, Time: 9:30 a.m.
Dept: 302
17 Defendant(s).
RESERVATION NO.: 02130330-13
18
Action Filed: January 6, 2020
19 Trial Date: None Set

22
Becherer 23
Kannett &
Schweitzer
________ 24
1255
Powell St.
Emeryville, CA
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94608
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REPLY IN SUPPORT OF DEFENDANT NISSAN NORTH AMERICA, INC.’S DEMURRER AND DEMURRER TO
FOURTH CAUSE OF ACTION OF PLAINTIFFS’ COMPLAINT
1 I. INTRODUCTION

2 Nissan North America, Inc. (“NNA”) hereby submits the following Reply addressing the

3 reasons why its Demurrer to the Fourth Cause of Cause of Action of Plaintiffs’ Complaint

4 (”Demurrer”) addressing Plaintiffs’ purported fraud claims should be sustained. As addressed

5 below, the arguments set forth in Plaintiffs’ Memorandum of Points and Authorities in Opposition

6 to Nissan North America, Inc.’s Demurrer to the Fourth Cause of Action of Plaintiffs’ Complaint

7 (“Plaintiffs’ Opposition”) do not demonstrate otherwise. NNA’s Demurrer should be sustained.

8 II. LEGAL ARGUMENT

9 Every element in a cause of action for fraud must be alleged both factually and

10 specifically; the policy of liberal construction of pleadings will not be evoked to sustain a

11 defective complaint. Cooper v. Equity General Insurance (1990) 219 Cal.App.3d 1252, citing

12 Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904. When fraud is based upon a

13 concealment, it is actionable only if the defendant had a duty to disclose the concealed fact.

14 Robinson Helicopter Co. v. Dana Corp., 34 Cal.4th 979, 990. This legal duty to disclose can only

15 arise through statute, contract, the general character of the activity, or the relationship between

16 the parties. Alexandria S. v. Pacific Fertility Medical Center, Inc. (1997) 55 Cal. App. 4th 100, 116.

17 Plaintiffs’ instant fraud claim is not being pursued under any statute per se, but there is

18 case law discussing legal duty in the context of the Consumer Legal Remedies Act (“CLRA”)

19 statutory violation. For example, in Daugherty v. American Honda Motor Co., Inc., (2006) 144

20 Cal. App. 4th 824, addressing statutory liability under the California Unfair Competition Law

21 (“UCL”) and the CLRA, the trial court refused to extend liability to a manufacturer for the failure to

22 disclose an alleged product defect. Daugherty involved a nationwide class action lawsuit against

Becherer 23 Honda for owners of certain Honda Accords and Preludes equipped with the F22 engine. The
Kannett &
Schweitzer
________ 24 plaintiffs claimed that Honda knew about a defect that could result in oil loss and ultimately,
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Powell St.
Emeryville, CA
25 engine failure, but deliberately failed to remedy the problem or to warn consumers of the risk of
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26 damage to their engine. The trial judge sustained Honda’s demurrer without leave because:

27 Opening the door to plaintiffs’ new theory of liability would change
the landscape of warranty and product liability law in California.
28 Failure of a product to last forever would become a ‘defect,’ a

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REPLY IN SUPPORT OF DEFENDANT NISSAN NORTH AMERICA, INC.’S DEMURRER AND DEMURRER TO
FOURTH CAUSE OF ACTION OF PLAINTIFFS’ COMPLAINT
1 manufacturer would no longer be able to issue limited warranties,
and product defect litigation would become as widespread as
2 manufacturing itself. If such a change is to come, another court
must be its harbinger. Id. at 829.
3

4 The appellate court affirmed, holding that plaintiffs’ CLRA claim did not set forth any

5 representation by Honda regarding the claimed defect and failed to identify any other duty to

6 disclose the defect. The court was not prepared to make a manufacturer, distributor, or seller

7 liable for consumer fraud simply because a known product defect was not disclosed to the

8 consumer, noting that "although a claim may be stated under the CLRA in terms constituting

9 fraudulent omissions, to be actionable, the omission must be contrary to a representation

10 actually made by the defendant, or an omission of a fact the defendant was obliged to disclose."

11 Id. at 835. The logical significance of the Daugherty decision was that it avoided a result that

12 would make product defect litigation “as widespread as manufacturing itself.” See also Bardin v.

13 Daimlerchrysler Corp. (2006) 136 Cal.App.4th 1255 (no duty under CLRA to disclose use of

14 tubular steel exhaust manifolds instead of cast iron despite increased failure rate).

15 Here, as set forth in the moving papers and below, the Plaintiff has failed to plead

16 sufficient facts to avoid the bar of the economic loss rule or to establish the necessary elements

17 of the existence of damages, a duty to disclose, or justifiable reliance, or damages so to state a

18 claim for fraud. Plaintiffs should not be permitted to turn every breach of warranty case into a

19 tort.

20 A. Defendant Has Repeatedly Met and Conferred on the Issues in its Demurrer

21 NNA acknowledges that it did not meet and confer via telephone or in person with

22 plaintiffs’ counsel before filing this particular demurrer. However, pursuant to the Declaration of

23 Paul S. Lecky in Support of NNA’s demurrer, NNA’s counsel has recently filed approximately two
BHC
LAW 24 dozen similar demurrers, which all addressed the exact same legal assertions and striking
GROUP LLP
________ 25 similar factual allegations related to Nissan Sentras as in this case. These prior meet and confer
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experiences have not been successful. Furthermore, “[a]ny determination by the court that the
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meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”

28 (California Code of Civil Procedure Sec. 430.41(a)(4))

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REPLY IN SUPPORT OF DEFENDANT NISSAN NORTH AMERICA, INC.’S DEMURRER AND DEMURRER TO
FOURTH CAUSE OF ACTION OF PLAINTIFFS’ COMPLAINT
1 B. NNA’s Demurrer Should be Sustained as to Plaintiffs’ Fourth Cause of
Action as the Fraud Claims Within Are Barred by the Economic Loss Rule.
2

3 The economic loss rule bars fraud claims where the damages sought by a plaintiff are the

4 same economic losses arising from the alleged breach of the contract at issue. Robinson

5 Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal. 4th 979, 988-989; see also Foster Poultry

6 Farms v. Alkar-Rapidpak-MP Equip., Inc., 868 F. Supp. 2d 983, 991 (E.D. Cal. 2012) (“Courts

7 have applied the economic loss rule to bar fraud claims where the damages Plaintiff seek are the

8 same economic losses arising from the alleged breach of contract.”). Thus, the economic loss

9 rule prevents a plaintiff from recovery of tort damages for the breach of duties that merely restate

10 contractual obligations, such as the contractual obligation to provide a product free of defects.

11 Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal. 4th 988.

12 In the present action, Plaintiffs’ Complaint seeks recovery in tort for an alleged breach of

13 warranty due to a purported defect in the Subject Vehicle alleging that, had Plaintiffs been aware

14 of the breach, he would not have purchased the Subject Vehicle. Complaint ¶¶ 56 and 143,

15 attached as Exhibit 1 to Declaration of Paul S. Lecky submitted contemporaneously with NNA’s

16 moving papers. This is the sole purported injury allegedly suffered by Plaintiffs as the result of

17 NNA’s alleged concealment. There are no allegations in the Complaint that Plaintiff suffered any

18 form of bodily harm or personal injury; or that Plaintiffs were ever in an automotive crash or

19 accident. There are no allegations in the Complaint of any claim or potential claim against

20 Plaintiff for liability by a third party arising from Plaintiffs’ purchase or use of the Subject Vehicle.

21 Likewise, Plaintiffs’ Opposition makes no claim of any harm arising from the alleged breach of

22 warranty due to a purported defect in the Subject Vehicle alleging that, other than Plaintiffs’

23 purchase of the Subject Vehicle. Plaintiffs’ Opposition, 12:15-18. The only injury allegedly
BHC
LAW 24 suffered by Plaintiffs as the result of NNA’s alleged concealment is Plaintiffs’ alleged economic
GROUP LLP
________ 25 loss resulting from the purchase of the Subject Vehicle. In short, such damages resulting from
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NNA’s purported ‘”fraud” are the same economic losses arising from the alleged breach of
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warranty at issue. The economic loss rule bars Plaintiffs’ “fraud” claims.

28 In an effort to avoid the bar of the economic loss rule, Plaintiffs’ Opposition baldly states

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REPLY IN SUPPORT OF DEFENDANT NISSAN NORTH AMERICA, INC.’S DEMURRER AND DEMURRER TO
FOURTH CAUSE OF ACTION OF PLAINTIFFS’ COMPLAINT
1 that NNA’s alleged breach of warranty “put Plaintiff at risk of great bodily harm and personal

2 injury” and “could potentially expose her [sic] to monetary damages in lawsuits from injured

3 persons.” Plaintiffs’ Opposition, 8:2-4. This statement has neither support in law or in fact. First,

4 California law does not permit a plaintiff to seek compensation for speculative injuries or harm

5 that “could potentially” occur. To the contrary, it is longstanding law that a plaintiff, whether

6 seeking recovery in contract or in tort, is only capable of recovering for actual damages arising

7 from a defendant’s conduct. Civ. Code § 3333; see also Ramsey v. Penry (1942) 53 Cal.App.2d

8 773, 778 (“[S]peculative damages may not be recovered.”); Applied Equipment Corp. v. Litton

9 Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 516. (Tort damages are awarded to compensate the

10 victim for injury actually suffered.). None of the case law cited in Plaintiffs’ Opposition states

11 otherwise. See generally Plaintiffs’ Opposition. Plaintiffs’ Complaint fails to plead facts capable

12 of giving rise to such speculative injuries and, further, it contains no allegations to demonstrate

13 the existence of any such injured persons or such lawsuits. In addition, even if Plaintiffs

14 presumably had been in an accident caused by the alleged defect, there are no facts alleged in

15 the Complaint demonstrating that Plaintiffs could be found at fault for any injuries arising from

16 such an accident. Unlike the manufacturer plaintiff in Robinson Helicopter, supra., Plaintiff is a

17 consumer and not in the chain of commerce of the alleged defective product. Complaint ¶¶ 8,

18 15, & 62. Unlike a manufacturer plaintiff, the consumer Plaintiff cannot be held liable in strict

19 liability for personal injuries arising from the alleged defect at issue in this case. Robinson

20 Helicopter, 34 Cal.4th at 985-987, 991 fn 7, & 993. Plaintiffs’ Opposition does not suggest the

21 existence of facts to the contrary. See generally Plaintiffs’ Opposition. Thus, to the extent that,

22 as Plaintiffs’ Opposition contends, Robinson Helicopter holds that “only exposure to liability is

23 needed” to invalidate the bar of the economic loss rule, the opinion is readily distinguished.
BHC
LAW 24 Compare Plaintiffs’ Opposition, 7:26-28, to Robinson Helicopter, 34 Cal.4th at 985-987 & 993.
GROUP LLP
________ 25 The Fourth Cause of Action of Plaintiffs’ Complaint fails to plead around the bar of the economic
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Emeryville, CA 94608 loss rule. Plaintiffs’ Complaint fails to state a cause of action for fraud and Demurrer is proper.
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Further, the exception to the economic loss rule articulated in Robinson Helicopter Co.,

28 Inc. arose out of defendant Dana Corp. intentional misrepresentations that the clutches it

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REPLY IN SUPPORT OF DEFENDANT NISSAN NORTH AMERICA, INC.’S DEMURRER AND DEMURRER TO
FOURTH CAUSE OF ACTION OF PLAINTIFFS’ COMPLAINT
1 provided to the plaintiff, as part of the original contract, continued to conform to the “type

2 certificate” issued by the Federal Aviation Administration when in fact the clutches no longer

3 complied. Id. at 991. In addition, it was the provision of these faulty clutches that “exposed

4 Robinson to liability for personal damages if a helicopter crashed and to disciplinary action by the

5 FAA. Id. The court concluded: “Thus, Dana’s fraud is a tort independent of the breach itself” Id.

6 In other words, Dana’s breach, and what it concealed, was providing faulty clutches and

7 the independent tort that created the exception was communicating directly to its customer that

8 the clutches it was providing were in compliance with the FAA regulations in conformance with

9 the supply contract. There are no such facts alleged against NNA in Plaintiffs’ complaint.

10 C. NNA’s Demurrer Should be Sustained as the Fourth Cause of Action of the
Complaint Fails to State a Cause of Action for Fraud as It Fails to Plead the
11 Necessary Element of Damages.
12 The Fourth Cause of Action of Plaintiffs’ Complaint purported to plead claims for

13 fraudulent concealment. Complaint ¶¶ 135-145. Plaintiffs’ Complaint alleges that the CVT

14 (transmission) defect identified as forming the basis for Plaintiffs’ claims for fraudulent

15 concealment reportedly manifests by “juddering” or “shuddering”, which the Complaint describes

16 as a “hard stop”, “hard shaking”, and “violent jerking”. Complaint ¶¶ 18, 36, 37, 39, 46, 48, &

17 136-139. While Plaintiffs had their CVT replaced on February 11, 2019, there is no indication the

18 repair was not paid for pursuant to NNA’s new vehicle limited warranty. Complaint ¶¶ 67-73 see

19 also generally Complaint. There are no allegations that Plaintiff had any complaint regarding the

20 transmission after the repair on February 11, 2019. Complaint ¶¶ 64-68; see generally

21 Complaint. In other words, Plaintiffs’ new vehicle limited warranty was honored and their repairs

22 were paid for by NNA. Plaintiffs have no damages. NNA’s Demurrer should be sustained.

23
D. NNA’s Demurrer Should be Sustained Because Plaintiffs’ Complaint Fails to
BHC
LAW 24 Plead “Material Facts” to Establish a Duty to Disclose.
GROUP LLP To allege a duty to disclose, a plaintiff must show that the defendant (1) is in a fiduciary
________ 25
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relationship with the plaintiff (2) had exclusive knowledge of material facts not known to the
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plaintiff; (3) actively conceals a material fact from the plaintiff; and (4) makes partial
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representations but also suppresses some material fact. LiMandri v. Judkins, (1997) 52
28

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REPLY IN SUPPORT OF DEFENDANT NISSAN NORTH AMERICA, INC.’S DEMURRER AND DEMURRER TO
FOURTH CAUSE OF ACTION OF PLAINTIFFS’ COMPLAINT
1 Cal.App.4th 326, 336.

2 Plaintiffs’ Complaint cannot plead the element of the duty to disclose as there was no

3 transactional relationship between Plaintiff and NNA, which was not a party to the sale of the

4 Subject Vehicle. A duty to disclose facts arises only when the parties are in a relationship giving

5 rise to the duty, such as `"seller and buyer, employer and prospective employee, doctor and

6 patient, or parties entering into any kind of contractual arrangement." See Shin v. Kong (2000)

7 80 Cal.App.4th 498, 509; Bigler-Engler v. Breg, Inc., (2017) 7 Cal.App.5th 276 (no privity

8 between product manufacturer and end-user patient). Bigler-Engler is particularly instructive

9 since it discussed the requisite relationship necessary for a duty to disclose, suggesting that a

10 device manufacturer never had such a relationship or transaction with plaintiff. In Bigler-Engler,

11 the plaintiff used a medical device, the Polar Care 500, manufactured by Breg, Inc. prescribed by

12 her medical doctor. Bigler-Engler, supra. at 284. The appellate court addressed whether the

13 evidence at trial supported the jury’s verdict in favor of Engler on an intentional concealment

14 claim against Breg. Id. at 310. Breg contended that it did not owe a duty to disclose because

15 there was no transactional relationship between Breg and Engler. Id. at 311. The appellate

16 court expressly acknowledged that a transactional relationship arises only from direct dealings

17 between the parties.” Such a transaction must necessarily arise from direct dealings between

18 the plaintiff and the defendant; it cannot arise between the defendant and the public at large. Id.

19 at 312. Accordingly, the appellate court agreed with Breg, holding the evidence was insufficient

20 to establish a duty to disclose. Id. at 314. Thus, the appellate court reversed judgment in favor

21 of Engler as to the cause of action for intentional concealment against Breg. Id. at 332. The

22 appellate court in Bigler-Engler specifically rejected the argument that there is a duty to warn of a

23 products hazards and faults for the purposes of a common law fraud claim, rather than a product
BHC
LAW 24 liability claim: “Products liability law involves a set of circumstances, elements, and doctrines that
GROUP LLP
________ 25 are independent from, and not directly applicable to, fraud. The duties underlying each cannot
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Emeryville, CA 94608 simply by applied to the other.” Id. at 312. Rejecting the application of product liability rules in
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an effort to impose fraud claims on a manufacturer defendant, judgment against the

28 manufacturer as to the cause of action for intentional concealment was reversed.

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REPLY IN SUPPORT OF DEFENDANT NISSAN NORTH AMERICA, INC.’S DEMURRER AND DEMURRER TO
FOURTH CAUSE OF ACTION OF PLAINTIFFS’ COMPLAINT
1 Plaintiffs purchased the Subject Vehicle from Momentum Nissan in Fairfield, CA and

2 seek to hold NNA liable based upon its publicly available marketing materials as a manufacturer.

3 Complaint ¶ 65. There was no direct dealing between Plaintiffs and NNA. Accordingly, Plaintiffs’

4 claim for fraud against the manufacturer of the Subject Vehicle fails to state a cause of action.

5 Plaintiffs’ Opposition fails to substantively distinguish the present action from Bigler-Engler or to

6 address the reasoned arguments that support the ruling in Bigler-Engler. Rather, Plaintiffs’

7 Opposition merely asserts that Bigler-Engler should be disregarded because it involved a

8 medical device rental and, instead, cites Daniel v. Ford Motor Co. (9th Cir. 2015) 806 F.3d 1217.

9 Plaintiffs’ Opposition, 5:8-27. However, Daniel fails to save Plaintiffs’ fraud claims. First, Daniel

10 is a non-binding federal court decision that predated the California court’s ruling in Bigler-Engler.

11 Second, the Daniel court did not address a common law fraud claim. Daniel, 806 F.3d at 1221.

12 Like Bigler-Engler, this matter is before a California Court and involves a claim of common law

13 fraud. Daniel is not instructive; Plaintiffs’ reliance upon it is misplaced.

14 Plaintiffs’ Opposition also argues that NNA had exclusive knowledge, thus creating a

15 duty. Plaintiffs’ Opposition, 10:25-27. However, the facts alleged in the Complaint belie the

16 fraud claim. Simply put, the Complaint suggests that various vehicles had an alleged history of

17 transmission acceleration/deceleration issues. Complaint ¶¶ 17-48 & 137-141. The Complaint

18 suggests that NNA was publishing information about CVT issues starting in 2013 and every year

19 thereafter. In other words, to the extent that Plaintiffs may claim some unspecified harm arising

20 from NNA’s purported concealment of alleged defects, admissions by Plaintiffs establish that this

21 information was disclosed and available. Judicial admissions also conceded the existence of a

22 complaints regarding the CVT issues being included in an “automated database” available to the

23 public. Complaint ¶ 43; Request for Judicial Notice ¶ 1. 1 Accordingly, the facts as alleged in the
BHC
LAW 24
GROUP LLP
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5900 Hollis Street, 1 Despite their judicial admission regarding the existence of this public database, Plaintiffs filed Plaintiffs’ Objections
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to Defendant’s Request for Judicial Notice (“Plaintiffs’ Objections”).
Plaintiffs’ Objections expressly concedes that
510-658-3600 judicial notice of the database is proper. Plaintiffs’ Objections, 1:16.
However, Plaintiffs’ Objections urge the Court to
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ignore the existence of the public database on the purported basis that the TSBs may not be “accurate” and that the
database is incomplete as it may not contain “all TSB’s and recalls related to the defect”.
Such arguments do not
avoid demurrer. First, the fraud claims of Plaintiffs’ Complaint rely upon the assertion that the TSBs are “accurate” in
28 demonstrating NNA’s knowledge of a purported defect. If they are not “accurate” as Plaintiffs’ Objections assert, then
Plaintiff cannot state the element of knowledge for a claim for fraud and demurrer is proper.
Regardless, Plaintiffs’
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REPLY IN SUPPORT OF DEFENDANT NISSAN NORTH AMERICA, INC.’S DEMURRER AND DEMURRER TO
FOURTH CAUSE OF ACTION OF PLAINTIFFS’ COMPLAINT
1 Complaint cannot support a “concealment” or “suppression” claim. Through Plaintiffs’ own

2 averment, the information was clearly not suppressed or concealed; it was published.

3
E. NNA’s Demurrer Should be Sustained as Plaintiffs’ Fourth Cause of Action
4 Fails to Adequately Plead Reasonable Reliance.

5 To state a claim for fraud, “A plaintiff must show that the reliance was reasonable by

6 showing that (1) the matter was material in the sense that a reasonable person would find it

7 important in determining how he or he would act; and (2) it was reasonable for the Plaintiff to

8 have relied on the misrepresentation.” Hoffman v. 162 N. Wolfe LLC (2014) 228 Cal. App. 4th

9 1178, 1194, as modified on denial of reh’g (Aug. 13, 2014). As set forth more fully in NNA’s

10 moving papers, reasonable, justifiable reliance is an essential element of a claim for fraudulent

11 inducement. United Guar. Mortg. Indem. Co. v. Countrywide Financial Corp., 660 F.Supp.2d

12 1163, 1189 (C.D. Ca. 2009) citing Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226,

13 1239. Reasonable reliance is judged by an objective standard and can be decided as a matter

14 of law. Id. The causal elements of a claim for misrepresentation, particularly the allegations of

15 reliance, must be specifically pleaded. National Union Fire Ins. Co. of Pittsburgh, PA v.

16 Cambridge Integrated Services Group, Inc. (2009) 1 71 Cal.App.4th 35, 50. Reasonable

17 reliance must be pled whether the “misrepresentation” was the result of an affirmative statement

18 or “concealment”. Anderson v. Deloitte & Touche (1997) 56 Cal.App.4th 1468, 1474 quoting

19 Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1108 superseded on other grounds by statue

20 as stated in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 847-848. Thus, regardless of

21 the label that Plaintiff may apply to the element of misrepresentation, justifiable reliance

22 nevertheless remains an essential element of his fraud claim—one that Plaintiff failed to

23 adequately plead.
BHC
LAW 24
GROUP LLP
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Objection is a mischaracterization of NNA’s request. NNA requests that the Court acknowledge the existence of the
public database and that Plaintiff, therefore, had access to the information therein prior to the time of purchase of the
Subject Vehicle. The fact that such information was not “accurate” or “incomplete” as Plaintiffs’ Objections now assert,
28 does not alter the judicially noticeable fact that such information was published and that such information was not
concealed.
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REPLY IN SUPPORT OF DEFENDANT NISSAN NORTH AMERICA, INC.’S DEMURRER AND DEMURRER TO
FOURTH CAUSE OF ACTION OF PLAINTIFFS’ COMPLAINT
1 1. Judicial Admissions Establish Plaintiffs Contemplated Potential
Defects.
2

3 Plaintiffs’ Complaint contains a judicial admission that the warranty for the Subject

4 Vehicle expressly acknowledged the potential for defects resulting from materials and

5 workmanship. Complaint ¶¶ 59-61. Thus, any assumption by Plaintiffs that the Subject Vehicle

6 would be free of defects was not reasonable. Plaintiffs cannot demonstrate any reasonable

7 belief that the Subject Vehicle would be free of defects or any justifiable reliance upon any

8 statement or omission on the part of NNA. Demurrer is proper.

9
2. Plaintiffs Failed to Plead Their Awareness of NNA’s
10 “Misrepresentations”.

11 Plaintiffs’ Complaint baldly alleges: “Plaintiff reviewed marketing brochures, viewed

12 television commercials and/or heard commercials about the qualities of the Nissan

13 Sentra…Plaintiff further relied on the statements made during the sales process by NISSAN’s

14 agents and within marketing brochures provided by NISSAN.” Complaint ¶ 66; see also

15 Plaintiffs’ Opposition, 1:15-17. Yet, neither the operative pleading nor Plaintiffs’ Opposition

16 specifies what those “qualities” were. See generally Complaint ¶ 66 and Plaintiffs’ Opposition.

17 Indeed, the Complaint is devoid of any allegations as to the content of any statement made

18 during the “sale process”. See generally Complaint. Not a single marketing brochure,

19 commercial, or sale’s statement is described in the operative complaint by name, date, or other

20 identifiable characteristic. In short, the Complaint fails to allege any basis for any reliance upon

21 such statements, let alone any reasonable reliance. What exactly did NNA say about the

22 transmission of the Subject Vehicle that Plaintiffs allegedly relied upon? Neither the Complaint

23 nor Plaintiffs’ Opposition says. The omission of such specific facts are fatal to a fraud claim,
BHC
LAW 24 particularly in a claim against a corporate defendant. Shapiro v. Wells Fargo (1984) 152
GROUP LLP
________ 25 Cal.App.3d 467, 474, Tarmann v. State Farm Mutual Automobile Insurance Company (1991) 2
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Cal.App.4th 153, 157-158. Plaintiffs’ Complaint fails to state a cause of action for fraud and
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Plaintiff have not demonstrated that they can reasonably plead facts sufficient to do so. NNA’s

28 Demurrer should be sustained without leave to amend. McKenney v. Purepac Pharmaceutical

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REPLY IN SUPPORT OF DEFENDANT NISSAN NORTH AMERICA, INC.’S DEMURRER AND DEMURRER TO
FOURTH CAUSE OF ACTION OF PLAINTIFFS’ COMPLAINT
1 Co. (2008) 167 Cal.App.4th 72, 78.

2 III. CONCLUSION

3 The allegations of Plaintiffs’ Complaint are insufficient to state a fraud cause of action

4 against NNA. Plaintiffs’ Opposition fails to demonstrate how Plaintiff could now do so. The

5 Fourth Cause of Action of Plaintiffs’ Complaint does not adequately alleges facts to avoid the bar

6 of the economic loss rule, demonstrate the existence of damages from the defect that NNA

7 purportedly concealed, demonstrate any justifiable reliance by Plaintiffs, or show that NNA had a

8 duty to disclose. Plaintiffs’ Complaint fails to state a cause of action for fraud. Demurrer is

9 proper. The Court should sustain NNA’s Demurrer without leave to amend.

10 Dated: March 23, 2020 BHC LAW GROUP LLP

12 By:
Paul S. Lecky
13 Attorneys for Defendant
NISSAN NORTH AMERICA, INC.
14

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BHC
LAW 24
GROUP LLP
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REPLY IN SUPPORT OF DEFENDANT NISSAN NORTH AMERICA, INC.’S DEMURRER AND DEMURRER TO
FOURTH CAUSE OF ACTION OF PLAINTIFFS’ COMPLAINT
1 PROOF OF SERVICE

2 I, Lisa Rubino, declare that I am, and was at the time of service of the documents herein
referred to, over the age of 18 years, and not a party to the action; and I am employed in the
3 County of Alameda, State of California. My business address is 5900 Hollis Street, Suite O,
Emeryville, California 94608.
4
On March 23, 2020, at my employer’s above-stated place of business, I served the
5 foregoing document(s) described as:

6 REPLY IN SUPPORT OF DEFENDANT NISSAN NORTH AMERICA, INC.’S
DEMURRER AND DEMURRER TO FOURTH CAUSE OF ACTION OF PLAINTIFFS’
7 COMPLAINT

8 on interested parties in this action by placing ( ) the original (X) a true copy thereof enclosed in a
separate sealed envelope to each addressee as follows:
9
ATTORNEYS FOR PLAINTIFF
10 Steve Mikhov, Esq.
Amy Morse, Esq.
11 KNIGHT LAW GROUP, LLP
10250 Constellation Blvd., Suite 2500
12 Los Angeles, CA 90067
(310) 552-2250 Telephone
13 (310) 552-7973 Facsimile
emailservice@knightlaw.com
14
(By U.S. Mail) I enclosed the documents in a sealed envelope or package addressed to
15 the persons at the addresses shown above and placed the envelope for collection and
mailing, following our ordinary business practices. I am readily familiar with the
16 business’s practice for collecting and processing correspondence for mailing. On the
same day that correspondence is placed for collection and mailing, it is deposited in the
17 ordinary course of business with the United States Postal Service, in a sealed envelope
with postage fully prepaid.
18
(By Electronic Mail) Based on a court order or an agreement of the parties to accept
19 service by electronic transmission, I served the documents to be sent to the persons at
the electronic notification addresses listed above. I did not receive, within a reasonable
20 time after the transmission, any electronic message or other indication that the
transmission was unsuccessful.
21
(By Overnight Delivery) I enclosed the documents in an envelope or package provided
22 by an overnight delivery carrier and addressed to the persons at the addresses above. I
placed the envelope or package for collection and overnight delivery at an office or a
23 regularly utilized drop box of the overnight delivery carrier.
BHC
LAW 24 I declare under penalty of perjury under the laws of the State of California that the
GROUP LLP foregoing is true and correct.
________ 25
5900 Hollis Street, Executed on March 23, 2020, at Emeryville, California.
Suite O
26
Emeryville, CA 94608
510-658-3600

27
T: 510-658-3600
F: 510-658-1151 Lisa Rubino
28

-1-
PROOF OF SERVICE

Case Info

Judge

Samuel K. Feng Track Judge’s New Case

Case No.

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Document Filed Date

March 23, 2020

Case Filing Date

January 06, 2020

County

Parties

BURNETT, MEAGAN Plaintiff
BURNETT, RAIMAHR C Plaintiff
DOES 1 TO 10 INCLUSIVE Defendant
LECKY, PAUL S Attorney for the Defendant
MIKHOV, STEVE B. Attorney for the Plaintiff
NISSAN NORTH AMERICA, INC. Defendant
SHIELDS, ROBERT Attorney for the Defendant
Amy-Lyn Morse Attorneys for Plaintiffs
Amy Morse Attorneys for Plaintiffs
William Hanssen Attorneys for Defendants
Jessica Anvar Attorney
Benjeman Beck Attorney
Anthony Thomas Attorney
Michael Sweeney Attorney
Parada Ornelas Attorneys for Defendants

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Motion,Ex Parte: MEAGAN BURNETT ET AL VS. NISSAN NORTH AMERICA, INC. ET AL

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