Preview
1 Mary Arens McBride, Esq. (SBN: 282459)
Kyle B. Roybal, Esq. (SBN: 291520)
2 ERSKINE LAW GROUP, PC
E-FILED
3 1576 N. Batavia St., Suite A 12/7/2020 3:38 PM
Orange, CA 92867 Superior Court of California
4 Tel: (949) 777-6032 County of Fresno
Fax: (714) 844-9035 By: K. Daves, Deputy
5 Email: marensmcbride@erskinelaw.com
Email: kroybal@erskinelaw.com
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7 Attorneys for Defendant,
GENERAL MOTORS LLC
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF FRESNO – B.F. SISK COURTHOUSE
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12 TAYLOR HARVEY, an individual; and CASE NO.: 20CECG01488
13 CAROLYN WYNN-BOLES, an individual;
14 Plaintiffs, DEFENDANT GENERAL MOTORS
LLC’S MOTION TO STRIKE
15 v. PUNITIVE DAMAGES FROM
PLAINTIFFS’ SECOND AMENDED
16 GENERAL MOTORS LLC, a Delaware COMPLAINT [CCP §§ 435, 436];
Limited Liability Company; and DOES MEMORANDUM OF POINTS AND
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1 through 20, inclusive, AUTHORITIES
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Defendants. [Filed concurrently with Declaration of Kyle
19 B. Roybal; [Proposed] Order; and
20 Demurrer to Complaint]
21 DATE: May 5, 2021
TIME: 3:30 p.m.
22 DEPT: 501; Hon. D. Tyler Tharpe
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PAGE 1 OF 8
DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’
SECOND AMENDED COMPLAINT [CCP §§ 435, 436]; MEMORANDUM OF POINTS AND AUTHORITIES
1 TO THE HONORABLE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that on May 5, 2021 at 3:30 p.m., or as soon thereafter as the
3 matter may be heard in Department 501 of the above-captioned Court located at 1130 O Street,
4 Fresno, California 93721, General Motors LLC (“GM”) will and hereby does move this Court to
5 strike the following from Plaintiffs TAYLOR HARVEY and CAROLYN WYNN-BOLES’
6 (“Plaintiffs”) Second Amended Complaint:
7 1. “E. For punitive damages where available;” [Second Amended Complaint, p. 20:11].
8 The Motion to Strike will be based upon this Notice, the attached Memorandum of Points
9 and Authorities, the concurrently filed Demurrer, and the pleadings and records on file herein.
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11 DATED: December 7, 2020 ERSKINE LAW GROUP, PC
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KYLE B. ROYBAL, Esq.
14 Attorney for Defendant,
GENERAL MOTORS LLC
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PAGE 2 OF 8
DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’
SECOND AMENDED COMPLAINT [CCP §§ 435, 436]; MEMORANDUM OF POINTS AND AUTHORITIES
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiffs TAYLOR HARVEY and CAROLYN WYNN-BOLES (“Plaintiffs”) are
4 attempting to turn this simple lemon law action into a complicated extra-contractual fraudulent
5 concealment case against General Motors LLC (“GM”) so that they can claim unrecoverable
6 punitive damages for an alleged “fraudulent inducement-concealment.” As explained below and
7 in GM’s demurrer, the punitive damages claim should be stricken because (1) Plaintiffs have not
8 pled a viable fraud claim or any other cause of action that can support a punitive damages claim,
9 and (2) such a claim is barred by GM’s defenses.
10 II. STATEMENT OF FACTS
11 Plaintiffs leased a 2017 Cadillac CTS, VIN 1G6AR5SX0H0206239 (the “CTS” or
12 “Subject Vehicle”) in June 2017. (Complaint, ¶¶ 4-5.) On May 20, 2020, Plaintiffs filed breach of
13 warranty claims based upon allegations that the Subject Vehicle developed various alleged
14 “defects” during the warranty period. (See generally id.) On June 5, 2020, Plaintiffs filed their
15 SECOND Amended Complaint (“FAC”), alleging three claims: breach of implied warranty,
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breach of express warranty, and fraudulent inducement – concealment. On November 9, 2020,
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Plaintiffs filed their Second Amended Complaint (“SAC”), alleging the same three claims – breach
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of implied warranty, breach of express warranty, and fraudulent inducement-concealment – but
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adding additional allegations.
20
According to Plaintiffs, GM supposedly acquired knowledge about the specific
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performance of the Subject Vehicle from aggregated data in multiple sources about vehicles other
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than the Subject Vehicle—namely, other customers’ Cadillac vehicles manufactured between 2010
23
and 2018 (SAC, ¶¶ 26-28)—then knowingly and intentionally concealed material facts from
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Plaintiffs. (E.g., id. at ¶¶ 80-81.)
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Conspicuously absent from the SAC, however, are facts plead with particularity about
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GM’s alleged fraudulent concealment and representations supposedly made to Plaintiffs about the
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CTS before Plaintiffs leased the Subject Vehicle. The SAC contains only cookie-cutter, conclusory
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PAGE 3 OF 8
DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’
SECOND AMENDED COMPLAINT [CCP §§ 435, 436]; MEMORANDUM OF POINTS AND AUTHORITIES
1 allegations identical to baseless “fraud” claims Plaintiffs’ counsel has filed in other Song-Beverly
2 matters.
3 III. MEET AND CONFER PER CODE OF CIVIL PROCEDURE § 435.5
4 The parties met and conferred telephonically to attempt to resolve the issues outlined in
5 this motion to strike without the need for court intervention but were unsuccessful in reaching a
6 resolution. (Declaration of Kyle B. Roybal, ¶ 2.)
7 IV. ARGUMENT
8 A. The Court May Strike Any Irrelevant, False, or Improper Matter.
9 The Court may strike any irrelevant, false or improper matter from Plaintiffs’ SAC. Under
10 Code of Civil Procedure (“CCP”) § 435, “[a]ny party, within the time allowed to respond to a
11 pleading may serve and file a notice of motion to strike the whole or any part thereof.” Under
12 CCP § 436(a), “[t]he court may, upon a motion made pursuant to § 435, or at any time in its
13 discretion, and upon terms it deems proper [s]trike out any irrelevant, false, or improper matter
14 inserted in any pleading.”
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B. Claims for Damages Which May Not Be Imposed May Properly Be Stricken
16 from a Pleading.
17 Claims for damages that may not be imposed may properly be stricken from a pleading:
18 “Matter in a pleading which is not essential to the claim is surplusage; probative facts are
19 surplusage and may be stricken out or disregarded.” (Stafford v. Shultz (1954) 42 Cal.2d 767,
20 782). Allegations in a pleading with regard to damages that are not recoverable should be
21 disregarded and treated as surplusage. “[W]here, as here, it appears that by no possibility can he
22 recover for these things, we think the allegations on the subject should be treated as surplusage.”
23 (Newman v. Smith (1888) 77 Cal. 22, 27.) In short, this Court may strike a claim for unrecoverable
24 punitive damages. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159.)
25 C. As A Matter Of Law, Plaintiffs May Not Recover Punitive Damages Based
Upon The Song-Beverly Consumer Warranty Act.
26
Plaintiffs’ firts two claims, while deficient for the reasons given in GM’s demurrer, are
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based on alleged breaches of warranty under Song-Beverly Act. (SAC, ¶¶ 54-74.) Punitive
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PAGE 4 OF 8
DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’
SECOND AMENDED COMPLAINT [CCP §§ 435, 436]; MEMORANDUM OF POINTS AND AUTHORITIES
1 damages are not available under the Song-Beverly Act; the statute limits recovery to a refund of
2 the purchase (here, lease) price paid and payable (or replacement of the subject vehicle), plus –
3 under certain circumstances – a Civil Penalty not to exceed two times Plaintiffs’ actual damages.
4 (Civ. Code, § 1794; 15 U.S.C. § 2301.)
5 D. The SAC Fails to State Facts Sufficient to Support Punitive Damages.
6 Punitive damages are governed by Civil Code § 3294: “In an action for the breach of an
7 obligation not arising from contract, where it is proven by clear and convincing evidence that the
8 defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual
9 damages, may recover damages for the sake of example and by way of punishing the defendant.”
10 (Civil Code § 3294(a) (emphasis added).) “Oppression,” “fraud,” and “malice” are specifically
11 defined in Section 3294:
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(c) As used in this section, the following definitions shall apply:
13
(1) “Malice” means conduct which is intended by the defendant to
14 cause injury to the Plaintiffs or despicable conduct which is carried
on by the defendant with a willful and conscious disregard of the
15 rights or safety of others.
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(2) “Oppression” means despicable conduct that subjects a person
17 to cruel and unjust hardship in conscious disregard of that person's
rights.
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(3) “Fraud” means an intentional misrepresentation, deceit, or
19 concealment of a material fact known to the defendant with the
20 intention on the part of the defendant of thereby depriving a person
of property or legal rights or otherwise causing injury.
21
22 (Civil Code § 3294(c)). Section 3294 was revised effective January 1, 1988, to clarify that conduct
23 must be despicable before punitive damages could be awarded. The amendments also provide for
24 proof of such conduct by clear and convincing evidence.
25 When seeking punitive damages, a party must plead facts from which it can reasonably be
26 inferred that the defendant acted with malice, oppression, or fraud within the meaning of Section
27 3294: “The mere allegation an intentional tort was committed is not sufficient to warrant an
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PAGE 5 OF 8
DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’
SECOND AMENDED COMPLAINT [CCP §§ 435, 436]; MEMORANDUM OF POINTS AND AUTHORITIES
1 award of punitive damages . . . Not only must there be circumstances of oppression, fraud or
2 malice, but facts must be alleged in the pleading to support such a claim.” (Grieves, supra, 157
3 Cal.App.3d at 166 (emphasis added).) Where, as here, such facts have not been pleaded, the trial
4 court should grant the motion to strike. (Id. at 168.)
5 Here, based upon the express language of Section 3294, Plaintiffs’ request for punitive
6 damages should be stricken. Plaintiffs state (in conclusory fashion) that prior to acquiring the
7 vehicle, GM knew, or should have known, that their CTS’s transmission was defective and failed
8 to disclose that defect at the time Plaintiffs leased it. (SAC, ¶ 23.) Tellingly, Plaintiffs fail to
9 allege with particularity what representation(s), if any, were made to Plaintiffs by GM about the
10 Subject Vehicle and its transmission, when, and by whom. Essentially, Plaintiffs omitted the who,
11 the what, the when and the where allegations necessary to plead fraud. Stripped of its legal
12 conclusions, the SAC is devoid of facts supporting punitive damages.
13 Further, a demand for punitive damages in tort requires more than a mere allegation of the
14 “wrongfully and intentionally,” “oppression, fraud, and malice” mentioned in Section 3294.
15 (Perkins v Superior Court (1981) 117 Cal.App.3d 1, 6-7.) The allegations must describe a state
16
of mind and a motive to harm. (Id.) The mere allegation that the defendant committed an
17
intentional tort will not support an award of punitive damages. (Grieves v. Superior Court (1984)
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157 Cal.App.3d 159, 166). Not only must Plaintiffs show oppression, fraud, or malice, but they
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must allege facts to justify their demand for punitive damages. (Id.) Plaintiffs’ SAC fails to plead
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the requisite facts, which is hardly surprising because they do not exist here.
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E. Plaintiffs’ Fraudulent Inducement-Concealment Fails to State Facts Sufficient
22 to State a Cause of Action and Is Barred by the Economic Loss Rule;
Therefore, It Cannot Support Punitive Damages.
23
GM hereby incorporates the arguments set forth in its concurrently-filed demurrer as if
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fully set forth herein. If Plaintiffs’ underlying fraud claim fails for any reason, including lack of
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specificity of their allegations, insufficiency of elemental allegations, or the economic loss rule,
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then their punitive damages claim must be stricken under Newman, supra.
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Further, independent of the Court’s ruling on GM’s demurrer, GM requests that the Court
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PAGE 6 OF 8
DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’
SECOND AMENDED COMPLAINT [CCP §§ 435, 436]; MEMORANDUM OF POINTS AND AUTHORITIES
1 provide an affirmative ruling and grant this motion without leave to amend. Plaintiffs have not
2 sufficiently pled, and cannot sufficiently plead, that GM engaged in conduct to sustain an award
3 of punitive damages. Plaintiffs’ prayer for punitive damages, which may not be imposed, should
4 be stricken.
5 V. CONCLUSION
6 For these reasons, GM respectfully requests that its motion to strike Plaintiffs’ prayer for
7 punitive damages be granted.
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Dated: December 7, 2020 ERSKINE LAW GROUP, PC
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_______________________________
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KYLE B. ROYBAL, Esq.
12 Attorney for Defendant,
GENERAL MOTORS LLC
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PAGE 7 OF 8
DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’
SECOND AMENDED COMPLAINT [CCP §§ 435, 436]; MEMORANDUM OF POINTS AND AUTHORITIES
1 PROOF OF SERVICE
2 I am employed in the County of Orange and my business address is 1576 N. Batavia St., Suite
A, Orange, CA 92867. I am over the age of 18 years and I am not a party to this action. I am
3 readily familiar with the practices of Erskine Law Group for the collection and processing of
correspondence for mailing with the United States Postal Service. Such correspondence is
4 deposited with the United States Postal Service the same day in the ordinary course of business.
5 On December 7, 2020, I served the foregoing document(s), bearing the title(s):
6 DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE
DAMAGES FROM PLAINTIFFS’ SECOND AMENDED COMPLAINT [CCP §§ 435,
7 436]; MEMORANDUM OF POINTS AND AUTHORITIES
8 on the interested parties in the action as follows:
9 [X] by placing [ ] the original [X] a true copy thereof enclosed in a sealed envelope
addressed as follows:
10
DAVID N. BARRY, Esq.
11 THE BARRY LAW FIRM
11845 West Olympic Blvd., Suite 1270
12 Los Angeles, CA 90064
Phone: (310) 684-5859; Fax: (310) 862-4539
13 dbarry@mylemonrights.com
14 [ ] (BY MAIL SERVICE) I placed such envelopes for collection and to be mailed on this
date following ordinary business practices.
15
16 [ ] (BY PERSONAL SERVICE) I caused to be delivered such envelope by hand to the
office of the addressee.
17
[ ] (BY FACSIMILE) The document stated herein was transmitted by facsimile
18 transmission and the transmission was reported as complete and without error. A transmission
report was properly issued by the transmitting facsimile machine and a copy of said transmission
19 report is attached to the original proof of service indicating the time of transmission.
20 [ ] (BY NEXT DAY DELIVERY) I caused to be delivered such envelope by hand to the
office of the addressee.
21
[X] (BY E-MAIL) I served the above mentioned document via electronic transmission per
22 agreement of the parties.
23 [X] (State) I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
24
[ ] (Federal) I declare under penalty of perjury that I am employed by a member of the Bar
25 of this Court, at whose direction this service is made.
26 Executed on December 7, 2020, at Orange, CA.
27 Signed: ______________________
Stanley Chan
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PAGE 8 OF 8
DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’
SECOND AMENDED COMPLAINT [CCP §§ 435, 436]; MEMORANDUM OF POINTS AND AUTHORITIES
Preview
1 Mary Arens McBride, Esq. (SBN: 282459) Kyle B. Roybal, Esq. (SBN: 291520) 2 ERSKINE LAW GROUP, PC E-FILED 3 1576 N. Batavia St., Suite A 12/7/2020 3:38 PM Orange, CA 92867 Superior Court of California 4 Tel: (949) 777-6032 County of Fresno Fax: (714) 844-9035 By: K. Daves, Deputy 5 Email: marensmcbride@erskinelaw.com Email: kroybal@erskinelaw.com 6 7 Attorneys for Defendant, GENERAL MOTORS LLC 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF FRESNO – B.F. SISK COURTHOUSE 11 12 TAYLOR HARVEY, an individual; and CASE NO.: 20CECG01488 13 CAROLYN WYNN-BOLES, an individual; 14 Plaintiffs, DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE 15 v. PUNITIVE DAMAGES FROM PLAINTIFFS’ SECOND AMENDED 16 GENERAL MOTORS LLC, a Delaware COMPLAINT [CCP §§ 435, 436]; Limited Liability Company; and DOES MEMORANDUM OF POINTS AND 17 1 through 20, inclusive, AUTHORITIES 18 Defendants. [Filed concurrently with Declaration of Kyle 19 B. Roybal; [Proposed] Order; and 20 Demurrer to Complaint] 21 DATE: May 5, 2021 TIME: 3:30 p.m. 22 DEPT: 501; Hon. D. Tyler Tharpe 23 24 25 26 27 28 PAGE 1 OF 8 DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’ SECOND AMENDED COMPLAINT [CCP §§ 435, 436]; MEMORANDUM OF POINTS AND AUTHORITIES 1 TO THE HONORABLE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on May 5, 2021 at 3:30 p.m., or as soon thereafter as the 3 matter may be heard in Department 501 of the above-captioned Court located at 1130 O Street, 4 Fresno, California 93721, General Motors LLC (“GM”) will and hereby does move this Court to 5 strike the following from Plaintiffs TAYLOR HARVEY and CAROLYN WYNN-BOLES’ 6 (“Plaintiffs”) Second Amended Complaint: 7 1. “E. For punitive damages where available;” [Second Amended Complaint, p. 20:11]. 8 The Motion to Strike will be based upon this Notice, the attached Memorandum of Points 9 and Authorities, the concurrently filed Demurrer, and the pleadings and records on file herein. 10 11 DATED: December 7, 2020 ERSKINE LAW GROUP, PC 12 13 KYLE B. ROYBAL, Esq. 14 Attorney for Defendant, GENERAL MOTORS LLC 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PAGE 2 OF 8 DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’ SECOND AMENDED COMPLAINT [CCP §§ 435, 436]; MEMORANDUM OF POINTS AND AUTHORITIES 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiffs TAYLOR HARVEY and CAROLYN WYNN-BOLES (“Plaintiffs”) are 4 attempting to turn this simple lemon law action into a complicated extra-contractual fraudulent 5 concealment case against General Motors LLC (“GM”) so that they can claim unrecoverable 6 punitive damages for an alleged “fraudulent inducement-concealment.” As explained below and 7 in GM’s demurrer, the punitive damages claim should be stricken because (1) Plaintiffs have not 8 pled a viable fraud claim or any other cause of action that can support a punitive damages claim, 9 and (2) such a claim is barred by GM’s defenses. 10 II. STATEMENT OF FACTS 11 Plaintiffs leased a 2017 Cadillac CTS, VIN 1G6AR5SX0H0206239 (the “CTS” or 12 “Subject Vehicle”) in June 2017. (Complaint, ¶¶ 4-5.) On May 20, 2020, Plaintiffs filed breach of 13 warranty claims based upon allegations that the Subject Vehicle developed various alleged 14 “defects” during the warranty period. (See generally id.) On June 5, 2020, Plaintiffs filed their 15 SECOND Amended Complaint (“FAC”), alleging three claims: breach of implied warranty, 16 breach of express warranty, and fraudulent inducement – concealment. On November 9, 2020, 17 Plaintiffs filed their Second Amended Complaint (“SAC”), alleging the same three claims – breach 18 of implied warranty, breach of express warranty, and fraudulent inducement-concealment – but 19 adding additional allegations. 20 According to Plaintiffs, GM supposedly acquired knowledge about the specific 21 performance of the Subject Vehicle from aggregated data in multiple sources about vehicles other 22 than the Subject Vehicle—namely, other customers’ Cadillac vehicles manufactured between 2010 23 and 2018 (SAC, ¶¶ 26-28)—then knowingly and intentionally concealed material facts from 24 Plaintiffs. (E.g., id. at ¶¶ 80-81.) 25 Conspicuously absent from the SAC, however, are facts plead with particularity about 26 GM’s alleged fraudulent concealment and representations supposedly made to Plaintiffs about the 27 CTS before Plaintiffs leased the Subject Vehicle. The SAC contains only cookie-cutter, conclusory 28 PAGE 3 OF 8 DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’ SECOND AMENDED COMPLAINT [CCP §§ 435, 436]; MEMORANDUM OF POINTS AND AUTHORITIES 1 allegations identical to baseless “fraud” claims Plaintiffs’ counsel has filed in other Song-Beverly 2 matters. 3 III. MEET AND CONFER PER CODE OF CIVIL PROCEDURE § 435.5 4 The parties met and conferred telephonically to attempt to resolve the issues outlined in 5 this motion to strike without the need for court intervention but were unsuccessful in reaching a 6 resolution. (Declaration of Kyle B. Roybal, ¶ 2.) 7 IV. ARGUMENT 8 A. The Court May Strike Any Irrelevant, False, or Improper Matter. 9 The Court may strike any irrelevant, false or improper matter from Plaintiffs’ SAC. Under 10 Code of Civil Procedure (“CCP”) § 435, “[a]ny party, within the time allowed to respond to a 11 pleading may serve and file a notice of motion to strike the whole or any part thereof.” Under 12 CCP § 436(a), “[t]he court may, upon a motion made pursuant to § 435, or at any time in its 13 discretion, and upon terms it deems proper [s]trike out any irrelevant, false, or improper matter 14 inserted in any pleading.” 15 B. Claims for Damages Which May Not Be Imposed May Properly Be Stricken 16 from a Pleading. 17 Claims for damages that may not be imposed may properly be stricken from a pleading: 18 “Matter in a pleading which is not essential to the claim is surplusage; probative facts are 19 surplusage and may be stricken out or disregarded.” (Stafford v. Shultz (1954) 42 Cal.2d 767, 20 782). Allegations in a pleading with regard to damages that are not recoverable should be 21 disregarded and treated as surplusage. “[W]here, as here, it appears that by no possibility can he 22 recover for these things, we think the allegations on the subject should be treated as surplusage.” 23 (Newman v. Smith (1888) 77 Cal. 22, 27.) In short, this Court may strike a claim for unrecoverable 24 punitive damages. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159.) 25 C. As A Matter Of Law, Plaintiffs May Not Recover Punitive Damages Based Upon The Song-Beverly Consumer Warranty Act. 26 Plaintiffs’ firts two claims, while deficient for the reasons given in GM’s demurrer, are 27 based on alleged breaches of warranty under Song-Beverly Act. (SAC, ¶¶ 54-74.) Punitive 28 PAGE 4 OF 8 DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’ SECOND AMENDED COMPLAINT [CCP §§ 435, 436]; MEMORANDUM OF POINTS AND AUTHORITIES 1 damages are not available under the Song-Beverly Act; the statute limits recovery to a refund of 2 the purchase (here, lease) price paid and payable (or replacement of the subject vehicle), plus – 3 under certain circumstances – a Civil Penalty not to exceed two times Plaintiffs’ actual damages. 4 (Civ. Code, § 1794; 15 U.S.C. § 2301.) 5 D. The SAC Fails to State Facts Sufficient to Support Punitive Damages. 6 Punitive damages are governed by Civil Code § 3294: “In an action for the breach of an 7 obligation not arising from contract, where it is proven by clear and convincing evidence that the 8 defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual 9 damages, may recover damages for the sake of example and by way of punishing the defendant.” 10 (Civil Code § 3294(a) (emphasis added).) “Oppression,” “fraud,” and “malice” are specifically 11 defined in Section 3294: 12 (c) As used in this section, the following definitions shall apply: 13 (1) “Malice” means conduct which is intended by the defendant to 14 cause injury to the Plaintiffs or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the 15 rights or safety of others. 16 (2) “Oppression” means despicable conduct that subjects a person 17 to cruel and unjust hardship in conscious disregard of that person's rights. 18 (3) “Fraud” means an intentional misrepresentation, deceit, or 19 concealment of a material fact known to the defendant with the 20 intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. 21 22 (Civil Code § 3294(c)). Section 3294 was revised effective January 1, 1988, to clarify that conduct 23 must be despicable before punitive damages could be awarded. The amendments also provide for 24 proof of such conduct by clear and convincing evidence. 25 When seeking punitive damages, a party must plead facts from which it can reasonably be 26 inferred that the defendant acted with malice, oppression, or fraud within the meaning of Section 27 3294: “The mere allegation an intentional tort was committed is not sufficient to warrant an 28 PAGE 5 OF 8 DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’ SECOND AMENDED COMPLAINT [CCP §§ 435, 436]; MEMORANDUM OF POINTS AND AUTHORITIES 1 award of punitive damages . . . Not only must there be circumstances of oppression, fraud or 2 malice, but facts must be alleged in the pleading to support such a claim.” (Grieves, supra, 157 3 Cal.App.3d at 166 (emphasis added).) Where, as here, such facts have not been pleaded, the trial 4 court should grant the motion to strike. (Id. at 168.) 5 Here, based upon the express language of Section 3294, Plaintiffs’ request for punitive 6 damages should be stricken. Plaintiffs state (in conclusory fashion) that prior to acquiring the 7 vehicle, GM knew, or should have known, that their CTS’s transmission was defective and failed 8 to disclose that defect at the time Plaintiffs leased it. (SAC, ¶ 23.) Tellingly, Plaintiffs fail to 9 allege with particularity what representation(s), if any, were made to Plaintiffs by GM about the 10 Subject Vehicle and its transmission, when, and by whom. Essentially, Plaintiffs omitted the who, 11 the what, the when and the where allegations necessary to plead fraud. Stripped of its legal 12 conclusions, the SAC is devoid of facts supporting punitive damages. 13 Further, a demand for punitive damages in tort requires more than a mere allegation of the 14 “wrongfully and intentionally,” “oppression, fraud, and malice” mentioned in Section 3294. 15 (Perkins v Superior Court (1981) 117 Cal.App.3d 1, 6-7.) The allegations must describe a state 16 of mind and a motive to harm. (Id.) The mere allegation that the defendant committed an 17 intentional tort will not support an award of punitive damages. (Grieves v. Superior Court (1984) 18 157 Cal.App.3d 159, 166). Not only must Plaintiffs show oppression, fraud, or malice, but they 19 must allege facts to justify their demand for punitive damages. (Id.) Plaintiffs’ SAC fails to plead 20 the requisite facts, which is hardly surprising because they do not exist here. 21 E. Plaintiffs’ Fraudulent Inducement-Concealment Fails to State Facts Sufficient 22 to State a Cause of Action and Is Barred by the Economic Loss Rule; Therefore, It Cannot Support Punitive Damages. 23 GM hereby incorporates the arguments set forth in its concurrently-filed demurrer as if 24 fully set forth herein. If Plaintiffs’ underlying fraud claim fails for any reason, including lack of 25 specificity of their allegations, insufficiency of elemental allegations, or the economic loss rule, 26 then their punitive damages claim must be stricken under Newman, supra. 27 Further, independent of the Court’s ruling on GM’s demurrer, GM requests that the Court 28 PAGE 6 OF 8 DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’ SECOND AMENDED COMPLAINT [CCP §§ 435, 436]; MEMORANDUM OF POINTS AND AUTHORITIES 1 provide an affirmative ruling and grant this motion without leave to amend. Plaintiffs have not 2 sufficiently pled, and cannot sufficiently plead, that GM engaged in conduct to sustain an award 3 of punitive damages. Plaintiffs’ prayer for punitive damages, which may not be imposed, should 4 be stricken. 5 V. CONCLUSION 6 For these reasons, GM respectfully requests that its motion to strike Plaintiffs’ prayer for 7 punitive damages be granted. 8 Dated: December 7, 2020 ERSKINE LAW GROUP, PC 9 10 _______________________________ 11 KYLE B. ROYBAL, Esq. 12 Attorney for Defendant, GENERAL MOTORS LLC 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PAGE 7 OF 8 DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’ SECOND AMENDED COMPLAINT [CCP §§ 435, 436]; MEMORANDUM OF POINTS AND AUTHORITIES 1 PROOF OF SERVICE 2 I am employed in the County of Orange and my business address is 1576 N. Batavia St., Suite A, Orange, CA 92867. I am over the age of 18 years and I am not a party to this action. I am 3 readily familiar with the practices of Erskine Law Group for the collection and processing of correspondence for mailing with the United States Postal Service. Such correspondence is 4 deposited with the United States Postal Service the same day in the ordinary course of business. 5 On December 7, 2020, I served the foregoing document(s), bearing the title(s): 6 DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’ SECOND AMENDED COMPLAINT [CCP §§ 435, 7 436]; MEMORANDUM OF POINTS AND AUTHORITIES 8 on the interested parties in the action as follows: 9 [X] by placing [ ] the original [X] a true copy thereof enclosed in a sealed envelope addressed as follows: 10 DAVID N. BARRY, Esq. 11 THE BARRY LAW FIRM 11845 West Olympic Blvd., Suite 1270 12 Los Angeles, CA 90064 Phone: (310) 684-5859; Fax: (310) 862-4539 13 dbarry@mylemonrights.com 14 [ ] (BY MAIL SERVICE) I placed such envelopes for collection and to be mailed on this date following ordinary business practices. 15 16 [ ] (BY PERSONAL SERVICE) I caused to be delivered such envelope by hand to the office of the addressee. 17 [ ] (BY FACSIMILE) The document stated herein was transmitted by facsimile 18 transmission and the transmission was reported as complete and without error. A transmission report was properly issued by the transmitting facsimile machine and a copy of said transmission 19 report is attached to the original proof of service indicating the time of transmission. 20 [ ] (BY NEXT DAY DELIVERY) I caused to be delivered such envelope by hand to the office of the addressee. 21 [X] (BY E-MAIL) I served the above mentioned document via electronic transmission per 22 agreement of the parties. 23 [X] (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 24 [ ] (Federal) I declare under penalty of perjury that I am employed by a member of the Bar 25 of this Court, at whose direction this service is made. 26 Executed on December 7, 2020, at Orange, CA. 27 Signed: ______________________ Stanley Chan 28 PAGE 8 OF 8 DEFENDANT GENERAL MOTORS LLC’S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’ SECOND AMENDED COMPLAINT [CCP §§ 435, 436]; MEMORANDUM OF POINTS AND AUTHORITIES