Demurrer
Defendant Kia Motors America, Inc.'s Demurrer to the fifth cause of action for Fraud by Omission in Plaintiff Steve Vogelsang's First Amended Complaint is SUSTAINED without leave to amend. (ROA 58.) Plaintiff still fails to plead sufficient facts of delayed discovery, fraudulent concealment, or other tolling. Among other facts, Plaintiff has still failed to plead when he discovered the alleged defect/Defendant's wrongful conduct, merely reasserting his prior allegation that he did not discover the alleged defect/wrongful conduct until "shortly before this action was filed," which the court previously ruled was insufficient. (FAC ¶¶ 57, 71, 74.) The court also expressly rejected Plaintiff's contention that his fraud claim is saved by two pending class actions in its ruling on the prior demurrer, and therefore this argument should not have been reasserted in opposition to the demurrer to the First Amended Complaint. Plaintiff's fraud claim is time-barred. (Code Civ. Proc. § 338
Hearing Date
December 10, 2020
Category
Civil - Unlimited
Type
Breach of Contract/Warranty
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Demurrer
Defendant Kia Motors America, Inc.'s Demurrer to the fifth cause of action for Fraud by Omission in Plaintiff Steve Vogelsang's First Amended Complaint is SUSTAINED without leave to amend. (ROA 58.) Plaintiff still fails to plead sufficient facts of delayed discovery, fraudulent concealment, or other tolling. Among other facts, Plaintiff has still failed to plead when he discovered the alleged defect/Defendant's wrongful conduct, merely reasserting his prior allegation that he did not discover the alleged defect/wrongful conduct until "shortly before this action was filed," which the court previously ruled was insufficient. (FAC ¶¶ 57, 71, 74.) The court also expressly rejected Plaintiff's contention that his fraud claim is saved by two pending class actions in its ruling on the prior demurrer, and therefore this argument should not have been reasserted in opposition to the demurrer to the First Amended Complaint. Plaintiff's fraud claim is time-barred. (Code Civ. Proc. § 338