Mendez vs. KIA American, Inc.

• The seventh and eighth causes of action for constructive trust and resulting trust are remedies and not stand alone causes of action. • There is no standalone cause of action for willful misconduct. • Plaintiff fails to allege any unlawful, unfair, or fraudulent business act or practice committed by Defendant Lee. • The remaining causes of action are not sufficiently pled and/or are remedies and not standalone causes of action.

Plaintiff, however, did not file an opposition to the demurrer and failed to address any of the arguments that Defendant makes. The failure to oppose a demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 (“Plaintiffs did not oppose the County’s demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue”).)

In addition, it is axiomatic that the failure to challenge a contention in a brief results in the concession of that argument. (DuPont Merck Pharmaceutical Co. v. Sup. Ct. (2000) 78 Cal. App. 4th 562, 566 (“By failing to argue the contrary, plaintiffs concede this issue”); Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal. App. 4th 507, 529 (“failure to address the threshold question . . . effectively concedes that issue and renders its remaining arguments moot”); Glendale Redevelopment Agency v.

Parks (1993) 18 Cal. App. 4th 1409, 1424 (issue is impliedly conceded by failing to address it).)

Accordingly, the court finds Plaintiff’s failure to substantively oppose any of the arguments raised in the demurrer to be an abandonment of the issues and a concession that Defendant’s demurrer/motion has merit.

Should Plaintiff desire to file an amended complaint, Plaintiff shall file and serve the amended complaint within 30 days of service of the notice of ruling.

Moving Defendant to give notice.

2 Mendez vs. TENTATIVE RULING: KIA American, Inc. Demurrer

For the reasons set forth below, Defendant Kia America, Inc.’s demurrer to Plaintiff Alejandra Mendez’s First Amended Complaint is OVERRULED.

Defendant shall file an answer or other response within 30 days of this ruling.

Statement of Law

A demurrer only tests the sufficiency of the pleadings. (See Satyadi v. West Contra Costa Healthcare District (2014) 232 Cal.App.4th 1022, 1028 [in analyzing a demurrer, the court looks only to the face of the pleadings and to matters judicially noticeable and not to the evidence or other extrinsic matters]).

In reviewing the propriety of the sustaining of a demurrer, the “court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’ [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.]

And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1379 [citing Aubry v. Tri–City Hospital Dist. (1992) 2 Cal.4th 962, 967].). A court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v.

Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

Allegations in the First Amended Complaint (FAC)

Plaintiff alleges as follows:

On or about October 24, 2021, Plaintiff entered into a warranty contract with Defendant KIA regarding a 2022 Kia Telluride. (FAC, ¶ 6 [the “Vehicle”]). Plaintiff purchased the Vehicle from Defendant KIA’s authorized retail dealership Kia of Cerritos. (FAC, ¶ 8). Prior to purchase, Plaintiff reviewed Defendant KIA’s marketing and advertising materials, viewed KIA’s vehicle-specific window sticker, and took the Vehicle for a test drive. But at no point prior to purchase was Plaintiff advised the Vehicle and its 3.8-liter engine were defective. (FAC, ¶ 10).

Plaintiff experienced defects and non-conformities in the Vehicle including, but not limited to, burning oil or excessive oil consumption, and a rattling sound from the engine when accelerating.

(FAC, ¶ 13). On September 28, 2024, December 28, 2024, April 21, 2025, June 27, 2025, and July 25, 2025, Plaintiff presented the Vehicle to Defendant Kia’s authorized repair facility with complaints. (FAC, ¶¶ 14-18).

Defects and nonconformities to warranty manifested themselves within the applicable express warranty period, including but not limited to engine defects, electrical defects; among other defects and non-conformities. (FAC, ¶ 25). The value of the Subject Vehicle is worthless and/or de minimis. (FAC, ¶ 27). Plaintiff discovered Defendants' wrongful conduct alleged herein August 19, 2025, when Plaintiff requested a buyback and/or restitution of the Subject Vehicle from KIA, as the Vehicle continued to exhibit symptoms of defects following KIA's unsuccessful attempts to repair them. (FAC, ¶ 38).

Plaintiff is informed and believes, and based thereon alleges, that the 3.8L engine and/or its related components installed in the Subject Vehicle suffer from one or more defects that can result in loss of power, stalling, engine running rough, engine misfire(s), failure or replacement of the engine. (FAC, ¶ 74). The Engine Defect causes unsafe conditions in vehicles equipped with the 3.8L engine, including, but not limited to, the engine losing power while driving. (FAC, ¶ 76).

Plaintiff is informed and believes, and based thereon alleges, that prior to sale of the Subject Vehicle, KIA knew, or should have known, about the Engine Defect through its exclusive knowledge of non-public, internal data about the Engine Defect, including: pre releasing testing data; early consumer complaints about the Engine Defect to Defendant KIA's dealers who are KIA's agents for vehicle repairs; dealership repair orders; testing conducted in response to those complaints; and other internal sources of information possessed exclusively by Defendant KIA and its agents.

Nevertheless, Defendant KIA and its agents have actively concealed the Engine Defect and failed to disclose this defect to Plaintiff at the time of purchase of the Subject Vehicle or thereafter. (FAC, ¶ 78). Because Defendant KIA will not notify the public that the 3.8L engine is defective, Plaintiff is subjected to dangerous driving conditions that often occur without warning. (FAC, ¶ 79).

Defendant KIA knew about, and concealed, the Engine Defect present in the Subject Vehicle, along with the Engine Defect's attendant dangerous safety and drivability problems, from Plaintiff at the time of sale, repair, and thereafter. Instead of repairing the defects in the 3.8L engine, KIA either refused to acknowledge their existence, or performed superficial and ineffectual repairs that simply

masked the symptoms of the Engine Defect. (FAC, ¶ 80). If Plaintiff knew about these defects at the time of sale, Plaintiff would not have purchased the Subject Vehicle. (FAC, ¶ 81). As a result of Plaintiff's reliance on KIA and its agent's omissions and/or concealment of the Engine Defect, Plaintiff suffered an ascertainable loss of money, property, and value to the Subject Vehicle, which is de minimis. (FAC, ¶ 82).

Fraudulent Concealment

Defendant demurrers to the fifth cause of action for fraudulent concealment.

The elements of a cause of action for fraud based on concealment are: “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1198).

Statute of Limitations

First, Defendant contends that the fraudulent concealment cause of action is barred by the three-year statute of limitations for fraud. (Code Civ. Proc. § 338, subd. (d)).

“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42 [internal citations omitted]).

“Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110).

The face of the FAC does not show that Plaintiff’s claim is timebarred. While she mentions that defects manifested during the warranty period, neither Plaintiff nor Defendant mention when the

warranty period ended. According to Plaintiff, she brought the vehicle into the repair facility various times in 2024 and 2025. Additionally, Plaintiff plead that her claims are tolled because “Plaintiff discovered Defendant’s wrongful conduct alleged herein when Plaintiff continued to experience symptoms of the Vehicle’s defects after Defendant’s unsuccessful attempts to repair it and or representations the Vehicle was working as designed.” (FAC, ¶ 43). For purpose of a demurrer, these facts must be taken as true.

Therefore, the cause of action does not appear to be time barred on the face of the FAC.

Requisite Specificity

Next, Defendant contends the cause of action fails to allege facts with the required specificity.

First, Defendant alleges that Plaintiff failed to allege a fact that was required to be disclosed because she alleged the existence of the 3.8L Engine defect on “information and belief.” (FAC, ¶ 74).

The particularity requirement of fraud is “relaxed when it is apparent from the allegations that the defendant necessarily possesses knowledge of the facts.” (Quelimane Co. v. Steward Title Guaranty Co. (1998) 19 Cal.4th 26, 47; see also Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal.App.4th 282, 296 [“The pertinent question in a concealment case is not who said what to whom ....”]).

Here, Plaintiff alleges that the 3.8L engine and/or its related components installed in the Vehicle suffer from one or more defects that can result in loss of power, stalling, engine running rough, engine misfire(s), failure or replacement of the engine, and causes unsafe conditions in vehicles equipped with the 3.8L engine, including, but not limited to, the engine losing power while driving. (FAC, ¶¶ 74, 76). She also alleges on information and belief that prior to sale of the Vehicle, KIA knew, or should have known, about the Engine Defect through its exclusive knowledge of non-public, internal data about the Engine Defect, including: pre releasing testing data, early consumer complaints about the Engine Defect to Defendant KIA's dealers who are KIA's agents for vehicle repairs; dealership repair orders; testing conducted in response to those complaints; and other internal sources of information possessed exclusively by Defendant KIA and its agents.

She alleges that Defendant KIA and its agents have actively concealed the Engine Defect and failed to disclose this defect to Plaintiff at the time of purchase of the Subject Vehicle or thereafter. (FAC, ¶ 78).

Plaintiff also cites to Dhital v. Nissan N. Am., Inc. (2022) 84 Cal.App.5th 82, where the court held: “Nissan also contends plaintiffs did not provide specifics about what Nissan should have disclosed. But plaintiffs alleged the CVT transmissions were defective in that they caused such problems as hesitation, shaking, jerking, and failure to function. The SAC also alleged Nissan was aware of the defects as a result of premarket testing and consumer complaints that were made both to NHTSA and to Nissan and its dealers. It is not clear what additional information Nissan believes should have been included... We conclude plaintiffs’ fraud claim was adequately pleaded.”

Similarly here, Plaintiff alleges that KIA had superior and exclusive knowledge of the Engine Defect and knew or should have known that the Engine Defect was not known or reasonably discoverable by Plaintiff before Plaintiff purchased the Subject Vehicle, new about the Engine Defect through sources not available to consumers, including pre-release testing data, early consumer complaints about the engine defects to KIA and its dealers, testing conducted in response to those complaints, failure rates and replacement part sales data, aggregate data from KIA dealers, among other internal sources of aggregate information about the problem. (FAC, ¶¶ 83, 84).

Accordingly, the court finds that Plaintiff sufficiently plead these elements.

Next, Defendant contends that Plaintiff fail to plead a direct transactional relationship with Defendant to trigger a duty to disclose, citing to Bigler-Engler, Inc. v. Breg, Inc. (2017) 7 Cal.App.5th 276. In that case, the court held: “A duty to disclose facts arises only when the parties are in a relationship that gives rise to the duty, such as ‘seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual arrangement.’” (Id. at 311). “[The California] Supreme Court has described the necessary relationship giving rise to a duty to disclose as a ‘transaction’ between the plaintiff and defendant: ‘In transactions which do not involve fiduciary or confidential relations, a cause of action for non-disclosure of material facts may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff.’” (Id. [italics in original]). “Such a transaction must necessarily arise from

direct dealings between the plaintiff and the defendant; it cannot arise between the defendant and the public at large.” (Id. at 312).

However, in Bigler-Engler, no seller and buyer or contractual relationship existed between the plaintiff and manufacturing defendant. (Bigler-Engler, 7 Cal.App.5th at 314). Here, Plaintiff alleges a relationship with Defendant, because they entered into a warranty contract. (FAC, ¶ 6). Unlike Bigler-Engler, the warranty is provided directly from Defendant to Plaintiff.

Furthermore, in Dhital v. Nissan North America, Inc. (2022) 84 Cal. App. 5th 828, 844, the court held:

“Nissan argues plaintiffs did not adequately plead the existence of a buyer-seller relationship between the parties, because plaintiffs bought the car from a Nissan dealership (not from Nissan itself). At the pleading stage (and in the absence of a more developed argument by Nissan on this point), we conclude plaintiffs’ allegations are sufficient. Plaintiff alleges that they bought the car from a Nissan dealership, that Nissan backed the car with an express warranty, and that Nissan’s authorized dealerships are its agents for purposes of the sale of Nissan vehicles to consumers. In light of these allegations, we decline to hold plaintiffs’ claim is barred on the ground there was no relationship requiring Nissan to disclose known defects.” (Id. at 844).

Plaintiff’s allegations that she entered into a warranty agreement with Defendant, purchased a vehicle from an authorized dealership and considered Defendant’s marketing and advertising materials prior to purchasing the Vehicle are similarly sufficient. (FAC, ¶¶ 6-10).

Next, Defendant contends that Plaintiff failed to allege facts establishing an intent to defraud.

However, Plaintiff has alleged that based on information and belief, prior to sale of the Subject Vehicle, KIA knew, or should have known, about the Engine Defect through its exclusive knowledge of non-public, internal data about the Engine Defect, including: pre releasing testing data; early consumer complaints about the Engine Defect to Defendant KIA's dealers who are KIA's agents for vehicle repairs; dealership repair orders; testing conducted in response to those complaints; and other internal sources of information possessed exclusively by Defendant KIA and its agents. Nevertheless, Defendant KIA and its agents have actively concealed the Engine Defect and failed to disclose this defect to Plaintiff at the time of purchase of the Subject Vehicle or thereafter. (FAC, ¶ 78). Because Defendant KIA will not notify the public that the 3.8L engine is

defective, Plaintiff is subjected to dangerous driving conditions that often occur without warning. (FAC, ¶ 79).

Plaintiff alleged that Defendant KIA knew about, and concealed, the Engine Defect present in the Subject Vehicle, along with the Engine Defect's attendant dangerous safety and drivability problems, from Plaintiff at the time of sale, repair, and thereafter. Instead of repairing the defects in the 3.8L engine, KIA either refused to acknowledge their existence, or performed superficial and ineffectual repairs that simply masked the symptoms of the Engine Defect. (FAC, ¶ 80). Because the facts regarding concealment would be in the possession of Defendant, the particularity requirement is relaxed here. (Quelimane Co., supra, 19 Cal.4th at 47). Accordingly, the court finds Plaintiff’s allegations sufficient at the pleading stage.

Defendant also contends that Plaintiff has not alleged actual damages caused by the alleged concealment. Here, Plaintiff has alleged that as a result of Plaintiff's reliance on KIA and its agent's omissions and/or concealment of the Engine Defect, Plaintiff suffered an ascertainable loss of money, property, and value to the Subject Vehicle, which is de minimis. (FAC, ¶ 82). She alleges elsewhere in the FAC that the value of the Subject Vehicle is worthless and/or de minimis. (FAC, ¶ 25). Contrary to Defendant’s contention, the existence of these damages are not speculative.

Accordingly, the court finds that Plaintiff’s claim is adequately plead.

Economic Loss Doctrine

Finally, in Defendant’s Reply, Defendant contends that the economic loss rule bars Plaintiff’s claim. Defendant did not raise this argument in the Demurrer. However, Plaintiff addressed the economic loss rule in her Opposition, and therefore, the court will address the issue on the merits.

The economic loss rule “precludes recovery for purely economic loss due to disappointed expectations, unless the plaintiff can demonstrate harm above and beyond a broken contractual promise. Conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law.” (Robinson Helicopter Co. v. Dana Corp. (2004) 34 Cal.4th 979, 988-989).

However, the court in Dhital, supra, held: “The economic loss rule provides that, ‘[i]n general, there is no recovery in tort for negligently inflicted ‘purely economic losses,’ meaning financial harm

unaccompanied by physical or property damage.’” (Id. at 837). “For claims arising from alleged product defects, ‘[e]conomic loss consists of ‘damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profits – without any claim of personal injury or damages to other property...’” (Id. [citing Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988]).

The court went on to explain: “Robinson did not hold that any claims for fraudulent inducement are barred by the economic loss rule. Quite the contrary, the Robinson court affirmed that tort damages are available in contract cases where the contract was fraudulently induced.” (Dhital, supra, 84 Cal.App.5th at 839 [italics in the original]).

Accordingly, the court finds that the economic loss rule does not bar Plaintiff’s claim.

The demurrer is OVERRULED.

Motion to strike

For the reasons set forth below, Defendant Kia America, Inc.’s motion to strike portions of Plaintiff Alejandra Mendez’s First Amended Complaint is DENIED.

Defendant moves to strike the following from the First Amended Complaint:

(1) Fifth Cause of Action for Fraudulent Inducement- Concealment (FAC, ¶¶ 72-101, Page 10 line 20 through Page 15 line 8); and (2) Prayer for Relief: “e. For punitive damages” (FAC, Page 15 line 5).

First, with regards to the fifth cause of action, Defendant contends that this claim should be stricken for the same reasons as those set forth in the demurrer-namely that Plaintiff failed to allege the claim with requisite specificity by failing to allege that a fact was required to be disclosed, failing to establish a duty to disclose, and failing to allege intent and damages. As discussed above, the court rejects these arguments and finds that Plaintiff sufficiently alleged this claim.

With regards to punitive damages, punitive damages are recoverable only upon a showing of malice, fraud or oppression. (Civ. Code, §

3294; See also Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664, 678).

According to Civ. Code § 3294 (c)(1), (2) and (3):

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Here, as discussed above, Plaintiff has adequately alleged a cause of action for fraud based on fraudulent inducement-concealment.

Accordingly, the court DENIES the motion to strike.

Plaintiff to give notice of both rulings.

3 Pacheco vs. CONTINUED TO 8/12/26 General Motors LLC 4 Bacher vs. TENTATIVE RULING: Steven Sungku Han For the reasons set forth below, Plaintiff Mark Bacher’s motion to Trustee for consolidate cases is DENIED, without prejudice. The Han Family Trust Dated No Proof of Service February 27, 2003 First, there is no proof of service. Accordingly, the motion is denied due to Plaintiff’s failure to submit a proof of service in accordance with Code Civ. Proc. § 1005 and Cal. R. Ct., rule 3.13009(c).

Failure to Comply with California Rules of Court

Furthermore, Plaintiff failed to comply with Cal. R. Ct., rule 3.350(a)(1), which provides:

(1) A notice of motion to consolidate must:

(A) List all named parties in each case, the names of