JIM RADEMACHER vs GENERAL MOTORS, LLC

2025CUBC050323: JIM RADEMACHER vs GENERAL MOTORS, LLC 09/01/2026 in Department 44 Demurrer

Department Rules. Parties and counsel shall follow the Department 44 rules and Zoom protocols, available at https://www2.ventura.courts.ca.gov/Courtroom/C44.

Remote Appearances. The Court allows Zoom appearances as a courtesy to parties and counsel. The Court does not accommodate Court Call appearances. You MUST register by 3:00 p.m. the court day before your hearing or you will be DENIED entry to the hearing:

ZOOM Registration Link:

https://ventura-courts-ca.zoom.us/meeting/register/iqN7uhQSQMuOqs-9TQXgEQ

No advance notice is required to appear in person.

Tentative Rulings. Oral argument should address the tentative decision. To submit on the tentative decision, email courtroom44@ventura.courts.ca.gov before 8:00 a.m. on the hearing date, copying all other parties. Use the subject line “SUBMISSION ON TENTATIVE”, [Case Number], [Case Title] and [Party]. If not all parties submit, the hearing will proceed, and the tentative ruling may change.

The Court may adopt, modify or reject the tentative ruling after hearing. The tentative ruling has no legal effect unless and until adopted by the Court.

Motion: Demurrer to Second Amended Complaint (Opposed)

Tentative Ruling:

Defendant General Motors LLC’s Demurrer to Plaintiff Jim Rademacher’s Second Amended Complaint is OVERRULED.

Plaintiff timely filed the Second Amended Complaint within the 20 days permitted by the Court’s prior order, and Code of Civil Procedure section 581, subdivision (f)(2), does not authorize dismissal based merely on delayed service of a timely filed amended pleading. Code of Civil Procedure section 581, subdivision (f)(2), permits dismissal when, after a demurrer has been sustained with leave to amend, “the plaintiff fails to amend [the complaint] within the time allowed by the court.” The statute addresses failure to amend within the prescribed period. Here, Plaintiff did amend within that period: the Court directed Plaintiff to “file an amended pleading within 20 days,” and Plaintiff filed the SAC on March 23, 2026, exactly 20 days after the March 3 ruling. The order did not direct Plaintiff to both “file and serve” the SAC within that period.

Moreover, even an amended complaint that is itself filed late is not automatically a nullity. Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 827-828, holds that once an

2025CUBC050323: JIM RADEMACHER vs GENERAL MOTORS, LLC

amended pleading has been filed, dismissal under section 581, subdivision (f)(2), is unavailable unless the late pleading is first stricken. The Court of Appeal recently reaffirmed that rule in Bai v. Yip (2024) 107 Cal.App.5th 188, explaining that an amended complaint, even if filed untimely, precludes dismissal under section 581, subdivision (f)(2), unless and until the pleading is stricken. California Rules of Court, rule 3.1320(i), likewise requires a noticed motion to strike when an amended pleading is filed after the time allowed.

Leader does not compel a different result. There, the plaintiffs failed to file their amended complaint within the time ordered by the court, later presented an unfiled pleading, and ultimately faced both a motion to strike and a motion to dismiss. (Leader, supra, 89 Cal.App.4th at pp. 608-611, 614.) Leader itself distinguished Gitmed on precisely that basis. (Id. at p. 614.)

Here, by contrast, the SAC was timely filed, has never been stricken, and GM has now demurred to it on its merits. Plaintiff’s admitted failure to attach the SAC to the March 23 service email does not establish the statutory predicate for dismissal under section 581, subdivision (f)(2).

Plaintiff additionally argues that GM waived any service objection by generally appearing and demurring to the SAC. The Court need not reach that issue. Plaintiff’s authorities concerning waiver of defects in service of process do not provide the most direct basis for resolving a dispute over service of an amended pleading on a party already appearing in the action. The section 581 argument fails independently because Plaintiff timely filed the SAC and the pleading remains on file.

As to the fourth and fifth causes of action, the SAC now alleges when and how Plaintiff discovered the alleged concealment and deceptive conduct and facts supporting his alleged inability to discover that conduct earlier. (Second Amended Complaint, ¶¶ 39-44, 47-48, 138-141, 156-157.) The statute-of-limitations bar therefore does not clearly and affirmatively appear on the face of the SAC. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-1316.) GM’s attempts to present an argument in its reply brief, not raised in the moving papers, that Plaintiff cannot establish a duty to disclose. (Reichardt v.

Hoffman (1997) 52 Cal.App.4th 754, 764.) Even if this argument were properly raised here, the Court already considered and rejected GM’s duty-to-disclose argument in ruling on the prior demurrer. The Court found the relationship and duty allegations sufficient under Dhital and Bigler-Engler and expressly overruled the demurrer on that ground. The SAC continues to allege GM’s exclusive knowledge, active concealment, express warranty relationship, and involvement of its authorized dealership. (SAC, ¶¶ 6, 8-9, 37-48, 141-145.)

GM shall file and serve its answer to the Second Amended Complaint within 10 days after service of notice of this ruling, unless otherwise ordered. (Cal. Rules of Court, rule 3.1320(j)(1).)

Plaintiff to give notice.

2