Mencarini v. General Motors, LLC.

Plaintiff has failed to show the absence of alternate remedies, or if alternate remedies exist, their inadequacy. Rather, as in Medipro, supra, Plaintiff has only shown that he has encountered some difficulties in his initial efforts to collect the judgment. While Plaintiff states in his declaration that he investigated Defendant’s finances, there is no explanation regarding the depth of this investigation. The court is not convinced that no bank accounts exist linked to a business that is purportedly still open.

Plaintiff’s representations regarding the inadequacy of alternative remedies are not supported by foundation. Finally, Plaintiff has not filed a motion to compel further responses to his post-judgment discovery requests. Mere difficulties in collecting the judgment are insufficient grounds for appointing a receiver. Plaintiff has failed to meet his burden of proving that a receiver is necessary in this matter. The motion is DENIED. Due to the lack of opposition, the court’s minutes shall constitute the order of the court.

3. 25CV02065, Mencarini v. General Motors, LLC.

Defendant General Motors LLC (“GM”) demurs to the First Amended Complaint (“FAC”) filed by Antonio R Mencarini (“Plaintiff”) on the grounds that, pursuant to Section 430.10(e) of the Code of Civil Procedure, Plaintiff’s Fourth cause of action for breach of the implied warranty is time-barred by the applicable four-year statute of limitations; and, Plaintiff’s fifth cause of action for fraudulent inducement – concealment is barred by the three-year statute of limitations; Plaintiff 3

fails to plead the essential elements of a fraud claims; and the fraud claim is barred by the economic loss rule and independent tort principle. The demurrer is OVERRULED.

1. FAC Plaintiff’s FAC alleges that on June 16, 2019, he entered into a warranty contract with GM regarding a 2019 GMC Sierra 1500 (“the Vehicle”). The warranty contract contained various warranties, including but not limited to the bumper-bumper warranty, powertrain warranty, and emission warranty. Plaintiff alleges that starting on the day of the purchase, he presented the Vehicle to an authorized GM repair facility with complaints of an oil leak and rough idling. Thereafter, Plaintiff presented the Vehicle for additional complaints in August of 2023, and February and December of 2024. Plaintiff alleges the Vehicle is incapable of repair and that GM has a duty to promptly offer to repurchase or replace the Vehicle as it does not comply with the express warranty.

1. Fourth Cause of Action – Breach of the Implied Warranty of Merchantability (Civil Code sections 1791.1, 1794, and 1795.5) Plaintiff’s fourth cause of action alleges that the Vehicle was sold with latent defects, which constitutes a breach of the implied warranty of merchantability. The Song-Beverly Consumer Warranty Act consists of Civil Code sections 1790 through 1795.8. Civil Code section 1791.1 defines the implied warranty of merchantability. Civil Code section 1790(c) provides: “The duration of the implied warranty of merchantability and where present the implied warranty of fitness shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer.

Where no duration for an express warranty is stated with respect to consumer goods, or parts thereof, the duration of the implied warranty shall be the maximum period prescribed above.” Plaintiff alleges delayed discovery—that he was not suspicious of GM’s concealment of the latent defects and its inability to repair the Vehicle until shortly before the filing of the complaint when the issue persisted following GM’s (representative’s) representations that the Vehicle was repaired and/or working as designed. (FAC, ¶39.)

GM argues that Plaintiff’s fourth cause of action began to run upon tender of delivery and does not extend to future performance of the goods. The statute of limitations for breaches of the implied warranty of merchantability is four years. (Montoya v. Ford Motor Co. (2020) 46 Cal.App.5th 493, 495, citing Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1306.) The Song–Beverly Act does not include its own statute of limitations. (Mexia v. Rinker Boat Co., Inc., supra, 174 Cal.App.4th at p. 1305.)

California courts have held that the statute of limitations for an action for breach of warranty under the Song–Beverly Act is governed by the same statute that governs the statute of limitations for warranties arising under the Uniform Commercial Code: section 2725 of the Uniform Commercial Code. (Id. at pp. 1305-1306.) Under this statute, “(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.... [¶] (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach.

A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” (Mexia, supra, citing Com.Code, § 2725, subds. (1), (2).) “ Under that statute, a cause of action for breach of warranty accrues, at the earliest, upon tender of delivery.” (Id., at p. 1306.)

Here, the Vehicle was tendered to Plaintiff in 2019. Plaintiff did not file this action until March 24, 2025. Therefore, unless the delayed discovery or tolling doctrines are applicable to extend the time for filing the complaint, it is barred. Citing cases pertaining to the Commercial Code, GM argues that the delayed discovery doctrine does not apply to implied warranty claims because an implied warranty is one that arises by operation of law rather than by an express agreement of the parties.

However, Mexia notes how the Song Beverly Consumer Warranty Act was a change from the Commercial Code. “To say that a warranty exists is to say that a cause of action can arise for its breach. Defining the time period during which the implied warranty exists, therefore, also defines the time period during which the warranty can be breached. Thus, by giving the implied warranty a limited prospective existence beyond the time of delivery, the Legislature created the possibility that the implied warranty could be breached after delivery.

As discussed above, this is a change from the Uniform Commercial Code, under which the implied warranty could be breached only at the time of delivery. Giving the implied warranty a prospective existence, however, is not new under the law. Prior to the adoption of the Uniform Commercial Code, California courts recognized that the implied warranty of merchantability could have a prospective existence.” (Mexia, supra, at p. 1309.) “The duration provision provides, in essence, that the duration of the implied warranty of merchantability shall be the same as the duration of any reasonable express warranty that accompanies the product, but in no event shorter than 60 days or longer than one year. (Civ.Code § 1791.1, subd. (c).)

There is nothing that suggests a requirement that the purchaser discover and report to the seller a latent defect within that time period.” (Id., at p. 1310.) A purchaser can sue more than five years after the purchase on the theory that a latent defect lurked within the vehicle not reasonably discoverable by him until after the year ran such that the four-year limitations period began only upon discovery. (Yeager v. Ford Motor Company (N.D. Cal., Jan. 8, 2020, No. C 19-06750 WHA) 2020 WL 95645, at *3.)

Where a latent defect exists, the statute of limitations is tolled “until the plaintiff discovers, or has reason to discover, the cause of action[.]” (Id., citing Fox v. Ethicon Endo-Surgery, Inc. (2005). 35 Cal.4th 797, 807.) In sum, the latent defect must exist during the one-year period but the Song-Beverly Consumer Warranty Act does not require its discovery within that short time frame and the statute of limitations is tolled until a plaintiff discovers or should have discovered the defect.

2. Plaintiff’s Fifth Cause of Action – Fraudulent Inducement – Concealment Plaintiff alleges GM committed fraud by allowing the Vehicle to be sold to Plaintiff without disclosing that the Vehicle and its 10-speed transmission were defective and susceptible to sudden and premature failure. (FAC, ¶¶74-77.) The FAC alleges causes of action are subject to equitable tolling, the discovery rule, equitable estoppel, the repair rule, and/or class action tolling. (FAC, ¶¶34-50.) a. Statute of Limitations GM argues this cause of action is barred by the three-year statute of limitations for fraud and that there are no allegations justifying its late filing. (See Code Civ.

Proc., § 338, subd. (d).) GM does not address the specific allegations in the FAC which does not contain facts showing that Plaintiff should have known of the alleged defect prior to March 24, 2022, such that the three-year statute of limitations bars this action brought on March 24, 2025. b. Specificity GM argues this cause of action fails because Plaintiff has not alleged it with the required specificity. The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact; (3) the defendant intended to 5

defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would have acted differently if the concealed or suppressed fact was known; and (5) plaintiff sustained damage as a result of the concealment or suppression of the material fact. (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 40.) GM argues that the FAC fails to plead that GM knew of undisclosed facts at the time Plaintiff purchased the vehicle; what advertisements, brochures, or other materials GM could have disclosed the allegedly omitted “facts” that Plaintiff reviewed and relied upon in purchasing the Subject Vehicle; how long prior to purchasing the vehicle materials were viewed; and whether those materials, if any, were prepared by GM or someone else (such as a dealership).

GM also argues that Plaintiff fails to plead with specificity, as required, facts supporting any allegation that GM intended to defraud by either making affirmative statements or failing to disclose material facts. The FAC alleges sufficient facts. It alleges GM knew about specific defects with the Vehicle’s transmission which GM did not disclose to its customers. (See FAC, ¶¶74-84.) In addition, it is difficult to allege non-disclosure: “How does one show ‘how’ and ‘by what means' something didn't happen, or ‘when’ it never happened, or ‘where’ it never happened?” (Alfaro v.

Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) GM also argues, “the requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) However, it should be well known to GM that there is a recognized exception to the strict pleading standard in fraud actions when it appears that the facts lie more within the defendant's knowledge than plaintiff’s: i.e., less specificity is required where “defendant must necessarily possess full information concerning the facts of the controversy.” (Committee on Children's Television, Inc. v.

General Foods Corp. (1983) 35 Cal.3d 197, 216.) c. Duty to Disclose GM argues that Plaintiff has not alleged the requisite transactional relationship showing a duty to disclose. A duty to disclose a material fact can arise if (1) it is imposed by statute; (2) the defendant is acting as plaintiff's fiduciary or is in some other confidential relationship with plaintiff that imposes a disclosure duty under the circumstances; (3) the material facts are known or accessible only to defendant, and defendant knows those facts are not known or reasonably discoverable by plaintiff (i.e., exclusive knowledge); (4) the defendant makes representations but fails to disclose other facts that materially qualify the facts disclosed or render the disclosure misleading (i.e., partial concealment); or (5) defendant actively conceals discovery of material fact from plaintiff (i.e., active concealment). (Rattagan v.

Uber Technologies, Inc, supra, 17 Cal.5th at p. 40.).) Circumstances (3), (4), and (5) presuppose a preexisting relationship between the parties, such as “between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement.” (Ibid.) All of these relationships are created by transactions between parties from which a duty to disclose facts material to the transaction arises under certain circumstances. (Id., at p. 41.) “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.” (Ibid.)

Our 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 6

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. (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 311.) ‘As a matter of common sense, such a relationship can only come into being as a result of some sort of transaction between the parties.’” (Ibid.)

The cases cited by GM are distinguishable such that GM has not shown that its warranty with Plaintiff is insufficient to create the necessary transactional relationship. Davis v. Nissan North America, Inc. (2024) 100 Cal.App.5th 825 involved the purchase of a new vehicle with an allegedly defective transmission. The plaintiff in that case did not allege a cause of action for fraud based upon a duty to disclose. (Id., at p. 832-833.) The discussion of the parties’ relationships in that case involved the issue of whether the defendants, who were not parties to the sale contract between plaintiffs and the dealership containing the arbitration clause, could compel arbitration based upon the doctrine of equitable estoppel.

The full paragraph including the portion quoted by GM states: “We agree with the holdings of these recent cases and adopt their reasoning as our own. ‘Equitable estoppel would apply if the plaintiffs had sued [Nissan] based on the terms of the sale contract yet denied [Nissan] could enforce the arbitration clause in that contract.’ [Citation.] But equitable estoppel does not apply here because plaintiffs are not relying on the terms of the sale contract to impose liability on Nissan. [Citation.]

Plaintiffs' complaint does not allege that Nissan breached any obligations under the sale contract between them and the dealership. Rather, the complaint alleges violations of manufacturer warranties under the Song-Beverly Act and a related tort claim. Under California law, manufacturer warranties that accompany the sale of a vehicle without regard to the substantive terms of the sale contract between the buyer and the dealer are independent of the sale contract.” Causes of action based upon the Song Beverly Act are not based upon a contract and do not require privity. (Id. at p. 842.)

As such, the provision of warranties by the manufacturer did not allow it to invoke the arbitration clause in the sales contract between the purchaser and the dealership. (Id., at p. 844.) Ford Motor Warranty Cases (2025) 17 Cal.5th 1122 also dealt with the issue of whether a manufacturer could compel arbitration. The analysis in these cases does not establish the lack of a transactional relationship for the purpose of requiring a manufacturer to disclose known defects contrary to the warranty given to purchasers of its vehicles. d.

Exclusive Knowledge GM also argues that Plaintiff fails to allege it had exclusive knowledge of the transmission defects. However, this is only one option to establish a duty to disclose and Plaintiff alleges a duty to disclose based upon the Vehicle’s purchase and warranties. In addition, the FAC contains allegations that GM acquired knowledge of the defects through testing data and consumer complaints unavailable to consumers. (FAC, ¶77.) e. Active Concealment GM’s argument that Plaintiff must allege how its agents actively concealed the transmission defects is not practical or legally required. f.

Justifiable Reliance The FAC alleges justifiable reliance. (FAC, ¶¶84-85.) g. “Information and Belief” The FAC alleges sufficient factual allegations alongside the allegation that they are based upon Plaintiff’s information and belief as they are based upon Plaintiff’s purchase of the Vehicle and his experience driving it and attempting to have it repaired. h. Economic Loss Rule 7

GM argues that this cause of action is barred by the economic loss rule. The economic loss rule does not apply to limit recovery for intentional tort claims like fraud. (Rattagan v. Uber Technologies, Inc., supra, 17 Cal.5th at p. 38.) A plaintiff may assert an independent claim of fraudulent concealment in the performance of a contract. (Ibid.) “A plaintiff may assert a tort claim for fraudulent concealment based on conduct occurring in the course of a contractual relationship, if the elements of the cause of action can be established independently of the parties' contractual rights and obligations and the tortious conduct exposes the plaintiff to a risk of harm beyond the reasonable contemplation of the parties when they entered into the agreement.” (Ibid.)

3. Conclusion and Order The demurrer is OVERRULED. Plaintiff’s counsel is directed to submit a written order to the court consistent with this ruling and in compliance with Cal. Rules of Court, Rule 3.1312.

4. 25CV002397, Gelsinger v. Alliant Specialty Insurance Services

Defendant Alliant Specialty Insurance Services dba Tribal First (“Tribal First”) demurs to the Third Amended Complaint (“TAC”) of Plaintiff Sarah Gelsinger (“Plaintiff”) for failure to state facts sufficient to constitute a cause of action. Tribal First argues each claim is brought under the Fair Employment and Housing Act (“FEHA”), which applies only to employers or entities that engage in employment-related conduct, and Plaintiff has not alleged, and cannot allege that Tribal First was her employer, exercised any control over the terms or conditions of her employment, or engaged in any conduct regulated by FEHA. The demurrer is SUSTAINED without leave to amend.

1. Third Amended Complaint The TAC alleges Plaintiff Sarah Gelsinger is a disabled 47-year old woman who managed the Starbucks inside Graton Rancheria Casino. On May 6, 2022, she fell and broke her knee on the job. (TAC, ¶7.) She filed a workers’ compensation claim with Graton’s insurance carrier, Tribal First. Plaintiff’s worker’s compensation doctor, Jessica Rose Bruso, D.O., placed her on medical leave from May 7 through May 10, 2022. (Id., ¶8.) Dr. Brusso sent her medical documentation to the Tribal First claims administrator assigned to her case. (Ibid.)

Plaintiff returned to work performing light duties from May 11, 2022, to January 2023, which consisted mostly of administrative duties. (Ibid.) Dr. Bruso released Plaintiff to return to work full duty effective January 12, 2023. (Ibid.) On May 16, 2023 Dr. Bruso sent Tribal First’s claims administrator a notice indicating Plaintiff would need further follow up treatment for her work related injury, including: physician visits as needed; anti-inflammatory medication as needed; physical therapy treatment as needed for flare-ups; bracing and other durable medical equipment; and, orthopedic follow up care to consider surgical intervention. (Id., ¶10.)

Graton terminated Plaintiff’s employment on June 23, 2023, for allegedly vague pretextual reasons related to performance. (Id., ¶11.) Plaintiff alleges Tribal First colluded with and aided and abetted Graton to take adverse employment actions against Plaintiff, including terminating Plaintiff’s employment after her treating physician notified them that (1) Plaintiff was released to return to work full-duty, but (2) had a permanent disability, and (3) would require future medical care including possible surgery, for which Tribal First as Graton’s insurer would be liable. (Id., at ¶11.)

Plaintiff further alleges that Tribal First and Graton took the aforementioned adverse employment actions because they both felt it was an opportune time to rid themselves of this disabled employee. (Ibid.) For example, Graton knew it could terminate Plaintiff’s employment without being accused of violating Plaintiff’s work restrictions since her doctor had just released her to return to work full-duty, and Tribal First knew 8