JOHAN F HANDJANI VS FORD MOTOR COMPANY

Tentative Rulings

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Case Number: 19STLC03096 Hearing Date: August 11, 2021 Dept: 25

PROCEEDINGS: MOTION TO VACATE ORDER\r\nGRANTING SUMMARY JUDGMENT

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MOVING PARTY: Plaintiff Jahan Frederick\r\nHandjani, in pro per

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RESP. PARTY: Defendant Ford Motor Company

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MOTION TO SET ASIDE/VACATE ORDER

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(CCP § Unknown)

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TENTATIVE RULING:

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Plaintiff Jahan\r\nF. Handjani’s Motion to Vacate Order Granting Summary Judgment is DENIED.

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SERVICE:

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[ ] Proof of Service Timely Filed (CRC, rule\r\n3.1300) NO

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[ ] Correct Address (CCP §§ 1013, 1013a) NO

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[ ] 16/21 Court Days Lapsed (CCP §§ 12c,\r\n1005(b)) NO

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OPPOSITION: Filed\r\non June 16, 2021 [ ] Late [ ]\r\nNone

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REPLY: Filed\r\non June 23, 2021 [ ] Late [ ]\r\nNone

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ANALYSIS:

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I. \r\nBackground

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On May 29, 2019, self-represented\r\nPlaintiff Jahan F. Handjani (“Plaintiff”) filed an action against Ford Motor\r\nCompany. Plaintiff filed a First Amended Complaint on May 13, 2019, a Second\r\nAmended Complaint on July 15, 2019, and a Third Amended Complaint on September 5,\r\n2019.

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Defendant filed a demurrer and\r\nmotion to strike on February 13, 2020. On March 12, 2020, the Court overruled\r\nthe demurrer as to the first and sixth causes of action, sustained the demurrer\r\nwithout leave to amend as to the second, third, fourth, and fifth causes of\r\naction, and granted Defendant’s request to strike the prayer for punitive\r\ndamages from the TAC without leave to amend. (3/12/20 Minute Order.) Shortly\r\nthereafter, on May 25, 2020, Defendant filed its Answer.

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On February 10, 2021, Defendant\r\nfiled a motion for summary judgment, which the Hon. Edward Simpson in\r\nDepartment 26 granted on May 10, 2021. (5/10/21 Minute Order.) The Court signed\r\nan order pursuant to the Court’s order on May 12, 2021 disposing of the case. (5/12/21\r\nOrder.)

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Plaintiff filed a notice of appeal\r\non May 17, 2021. (5/17/21 Notice of Appeal; 6/14/21 Notice of Filing of Notice\r\nof Appeal.)

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On June 2, 2021, Plaintiff filed\r\nthe instant Motion to Vacate Order Granting Summary Judgment (the “Motion”). Defendant\r\nfiled an opposition on June 16, and Plaintiff filed a reply brief on June 23.

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The Motion came up for hearing on\r\nJune 30. (6/30/21 Minute Order.) At that time, the Court reviewed and accepted Plaintiff’s\r\nperemptory challenge to Judge Simpson. (6/30/21 Minute Order.) As a result, the\r\nmatter was assigned to this Department for purposes of hearing this Motion\r\nonly. (Id.)

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II. \r\nDiscussion

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First,\r\nthe Court notes that Plaintiff did not file proofs of service that comply with\r\nthe requirements of Code of Civil Procedure section 1013a. (Mot., Proof of\r\nService; Reply, Proof of Service.) Thus, Plaintiff has not demonstrated his\r\nmoving and reply papers were properly served. However, because Defendant filed\r\nan opposition, the Court proceeds to consider the merits of the Motion.

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Plaintiff’s\r\nmoving papers do not cite any authority demonstrating he is entitled to the\r\nrelief he seeks. This violates California Rules of Court, rule 3.1113 which\r\nrequires that all motions contain a supporting memorandum discussing, in part, the\r\nlaw, statutes, and cases relied on. (Cal. Rules of Court, rule, 3.1113, subd.\r\n(b).) The Court reminds Plaintiff that arguments made without proper citation\r\nto authority may be rejected and disregarded without further discussion. (See Bakersfield Citizens\r\nfor Local Control v. City of Bakersfield (2004) 124 Cal.App.2d 391, 399; see also Do It Urself\r\nMoving & Storage v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 35 [reiterating that “[a] point which is merely\r\nsuggested by [a party’s] counsel, with no supporting argument or authority, is\r\ndeemed to be without foundation and requires no discussion”].)

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In reply, Plaintiff argues the court must\r\nreconsider the decision under Code of Civil Procedure section 1008. (Reply, p.\r\n5.) However, a motion under Section 1008 must be filed within ten days after\r\nservice of notice of the order. (Code Civ. Proc., § 1008, subd. (a).) Here, Defendant\r\nserved Plaintiff with notice of the Court’s order granting summary judgment on\r\nMay 11 via overnight delivery. (5/11/21 Notice of Ruling.) Because this Motion\r\nwas filed on June 2, approximately 22 days after Plaintiff was served with\r\nnotice, it is untimely under Section 1008.

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Plaintiff\r\nalso argues he was “surprised” by a “switch” in judges and is thus entitled to\r\nrelief under Code of Civil Procedure section 473, subdivision (b). (Reply, 3.)\r\nHowever, as Defendant points out, Plaintiff was present at the hearing but did\r\nnot object to Judge Simpson ruling on the motion thereby waiving his objection.\r\n(See People v. Burgener (2003) 29 Cal.4th 833, 886 [holding that a\r\ndefendant’s objection to a judge was barred for waiting until after the judge\r\nruled on his request for relief].)

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Moreover,\r\nPlaintiff filed a notice of appeal. As the Court explained in Estate of Reed\r\n(2017) 16 Cal.App.5th 1122,1128:

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“ ‘[U]nder [Code of Civil\r\nProcedure] section 916, “the trial court is divested of” subject matter\r\njurisdiction over any matter embraced in or affected by the appeal during the\r\npendency of that appeal. [Citation.] “The effect of the appeal is to remove the\r\nsubject matter of the order from the jurisdiction of the lower court…”\r\n[Citation.] Thus, “that court is without power to proceed further as to any\r\nmatter embraced therein until the appeal is determined.” ’ [Citations.]”

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Plaintiff’s May 17, 2021 notice of\r\nappeal, which was filed a little over two weeks before the instant Motion, has\r\nnot yet been resolved and remains pending. The appeal sought review of Judge\r\nSimpson’s order granting summary judgment (5/17/21 Notice of Appeal;\r\n6/14/21 Notice of Filing of Notice of Appeal), which is the order Plaintiff seeks to vacate here. Thus,\r\nthis Court cannot issue any relief; Plaintiff must wait for the resolution of\r\nhis appeal. He has cited no authority demonstrating otherwise.

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III. \r\nConclusion & Order

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For the\r\nforegoing reasons, Plaintiff Jahan F. Handjani’s Motion to Vacate Order\r\nGranting Summary Judgment is DENIED.

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Moving party is\r\nordered to give notice.

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Case Number: 19STLC03096    Hearing Date: May 10, 2021    Dept: 26

Handjani v. Ford Motor Company, et al

MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

(CCP § 437c)

TENTATIVE RULING:

 

Defendant Ford Motor Company’s Motion for Summary Judgment, or in the alternative, Summary Adjudication on Plaintiff Jahan Frederick Handjani’s Third Amended Complaint is GRANTED.

 

DEFENDANT TO FILE A PROPOSED JUDGMENT WITHIN TEN (10) DAYS’ SERVICE OF THIS ORDER.

 

ANALYSIS:

On March 29, 2019, Plaintiff Jahan Frederick Handjani (“Plaintiff”) filed the instant action against Defendant Ford Motor Company (“Defendant”). Plaintiff filed the operative Third Amended Complaint on September 5, 2019. The Third Amended Complaint broadly alleges that Plaintiff owned 1996 and 1999 Ford Rangers, both of which caught fire under the hood and were destroyed. (TAC, p. 2:8-10.) Plaintiff alleges he believes the fires were the result of a manufacturing or design defect. (Id. at p. 2:9-10.) He alleges that both models of vehicle were subject to recalls for fire risk. (Id. at p. 2:11-26.)

On March 12, 2020, the Court sustained Defendant’s demurrer to the Third Amended Complaint without leave to amend as to the second, third, fourth and fifth causes of action. The remaining causes of action are the first cause of action for negligence and the sixth cause of action for strict products liability.

Defendant filed the instant Motion for Summary Judgment, or in the alternative, Summary Adjudication (“the Motion”), on February 10, 2021. Plaintiff filed an opposition one day late on April 21, 2021; it was also served three days late by regular mail on April 19, 2021. Regardless of the late filing and service, the Court will consider the opposition as there appears to be no prejudice to Defendant. Defendant replied on April 22, 2021.

Discussion

Legal Standard

A defendant seeking summary judgment must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff is under no evidentiary burden to produce rebuttal evidence until Defendants meet their initial moving burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 839-840.) Additionally, in ruling on the Motion, the Court must view the “evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 81 [citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843].)

Evidentiary Objections

Defendant interposes evidentiary objections to exhibits attached to Plaintiff’ opposition for lack of foundation, irrelevance, hearsay and improper opinion. The objections are sustained. First, the exhibits are not supported by a declaration that either authenticates them or lays the foundation for their admission. Nor is there any showing that the exhibits are relevant to Plaintiff’s claims regarding the particular Ford Ranger trucks he owned.

Defendant’s Initial Burden of Proof

Defendant moves for summary judgment, or in the alternative, summary adjudication, on the ground that Plaintiff’s factually devoid discovery responses demonstrate he has no evidence that Defendant was negligent or that its products were defective. “A defendant can satisfy its initial burden to show an absence of evidence through “admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” (Aguilar, at p. 855, 107 Cal.Rptr.2d 841, 24 P.3d 493), or through discovery responses that are factually devoid. (Citations omitted.)” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1302.)

Plaintiff alleges negligence and products liability on the grounds that two Ford Rangers he owned caught fire under the hood and were destroyed. (TAC, p. 2:8-10.) In order to prevail on a negligence cause of action, Plaintiff must prove Defendant breached its duty of care and that said breach caused Plaintiff’s damages. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.) When brought with a cause of action for strict products liability, the two claims become conflated because foreseeability of harm from defective design is essentially the same as breach of duty of care. (Balido v. Improved Machinery, Inc. (1972) 29 Cal.App.3d 633, 640.) There are two tests for strict products liability, but as the Court pointed out in its ruling on Defendant’s demurrer, the Third Amended Complaint only alleges facts in support of the “consumer expectations test”: a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 432.) Also, “the plaintiff must establish that the product’s failure to perform safely was a substantial factor in causing harm to the plaintiff.” (Demara v. The Raymond Corp. (2017) 13 Cal.App.5th 545, 554.)

Defendant propounded Special Interrogatories on Plaintiff asking for the facts that demonstrate the Ford Rangers were defective in design or manufacture. (Motion, Separate Statement of Facts, No. 6; Rodman Decl., Exh. C.) Plaintiff’s unverified responses stated that the 1996 Ford Ranger was the subject of at least one fire risk defect recall and the 1999 Ford Ranger was the subject of at least three fire risk defect recalls. (Motion, Separate Statement of Facts, No. 7; Rodman Decl., Exh. D.) Plaintiff went on to state that “problems” included the motors creating a “tremendous amount of heat,” that the motor head would often crack and cause a fire, and that a fire would too often occur if there was any type of fuel leakage. (Ibid.) Finally, Plaintiff asserts that the vehicles were defectively designed because “they would catch on fire more likely than other similar vehicles designed by other manufacturers.” (Ibid.)

Defendant shows that Plaintiff’s responses do not set forth facts to demonstrate his 1996 and 1999 Ford Rangers did not perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner and that Plaintiff lacks evidence regarding causation. While Plaintiff’s discovery responses contend his Ford Ranger trucks were subject to fire risk defect recalls, Defendant presents evidence that none of the recalls of the 1990s Ford Rangers applied to Plaintiff’s vehicles. (Motion, Separate Statement of Facts, Nos. 13, 15-20; TAC, p. 2:11-26; Williams Decl., ¶¶7-13 and Exhs. G-K.) Nor do Plaintiff’s discovery responses specifically link the overheating motors and cracked motor heads to his Ford Rangers or even the same model year Ford Rangers. “Our Supreme Court has described the substantial factor standard in a strict products liability context as ‘a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.’” (Demara v. The Raymond Corp. (2017) 13 Cal.App.5th 545, 556.) Plaintiff’s responses only point to a theoretical cause of the alleged fires in his Ford Rangers.

Therefore, Defendant has carried its initial burden of proof to show that Plaintiff lacks and cannot reasonably obtain evidence that a design defect in his Ford Rangers caused his injuries.

Plaintiff’s Burden to Create a Triable Issue of Material Fact

The burden now shifts to Plaintiff to show that triable issues of material fact exist regarding proof of a design defect pursuant to the consumer expectations test. As none of the exhibits attached to the opposition are admissible, no evidence is submitted in support of Plaintiff’s position. In any event, Plaintiff’s opposition simply reiterates the statements in his discovery responses, which are insufficient for the reasons explained above. Furthermore, as Defendant points out, the opposition is not accompanied by an opposing separate statement that sets forth exactly what facts Plaintiff disputes. An opposing statement is required under Code of Civil Procedure section 437c, subdivision (b)(3) and failure to include one contributes to Plaintiff’s failure to demonstrate the existence of a triable issue of material fact.

Conclusion

Defendant Ford Motor Company’s Motion for Summary Judgment, or in the alternative, Summary Adjudication on Plaintiff Jahan Frederick Handjani’s Third Amended Complaint is GRANTED.

Moving party to give notice.

Case Number: 19STLC03096    Hearing Date: March 12, 2020    Dept: 26

Handjani v. Ford Motor Company, et al.

DEMURRER; MOTION TO STRIKE

(CCP §§ 430.31, et seq., 436)

TENTATIVE RULING:

Defendant Ford Motor Company’s Demurrer to the Third Amended Complaint is OVERRULED AS TO THE FIRST AND SIXTH CAUSES OF ACTION, AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE SECOND, THIRD, FOURTH AND FIFTH CAUSES OF ACTION.

Defendant Ford Motor Company’s Motion to Strike the Punitive Damages Claim is GRANTED WITHOUT LEAVE TO AMEND.

ANALYSIS:

On March 29, 2019, Plaintiff Jahan Frederick Handjani (“Plaintiff”) filed the instant action for negligence, breach of warranty and fraud against Defendant Ford Motor Company (“Defendant”). Following multiple meet and confer efforts by Defendant, followed by multiple attempts to amend the Complaint by Plaintiff, Plaintiff filed the Third Amended Complaint on September 5, 2019. (Motion, Solorio Decl., ¶¶3-18.) Despite representations that he would file a Fourth Amended Complaint, Plaintiff has not done so. (Ibid.) Defendant filed the instant Demurrer to the Third Amended Complaint and Motion to Strike Request for Punitive Damages on February 13, 2020. To date, no opposition has been filed.

Legal Standard

Demurrer

 

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted. Per CCP §430.10(a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. CCP § 430.10(f).

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, CCP section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)

Motion to Strike

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP § 436(b).) Motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (CCP § 92(d).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v. Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).)

In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) California’s policy of liberal construction applies to motions to strike. (CCP § 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 (noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (CCP § 436.)

Finally, CCP section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (CCP § 435.5(a).)

Discussion

As set forth above, the Demurrer and Motion to Strike are accompanied by a meet and confer declaration as required by Code of Civil Procedure sections 430.41 and 435.5. The Third Amended Complaint broadly alleges that Plaintiff owned a 1996 and 1999 Ford Ranger, both of which caught fire under the hood and were destroyed. (TAC, p. 2:8-10.) Plaintiff alleges he believes the fires were the result of a manufacturing or design defect. (Id. at p. 2:9-10.) He alleges that both models of vehicle were subject to recalls for fire risk. (Id. at p. 2:11-26.)

1st Cause of Action for Negligence; 6th Cause of Action for Strict Products Liability

A cause of action for negligence must allege the elements of duty, breach, causation and damages.

(County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.) However, when the basis of both causes of action is that a product’s design defect caused the plaintiff’s injuries, the claims are treated as a single cause of action. “A manufacturer's failure to achieve its full potential in design and thereby forestall unreasonable danger forms the basis for its strict liability in tort. It is a liability whose essence parallels the lack of due care that is the essence of its liability for negligence. It may be seen, therefore, that in cases involving deficient design, foreseeability is merely scienter under another name.” (Balido v. Improved Machinery, Inc. (1972) 29 Cal.App.3d 633, 640.)

There are two ways to assert a cause of action for strict products liability:

[A] product may be found defective in design, so as to subject a manufacturer to strict liability for resulting injuries, under either of two alternative tests. First, a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the product's design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.

(Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 432.) Defendant’s demurrer only challenges Plaintiff’s allegations regarding the risk-benefit test. (Demurrer, p. 10:3-6.) The Third Amended Complaint, however, sufficiently alleges that “the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” Allegations that the vehicles caught on fire under the hood are sufficient to allege that the vehicles did not perform as safely as an ordinary consumer would expect.

The demurrer to the first cause of action for negligence and sixth cause of action for strict products liability is overruled.

2nd Cause of Action for Breach of Warranty

A cause of action for breach of express warranty must allege (1) the exact warranty terms; (2) plaintiff's reasonable reliance thereon; (3) breach of the warranty; and (4) proximate cause of plaintiff’s injury. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 142.) Plaintiff alleges that the express warranty was that the Ford Rangers were Quality Tough Durable Ford Trucks. (TAC, p. 4:16-18.) It is unclear from this allegation, however, exactly what was warrantied under the description “Quality Tough Durable Ford Trucks.” Plaintiff appears to admit that it may not be possible to allege breach of an express warranty because there was no express representation by Defendant that the vehicles would spontaneously combust. (Id. at pp. 4:22-5:1.) Without a clear allegation of the express warranty terms, Plaintiff has not alleged a cause of action for breach of the same.

Defendant also argues that Plaintiff cannot allege breach of express warranty without an allegation of direct privity with the manufacturer. “‘The general rule is that privity of contract is required in an action for breach of either express or implied warranty and that there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale.’” (Blanco v. Baxter Healthcare Corp. (2008) 158 Cal.App.4th 1039, 1058-59.) Plaintiff alleges that he purchased the vehicles secondhand. (TAC, pp. 3:14-17, 5:18-19.) Therefore, Plaintiff cannot allege that he is in vertical privity with Defendant.

The demurrer to the second cause of action for breach of express warranty is sustained without leave to amend.

3rd Cause of Action for Fraud; 4th Cause of Action for Misrepresentation

The elements for a cause of action for intentional misrepresentation are “(1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 86.) A cause of action for concealment, on the other hand, requires allegations that (1) Defendant concealed or suppressed a material fact; (2) defendant was under a duty to disclose the fact to the plaintiff; (3) defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) plaintiff was unaware of the fact and would not have acted in the same way knowing of the concealed or suppressed fact; (5) causation; and (6) the plaintiff sustained damage. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.)

Furthermore, a fraud cause of action must be made with specificity, which requires alleging facts showing “‘how, when, where, to whom, and by what means the representations were tendered.’” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) And when alleging fraud against a corporation, as here, the pleading must “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 Mutual Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Neither cause of action alleges intentional misrepresentation or concealment with the requisite specificity. They broadly allege that Defendant misrepresented the dangerous nature of the vehicles by selling them without recalls, without admitting to the design and manufacturing defects, and by lying and cheating Plaintiff and “the public at large.” (TAC, pp. 7:18-8:14.) No specific allegations are made as to who made these representations or concealed them, their authority to act for Defendant, when or in what form any representations were made, Plaintiff’s reliance on Defendant’s conduct, and how that conduct caused Plaintiff’s damages.

The demurrer to the third cause of action for fraud and the fourth cause of action for misrepresentation are sustained without leave to amend.

5th Cause of Action for Violation of the Magnuson-Moss Warranty Act

The Magnuson–Moss Warranty—Federal Trade Commission Improvement Act (Magnuson–Moss), 15 U.S.C. sections 2301 et seq., authorizes a civil suit by a consumer to enforce the terms of an implied or express warranty. Magnuson–Moss “calls for the application of state written and implied warranty law, not the creation of additional federal law,” except in specific instances in which it expressly prescribes a regulating rule. (Walsh v. Ford Motor Co. (D.C.Cir.1986) 807 F.2d 1000, 1012 (Walsh II ).) Accordingly, the trial court correctly concluded that failure to state a warranty claim under state law necessarily constituted a failure to state a claim under Magnuson–Moss.

(Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 832-833.) As discussed above, Plaintiff has not shown he can allege a cause of action for breach of express warranty. As for breach of implied warranty, privity of contract is also required. “Privity of contract is a prerequisite in California for recovery on a theory of breach of implied warranties of fitness and merchantability.” (Blanco v. Baxter Healthcare Corp. (2008) 158 Cal.App.4th 1039, 1058-1059 (citing All West Electronics, Inc. v. M–B–W, Inc. (1998) 64 Cal.App.4th 717, 725).) Accordingly, Plaintiff cannot state a claim for violation of the Magnuson-Moss Act.

The demurrer to the fifth cause of action is sustained without leave to amend.

Motion to Strike

Defendant also moves to strike allegations and prayer with respect to punitive damages on the grounds that they do not meet the statutory requirements. Punitive damages are authorized by Civil Code section 3294 in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . .” (Civil Code, § 3294, subd. (a).)

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. (Civil Code, § 3294, subd. (c)(1).) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civil Code, § 3294, subd. (c)(2).) Finally, fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civil Code, § 3294, subd. (c)(3).)

As discussed above, the only surviving claims are for negligence and strict products liability. Neither of those causes of action supports the state of mind for punitive damages as there is no intent or willfulness. Nor are there allegations that support a request for punitive damages against a corporate defendant, which requires an allegation that an officer, director or managing agent authorized or ratified the wrongful conduct w or was personally guilty of oppression, fraud, or malice. (Cal. Civ. Code, § 3294, subd. (b); TAC, pp. 10:2-12:11.)

Based on the foregoing, the Motion to Strike the Punitive Damages Claim is granted without leave to amend.

Conclusion

Defendant Ford Motor Company’s Demurrer to the Third Amended Complaint is OVERRULED AS TO THE FIRST AND SIXTH CAUSES OF ACTION, AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE SECOND, THIRD, FOURTH AND FIFTH CAUSES OF ACTION.

Defendant Ford Motor Company’s Motion to Strike the Punitive Damages Claim is GRANTED WITHOUT LEAVE TO AMEND.

Moving party to give notice.