Ryan Swink vs Ford Motor Company et al

Case Number

24CV07134

Case Type

Hearing Date / Time

Mon, 11/03/2025 - 10:00

Nature of Proceedings

Demurrer to FAC; Motion: Compel for Deposition and Req for Monetary Sanctions

Tentative Ruling

Ryan Swink v. Ford Motor Company, et al.                       

Case No. 24CV07134

           

Hearing Date: November 3, 2025                                          

HEARING:              (1) Defendant’s Demurrer to Plaintiff’s First Amended Complaint

                                    (2) Defendant’s Motion To Compel Plaintiff’s Deposition And Request For Monetary Sanctions

ATTORNEYS:        For Plaintiff Ryan Swink: Tionna Carvalho, Sanam Vaziri, Strategic Legal Practices, APC

                                    For Defendant Ford Motor Company: Michael D. Mortenson, Craig A. Taggart, Chen Fei Liu, Mortenson Taggart Adams LLP

                                    For Defendant Perry Ford of Santa Barbara: No appearance

                                   

TENTATIVE RULING:

(1) The demurrer of defendant Ford Motor Company to plaintiff’s first amended complaint is sustained as to the fourth cause of action only, without leave to amend. Except as herein sustained, the demurrer is otherwise overruled. Defendant shall, on or before November 14, 2025, file and serve its answer to plaintiff’s first amended complaint.

(2) The motion of defendant Ford Motor Company to compel plaintiff’s deposition is granted, in part. The parties shall, on or before November 7, 2025, agree in writing to a date for the commencement of plaintiff’s deposition. To the extent the parties are unable to agree in writing to a date for the commencement of plaintiff’s deposition by November 7, 2025, the deposition of plaintiff shall commence no later than November 26, 2025, upon 5 court days’ written notice by defendant.

Background:

On December 18, 2024, plaintiff Ryan Swink (Plaintiff) filed a complaint against defendants Ford Motor Company (Ford) and Perry Ford of Santa Barbara (Perry), alleging six causes of action: (1) violation of subdivision (d) of Civil Code section 1793.2 (against Ford only); (2) violation of subdivision (b) of Civil Code section 1793.2 (against Ford only); (3) violation of subdivision (a)(3) of Civil Code section 1793.2 (against Ford only); (4) breach of the implied warranty of merchantability (Civ. Code, §§ 1791.1, 1794 & 1795.5) (against Ford only); (5) negligent repair (against Perry only); and (6) fraudulent inducement – concealment (against Ford only).

On February 10, 2025, Ford filed a demurrer to the first, second, third, fourth, and sixth causes of action alleged in the complaint, which was set for hearing on April 28, 2025.

On April 15, 2025, Plaintiff filed a first amended complaint (the FAC) alleging the same causes of action against the same parties described above.

On April 21, 2025, Ford filed a notice of withdrawal of its demurrer to the complaint.

On May 19, 2025, Ford filed a demurrer to the first, second, third, fourth, and sixth causes of action, on the grounds that the FAC fails to allege facts sufficient to state a cause of action, and as to the sixth cause of action, that this cause is barred by the economic loss rule and the “Independent Tort Principle”. (Demurrer at pp. 3-4.) The demurrer, which is opposed by Plaintiff, was set for hearing on August 25.

On August 19, 2025, Plaintiff filed a document titled “Plaintiff’s Objections To [Ford’s] Amended Notice of Deposition of Plaintiff....” In that document, Plaintiff states that they “hereby object[] to [Ford’s] Amended Notice of Deposition of Plaintiff .... This deposition was unilaterally noticed by [Ford] for a date and time on which Plaintiff and/or Plaintiff’s counsel is unavailable.

“Accordingly, Plaintiff will not be produced for the deposition on the date, time, and location noticed. Plaintiff will meet and confer with [Ford] to reschedule the deposition on a date and time that is mutually convenient.” (Aug. 19, 2025, Pl. Objections at p. 1, ll. 2-8.)

On August 25, 2025, the court continued the demurrer to October 6.

On September 5, 2025, Ford filed a motion (the motion to compel) for an order compelling the deposition of Plaintiff, and imposing monetary sanctions against Plaintiff and their attorneys, Strategic Legal Practices, APC, in the sum of $560. The motion to compel was set for hearing on October 6.

Plaintiff opposes the motion to compel.

On October 6, the court continued the demurrer and the motion to compel to November 3.

The following allegations appear in the “Factual Background” of the operative FAC:

Plaintiff purchased a 2017 Ford Escape (the vehicle) from Ford’s authorized dealership Perry Ford Mazda, which was manufactured and distributed by Ford. (FAC, ¶¶ 7 & 9.) On March 19, 2017, plaintiff entered into a warranty contract with Ford regarding the vehicle, which included bumper-bumper, powertrain, and emission warranties. (FAC, ¶¶ 7-8 & Exh. A.)

Defects and nonconformities to warranty manifested themselves within the applicable express warranty period, including but not limited to transmission defects, engine defects, electrical defects; among other defects and non-conformities. (FAC, ¶ 21.)

On September 20, 2017, June 26, 2019, March 2 and September 21, 2020, Plaintiff presented the vehicle to Ford’s authorized repair facility with complaints of, respectively: a Malfunction Indicator Light, lack of power, and hesitation on acceleration (September 20); a fluttering or flapping noise while driving at speed, and potential steering or suspension problems (June 26); vibration, harshness, and an abnormal sound while driving at speed (March 2); and a Malfunction Indicator Light, white smoke from the exhaust pipe, and the rear liftgate not opening (September 21). (FAC, ¶¶ 12-15.)

Ford’s technicians inspected the vehicle, performed warranty repairs, and, at pickup, represented that the vehicle had been repaired and was working as designed. (FAC, ¶¶ 12-15.)

On June 13, 2022, Ford issued a recall regarding the vehicle’s transmission, and problems that increase the risk of crash or injury. (FAC, ¶ 16.) Though Plaintiff, prior to purchasing the vehicle, reviewed Ford’s marketing materials and vehicle-specific window sticker, conferred with sales representatives, and took the vehicle for a test drive, at no point prior to the purchase of the vehicle was Plaintiff advised that the vehicle’s transmission was defective. (FAC, ¶ 10.) Ford has failed to either replace the vehicle, or to make restitution. (FAC, ¶ 25.)

Analysis:

(1) The Demurrer

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (Quelimane).)

Demurrer to the first, second, and third causes of action:

Ford contends that Plaintiff is required to bring any claim for breach of an express warranty under the Song-Beverly Consumer Warranty Act (the Act), codified as Civil Code section 1790 et seq., within four years from the date that claim accrued. Because the FAC alleges that Plaintiff entered into a warranty contract with Ford on March 19, 2017, and that the vehicle was delivered to Plaintiff with defects and nonconformities to that warranty, Ford argues, the breach of express warranty causes of action accrued on this date and are time-barred under the four-year statute of limitations prescribed in California Uniform Commercial Code section 2725.

“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 of the statute of limitations 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.” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) “If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment ….’ [Citation.]” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325, italics omitted.)

The parties here do not appear to dispute that the first, second, and third causes of action arise from a purported breach of express warranty under section 1793.2 of the Act, and that these causes of action are subject to a four year statute of limitations period under California Uniform Commercial Code section 2725. (FAC, ¶¶ 51-63; Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 213-215, fn. 5 (Krieger).)

California Uniform Commercial Code section 2725 provides that an action for breach of express warranty “must be commenced within four years after the cause of action has accrued.” (Cal. U. Com. Code, § 2725, subd. (1).) “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.” (Cal. U. Com. Code, § 2725, subd. (2).)

“The scope of the ‘future performance’ exception has been the subject of numerous, and sometimes conflicting, decisions throughout the country. [Citations.] But the majority view is that the exception must be narrowly construed, and that it applies only when the seller has expressly agreed to warrant its product for a specific and defined period of time.” (Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 130, original italics (Cardinal Health).)

The FAC alleges that the “terms of the express warranty are described in Exhibit A....” (FAC, ¶ 8 & Exh. A.) In determining the sufficiency of a complaint against a demurrer, the court may “consider the complaint’s exhibits.” (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400.)

Exhibit A to the FAC consists of a “2017 Model Year Ford Warranty Guide”, which sets forth the terms of the “New Vehicle Limited Warranty for [Plaintiff’s] 2017-model vehicle” at issue in this proceeding, and to which the court will refer as the “Warranty”. (FAC, Exh. A at p. 5.) The Warranty includes a “general summary” of the coverage provided by Ford and the time each type of coverage lasts. (Id. at p. 8.) For example, the Warranty states that the “Bumper to Bumper Coverage” lasts for three years, unless the vehicle is driven more than 36,000 miles before three years elapse. (Ibid.)

The terms of the Warranty also provide that its remedy is expressly “limited to repair, replacement, or adjustment of defective parts.” (FAC, Exh. A at p. 9.) Pursuant to the terms of the Warranty, Ford’s dealers will, subject to conditions and “without charge, repair, replace, or adjust all parts on your vehicle that malfunction or fail during normal use during the applicable coverage period due to a manufacturing defect in factory-supplied materials or factory workmanship.” (Id. at pp. 8-9.)

For all reasons discussed above, the FAC shows that Ford agreed to warrant the vehicle for the express periods of time stated in the Warranty, for each type of coverage provided under the Warranty. For these reasons, the “future performance” exception to California Uniform Commercial Code section 2725 applies here. (Krieger, supra, 234 Cal.App.3d at p. 217.) “A cause of action for breach of warranty of future performance ... accrues upon discovery of the breach.” (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 642.)

Though Ford appears to contend that the claims alleged in the first, second, and third causes of action accrued on March 19, 2017, Ford fails to explain why the allegations of the FAC show that Plaintiff had discovered any breach of the Warranty as of this date. For example, the FAC alleges that Plaintiff was not advised that the vehicle or its transmission were defective at any point prior to the purchase of the vehicle. (FAC, ¶ 10.) The FAC also alleges that the first time Plaintiff presented the vehicle for repair was September 20, 2017. (FAC, ¶ 12.) It can also be inferred from the allegations of the FAC that Plaintiff did not discover the defects until shortly before filing the complaint. (FAC, ¶ 40.)  

The FAC also includes specific additional dates on which the vehicle was presented for repair, as further described above. Ford fails to explain why these dates are vague or uncertain, or why each of these events are not “continuing wrongs” or did not trigger the limitations period. (Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 209 [discussing special demurrers for uncertainty and noting that a plaintiff is not required to particularize maters within the knowledge of the demurring defendant]; Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192, fn. 3 [discussing continuing violation doctrine and theory of continuous accrual].)

In addition, the FAC alleges that, each time the vehicle was presented to Ford’s facility for repairs on the dates described above, Ford’s facility represented that the vehicle was repaired. “Tolling during a period of repairs generally rests upon the same legal basis as does an estoppel to assert the statute of limitations, i.e., reliance by the plaintiff on the words or actions of the defendant that repairs will be made.” (Cardinal Health, supra, 169 Cal.App.4th at pp. 133-134.)

The last date Plaintiff presented the vehicle for repair, as alleged in the FAC, was September 21, 2020. The FAC further alleges that “[a]t pickup,” Ford’s facility represented the vehicle had been repaired “and was working as designed.” (FAC, ¶ 15.) Considering these allegations, Ford fails to explain why the alleged representations regarding the vehicle having been repaired do not toll the statute of limitations, or why Plaintiff did or was not entitled to rely on any representations made by Ford’s authorized facility, that the vehicle was repaired.

Moreover, considering that the FAC alleges or effectively alleges that the last date upon which Plaintiff was told the vehicle had been repaired and was working as designed was in September 2020, and that Plaintiff did not discover the transmission defect until June 13, 2022, when Ford issued a recall, Ford fails to explain why the FAC, which was filed on April 15, 2025, or less than four years after the date the recall was issued, is time barred. To the extent Ford contends that the first, second, and third causes of action were time barred as of an earlier repair date, “a demurrer cannot rightfully be sustained to part of a cause of action....” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.)

For all reasons discussed above, the running of the statute of limitations prescribed in California Uniform Commercial Code section 2725 does not clearly and affirmatively appear in the FAC as to the first, second, and third causes of action. For these reasons, the court will overrule the demurrer to these causes of action on the grounds stated.

Demurrer to the fourth cause of action:

The fourth cause of action alleges a claim for breach of the implied warranty of merchantability. Ford asserts that the implied warranty alleged in the fourth cause of action is subject to the same four-year statute of limitations further discussed above, which Ford contends runs upon the tender of delivery and not any future performance. Ford argues that, for the same reasons discussed above, the fourth cause of action for breach of implied warranty is also time-barred.

The parties do not appear to dispute that the statute of limitations for an action for breach of the implied warranty of merchantability “is four years pursuant to section 2725 of the Uniform Commercial Code.” (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1306, fn. omitted (Mexia).)

Though not a statute of limitations, the Act includes a “duration provision” which provides that “[t]he 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.” (Civ. Code, § 1791.1, subd. (c); Mexia, supra, 174 Cal.App.4th at p. 1306, fn. 6.)

Absent an allegation showing the date on which Plaintiff purchased the vehicle, it can be inferred from the FAC that the implied warranty at issue in the fourth cause of action expired no later than one year after the date of the Warranty, or on March 19, 2018. (Mexia, supra, 174 Cal.App.4th at p. 1309, fn. 10.) Under the circumstances alleged here, Plaintiff was required to file the present action no later than four years following that date. (Atkinson v. Elk Corporation of Texas (2006) 142 Cal.App.4th 212, 232 (Atkinson).) As the FAC was filed more than seven years later, the FAC shows on its face that the fourth cause of action for breach of implied warranty is, for all reasons discussed above, barred under the limitations period prescribed in California Uniform Commercial Code section 2725.

Plaintiff contends that the decision in Mexia shows that a claim for breach of an implied warranty accrues when the plaintiff discovers the defendant’s wrongdoing. The decision in Mexia is distinguishable and not persuasive for the points raised by Plaintiff.

For example, the court noted in Mexia that the “duration provision” set forth in section 1791.1 of the Act “is not a statute of limitations[,]” and that “the statute of limitations is four years.” (Mexia, supra, 174 Cal.App.4th 1297, 1301, 1306, fn. 6.) Further, the court found that the plaintiff in Mexia filed suit within the four-year limitations period discussed herein. (Id. at pp. 1306, 1308.)

In addition, the court’s discussion in Mexia of the implied warranty under the Act was directed to whether the plaintiff in that case was required to return the unmerchantable goods, or discover or report a defect in that good, to defendants within the implied warranty duration period. (Mexia, supra, 174 Cal.App.4th at pp. 1308-1311.) In determining that issue, the court stated: “In light of the plain language of the duration provision, and the policy considerations at play in construing a provision of the Song-Beverly Act, we interpret the duration provision as providing the implied warranties under the Song-Beverly Act with a limited prospective existence beyond the date of delivery.” (Id. at p. 1311.)

Considering the scope of the court’s discussion of the implied warranty claim at issue in Mexia, Plaintiff has failed to sufficiently explain why the decision in Mexia reached the statute of limitations issue raised in the present demurrer to the fourth cause of action.

For all reasons discussed above, the running of the statute of limitations as to the fourth cause of action for breach of the implied warranty of merchantability clearly and affirmatively appears on the face of the FAC. (See Atkinson, supra, 142 Cal.App.4th at p. 232.) For these reasons, the court will sustain the demurrer.

Though Plaintiff generally requests leave to amend, Plaintiff fails to show in what manner the FAC can be amended to show that the claim alleged under the fourth cause of action is not time-barred, or how that amendment will change the legal effect of that cause of action. (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 [discussion of plaintiff’s burden].) It also appears to the court that there is no reasonable possibility that the statute of limitations defect discussed herein can be cured by any amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) For these and all further reasons discussed above, the court will deny Plaintiff leave to amend as to the fourth cause of action alleged in the FAC.

Demurrer to the sixth cause of action:

As to the sixth cause of action for fraudulent inducement-concealment alleged in the FAC, Ford contends that Plaintiff has failed to plead any specific allegations to support any delayed discovery or tolling of the limitations period for commencing a fraud action provided in Code of Civil Procedure section 338, subdivision (d), which the parties do not dispute prescribes a three-year limitations period for “[a]n action for relief on the ground of fraud or mistake.” (Code Civ. Proc., § 338, subd. (d).).

Generally, “statutes of limitation do not begin to run until a cause of action accrues. [Citation.] [¶] Generally speaking, a cause of action accrues at ‘the time when the cause of action is complete with all of its elements.’[Citations.] An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citation.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-807.)

Subdivision (d) of Code of Civil Procedure provides that a cause of action for fraud “is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud....” (Code Civ. Proc., § 338, subd. (d).) “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. [T]he limitations period begins once the plaintiff “ “ ‘has notice or information of circumstances to put a reasonable person on inquiry....’ ” [Citations.] A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111, original italics, fn. omitted.)

The same analysis and reasoning set forth above apply in regard to the points advanced in the demurrer to the sixth cause of action on statute of limitations grounds. For all reasons discussed above, the FAC does not, on its face, show that Plaintiff knew, had reason to suspect, or should have learned of the defects in the vehicle’s transmission prior to the date Ford issued the recall alleged in the FAC, also considering the statements alleged to have been made by Ford’s authorized repair facility described above as to the vehicle having been repaired, and that the vehicle was working. For these and all further reasons set forth above, the running of the statute of limitations under Code of Civil Procedure section 338, subdivision (d), does not clearly and affirmatively appear on the face of the FAC.

Ford further contends, as grounds for the demurrer to the sixth cause of action, that the FAC fails to allege the content of any defect allegedly concealed by Ford, the name of any persons who made any allegedly fraudulent representations, the requisite transactional relationship between Ford and Plaintiff, that Ford had exclusive knowledge of the purported transmission defect at the time of sale, or any active concealment by Ford. Ford also contends that the cause of action is barred by the economic loss rule and the “Independent Tort Principle”.

All fraud claims “must be pleaded with specificity.” (Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 132 (Linear).) “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 to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606.)

In the sixth cause of action, Plaintiff alleges that Ford allowed the vehicle to be sold to Plaintiff without disclosing that the vehicle and its 6-speed transmission were defective; that the vehicle equipped with the defective transmission upon Plaintiff’s purchase of that vehicle; that Ford knew that the transmission installed in the vehicle was defective; that Ford acquired its knowledge of the transmission defect prior to Plaintiff acquiring the vehicle, through pre and post-production testing data, consumer complaints made directly to Ford, warranty data, and testing; and that Ford failed to disclose the defect to Plaintiff prior to or at the time of sale. (FAC, ¶¶ 75-78.)

“A fraud claim based upon the suppression or concealment of a material fact must involve a defendant who had a legal duty to disclose the fact.” (Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1186.) There exist “ ‘four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. [Citation.]’ [Citation.]” (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336 (LiMandri).)

Plaintiff does not appear to contend that the FAC alleges facts sufficient to show that Ford was in a fiduciary relationship with plaintiff. Where, as here, a fiduciary relationship is not alleged, “ ‘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; [or] (3) the defendant actively conceals discovery from the plaintiff.” [Citation.]’” (Linear, supra, 152 Cal.App.4th at p. 132.)

Each of the three circumstances described above assumes “the existence of some other relationship between the plaintiff and defendant in which a duty to disclose can arise …. [¶] 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…. Thus, a duty to disclose may arise from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement.” (LiMandri, supra, 52 Cal.App.4th at pp. 336-337, original italics.)

Noted above, the FAC alleges that plaintiff purchased the vehicle through Perry, which is a purportedly authorized dealership of Ford. (FAC, ¶ 9.) This allegation is, for present purposes, sufficient to show the existence of “direct dealings” with Ford, giving rise to a duty to disclose. (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 312; Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 844 (Dhital).) For these reasons, FAC sufficiently alleges the existence of a transactional relationship between the parties.

The FAC also alleges that the purported defects allegedly known to and concealed by Ford include hesitation or delayed acceleration; harsh or hard shifting, jerking, shuddering, or juddering; surging and an inability to control the vehicle’s speed, acceleration, or deceleration. (FAC, ¶ 77.) These allegations sufficiently describe the nature of the defect, or the manner in which the defect manifested in similar vehicles, allegedly known to and intentionally concealed by Ford at the time plaintiff purchased the vehicle from Ford’s authorized dealership. For these reasons, the FAC is sufficient, at this stage of the proceedings, to show the nature of the defects at issue. (Dhital, supra, 84 Cal.App.5th at p. 844.)

The allegation that Ford intentionally concealed material facts regarding the defects is also sufficient for pleading purposes. (See FAC, ¶ 83; Hall v. Mitchell (1922) 59 Cal.App. 743, 749 [intent may be shown with a “simple and direct” allegation].)

The FAC also shows the nature of the internal sources from which Ford purportedly obtained knowledge of the defect, which include testing and warranty data, consumer complaints, and repair and replacement data, as further described above. (See also, FAC, ¶ 82(a).) For these reasons, the FAC is sufficient to show Ford’s knowledge of the defect notwithstanding whether Plaintiff has alleged the manner in which any particular internal source revealed the defect. (City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 803 [“[a]llegations of the defendant’s knowledge … may use conclusive language”].)

Furthermore, “even in the pleading of fraud, the rule [of particularity in pleading] is relaxed when it is apparent from the allegations that the defendant necessarily possesses knowledge of the facts.” (Quelimane, supra, 19 Cal.4th at p. 47.) The FAC alleges that the internal sources from which Ford derived its knowledge of the purported defects are available only to Ford and not to consumers such as Plaintiff. (FAC, ¶¶ 78& 82(a).) For these reasons, the FAC shows that Ford necessarily possesses knowledge of these internal sources, and information appearing in these sources.

Though plaintiff does not specifically allege the identity of any individual at Ford’s authorized dealership who purportedly failed to disclose material facts regarding the defect, the requirement of specificity in pleading a fraud claim is intended to apply to affirmative representations and not concealment. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384; see also Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1200 [fraudulent concealment claim was sufficiently pled when the complaint, read as a whole, provided defendants with sufficient notice of the claim].) A reasonable interpretation of the FAC shows that Plaintiff does not allege the making of any affirmative representation by Ford or its authorized dealer. Instead, and as further discussed above, the sixth cause of action arises from a purported concealment of the alleged defect at issue in the FAC.

Moreover, to the extent there exists some uncertainty regarding the defect or the manner in which Ford acquired its knowledge of the defect, these “ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

For all reasons discussed above, Plaintiff has, for present pleading purposes, sufficiently alleged the existence of a transactional relationship giving rise to a duty of disclosure on the part of Ford with respect to the defect which was purportedly known only to Ford. Plaintiff has also sufficiently alleged facts showing “(1) the content of the omitted facts, (2) [Ford’s] awareness of the materiality of those facts, (3) the inaccessibility of the facts to plaintiff, (4) the general point at which the omitted facts should or could have been revealed, and (5) justifiable and actual reliance, either through action or forbearance, based on [Ford’s] omission.” (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 43-44 (Rattagan).) For these reasons, the FAC alleges facts sufficient to state a cause of action for fraudulent concealment.

As to Ford’s contention that the economic loss rule bars the sixth cause of action, in some instances, tort damages are permitted in cases involving a breach of contract. (Erlich v. Menezes (1999) 21 Cal.4th 543, 551-554 (Erlich) [“[c]onduct 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”].) For example, tort damages are permissible in contract cases where the contract was fraudulently induced. (Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1238-1239 [also noting “no public policy is served by permitting a party who never intended to fulfill his obligations to fraudulently induce another to enter into an agreement”].)

Notwithstanding whether the damages alleged in the FAC constitute economic loss, the sixth cause of action is not limited to and does not appear to arise from any breach of the warranty by Ford. Instead, the allegations described above show that the sixth cause of action arises from Ford’s purported knowledge of defects in the vehicle’s transmission prior to the time plaintiff acquired the vehicle through Ford’s authorized dealership, and a purported failure to disclose their existence including before, at, or after the time of sale. (FAC, ¶¶ 74-86.) Plaintiff further alleges that Plaintiff would not have purchased the vehicle if Plaintiff had known about the defect. (FAC, ¶¶ 79-80, 84 & 86.)

There are no allegations appearing in the FAC from which it can be inferred that any alleged concealment of material fact with respect to the defect at issue was contemplated or provided for by the parties in any contract for sale of the vehicle. Furthermore, plaintiff has alleged facts sufficient to show that the fraudulent conduct at issue “is independent of [Ford’s] alleged warranty breaches.” (Dhital, supra, 84 Cal.App.5th at p. 843, fn. omitted.) For these and all further reasons discussed above, the FAC does not show, on its face, that the economic loss rule bars the sixth cause of action for fraudulent inducement-concealment. (See Erlich, supra, 21 Cal.4th at pp. 552-554; Rattagan, supra, 17 Cal.5th at pp. 20-21, 26, 38 [also noting that “the economic loss rule does not apply to limit recovery for intentional tort claims like fraud”].)

For all reasons discussed above, plaintiff has alleged facts sufficient to state a viable fraud claim which does not, at the pleading stage, appear to be barred by the economic loss rule. For these and all further reasons discussed above, the court will overrule the demurrer to the sixth cause of action alleged in the FAC, on the grounds stated.

(2) The Motion to Compel

The motion to compel seeks an order compelling Plaintiff to appear for a deposition only, and does not seek to compel further responses to any deposition questions. (See, e.g., Notice at p. 3, fn. 1.)

In the motion, Ford asserts that it timely served a notice for Plaintiff to appear for a deposition on July 31, 2025; that Plaintiff served an objection to that notice on July 28, stating that Plaintiff and his counsel were unavailable but would meet and confer with Ford to reschedule the deposition; that Ford served an amended notice for Plaintiff to appear at a deposition on August 22; and that Plaintiff served an objection to that notice on August 19, on the same grounds noted above. (Motion at pp. 4-5.) Ford contends that Plaintiff has failed to meet and confer regarding Plaintiff’s availability for deposition despite Ford’s requests that Plaintiff provided dates for that deposition. (Id. at p. 5.)

Plaintiff does not reasonably dispute the information and evidence presented by Ford in regard to the service of the notices described above. Plaintiff asserts that the deposition notices served by Ford were unilateral; that the parties have been actively attempting to schedule Plaintiff’s deposition; that but for the unavailability of Plaintiff and Plaintiff’s counsel, the parties have been unable to complete the deposition prior to the filing of the motion to compel; that Plaintiff has “never been unwilling” to provide a date for Plaintiff’s deposition; and that Plaintiff is “diligently working to get [Ford] a date to depose Plaintiff for some time near the end of October 2025.” (Motion at pp. 1-2 & 4.)

In its reply to Plaintiff’s opposition, Ford asserts that “an order to compel is required to endure Plaintiff appears at deposition.” (Reply at p. 4, l. 12-13.)

Proper service of a deposition notice under Code of Civil Procedure section 2025.240 “is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” (Code Civ. Proc., § 2025.280, subd. (a).) “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, … the party giving the notice may move for an order compelling the deponent’s attendance and testimony….” (Code Civ. Proc., § 2025.450, subd. (a).)

As a threshold matter, Plaintiff contends that Ford has failed to meet and confer in good faith before filing the present motion. In circumstances where a deponent fails to attend a deposition, a motion seeking to compel that deponent’s attendance need only be accompanied by “a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2); see also Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1124.)

Noted above, the motion to compel seeks an order compelling Plaintiff’s attendance at a deposition pursuant to the deposition notices served by Ford. The declaration of Ford’s counsel, Emma R. Maggio, shows that on September 2, 2025, Ford contacted Plaintiff to inquire about Plaintiff’s availability for deposition, and requested dates for that deposition. (Maggio Decl., ¶ 7.) For these and all further reasons discussed above, and under the circumstances present here, the motion substantially complies with code requirements.

The present record indicates or suggests that the parties intend to commence the deposition of Plaintiff by the end of October 2025. Absent further evidence or information showing whether that deposition has proceeded, the court will, for all reasons discussed above, grant the motion to compel, in part. To the extent the parties cannot, by November 7, 2025, agree in writing to a date for the commencement of Plaintiff’s deposition, then the deposition of Plaintiff shall commence no later than November 26, 2025, upon 5 court days’ written notice by Ford.

Upon the granting by the court of a motion filed under subdivision (a) of section 2025.450, “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

Under the circumstances present here, the court finds that the imposition of monetary sanctions against Plaintiff would, at this stage of the proceedings, be unjust. For these and all further reasons discussed above, the court will deny Ford’s request for an award of monetary sanctions.