Rossiter v. American Honda Motor Co. CA2/1 ( 2023 )

Filed 6/27/23 Rossiter v. American Honda Motor Co. CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
LAURENCE ROSSITER et al., B321877
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 21STCV38994)
v.
AMERICAN HONDA MOTOR CO.,
INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Rupert A. Byrdsong, Judge. Affirmed.
Kostas Law Firm and James S. Kostas for Plaintiffs and
Appellants.
Lewis Brisbois Bisgaard & Smith, Trevor J. Ingold, Jessica
L. Barakat and Jordan R. Fisher for Defendant and Respondent.
____________________________
Plaintiffs and appellants Laurence Rossiter and Tambia
Rossiter (the Rossiters) aver that in October 2015, they
purchased an automobile manufactured and/or distributed by
defendant and respondent American Honda Motor Co., Inc.
(Honda). The Rossiters allege the vehicle contained software that
was defective in that it did not properly monitor the operation of
the transmission, thereby creating a risk the vehicle would not
move forward when accelerating. According to the Rossiters,
they did not discover the defect until Honda disclosed it in a
letter sent in June 2021. In October 2021, the Rossiters sued
Honda for breach of the implied warranty of merchantability
under the Song-Beverly Consumer Warranty Act (Civ. Code,
§ 1790 et seq.) (sometimes referred to as the Song-Beverly Act).
Honda demurred to the complaint as barred by the applicable
four-year statute of limitations.
The Rossiters appeal from the judgment of dismissal
entered after the trial court sustained Honda’s demurrer without
leave to amend. On appeal, they argue the delayed discovery rule
postpones accrual of the limitations period for their Song-Beverly
Act claim. Even if the Rossiters cannot invoke the delayed
discovery rule, they contend the trial court abused its discretion
in denying leave to amend because they can allege facts
triggering the tolling doctrine of fraudulent concealment. The
Rossiters further contend they can amend their complaint to add
a new cause of action under the Consumer Legal Remedies Act
(CLRA; Civ. Code, § 1750 et seq.) based on Honda’s failure to
disclose a safety defect at the time of purchase.
We reject the Rossiters’ contention that the delayed
discovery rule postponed commencement of the four-year statute
of limitations applicable to their Song-Beverly Act claim. We also
2
conclude the Rossiters have failed to demonstrate they can allege
facts sufficient to invoke the fraudulent concealment tolling
doctrine. Lastly, we reject the Rossiters’ belated request for leave
to allege new facts supporting a new cause of action against
Honda under the CLRA. For all these reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts pertinent to our disposition
of this appeal.
1. The Rossiters’ complaint
On October 22, 2021, the Rossiters filed their complaint
against Honda. In that complaint, the Rossiters alleged only one
cause of action: breach of the implied warranty of
merchantability under the Song-Beverly Consumer Warranty
Act.1
Honda “manufactured and/or distributed” a new 2016-year
Honda HR-V vehicle that the Rossiters purchased from an
authorized Honda dealership “[o]n or about October 21, 2015.”
The Rossiters concede in their opening brief that they “filed their
complaint on October 22, 2021, six years from the date of
delivery,” meaning the vehicle was delivered to them no later
than on October 22, 2015.2 As part of the sale, Honda provided
1 The remainder of this part summarizes certain
allegations from the Rossiters’ complaint. We express no opinion
on the veracity of these averments.
2 We may consider this admission in resolving the instant
appeal. (See Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2
[“ ‘[B]riefs and argument . . . are reliable indications of a party’s
position on the facts as well as the law, and a reviewing court
may make use of statements therein as admissions against the
3
the Rossiters with two warranties: (1) “an express limited
warranty for a period of 3 years or 36,000 miles whichever came
first” and (2) “an express limited power train warranty covering a
period of 5 years or 100,000 miles whichever came first.” “The
sale also included an implied warranty [of] merchantability that
the vehicle was fit for its intended purposes.”
The vehicle was equipped with a continuously variable
transmission (CVT) that “included software that was designed to
monitor the internal operation of the CVT, including fluid
pressure and early belt failures.” “At the time of purchase, the
software was defective in that it did not properly monitor the
CVT’s operation as intended creating the risk that the vehicle
would not move forward when accelerating.” When the Rossiters
purchased the vehicle, “Honda and the selling dealership were
aware of the software problem but did not tell [the Rossiters].”
“In or about April of 2019, at approximately 116,000 miles
on the odometer, the CVT malfunctioned as a result of the
defective software. The dealership told [the Rossiters] that the
vehicle needed a new transmission and that the repair would not
be covered under the warranty.” On the date this malfunction
occurred, “the dealership and Honda were aware of the CVT
software problem but did not tell [the Rossiters].” The Rossiters
“had the transmission replaced by another independent repair
facility at their own expense.” On or about June 1, 2021, “the
CVT failed again due to the defective software.”
party.’ ”]; 9 Witkin, Cal. Procedure (6th ed. 2021) Appeal, § 732,
p. 759 [“An express concession or assertion in a brief is frequently
treated as an admission of a legal or factual point, controlling in
the disposition of the case.”].)
4
“On or about June 22, 2021, [the Rossiters] received a
written letter from Honda advising them of the problem with the
CVT software and explaining that the problem created the
potential for the vehicle to not move forward during
acceleration . . . .” “The letter from Honda was the first notice
[the Rossiters] had that there was a software defect that caused
their transmission failures.”
The Rossiters “could not have discovered the problem”
before they had received Honda’s letter. “[T]he CVT software
problem was not generally known to the public. [The Rossiters]
are informed and believe and thereon allege that Honda and its
selling dealerships did not publicly acknowledge the problem
until the June 2021 letter was sent to vehicle owners.”
“As a result of the software defect . . . the vehicle is not fit
for its intended purposes. [The Rossiters] lost confidence in the
vehicle and stopped driving it.” The Rossiters seek the recovery
of damages resulting from Honda’s breach of the implied
warranty of merchantability, including incidental and
consequential damages.
2. Honda’s demurrer, the trial court’s ruling thereon,
and the Rossiters’ notice of appeal
Honda filed a demurrer to the complaint, arguing that the
four-year statute of limitations applicable to the Rossiters’ Song-
Beverly Act claim for breach of an implied warranty had expired
on or about October 21, 2019. The Rossiters opposed the
demurrer, and Honda filed a reply. The trial court heard the
matter and sustained the demurrer without leave to amend. On
March 8, 2022, the court issued a judgment of dismissal in
accordance with its ruling on Honda’s demurrer.
5
On April 28, 2022, Honda mailed a notice of entry of the
judgment to the Rossiters. On June 27, 2022, the Rossiters
timely appealed the judgment.
STANDARDS OF REVIEW
“ ‘When a ground for objection to a complaint, such as the
statute of limitations, appears on its face or from matters of
which the court may or must take judicial notice, a demurrer on
that ground is proper.’ [Citation.]” (Vaca v. Wachovia Mortgage
Corp. (2011) 198 Cal.App.4th 737, 746.) “We independently
review the ruling on a demurrer and determine de novo whether
the pleading alleges facts sufficient to state a cause of action.”
(Santa Ana Police Officers Assn. v. City of Santa Ana (2017)
13 Cal.App.5th 317, 323.) “[W]e accept as true the well-pleaded
allegations in [the] . . . complaint. ‘ “We treat the demurrer as
admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law.
[Citation.] . . . [Citation.] . . . [Citation.]’ [Citation.]” (Evans v.
City of Berkeley (2006) 38 Cal.4th 1, 6.) “ ‘[I]t is error for a trial
court to sustain a demurrer when the plaintiff has stated a cause
of action under any possible legal theory. [Citation.]’
[Citations.]” (Franklin v. The Monadnock Co. (2007) 151
Cal.App.4th 252, 257.)
“ ‘[W]hen [a demurrer has been] sustained without leave to
amend, we decide whether there is a reasonable possibility that
the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse.’ [Citations.]”
(Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1035.) “ ‘The
plaintiff has the burden of proving that an amendment would
cure the defect. [Citation.]’ [Citation.]” (Shimmon v. Franchise
Tax Bd. (2010) 189 Cal.App.4th 688, 692.) To discharge that
6
burden, the “[p]laintiff must show in what manner he can amend
his complaint and how that amendment will change the legal
effect of his pleading.” (See Community Cause v. Boatwright
(1981) 124 Cal.App.3d 888, 897 (Community Cause).)
“ ‘A judgment or order of a lower court is presumed to be
correct on appeal, and all intendments and presumptions are
indulged in favor of its correctness.’ [Citation.]” (Thompson v.
Asimos (2016) 6 Cal.App.5th 970, 981.) Thus, “ ‘ “it is the
appellant’s responsibility to affirmatively demonstrate error” ’ ”
by “ ‘ “supply[ing] the reviewing court with some cogent argument
supported by legal analysis and citation to the record.” ’
[Citation.]” (See Los Angeles Unified School Dist. v. Torres
Construction Corp. (2020) 57 Cal.App.5th 480, 492, 497;
Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277.)
The appellant bears this burden of rebutting the presumption of
correctness accorded to the trial court’s decision, regardless of the
applicable standard of review. (See Los Angeles Unified School
Dist., at p. 492 [noting that these principles apply to “ ‘ “an
appeal from any judgment” ’ ”]; see also Orange County Water
Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th
343, 368, 399 [indicating that an appellant must affirmatively
show the trial court erred even if the de novo standard of review
applies].)
7
DISCUSSION
A. The Delayed Discovery Rule Does Not Delay Accrual
of Commercial Code Section 2725’s Four-Year Statute
of Limitations
The parties agree that Commercial Code section 2725
provides the statute of limitations applicable to the Rossiters’
Song-Beverly Act cause of action.3
Commercial Code section 2725 provides in pertinent part:
“(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.
“[¶] . . . [¶]
“(4) This section does not alter the law on tolling of
the statute of limitations nor does it apply to causes
3 (See also Mexia v. Rinker Boat Co., Inc. (2009)
174 Cal.App.4th 1297, 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 California Uniform Commercial Code: section 2725 of the
California Uniform Commercial Code.”].)
8
of action which have accrued before this code becomes
effective.”
(§ 2725, subds. (1)–(2), (4).)
In their briefing, the Rossiters admit that “under
Commercial Code §2725, subd. (2), Honda breached the implied
warranty on the date of delivery,” which was no later than
October 22, 2015. (See Factual & Procedural Background, part 1,
ante.) The Rossiters further concede that “under subd. (2)’s
general rule for defining accrual, their cause of action would
normally have accrued on the date of delivery even though they
did not know of the defective software” at that time. The
Rossiters did not file their complaint until October 22, 2021.
Therefore, unless an exception to subdivision (2)’s general rule of
accrual applies, the Rossiters sued Honda two years after the
four-year limitations period on their Song-Beverly Act cause of
action expired.
The Rossiters do not argue that Commercial Code
section 2725, subdivision (2)’s exception for “a warranty [that]
explicitly extends to future performance” applies to their implied
warranty Song-Beverly Act claim.4 (Com. Code, § 2725,
subd. (2).) Rather, the Rossiters maintain that section 2725,
subdivision (4) authorizes an exception to subdivision (2)’s
general rule. According to the Rossiters, “under the
4 In any event, “[b]ecause an implied warranty is one that
arises by operation of law rather than by an express agreement of
the parties, courts have consistently held it is not a warranty
that ‘explicitly extends to future performance’ ” for the purpose of
Commercial Code section 2725, subdivision (2). (See Cardinal
Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th
116, 134 (Cardinal Health 301, Inc.).)
9
unambiguous language” of subdivision (4), the delayed discovery
rule “can be applied to delay accrual until the date they
reasonably discovered the defect.” We disagree.
The Rossiters’ position presumes the delayed discovery rule
is a tolling doctrine for the purpose of Commercial Code
section 2725, subdivision (4). “[T]he delayed discovery rule . . .
‘postpones accrual of a cause of action until the plaintiff
discovers, or has reason to discover, the cause of action[,]’ ” or,
put differently, until “ ‘the plaintiff suspects or should suspect
that [his or] her injury was caused by wrongdoing . . . .’
[Citation.]” (See Stella v. Asset Management Consultants, Inc.
(2017) 8 Cal.App.5th 181, 191–192.) Our high court has clarified
that a rule that “ ‘ “postpon[es] the accrual of a cause of action” ’ ”
is “ ‘ “to be distinguished from [a] rule[ ] that, despite accrual of
the cause of action, toll[s] or suspend[s] the running of the
statute.” [Citation.]’ [Citations.]” (See Rubenstein v. Doe No. 1
(2017) 3 Cal.5th 903, 911–912, italics omitted.) This distinction
between rules that delay the accrual of a cause of action and
those that toll the statute of limitations compels rejection of the
Rossiters’ proposition that the text of Commercial Code
section 2725, subdivision (4) “unambiguous[ly]” authorizes resort
to the delayed discovery rule.
The Rossiters nonetheless contend we should treat the
delayed discovery rule as an aspect of tolling preserved by
Commercial Code section 2725, subdivision (4) because like a
tolling doctrine, the delayed discovery rule “postpone[s]” or
“suspend[s]” the running of the statute of limitations. This
argument is belied by the legislative history of Commercial Code
section 2725.
10
“Before the enactment of [Commercial Code] section 2725,
California applied the discovery rule to determine the accrual
date.” (Cardinal Health 301, Inc., supra, 169 Cal.App.4th at
p. 132.) Under that approach, “the statute of limitations did not
begin to run until the breach could be reasonably discoverable by
the purchaser.” (See ibid.) Conversely, “[w]hen [the Legislature]
adopted the Uniform Commercial Code version of the statute of
limitations [in 1967], it expressed the clear intent to follow the
uniform rule which established tender of delivery as the accrual
date, unless the plaintiff shows the warranty ‘explicitly extends
to future performance.’ ([Com. Code,] § 2725, subd. (2).)” (See
Cardinal Health 301, Inc., at p. 132; see also id. at p. 129 [further
discussing the legislative history of our state’s adoption of the
Uniform Commercial Code statute, and observing that “[t]he
Legislature sought to promote ‘uniformity’ and to ‘ “eliminate
jurisdictional variations” ’ ” when it enacted the legislation].)
Were we to deem the delayed discovery rule a tolling
doctrine under Commercial Code section 2725, subdivision (4), we
would be resurrecting the “pre-section-2725” case law that the
Legislature intended to abrogate. (See Cardinal Health 301, Inc.,
supra, 169 Cal.App.4th at p. 132.) As “ ‘ “[w]e must select the
construction [of a statute] that comports most closely with the
apparent intent of the Legislature” ’ ” (see People v. Lofchie
(2014) 229 Cal.App.4th 240, 251), we reject the Rossiters’
proffered construction of subdivision (4).
In sum, the Rossiters cannot invoke the delayed discovery
rule to rescue the untimeliness of their Song-Beverly Act claim.
11
B. The Rossiters Fail To Demonstrate They Can Amend
Their Complaint To Toll the Statute of Limitations
Based on a Fraudulent Concealment Theory of
Tolling
The Rossiters argue fraudulent concealment is an equitable
doctrine that, pursuant to Commercial Code section 2725,
subdivision (4), tolls the four-year statute of limitations
applicable to their Song-Beverly Act claim. The Rossiters further
maintain they can amend their complaint to allege fraudulent
concealment such that the statute of limitations was tolled until
Honda “disclose[d] the existence of the software defect [in]
June of 2021 . . . .” Assuming arguendo that fraudulent
concealment is a tolling doctrine available to a plaintiff seeking
recovery for breach of an implied warranty under the Song-
Beverly Act, we conclude that the Rossiters fail to demonstrate
they can allege facts sufficient to invoke that doctrine.
“In general the fraudulent concealment by the defendant of
a cause of action tolls the relevant statute of limitations, which
does not begin to run until the aggrieved party discovers the
existence of the cause of action.” (Community Cause, supra,
124 Cal.App.3d at p. 899.) “When a plaintiff alleges the
fraudulent concealment of a cause of action, the same pleading
and proof is required as in fraud cases: the plaintiff must show
(1) the substantive elements of fraud, and (2) an excuse for late
discovery of the facts.” (Id. at p. 900.) With regard to the
substantive elements of fraud, “general pleading of the legal
conclusion of fraud is insufficient; the facts constituting the fraud
must be alleged, and the policy of liberal construction will not
ordinarily be involved to sustain such a pleading defective in any
material respect.” (Id. at p. 901.)
12
“ ‘[T]he elements of an action for fraud and deceit based on
concealment are: (1) the defendant must have concealed or
suppressed a material fact, (2) the defendant must have been
under a duty to disclose the fact to the plaintiff, (3) the defendant
must have intentionally concealed or suppressed the fact with the
intent to defraud the plaintiff, (4) the plaintiff must have been
unaware of the fact and would not have acted as he did if he had
known of the concealed or suppressed fact, and (5) as a result of
the concealment or suppression of the fact, the plaintiff must
have sustained damage.’ [Citation.]” (Lovejoy v. AT&T Corp.
(2004) 119 Cal.App.4th 151, 157–158 (Lovejoy).)
The third element of a fraudulent concealment claim, which
some decisions refer to as “intent to induce ‘reliance[,]’ ” requires
an “intent to induce action (or inaction) by the plaintiff.” (See
Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008)
162 Cal.App.4th 858, 868–869; see also Thrifty Payless, Inc. v.
The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1239
[indicating that an “ ‘ “intent to defraud, i.e., to induce
reliance” ’ ” is an essential element of a fraud claim predicated on
either a “ ‘ “false representation” ’ ” or “ ‘ “concealment” ’ ”]
(Thrifty Payless, Inc.).)
The Rossiters argue that, “because the latent defect
involved a serious material safety issue, Honda had a duty to
disclose it to [them].” To support that proposition, the Rossiters
cite the portion of their opening brief in which they argue their
complaint can be amended to state a claim under the CLRA.
They further assert that the Community Cause decision cited
earlier in this part establishes that “Honda’s failure to disclose
the existence of the software defect until June of 2021, when the
statute of limitations had already expired is a sufficient
13
allegation of fraud.” (Citing Community Cause, supra,
124 Cal.App.3d at p. 900.) The Rossiters also maintain they can
allege facts showing they “were blameless in failing to discover
the latent defect sooner and [that] nothing gave them actual or
presumptive notice sufficient to put them on inquiry.”
In arguing that they can allege sufficient facts to plead
fraud on Honda’s part, the Rossiters seem to rely upon the
following text from the Community Cause opinion: “With respect
to the fraud itself, ‘[where] there is a duty to disclose, the
disclosure must be full and complete, and any material
concealment or misrepresentation will amount to fraud sufficient
to entitle the party injured thereby to an action. [Citations.]’
[Citation.]” (Community Cause, supra, 124 Cal.App.3d at p. 900.)
Notwithstanding the Rossiters’ argument to the contrary, this
quotation from Community Cause does not establish that they
need only show that Honda violated a duty to disclose a material
fact to plead fraud properly.
As set forth above, Community Cause held that a plaintiff
must plead, inter alia, “the substantive elements of fraud” to
benefit from this tolling doctrine. (See Community Cause, supra,
124 Cal.App.3d at p. 900.) Fraud includes substantive elements
in addition to violation of a duty to disclose, including the
defendant’s intent to defraud the plaintiff. (See Lovejoy, supra,
119 Cal.App.4th at pp. 157–158; Thrifty Payless, Inc., supra,
218 Cal.App.4th at p. 1239.)
Furthermore, Community Cause’s analysis of the doctrine
of fraudulent concealment demonstrates that these other
elements of fraud must be pleaded to establish tolling by way of
that doctrine. The plaintiff in Community Cause alleged that the
defendant-state legislator had “intentionally or negligently failed
14
to disclose” certain investments and income in violation of the
Political Reform Act of 1974 (PRA) and its predecessor statute.
(See Community Cause, supra, 124 Cal.App.3d at pp. 895–896.)
The defendant demurred to the operative complaint, arguing that
causes of action arising from certain of his disclosure statements
were time-barred. (See id. at p. 896.)
The Court of Appeal held that the fraudulent concealment
doctrine did not toll the limitations periods for the causes of
action predicated on “allegations of [the defendant’s] mere
negligent failure to disclose . . . .” (See Community Cause, supra,
124 Cal.App.3d at p. 901.) Conversely, the appellate court held
that the plaintiff sufficiently alleged fraud with regard to its
other causes of action because the plaintiff had pleaded, inter
alia, that even though “the defendant was subject to the
requirements of either” the PRA or its predecessor, the defendant
“intentionally failed to disclose” one of his investments.5 (See
Community Cause, at p. 901.)
The Community Cause court’s discussion of the distinction
between the claims predicated on the defendant’s negligent
failure to make disclosures and his intentional failure to do so
would have been superfluous if the mere violation of his statutory
disclosure duty would have been sufficient to allege fraud. (See
5 Although the Community Cause court held that the
allegations supporting these causes of action were “sufficiently
specific to satisfy the pleading requirements” for fraud, the Court
of Appeal concluded that several of these causes of action were
nonetheless time-barred because the plaintiff did not adequately
aver an excuse for its “failure to learn of the fraud within the
statutory period.” (See Community Cause, supra, 124 Cal.App.3d
at pp. 901–903.)
15
Community Cause, supra, 124 Cal.App.3d at pp. 897–898 [noting
that both the PRA and its predecessor “require[d] periodic
disclosures of personal income, and investment and real property
interests”].) Thus, when the quotation from the Community
Cause opinion upon which the Rossiters rely is read in context, it
is apparent the Court of Appeal was not holding that the failure
to make a full and complete disclosure in violation of a duty to
disclose, in and of itself, is sufficient to allege fraud. Rather,
Community Cause was simply explaining that withholding a
material fact in contravention of that duty may support a fraud
claim. (See id. at p. 900; see also Lovejoy, supra, 119 Cal.App.4th
at p. 157 [holding that there are five essential elements of a
concealment claim, including: “(1) the defendant must have
concealed or suppressed a material fact, [and] (2) the defendant
must have been under a duty to disclose the fact to the
plaintiff”].)
Turning to the substantive elements of fraud, the Rossiters
do not argue in their opening brief that they alleged sufficient
facts in the complaint to demonstrate that Honda possessed the
requisite intent to defraud them, nor do they allege they could
allege such facts in an amended pleading. Instead, as set forth
above, the Rossiters maintain that Honda’s mere failure to
disclose the software defect in violation of its duty of disclosure
“is a sufficient allegation of fraud.”
In its appellate brief, Honda maintains that “the Rossiters
failed to meet their burden of proving a reasonable possibility for
amending to state fraudulent concealment” because they have
not alleged sufficient facts to establish the requisite fraudulent
intent. (Boldface & some capitalization omitted.) Although the
Rossiters assert in their reply that they can “plead facts bringing
16
the case within the fraudulent concealment doctrine,” they do not
expound further on that issue.
By failing to address the issue of intent to defraud at all in
their briefing, the Rossiters have abandoned any claim that they
can, or have already, pleaded sufficient facts to show Honda
possessed the requisite intent. (See Proctor v. Vishay
Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1273–1274
[noting that “ ‘ “ ‘[o]bvious considerations of fairness in argument
demand that the appellant present all of his points in the opening
brief[,]’ ” ’ ” i.e., to afford “ ‘ “ ‘the respondent [an] opportunity to
answer’ ” ’ ” appellant’s arguments]; Needelman v. DeWolf Realty
Co., Inc. (2015) 239 Cal.App.4th 750, 762 [“It is not this court’s
role to construct arguments that would undermine the lower
court’s judgment and defeat the presumption of correctness.
Rather, an appellant is required to present a cognizable legal
argument in support of reversal of the judgment and when the
appellant fails to support an issue with pertinent or cognizable
argument, ‘it may be deemed abandoned and discussion by the
reviewing court is unnecessary.’ ”].)
The trial court thus did not abuse its discretion in denying
the Rossiters leave to amend their complaint. Given our
analysis, we do not address whether the Rossiters could have
amended their pleading to: (1) include the other substantive
elements of fraud, and (2) allege an excuse for their supposed late
discovery of the facts. (See Community Cause, supra,
124 Cal.App.3d at p. 900 [identifying the elements of the
fraudulent concealment tolling doctrine].)
17
C. We Reject the Rossiters’ Request To Add a New
CLRA Cause of Action
As we noted in the Factual and Procedural Background,
part 1, ante, the only cause of action the Rossiters alleged in their
complaint is breach of the implied warranty of merchantability
under the Song-Beverly Act. On appeal, the Rossiters ask us to
reverse the judgment, remand the matter to the trial court, and
instruct that court to allow them to “file an amended complaint
stating an additional claim under the CLRA” “based on Honda’s
failure to disclose a known safety defect at the time of
purchase . . . .”
In their appellate briefing, the Rossiters do not claim to
have sought leave from the trial court to add this new cause of
action. Furthermore, they did not seek such leave in their
opposition to the demurrer, the minute order for the hearing on
the demurrer does not indicate they sought leave to amend,6 and
the register of actions provided in the parties’ joint appendix
shows the Rossiters did not file a motion for leave to amend their
complaint during the proceedings below.
The Rossiters’ briefing indicates they are relying upon the
general appellate principles that (1) in reviewing a judgment of
dismissal following the sustaining of a demurrer, “ ‘[r]eversible
error exists if facts were alleged showing entitlement to relief
under any possible legal theory’ ”; and (2) a plaintiff can
“ ‘demonstrate how he or she can amend the complaint . . . . in
the first instance to the appellate court.’ ” (Quoting Lee v. Los
6 The Rossiters’ notice designating the appellate record
indicates they elected to proceed without a record of the oral
proceedings before the trial court.
18
Angeles County Metropolitan Transportation Authority (2003)
107 Cal.App.4th 848, 853–854, italics omitted.) Indeed, the
Rossiters do not contest Honda’s assertion that “[t]his appeal
arises from the alleged breach of implied warranty [of
merchantability] and also introduces an alleged violation of the
Consumer Legal Remedies Act.” (Italics added.)
Given these circumstances, we conclude the Rossiters have
requested leave to add their CLRA claim for the first time on
appeal. (See Foust v. San Jose Construction Co., Inc. (2011)
198 Cal.App.4th 181, 186, fn. 2 [presuming that an appellant’s
argument “was not raised below” because the partial record
before the Court of Appeal did not indicate that the “argument
was ever made before the trial court”]; Rudick v. State Bd. of
Optometry (2019) 41 Cal.App.5th 77, 89–90 [concluding that the
appellants made an implicit concession by “failing to respond in
their reply brief to the [respondent’s] argument on th[at] point”].)
Nowhere in their briefing do the Rossiters explain why they
did not seek leave in the trial court to add such a new claim. For
the reasons discussed below, we reject as procedurally improper
the Rossiters’ belated request to amend the complaint to add this
new claim.
1. The Rossiters seek leave to allege new facts to support
a new cause of action under the CLRA
The Rossiters argue they can state a viable CLRA claim
based on their omission theory if they allege the following
elements with “reasonable particularity: (1) identify the omitted
facts allegedly known only to the defendant; (2) state facts
demonstrating plaintiff did not have reasonable access to those
facts based on an objective standard of a reasonable consumer;
(3) state facts showing the materiality of those omitted facts; i.e.,
19
a reasonable consumer would consider the omitted facts
significant in making [a] purchase decision; [and] (4) state facts
showing plaintiff’s reliance; i.e. that plaintiff would have acted
differently had the omitted facts been disclosed . . . .”7
Conversely, the Rossiters admit that their Song-Beverly
Act cause of action has elements that differ from those of their
proposed CLRA claim. Specifically, the Rossiters argue “the
complaint’s substantive allegations state a claim for breach of the
implied warranty of merchantability” because they allege:
(1) “they purchased a new motor vehicle manufactured and/or
distributed by Honda”; (2) “Honda is in the business of
manufacturing and/or distributing new motor vehicles”; (3) “at
the time of purchase the vehicle had an undisclosed latent defect
consisting of defective software that failed to properly monitor
the operation of the vehicle’s transmission creating the risk that
the vehicle would not move forward during acceleration”; (4) “the
transmission failed as a result of the defective software”; and
(5) “they suffered damages in the form of repair expenses
[citation] and other incidental and consequential damages.” On
their face, these elements of a Song-Beverly Act claim differ from
the elements of a CLRA claim.
7 The Rossiters suggest at one point in their reply brief
that they can also state a CLRA claim based on Honda’s “active
concealment” of the software defect. Nevertheless, the Rossiters
admit that “ ‘[a] failure to disclose information is an omission, not
an affirmative act’ ” required to plead “ ‘active concealment’ ”
under the CLRA, and that Honda’s supposed “concealment” of the
defect was its mere failure to disclose the defect’s existence “until
June of 2021 when it sent a letter to Honda owners explaining
the nature of the problem.” Thus, the Rossiters have tacitly
disclaimed any reliance on an active concealment theory.
20
The Rossiters acknowledge they would need to add new
facts to their complaint to state a viable CLRA claim. For
instance, the Rossiters represent they “can amend to clarify that
until they received the letter describing the software problem as
creating the risk that the vehicle would not move forward during
acceleration[,] . . . they had no way of knowing or suspecting that
a separate component (the defective software) is what actually
caused the transmission to fail.”
The Rossiters also acknowledge the CLRA has a
“prelitigation notice requirement” that precludes a plaintiff from
bringing suit unless and until (1) he or she has notified the
defendant of “the ‘particular alleged violations’ and demand[ed]
that the alleged wrongdoer ‘correct, repair[,] replace, or otherwise
rectify the goods . . . alleged to be in violation’ of the CLRA”
(quoting Civ. Code, § 1782, subds. (a)(1)–(a)(2)), and (2) “the
alleged wrongdoer” has failed to do either of the following within
30 days of receiving the notice: “take[ ] corrective action or
agree[d] to take corrective action within a reasonable time”
(citing Civ. Code, § 1782, subd. (b)). Their complaint does not
allege any such prelitigation notice. They argue that they “can in
good faith allege compliance with” it. Specifically, the Rossiters
assert “[t]hey can allege that they gave the required written
notice to Honda while the matter was still before the trial
court[, t]he notice identified the alleged violation and demanded
that corrective action be taken[,] . . . [and] more than 30 days
have elapsed since the notice was given and . . . Honda has not
taken corrective action or offered to take corrective action within
a reasonable time.”
21
Honda contests the adequacy of this notice by arguing that
“no such notice was given to [Honda] until after the filing of [this]
lawsuit.” (Italics added.)
Of course, none of these issues concerning the adequacy of
the Rossiters’ new CLRA claim was aired before the trial court
and, as we explain below, they would most likely engender a
second appeal were we to allow the Rossiters to attempt to plead
a viable CLRA claim. We decline to do so for the reasons set
forth in the next part.
2. Liberal rules of pleading following dismissal after the
granting of a demurrer do not apply to entirely new
claims raised for the first time on appeal and we
decline to exercise any discretion we may have to
entertain such a new CLRA claim based only on the
Rossiters’ general statement of facts they say they
would allege
We acknowledge that “an appellate court ‘may consider
new theories on appeal from the sustaining of a demurrer.’
[Citation.]” (See Gutierrez v. Carmax Auto Superstores California
(2018) 19 Cal.App.5th 1234, 1245 (Gutierrez).) That proposition
is a corollary of the rule that, in “testing the legal sufficiency of
the pleaded facts, . . . appellate courts are to consider ‘any
possible legal theory’ that might support the viability of the cause
of action” in reviewing an order sustaining a demurrer. (See
Wittenberg v. Bornstein (2020) 51 Cal.App.5th 556, 566
(Wittenberg).) This approach of “liberally construing pleadings
is . . . rooted in the policy allowing a plaintiff to maintain a
lawsuit if the plaintiff has, on any theory, properly pleaded facts
indicating a valid cause of action.” (See ibid.)
22
This rule of liberal construction does not apply with equal
force to entirely new causes of action first sought to be added on
appeal. As we noted in Discussion, part C.1, ante, the Rossiters
admit that their original complaint does not allege sufficient facts
to state a CLRA cause of action. Therefore, an order permitting
them to raise this as of yet unpleaded claim against Honda would
not serve the purpose underlying the rule that new legal theories
may be raised on review of a demurrer, to wit, “the policy
favoring a trial on the merits where the subject pleading discloses
viable claims on ‘any possible legal theory.’ ” (See Wittenberg,
supra, 51 Cal.App.5th at p. 566.)
Second, the Rossiters cannot demonstrate the trial court
abused its discretion by failing to grant leave to amend where the
Rossiters never sought leave below to add a new CLRA cause of
action. Admittedly, an appellant need not “formal[ly] request”
that the trial court allow that party to file an amended pleading
in order to challenge an order sustaining a demurrer without
leave to amend. (See 5 Witkin, Cal. Procedure (6th ed. 2021)
Pleading, § 1000, pp. 392–393, citing, inter alia, Code Civ. Proc.,
§ 472c, subd. (a).) Nevertheless, “[i]t is the rule that when a trial
court sustains a demurrer with leave to amend, the scope of the
grant of leave is ordinarily a limited one. It gives the pleader an
opportunity to cure the defects in the particular causes of action
to which the demurrer was sustained, but that is all. [Citation.]
‘The plaintiff may not amend the complaint to add a new cause of
action without having obtained permission to do so, unless the
new cause of action is within the scope of the order granting leave
to amend.’ [Citation.]” (Community Water Coalition v. Santa
Cruz County Local Agency Formation Com. (2011) 200
Cal.App.4th 1317, 1329 (Community Water Coalition).)
23
Here, Honda demurred on the ground that the four-year
statute of limitations applicable to the Rossiters’ cause of action
under the Song-Beverly Act had “expired two years prior to
bringing this action . . . .” The trial court sustained Honda’s
demurrer without leave to amend. Allowing the Rossiters to add
a new CLRA claim would not “cure the defect[ ] in the particular
cause[ ] of action to which the demurrer was sustained,” i.e., it
would not render their Song-Beverly Act cause of action timely.
(See Community Water Coalition, supra, 200 Cal.App.4th at
p. 1329, italics added.) Accordingly, it was incumbent upon them
to “ ‘obtain[ ] permission’ ” to “ ‘add a new cause of action,’ ”
rather than simply expect the trial court to grant them leave to
assert this new cause of action as a matter of course.8
Put differently, the Rossiters cannot obtain the appellate
relief they seek (i.e., reversal with an order permitting them to
raise their new claim) because whether they can amend their
complaint to state a CLRA claim has no bearing on the validity of
the judgment entered in accordance with the trial court’s order
sustaining Honda’s demurrer to the Song-Beverly Act claim
8 (See Community Water Coalition, supra, 200 Cal.App.4th
at p. 1329; see also Code Civ. Proc., § 472 [providing that “[a]
party may amend its pleading once without leave of the court at
any time before the answer, demurrer, or motion to strike is filed,
or after a demurrer or motion to strike is filed but before the
demurrer or motion to strike is heard if the amended pleading is
filed and served no later than the date for filing an opposition to
the demurrer or motion to strike”]; Weil & Brown, Cal. Prac.
Guide: Civil Procedure Before Trial (The Rutter Group 2023)
¶ 6:611, p. 6–181 [“In cases other than as described in CCP § 472
[citation], amendment of any pleading requires a prior court
order.”].)
24
without leave to amend. (See Cal. Const., art. VI, § 13 [providing
that “[n]o judgment shall be set aside . . . unless . . . [an] error
complained of has resulted in a miscarriage of justice,” italics
added].) As explained below, even insofar as we have discretion
to entertain the Rossiters’ request, judicial economy counsels
against allowing them to add their new CLRA claim at this stage.
Had the Rossiters filed a motion for leave to amend during
the proceedings below, their motion would have been
accompanied by a “copy of the proposed amendment or amended
pleading,” (see Cal. Rules of Court, rule 3.1324(a)(1)), thereby
allowing Honda and the trial court to assess the sufficiency of
their proposed allegations. The Rossiters also would have been
obligated to submit a declaration detailing “[t]he reasons why the
request for amendment was not made earlier.” (See id.,
rule 3.1324(b)(4).) Thereafter, the trial court would have
exercised its “ ‘ “ ‘wide discretion’ ” ’ ” in ruling on the Rossiters’
motion. (See Doe v. Los Angeles County Dept. of Children &
Family Services (2019) 37 Cal.App.5th 675, 689 (Doe).)
By circumventing that process, the Rossiters have
prevented us from meaningfully assessing whether their CLRA
claim would be viable. Case law upon which the Rossiters rely
indicates that their CLRA cause of action is subject to a pleading
standard that is “more lenient . . . than [that] applied to common
law fraud claims” and more demanding than the “general rule”
requiring that the complaint merely “ ‘set forth the ultimate facts
constituting the cause of action . . . .’ [Citation.]” (See Gutierrez,
supra, 19 Cal.App.5th at pp. 1260–1261.) Yet, they make mere
general statements about the facts they would allege to support
their CLRA claim. For example, the Rossiters maintain they can
allege facts showing that “until they received the letter describing
25
the software problem[,] . . . they had no way of knowing or
suspecting that a separate component (the defective software) is
what actually caused the transmission to fail.” This bare
representation does not establish that if the Rossiters were
granted leave to file an amended pleading, they could allege with
reasonable particularity an essential element of their CLRA
claim, i.e., that they did not have reasonable access to the fact
concealed by Honda (the software defect).9
Additionally, as is evident from the Rossiters’ recitation of
the differing elements of their CLRA claim and their Song-
Beverly Act claim (see Discussion, part C.1, ante), a CLRA claim
is not simply a subset or species of a Song-Beverly Act claim. It
raises issues whose resolution would have benefited from the
trial court’s initial consideration. Had they sought leave to add a
CLRA claim, then the validity of such a claim could have been
tested below and we would have then been able to review the
trial court’s ruling as to such a CLRA claim at the same time as
we would have been reviewing whether the trial court erred in
dismissing the Rossiters’ Song-Beverly Act claim. Instead, the
path the Rossiters chose increases the likelihood of piecemeal
appeals (i.e., there may be a future appeal once again concerning
the sufficiency of the CLRA claim) without any explanation as to
9 (See Torres v. Adventist Health System/West (2022)
77 Cal.App.5th 500, 507–508, 511–512 [concluding that a CLRA
plaintiff alleged with “ ‘reasonable particularity’ ” that she lacked
reasonable access to information concerning the defendant-
hospital’s fees because the operative complaint explained why
that information was not readily available to her (e.g., the
defendant’s online “chargemaster used coding and highly
abbreviated descriptions that are meaningless to consumers”)].)
26
why they did not seek leave to add the claim below.10 (See Cal.
Rules of Court, rule 3.1324(b)(4) [requiring a party moving for
leave to amend to submit a declaration explaining why the
request was not made earlier].)
For these reasons, we decline the Rossiters’ invitation to
expand the scope of this litigation to include new legal and
factual matters that should have been raised during the
proceedings below. (See Glassman v. Safeco Ins. Co. of America
(2023) 90 Cal.App.5th 1281, 1326 [“ ‘ “As a general rule, theories
not raised in the trial court cannot be asserted for the first time
on appeal. . . . “ ‘Bait and switch on appeal not only subjects the
parties to avoidable expense, but also wreaks havoc on a judicial
system too burdened to re[consider] cases on theories that could
have been raised earlier.” ’ ” ’ ”]; cf. Doe, supra, 37 Cal.App.5th at
p. 689 [noting that “ ‘ “ ‘unwarranted delay in presenting [an
amended pleading] may—of itself—be a valid reason for [a trial
court’s] denial’ ” ’ ” of a request for leave to amend].)
10 As we noted earlier, the Rossiters assert they gave
Honda notice of their CLRA claim “while the matter was still
before the trial court.” Thus, it seems they could have sought
leave from the trial court to add the CLRA claim.
27
DISPOSITION
The judgment is affirmed. The parties shall bear their own
costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
WEINGART, J.
28