COREY CHRISTOPHER CHING v. GENERAL MOTORS LLC (2024)

ORDER GRANTING LEAVE TO FILE AMENDED COMPLAINT

Plaintiff Corey Ching purchased an electric Chevrolet Bolt from defendant General Motors LLC (GM) in October 2020. Ching alleges that GM later issued a recall notice that the vehicle's batteries may ignite when nearing full charge. “Specifically, Defendant warned that the vehicle's charge should not exceed 90%, the battery mileage should not fall below seventy (70) miles remaining, and the vehicle should not be parked indoors overnight due to the risk of fire.” Dkt. No. 1-1, at 6. Ching then purportedly had to “make unforeseen accommodations and take precautions that interfere with [his] normal and expected use of the vehicle.” Id. at 7.

Accordingly, Ching asserts the following causes of action against GM: (1) violation of the Song-Beverly Act for breach of express warranty by failing to replace the vehicle or perform necessary repairs; (2) violation of the Song-Beverly Act for breach of implied warranty by selling a vehicle that was not merchantable; (3) violation of the Song-Beverly Act § 1793.2 by failing to maintain repair facilities and service goods; (4) fraud by misrepresenting that the vehicle has a range to reach 259 miles on full charge and concealing that the mileage range is actually less due to charging issues; and (5) violation of the UCL under the unlawful, fraudulent, and unfair prongs. Ching requests actual damages, civil penalties of twice the damages, punitive damages for fraud, rescission of the purchase contract, restitution, disgorgement, interest, attorney's fees, and costs.

GM moves to dismiss the fourth and fifth causes of action (specifically, the fraud claims) on the grounds that Ching fails to plead these claims with particularity under Federal Rule of Civil Procedure 9(b), Ching has not plausibly alleged GM's knowledge of the alleged defect before the time of the purchase, GM's advertisement of EPA mileage estimates cannot form the basis of a misrepresentation claim, and Ching's fraudulent concealment claim fails because it is barred by the economic loss rule and because Ching has not alleged a transactional relationship giving rise to a duty to disclose (since Ching bought the vehicle from a third-party dealership).

In his opposition to the motion to dismiss, Ching acknowledges the heightened Rule 9(b) particularity requirements to plead fraud and requests the Court to grant leave to amend the complaint. Ching requests leave to amend the complaint in order to “plead the how, when, where, to whom and by what means the alleged fraud occurred.” Dkt. No. 18, at 5. Ching also hopes to demonstrate GM's “knowledge of the defect prior to sale” in its amended complaint. Id. Finally, Ching wants to “establish a transactional relationship” with GM through its amendment. Id.

GM does not oppose Ching's request for leave to amend his complaint. A party may amend its pleading either with the consent of the opposing party or with leave of Court. Fed. R. Civ. P. 15(a)(2). The Court “should freely give leave when justice so requires.” Id. The Court thus grants Ching's request for leave to file an amended complaint, which must be filed within 21 days of this Order.¹ The sufficiency of Ching's allegations of fraud will best be addressed after Ching has filed an amended complaint. Accordingly, GM's motion to dismiss is denied as moot without prejudice to its arguments in any subsequent motion to dismiss Ching's amended complaint.

IT IS SO ORDERED.

FOOTNOTES

1.   In granting leave to amend, the Court orders Ching to address the deficiencies identified by Judge Chhabria in an order dismissing three nearly identical cases against GM in this District. Singh et al. v. General Motors LLC, No. 23-cv-06702, Dkt. No. 24 (N.D. Cal. Feb. 26, 2024); Nieuwboer v. General Motors LLC, No. 24-cv-00137, Dkt. No. 17 (N.D. Cal. Feb. 26, 2024); Jackson v. General Motors LLC, No. 24-cv-00229, Dkt. No. 18 (N.D. Cal. Feb. 26, 2024).

P. Casey Pitts United States District Judge