Filed 6/27/23 Rossiter v. American Honda Motor Co. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

LAURENCE ROSSITER et al.,

Plaintiffs and Appellants,

v.

AMERICAN HONDA MOTOR CO., 

INC.,

Defendant and Respondent.

 B321877

 (Los Angeles County

 Super. Ct. No. 21STCV38994)

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.

____________________________
2

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 
3

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 
4

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.”].)
5

“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’ SongBeverly 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. 
6

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 
7

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].)
8

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.”].)
9

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.).)
10

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. 
11

“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.
12

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 SongBeverly 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.)
13

“ ‘[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 
14

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 
15

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.) 
16

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 
17

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].)
18

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. 
19

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., 
20

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.
21

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.” 
22

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.) 
23

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).)
24

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.”].)
25

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 
26

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 SongBeverly 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 defendanthospital’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”)].)
27

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.
28

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.