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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

,

Plaintiff s and Appel lant s ,

v.

AMERICAN HONDA MOTOR CO., INC.,

Defendant and Respondent. B 321877

(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 Plaintiff s and Appellant s

. Lewis Brisbois Bisgaard & Smith, Trevor J. Ingold, Jessica
L. Barakat and Jordan R. Fisher for Defendant and Respondent.

____________________________2 Plaintiffs and a ppellants 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 unt il 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 sta tute 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 postpone s accrual of the limitations period for thei r Song

- Beverly
Act claim. E ven 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 de fect at the time of purchase

. We reject the Rossiter s ’ contention that the delayed discovery rule postpone d commencement of the four

- year statute of limitations applicable to the ir Song

- Beverly Act claim

. We also3

conclude the Rossiters have fail ed to demo nstrate they c an 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 re asons, w e 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 “manufact ured 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, 20 21, 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 the4

the Rossiters with tw o warranties: (1) “an express limited

warrant y 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.”
T he 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

pressur e 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 purchase d the vehicle, “Honda and the selling dealership were
aware of the sof

tware 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 e xpense.” On or about June 1, 2021, “the CVT failed again due to the defective software.”

party. ’ ”] ; 9 Witkin, Cal. Procedure (6th ed. 202 1 ) Appeal, § 7 32
, 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 Ross iters] 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 f ro m Honda was the first noti ce [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 p ublic. [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 vehi cle 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 demurre r to th e 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 judgme nt 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 judg ment.

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 conclus ions 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 po ssible 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 that7

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 Comm unity Cause v. Boatwright (1981) 124 Cal.App.3d 888, 897 ( Comm unity 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 cit ation 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 t he 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 tha t 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 S ection 2725’s Four

- Year Statute
of Limitations
The parties agree that Commercial Code section 2725 provides the statute of limitatio ns 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 deli very is made, except that where a warranty explicitly extends to future performan ce 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 limitat ions 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 aris ing 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 , th eir 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. T he
Rossiters did not file the ir complaint until October 22, 2021. Therefore, unless an exception to subdivisio n (2)’s gene ral 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. Co de, § 2725,
subd. (2).) Rather, the Rossiters maintain th at sec tion 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, 13 4 ( Card inal Health 301, Inc. ).)10

unambiguous language” of subdivision (4), the delayed discovery
rule “can be applied to delay accrual until the date they
reasonab ly discovered the defect.” We disagree. The Rossiters’ position presumes th e 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 rul e 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.
T he Rossiters nonethel ess 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 o f 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 Com mercial Code version of the statute of
limitations [in 1967] , it expressed the clear intent to follow the
uniform rule which established tender of deliv ery as the accrual date, unless the plaintiff shows the warranty ‘explicitly extends to future performan ce.’ ([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 so ught 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 resurrect ing 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

appar ent 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 T o Demonstrate They C an Amend Their Complaint T o Toll the Statute of Limitations
Based on a Fraudulent Concealment Theory of Tolling

The Rossiters argue fraudulent concealment is an equitab le
doctrine that

, pursuant to Commercial Code section 2725, subdivision (4), toll s 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
the y can allege facts sufficient to invoke th at doctrine. “In general the fraudulent concea lment 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 plai ntiff 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.” ( I

d. 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 ) .)
T he third element of a fraudulent concealment claim , which
some decis ions 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 c laim predica ted 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 “Hond a’s failure to disclose the existence of the software defect until June of 2021, when the
statute of limi tations had already expired is a sufficient14

allegation of fraud .” (Citing Comm unity 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 c an allege s ufficient facts to plead fraud on Honda’s part , the Rossiters seem to rely upon the following text from the Com munity 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.]” ( Comm unity Cause

, supra , 124 Cal.App.3d at p. 900.) Notwithstanding the R ossiters ’ argument to the contrary, this quotation from Comm unity 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, Comm unity Cause held that a plaintiff must plead, inter alia, “the substantive elements of fraud” to benefit from this tolling doctrine

. ( S ee Comm unity Cause

, supra , 124 Cal.App.3d at p. 900

. ) Fraud includes substantiv e elements
in addition to violation of a duty to dis close, including the
defendant’s intent to defraud the plaintiff . (See Lovejoy

, supra , 119 Cal.App.4th at p p

. 157

– 158 ; Thrifty Payless, Inc.

, supra , 218 Cal.App.4th at p. 1239.) Furthermore, Comm unity Cause ’s analysis of the doctrine
of fraudulent concealment demonstrates that the se other
elements of fraud must be pleaded to establish tolling by way of
th at doctrine

. The plaintiff in Comm unity Cause alleged that the
defendant

- state legislator had “intentional ly or negligently failed15

to disclose” certai n investments and income in violation of the
Political Reform Act of 1974 (PRA) and its predecessor statute. (See Comm unity Cause

, supra , 124 Cal.App.3d at p p . 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 Comm unity 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 prede cessor, the defendant “intentionally failed to disclose ” one of his investments. 5 (See Community Cause , at p. 901. )
The Com munity Cause court’s discussion of the distinction between the claims predicated on the defendant’s negligent
failure to make discl osures and his intentional failure to do so
would have been superfluous if the mere violation of his statutory disclosure duty w ould 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

Comm unity 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 Comm unity
Cause opinion upon which the Rossiters rely is re ad 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,
Comm unity Cause was simply explaining th at withho lding 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. 1 57 [ holding that the re are five essential elements of a
concealment claim

, includ ing : “ (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 th e 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 mee t 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 bringing17

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, plead ed sufficient facts to show Honda possessed th e requisite intent

. (See Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1273

– 1274 [noting that “ ‘ “ ‘ [o]bvio us 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

answe r ’ ” ’ ” 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. ’ ” ] .)
T he trial court thus did not abuse its di scretion 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 su pposed 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 , t he 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

rever se 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, t he Rossiters do not claim to have sought leave from the trial court to add this new c ause of
action

. Furthermore, the y did not se ek 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 motio n for leave to amend their complaint during the proceedings below.
T he Rossiters’ briefing indicates they are relying upon the general appellate principle s 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 L ee 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, 85 3

– 854, italics omit ted .) Indeed, the Rossiters do not contest Honda’s assertion that “[t]his appeal arises from the alleged breach of implied warranty [ of
merchan tability] 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 J ose 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”] .)
N owhere 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 c laim

.

1. The Rossiters seek leave to allege new facts to support

a new cause of action under the CL R A

T he Rossiters argue they can state a viable CLRA claim based on their omission theory if the y 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 d isclosed . . . .” 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, t he Rossiters argue “the complaint’s substantive allegations state a claim fo r 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 dif fer from
the elements of a CL R A claim.

7 T he Rossiters suggest at one point in their reply brief that they c an also state a CLRA clai m 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 Hon da’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 T he Rossiters acknowledge t hey would need to add new facts to their complaint to state a viable CLRA claim

. For instance, the Rossiters represent t hey “can amend to clarify that until they received the letter descr ibing 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 fai l.” The Rossiters also acknowledge the CLRA has a “prelitigation notice requirement” that precludes a plaintiff from bringing suit un less and until (1) he or she has notified the
defendant of “the ‘ particular alleged violations’ and demand[ed]
that the a lleged 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” ( c iting Civ. Code , § 1782, subd. (b) )

. Their complaint does not allege any such prelitigation notice. T hey 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 wh i le 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 w as aired before the trial court
and , as we explain below, the y would most likely engender a second appeal were we to allow the Rossiters to attempt to plead
a viable CL R A 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 CL R A claim based only on the
Rossiters ’ general statement of facts they say they would allege

W e 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) 1 9 Cal.App.5th 1234, 1245 ( Gutierrez ) .) T h at 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
law suit if the plaintiff has, on any theory, properly pleaded facts indicating a valid cause of action. ” (See ibid. )23 Th is 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 the ir 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 unple ade d 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 wher e 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, a n appellant need not “formal[ly] request” that the trial court allow that party to file an amended pleading
in order to challenge an order sustain ing a demurrer without
le ave to amend. (See 5 Witkin, Cal. Procedure (6th ed. 202 1 ) Pleading, § 1000, pp. 392

– 393, citing, inter alia, Code Civ. Proc., § 472c, subd. (a).) Nevertheless, “ [i] t is the rule that w hen 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 t he 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 th is 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 n ot 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 th eir 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 serv ed 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], am endment 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].) A s explained below, even insofar as we have discretion

to en tertain the Rossiters’ request, judicial economy counsel s 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 “cop y of the proposed amendment or amended pleading

, ” ( s ee 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 de claration 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. L os A ngeles County Dept

. of Children & Family Serv ice s (2019) 37 Cal.App.5 th 675, 689 ( Doe ) .) By circumventing that process, the Rossiters have prevented us from meaningfully assessing whether their CL R A
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, t hey make mere general statements about the facts they would allege to support the ir CL R A claim. For example, the Rossiters maintain they can allege facts showing that “until they received the letter describing26

the software problem[,]

. . . they had no way of knowing or suspecting that a separate component (the defective software) is what actually caused the trans mission 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 reas onable access to the fact concealed by Honda (the software defect )

. 9
A dditionally, a s is evident from the Rossiters’ recitation of
the differing elements of their CLRA claim and the ir Song

Beverly Act claim (see Discussion, part C.1, ante )

, a CL R A 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
CL R A claim, then the validity of such a claim could have been
tested below and we would have then be en able to review the trial court’s ruling as to such a CL R A claim at the same time as

we would have be en reviewing whether the trial court erred in dismissing the Rossiter s’ Song

- Beverly Act claim. Instead , the path the Rossiters ch ose increases the like lihood 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 ac cess 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 ar e 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, w e 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, th eories
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 th eories 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 reques t for l eave to amend]. )

10 A s 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 c laim.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:

C HANEY, J.

WEINGART , J.