Zepeda v. General Motors LLC

• Court: District Court, S.D. California
• Decided: August 8, 2024
• Docket: 3:23-cv-02305
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 EMMANUAL ZEPEDA Case No.: 3:23-cv-02305-W-JLB

14 Plaintiff, ORDER GRANTING MOTION TO 15 v. DISMISS [DOC. 3] AND GRANTING REQUEST FOR 16 GENERAL MOTORS, LLC, a limited JUDICIAL NOTICE [DOC. 3-2] liability company 17 Defendant. 18 19 20 Pending before the Court is Defendant General Motors, LLC’s motion to dismiss 21 the fourth and fifth causes of action in the complaint. Defendant also asks the Court to 22 take judicial notice of certain EPA mileage range estimates. Plaintiff Emmanuel Zepeda 23 opposes the motion, but not the request for judicial notice. 24 The Court decides the matter on the papers submitted and without oral argument. 25 See Civ. R. 7.1(d)(1). For the following reasons, the Court GRANTS the request for 26 judicial notice [Doc. 3-2] and the motion to dismiss [Doc. 3] with leave to amend. 27 28 1 I. RELEVANT BACKGROUND 2 This case arises from Plaintiff’s purchase of a 2022 Chevrolet Bolt (the “Vehicle”) 3 from “Bob Stall Chevrolet, an authorized dealer and agent of General Motors” for an 4 unspecified amount “[o]n or about July 8, 2022.” (Compl. [Doc. 1-2] ¶ 6.) According to 5 Plaintiff, the Vehicle was covered by: (1) an express warranty, under which Defendant 6 promised that the Vehicle “would be free from defects in materials, nonconformities, or 7 workmanship during the applicable warranty period and to the extent the [Vehicle] had 8 defects, [Defendant] would repair the defects”; as well as (2) an implied warranty that the 9 “[Vehicle] would be of the same quality as similar vehicles . . . [and] would be fit for the 10 ordinary purposes for which similar vehicles are used.” (Id. ¶¶ 7, 8.) The Complaint 11 alleges that during the warranty period, the Vehicle “exhibited defects” and Plaintiff 12 notified Defendant of such “defects” and “attempted to invoke the applicable warranties.” 13 (Id. ¶ 10.) Yet, Plaintiff alleges Defendant failed to “make the [Vehicle] conform to the 14 applicable warranties, despite a reasonable amount of time and a reasonable number of 15 attempts to do so.” (Id. ¶ 11.) 16 Plaintiff further alleges Defendant falsely represented the “safety of the vehicle as 17 well as the expected battery usage and mileage capacity of the vehicle.” (Compl. ¶ 41.) 18 Plaintiff alleges Defendant marketed the Vehicle as “long-range” and “safe,” but the 19 Vehicle is neither long-range nor safe because the “batteries may ignite when they are 20 either fully charged or fall below seventy (70) miles remaining.” (Id. ¶¶ 40, 41.) Plaintiff 21 also alleges the Vehicle cannot be parked inside overnight due to fire risk. (Id. ¶ 40.) 22 Plaintiff alleges he would not have purchased the Vehicle if “they had known it was 23 neither safe nor functioned as advertised on General Motor’s brochures.” (Id. ¶ 46.) 24 On December 18, 2023, Plaintiff filed a lawsuit against Defendant in the San 25 Diego Superior Court, entitled Emmanuel Zepeda v. General Motors LLC, et al., No.37- 26 2023-00049807-CU-BC-CTL. The Complaint asserts three causes of action for: 27 (1) Breach of Express Warranty; (2) Breach of Implied Warranty; (3) Violation of the 28 Song-Beverly Consumer Warranty Act, Cal. Civil Code § 1790, et seq.; (4) Fraud; and 1 (5) Violation of California Business & Professions Code § 17200 (the “UCL”). (See 2 Compl.) 3 On or about December 18, 2023, Defendant removed the case to this Court based 4 on diversity jurisdiction. (See Notice of Removal [Doc. 1].) Defendant now moves to 5 dismiss the fourth cause of action for fraud and fifth cause of action for violation of the 6 UCL. (P&A [Doc. 3] 9:13-10:1.) Plaintiff opposes the motion and, alternatively, requests 7 leave to amend. (Opp’n [Doc. 5.] 5:19–7:22.) 8 9 II. LEGAL STANDARD 10 Federal Rule of Civil Procedure 12(b)(6) allows a defendant to file a motion to 11 dismiss for failing “to state a claim upon which relief can be granted.” FED. R. CIV. P. 12 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint’s sufficiency. See 13 N. Star Int’l v. Ariz. Corp. Comm’n., 720 F.2d 578, 581 (9th Cir. 1983). A complaint 14 may be dismissed as a matter of law either for lack of a cognizable legal theory or for 15 insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 16 749 F.2d 530, 534 (9th Cir. 1984). In evaluating the motion, the Court must assume the 17 truth of all factual allegations and must “construe them in light most favorable to the 18 nonmoving party.” Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002). 19 To survive a motion to dismiss, a complaint must contain “a short and plain 20 statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 21 8(a)(2). The Supreme Court has interpreted this rule to mean that “[f]actual allegations 22 must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. 23 Twombly, 550 U.S. 554, 555 (2007). The allegations in the complaint must “contain 24 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 25 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 26 Although well-pled allegations in the complaint are assumed true, a court is not required 27 to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable 28 1 inferences. Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State 2 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 3 When a complaint alleges fraud, it must also “state with particularity the 4 circumstances constituting fraud or mistake.” FED. R. CIV. P. 9(b). Thus, for affirmative 5 misrepresentation allegations, the complaint must allege the “who, what, when, where, 6 and how of the misconduct charged” and explain “what is false or misleading about a 7 statement, and why it is false.” Ebeid ex rel. U.S. v. Lungwitz, 616 F.3d 993, 998 (9th 8 Cir. 2010). The same is true for UCL causes of action, to the extent that they allege fraud 9 or facts that constitute fraud. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1105 (9th 10 Cir. 2003). “Malice, intent, knowledge, and other conditions of a person’s mind may be 11 alleged generally.” FED. R. CIV. P. 9(b). However, these allegations of malice, intent, 12 knowledge, and mental state still cannot be conclusory or speculative as they remain 13 subject to Rule 8. 14 For fraudulent concealment claims, courts typically do not require the same level 15 of specificity as they do for affirmative misrepresentation. Baggett v. Hewlett-Packard 16 Co., 582 F. Supp. 2d 1261, 1267–68 (C.D. Cal. 2007) (emphasis added) (citations 17 omitted) (“[I]t is clear that a plaintiff in a fraudulent concealment suit will ‘not be able to 18 specify the time, place, and specific content of an omission as precisely as would a 19 plaintiff in a false representation claim.’ Because such a plaintiff is alleging a failure to 20 act instead of an affirmative act, the plaintiff cannot point out the specific moment when 21 the defendant failed to act. So, a fraud by omission or fraud by concealment claim ‘can 22 succeed without the same level of specificity required by a normal fraud claim.’ .... 23 [Plaintiff has satisfied its pleading requirement by] alleging that ‘Plaintiff and the Class 24 were unaware of the above facts and would not have acted as they did if they had 25 known.’”); Falk v. Gen. Motors Corp., 496 F. Supp. 2d 1088, 1098–99 (N.D. Cal. 2007) 26 (“Clearly, a plaintiff in a fraud by omission suit will not be able to specify the time, place, 27 and specific content of an omission as precisely as would a plaintiff in a false 28 representation claim.... [A] fraud by omission claim can succeed without the same level 1 of specificity required by a normal fraud claim.... Plaintiffs adequately state a claim of 2 fraud by omission. They allege that GM was bound by a duty to disclose material facts 3 about its speedometers from 2003 to 2007. GM failed to disclose this information, and 4 plaintiffs reasonably claim that they suffered damages after justifiably relying on GM's 5 failure to disclose any defects with the speedometers.”). 6 7 III. REQUEST FOR JUDICIAL NOTICE 8 Under Federal Rule of Evidence 2001(b)(2), courts may take judicial notice of 9 facts that “can be accurately and readily determined from sources whose accuracy cannot 10 reasonably be questioned.” The records and reports of administrative bodies, such as the 11 EPA, “are proper subjects of judicial notice, as long as their authenticity or accuracy is 12 not disputed.” AECOM Energy & Constr., Inc. v. Ripley, 2019 WL 2610953, at *3 (C.D. 13 Cal. Apr. 24, 2019); see Welk v. Beam Suntory Imp. Co., 124 F. Supp. 3d 1039, 1041 14 (S.D. Cal. 2015) (citing Mack v. South Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th 15 Cir.1986) (overruled on other grounds)). 16 Defendant requests judicial notice of the EPA’s mileage range estimates for the 17 2020, 2021, and 2022 Chevrolet Bolt (259 miles). (RJN [Doc. 3-2] 2:1–4.) In support of 18 the request, Defendant has attached a screen capture of and URL to the U.S. Department 19 of Energy’s website, www.fueleconomy.gov, showing that the EPA’s mileage range 20 estimate is 259 miles for the 2020, 2021, and 2022 Chevrolet Bolt. (Park Decl. [Doc. 3-1] 21 ¶ 3, Ex. A.) Plaintiff’s opposition does not contest or even address the RJN. Because 22 Plaintiff does not dispute the authenticity or accuracy of the EPA’s mileage-range 23 estimates as listed on www.fueleconomy.gov, the Court will take judicial notice of the 24 EPA’s mileage-range estimates. See, e.g., AECOM Energy & Constr., Inc., 2019 WL 25 2610953, at *3 (C.D. Cal. Apr. 24, 2019) (taking judicial notice of PDF from EPA’s 26 website); Jarose v. Cnty. of Humboldt, 2020 WL 999791, at *4 (N.D. Cal. Mar. 2, 2020) 27 (taking judicial notice of information publicly available on the EPA’s website). 28 1 IV. MOTION TO DISMISS 2 1. Affirmative Misrepresentation Claim (Fourth Cause of Action) 3 Defendant moves to dismiss the affirmative misrepresentation claim on the ground 4 that the Complaint fails to plead fraud with the particularity required by Rule 9(b). (P&A 5 12:23–16:4.) Plaintiff’s opposition includes a section entitled “Analysis of Rule 9(B) 6 Particularity Requirement,” but it simply repeats Rule 9’s requirements and fails to 7 address any of Defendant’s arguments. (See Opp’n 5:18–6:22.) 8 Under California law, the elements of affirmative misrepresentation are: (1) a 9 misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable 10 reliance; and (5) damages. See California Civil Jury Instructions (“CACI”), 1900. As 11 outlined above, the Complaint must allege affirmative misrepresentation with 12 particularity under Rule 9(b), including the “who,” “what,” “when,” “where,” and “how” 13 of the misrepresentation. Ebeid ex rel. U.S., 616 F.3d at 998. 14 Defendant first argues Plaintiff failed to allege the misrepresentation with 15 particularity. (P&A 12:24–26). The Court disagrees. Plaintiff alleges “what” the 16 misrepresentation was: “[Defendant] willfully, falsely, and knowingly marketed the 17 subject vehicle as having long range capability . . . and [as] safe . . . . Defendant’s 18 representations were false because the vehicle in fact contains a lithium-ion battery that 19 causes the vehicle to overheat during prolonged use, resulting in a substantial reduction in 20 the range capability of the vehicle. The vehicle is accordingly neither a long range 21 vehicle nor is it safe.” (Compl. ¶¶ 82, 83.) Additionally, under the circumstances—i.e., 22 misrepresentations in an advertising campaign—Plaintiff sufficiently identifies 23 Defendant as the “who” behind this misrepresentation. 24 The issue of whether Plaintiff sufficiently alleges the “when,” “where,” and “how” 25 of the misrepresentation is a closer call. While the same type of specificity is not 26 necessarily possible with an alleged misrepresentation based on an advertising campaign, 27 Plaintiff must still provide sufficient information to give Defendant the opportunity to 28 respond to the alleged misconduct. See Gutierrez v. Bausch Health US, LLC, 2024 WL 1 1854288, at *1 (9th Cir. Apr. 29, 2024). Here, Plaintiff vaguely alleges Defendant made 2 the misrepresentations in “a press release in January 2016” and “commercials in January 3 2017 featuring the range of the Bolt’s battery.” (Compl. ¶¶ 16, 18.) The Court finds these 4 allegations lack the specificity required to identify the press release or commercials that 5 included the misrepresentation. 6 Nevertheless, Plaintiff also alleges that at an “event conducted by GENERAL 7 MOTORS” in October 2019, Defendant’s employee Adam Piper stated that the battery 8 could be charged to 100% to achieve the Bolt’s maximum range. (Compl. ¶ 25.) This 9 statement is at odds with Plaintiff’s allegation that the Bolt could not be charged to 100% 10 because of the risk of fire and that the vehicle could not achieve the represented 11 maximum range. (See id. ¶¶ 13, 14, 19.) The Court finds this allegation sufficiently 12 alleges the “when,” “where,” and “how” of the misrepresentation. 13 Next, Defendant argues Plaintiff failed to allege it intended for Plaintiff to rely on 14 the misrepresentation. This element may be pled “generally.” See FED. R. CIV. P. 9(b). 15 Here, Plaintiff alleges Defendant intended Plaintiff to rely on the misrepresentations. 16 (See Compl. ¶ 84.) Additionally, to the extent Plaintiff alleges the mileage range 17 misrepresentations were in advertisements (id. ¶¶ 85, 93), it is reasonable to infer 18 Defendant intended Plaintiff to rely on the misrepresentation in purchasing the Vehicle. 19 Regarding Defendant’s knowledge of falsity, Plaintiff’s allegations do not 20 plausibly support the inference that Defendant had presale knowledge of the battery 21 defects in the 2022 Bolts. The Complaint alleges Defendant first became aware of 22 unspecified “issues with the battery and energy management related issues” in December 23 2016. (Compl. ¶ 17.) Plaintiff then alleges that in October 2017, the NHTSA published “a 24 warning that overcharging lithium ion batteries” can result in spontaneous ignition. (Id. ¶ 25 19.) Plaintiff next contends in May 2018, Defendant “notified its dealers regarding issues 26 with the batteries in the Bolt.” (Id. ¶ 22.) Among the problems with these and other 27 similar allegations is that they either vaguely refer to “battery issues” or generally refer to 28 lithium ion batteries and do not specify the batteries in Bolts. In the context of Rule 9(b), 1 such allegations are insufficient to demonstrate knowledge of battery defects specifically 2 effecting the Bolt’s mileage or safety. 3 Plaintiff also alleges Defendant became aware of the first battery fire involving the 4 Bolt in March 2019, and that by August 2020, Defendant was aware of at least 12 fires 5 involving the Bolt. (Compl. ¶¶ 24–26.) Plaintiff then alleges that Defendant issued a 6 recall notice in 2021, stating that its batteries may ignite when nearing a full charge. (Id. 7 ¶¶ 28–31.) Defendant does not deny knowledge of battery issues in previous Bolt models, 8 but instead argues that allegations of defects in previous models fails to sufficiently 9 demonstrate knowledge of defects in Plaintiff’s 2022 Vehicle at the time of sale. (P&A 10 16:10–22.) The Court agrees. 11 There are no allegations in the Complaint indicating that after the 2021 recall 12 notice was issued, the 2022 Bolts were plagued by the same defects as the earlier models. 13 For example, there are no allegations indicating that the 2022 Bolt batteries caught fire or 14 that Defendant issued notices to dealers regarding the 2022 models’ batteries. Instead, 15 based on the allegations in the Complaint, the only 2022 Bolt that allegedly “exhibited 16 [the] defects” was Plaintiff’s Vehicle. For this reason, Plaintiff’s allegations regarding the 17 battery fires are insufficient to demonstrate Defendant’s knowledge of the defects in the 18 2022 Bolts.1 See Cho v. Hyundai Motor Co., Ltd., 636 F. Supp. 3d 1149, 1170-71 (C.D. 19 Cal. 2022) (finding that even if the recall addresses a similar defect to the one alleged in 20 the Complaint, it is of no import if the defective part is absent from the subject vehicle). 21 Next, Plaintiff must allege with particularity that he justifiably relied upon the 22 misrepresentations in purchasing the Vehicle. Plaintiff has failed to do so. He alleges the 23 marketing materials for the 2020 Bolt depicted the Vehicle as “safe and capable of being 24 charged indoors in Plaintiff’s garage,” and that the materials were “justifiably reviewed 25 and relied upon by Plaintiff prior to sale.” (Compl. ¶ 30.) As an initial matter, the Court 26

27 1 For this same reason, the allegations about the October 2017 NHTSA warning and about 28 1 is not convinced that Plaintiff’s reliance on marketing materials from 2020 to purchase a 2 2022 Bolt satisfies the “justifiable reliance” element, particularly when the Complaint 3 concedes that in 2021—before Plaintiff purchased the Vehicle—Defendant issued the 4 recall notice. In addition to this problem, because Plaintiff has failed to include any detail 5 regarding the press releases or advertisements that allegedly included the 6 misrepresentations, Plaintiff’s reliance on the advertisements is insufficiently pled. See 7 Gutierrez v. Bausch Health US, LLC, 2024 WL 1854288, at *1 (9th Cir. Apr. 29, 2024) 8 (citations omitted) (while a plaintiff does not have to plead reliance on a particular 9 advertisement in a long-term advertising campaign with an “unrealistic degree of 10 specificity,” they must plead facts specific enough to establish reliance); see also Kearns 11 v. Ford Motor Co., 567 F.3d 1120, 1126 (9th Cir. 2009) (affirming dismissal of a fraud 12 claim where the plaintiff failed to specify which advertising and sales materials he relied 13 upon in making his decision to purchase a vehicle and what the advertising and sales 14 materials specifically stated). 15 Plaintiff also alleges “General Motors dealership personnel at the time of sale ... 16 assured Plaintiff that the vehicle [had] [sic] long-range [capability] and was safe.” 17 (Compl. ¶ 82.) Because this alleged misrepresentation is not part of an advertising 18 campaign, the Complaint must satisfy Rule 9(b)’s particularity requirement by 19 specifically identifying “who” made this representation, in addition to “where” and 20 “how” the representation was made. The Complaint fails to do so and thus fails to 21 sufficiently plead reliance. 22 Finally, regarding Defendant’s employee, Adam Piper’s, alleged representations in 23 October 2019 about the safety and mileage capacity of the Bolts, this allegation is 24 insufficient to establish reasonable reliance for two reasons. First, this statement was 25 made two years before the 2021 recall and almost three years before Plaintiff purchased 26 the Vehicle. Any reliance on the statement would not be justifiable. Second, Plaintiff 27 does not allege he actually heard and relied on the statements. Thus, the Complaint fails 28 to plead reasonable reliance. 1 For all these reasons, the affirmative misrepresentation claim fails to meet Rule 2 9(b)’s particularity requirement. 3 4 2. Fraudulent Concealment Claim (Fourth Cause of Action) 5 Defendant argues the fraudulent concealment claim should be dismissed because 6 there was no direct economic relationship between Plaintiff and Defendant and, therefore, 7 Defendant did not have a duty to disclose the alleged battery “defects” to Plaintiff. (P&A 8 20:7–22:7.) Defendant also argues the Complaint fails to state a fraudulent concealment 9 claim because Plaintiff failed to allege Defendant had knowledge of the defects at or 10 before he purchased the Vehicle. (Id.16:5–17:18.) 11 “As with all fraud claims, the necessary elements of a concealment/suppression 12 claim consist of ‘(1) misrepresentation (false representation, concealment, or 13 nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce 14 reliance); (4) justifiable reliance; and (5) resulting damage.’” Dhital v. Nissan North 15 America, Inc., 84 Cal.App.5th 828, 843 (2022) (citation omitted). “Suppression of a 16 material fact is actionable when there is a duty of disclosure, which may arise from a 17 relationship between the parties, such as a buyer-seller relationship.” Id. (citation 18 omitted). “[The California Supreme Court] has described the necessary relationship 19 giving rise to a duty to disclose as a ‘transaction’ between plaintiff and defendant.” 20 Bigler-Engler v. Breg, Inc., 7 Cal.App.5th 276, 311 (2017) (citations omitted). 21 Concealment claims, however, are not required to be pled with the same level of 22 specificity as affirmative misrepresentation claims. Baggett, 582 F.Supp.2d 1267–68. 23 Here, the Complaint alleges Plaintiff purchased the “vehicle directly from an 24 authorized dealer and agent of GENERAL MOTORS” and “GENERAL MOTORS 25 issued an express warranty” for the Vehicle. (Compl. ¶ 6.) Plaintiff argues this allegation 26 is sufficient to establish a transactional relationship between him and Defendant. (Opp’n 27 9:24–10:2.) While the agency allegations alone would be insufficient to establish a duty, 28 the Court agrees that the allegation that Defendant provided an express warranty is 1 sufficient to establish a transactional relationship at the pleading stage. See Dhital, 84 2 Cal.App.5th at 844 (holding plaintiffs’ allegations that they “bought the car from a 3 Nissan dealership, that Nissan backed the car with an express warranty, and that Nissan’s 4 authorized dealerships are its agents for purposes of the sale of Nissan vehicles to 5 consumers” are sufficient to establish a buyer-seller relationship). 6 However, as discussed above, there are no facts alleged from which an inference 7 may be drawn that Defendant was aware that the 2022 Bolts had the same defects as the 8 previous years’ models. Because there is no indication Defendant had knowledge of the 9 defects in the 2022 Bolt, it is not reasonable to infer that Defendant intentionally 10 concealed or suppressed the defects. For this reason, the concealment claim is 11 insufficiently pled. 12 13 3. UCL Claims (Fifth Cause of Action) 14 Defendant argues that Plaintiff’s UCL claim should be dismissed because, among 15 other reasons, he failed to plead facts supporting the affirmative misrepresentation and 16 concealment causes of action. 17 Plaintiff failed to provide any opposition to Defendant’s motion to dismiss the 18 UCL cause of action. The Court construes Plaintiff’s failure to address the argument as a 19 concession regarding the merits of Defendant’s arguments. Additionally, because the 20 Complaint fails to plead an affirmative misrepresentation or concealment claim, the Court 21 will grant the motion to dismiss the UCL cause of action. 22 23 4. Leave to Amend 24 Plaintiff requests leave to amend the Complaint. (Opp’n 7:24.) Federal Rule of 25 Civil Procedure 15(a)(2) states that courts “should freely give leave [to amend] when 26 justice so requires.” Furthermore, Ninth Circuit has stated that leave to amend “should be 27 granted with ‘extreme liberty’” and only be denied when “it is clear ... that the complaint 28 1 || could not be saved by any amendment.” Moss v. U.S. Secret Serv., 572 F.3d 962, 972 2 || (9th Cir. 2009). 3 Although Plaintiff's opposition does not identify any facts indicating that he can 4 ||amend the Complaint to allege fraud or UCL cause of action, it is not yet clear that leave 5 amend would be futile. Accordingly, the Court will grant Plaintiff leave to amend the 6 || Complaint. 7 8 ||V. CONCLUSION & ORDER 9 For the reasons stated above, the Court GRANTS Defendant’s request for judicial 10 notice [Doc. 3-1] and the motion to dismiss [Doc. 3] the Fourth and Fifth Causes of 11 || Action WITH LEAVE TO AMEND. To the extent Plaintiff intends to file a First 12 || Amended Complaint, it shall be filed on or before August 16, 2024. 13 IT IS SO ORDERED. 14 ||Dated: August 8, 2024 \ pe lnLor 16 Hn. 7 omas J. Whelan 7 Unted States District Judge 18 19 20 21 22 23 24 25 26 27 28