Martinez v. Ford Motor Company et al, No. 3:2022cv01082 - Document 30 (S.D. Cal. 2023)

Court Description: ORDER Granting 23 Defendant Ethos Group Inc.'s Motion to Dismiss; and ORDER Granting in Part and Denying in Part 24 Ford Motor Company's Motion to Dismiss. Plaintiff may file a Second Amended Complaint, if any, on or before 5/8/2023. Signed by Judge Michael M. Anello on 4/17/23. (aas)

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Martinez v. Ford Motor Company et al Doc. 30 Case 3:22-cv-01082-MMA-BGS Document 30 Filed 04/17/23 PageID.387 Page 1 of 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JORGE MARTINEZ, Case No. 22-cv-1082-MMA (BGS) Plaintiff, 12 13 v. 14 FORD MOTOR COMPANY, et al. 15 ORDER GRANTING DEFENDANT ETHOS GROUP INC.’S MOTION TO DISMISS; AND Defendants. [Doc. No. 23] 16 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT FORD MOTOR COMPANY’S MOTION TO DISMISS 17 18 19 [Doc. No. 24] 20 21 22 On June 24, 2022, Jorge Martinez (“Plaintiff”) commenced the instant action 23 against Ethos Group Inc. (“Defendant Ethos”), Ford Motor Company (“Defendant 24 Ford”), Norm Reeves Ford Lincoln, and Does 1–10 in the State of California, Superior 25 Court for the County of San Diego. See Doc. No. 1-2 (“Compl.”). On July 25, 2022, 26 Defendant Ford removed the action to this Court based on federal question jurisdiction. 27 See Doc. No. 1. Defendant Ethos consented to removal. See id. at 2. Both Defendant 28 Ethos and Defendant Ford now move to dismiss pursuant to Federal Rule of Civil -1- 22-cv-1082-MMA (BGS) Dockets.Justia.com Case 3:22-cv-01082-MMA-BGS Document 30 Filed 04/17/23 PageID.388 Page 2 of 15 1 Procedure 12(b)(6). See Doc. Nos. 23, 24.1 Plaintiff filed oppositions, to which 2 Defendants Ford and Ethos replied. See Doc. Nos. 25, 26, 27, 28. The Court found the 3 matters suitable for determination on the papers and without oral argument pursuant to 4 Civil Local Rule 7.1.d.1. See Doc. No. 29. For the reasons set forth below, the Court 5 GRANTS Defendant Ethos’s motion to dismiss and GRANTS IN PART and DENIES 6 IN PART Defendant Ford’s motion to dismiss. I. BACKGROUND 2 7 8 9 Plaintiff purchased a “new 2014 Ford Edge” (the “Vehicle”). FAC ¶ 6. Plaintiff contends that Defendant Ford is the distributor of the Vehicle. Id. Plaintiff also 10 purchased a service contract from Defendant Ethos that “covered some repair costs of the 11 Vehicle.” Id. ¶ 64. 12 13 The Vehicle subsequently developed issues. See id. ¶ 9. Plaintiff alleges the following mechanical failures: 14 15 During the warranty period, the Vehicle contained or developed nonconformity(s) to warranty, including but not limited to defect(s) which have manifested as check engine lights, cooling fan defect, power steering defect, coolant leaks, oil leaks, and Evaporative Emission Control System leaks. Said defects substantially impair the use, value, or safety of the Vehicle. 16 17 18 19 20 Id. Plaintiff alleges that he “presented the Vehicle for repair at Defendant[] 21 [Ford’s] authorized repair facility on or about August 24, 2020[,]” “again presented 22 the Vehicle for repairs at Defendant’s authorized repair facility due to overheating” 23 on September 16, 2021, and then “scheduled another repair appointment and took 24 25 26 1 At this stage, it appears that Defendant Norm Reeves Ford Lincoln has not yet been properly served. Because this matter is before the Court on a motion to dismiss, the Court must accept as true the allegations set forth in the First Amended Complaint and construe them in the light most favorable to Plaintiff, the non-moving party. See Snyder & Assocs. Acquisitions LLC v. United States, 859 F.3d 1152, 1157 (9th Cir. 2017) (citation omitted). 2 27 28 -2- 22-cv-1082-MMA (BGS) Case 3:22-cv-01082-MMA-BGS Document 30 Filed 04/17/23 PageID.389 Page 3 of 15 1 the vehicle to Norm Reeves Ford in Cerritos CA[.]” Id. ¶ 10. Plaintiff avers that 2 “Defendant has yet to conform the [V]ehicle to warranty” and that “[t]he Vehicle 3 continues to overheat, and the fans are not working.” Id. Plaintiff asserts that 4 Defendant Ford failed to repair or replace the vehicle as required by the warranties 5 and failed to reimburse him for expenses. See id. ¶¶ 6–44. 6 Plaintiff maintains that Defendant Ethos failed to provide the “services” and parts 7 necessary for normal operation. Id. ¶ 66. Plaintiff “repeatedly presented the Vehicle for 8 repairs” and “Defendant Ethos Group, Inc., repeatedly failed to provide functional parts 9 and service necessary to maintain proper operation of the Vehicle.” Id. In sum, Plaintiff 10 asserts Defendant Ethos “fail[ed] to comply with their obligations” under the service 11 contract. Id. ¶ 67. 12 13 II. LEGAL STANDARD A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro 14 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain 15 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 16 8(a)(2). However, plaintiffs must also plead “enough facts to state a claim to relief that is 17 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also 18 Fed. R. Civ. P. 12(b)(6). The plausibility standard demands more than a “formulaic 19 recitation of the elements of a cause of action,” or “‘naked assertions’ devoid of ‘further 20 factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 21 550 U.S. at 555). Instead, the complaint “must contain allegations of underlying facts 22 sufficient to give fair notice and to enable the opposing party to defend itself effectively.” 23 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 24 In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth 25 of all factual allegations and must construe them in the light most favorable to the 26 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996) 27 (citing Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1340 (9th Cir. 1995)). The court need 28 not take legal conclusions as true merely because they are cast in the form of factual -3- 22-cv-1082-MMA (BGS) Case 3:22-cv-01082-MMA-BGS Document 30 Filed 04/17/23 PageID.390 Page 4 of 15 1 allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting W. Min. 2 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Similarly, “conclusory allegations 3 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” 4 Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). 5 In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not 6 look beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 903, 7 907–08 (9th Cir. 2003). “A court may, however, consider certain materials—documents 8 attached to the complaint, documents incorporated by reference in the complaint, or 9 matters of judicial notice—without converting the motion to dismiss into a motion for 10 summary judgment.” Id. at 908; see also Lee v. City of Los Angeles, 250 F.3d 668, 688 11 (9th Cir. 2001). “However, [courts] are not required to accept as true conclusory 12 allegations which are contradicted by documents referred to in the complaint.” Steckman 13 v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998) (citing In re Stac Elecs. 14 Sec. Litig., 89 F.3d 1399, 1403 (9th Cir. 1996)). 15 In reviewing a motion to dismiss: 16 17 18 19 [T]he “incorporation by reference” doctrine [extends] to situations in which the plaintiff’s claim depends on the content of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint. 20 21 Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); Davis v. HSBC Bank Nev., 691 22 F.3d 1152, 1161 (9th Cir. 2012) (“Under the ‘incorporation by reference’ doctrine in this 23 Circuit, ‘a court may look beyond the pleadings without converting the Rule 12(b)(6) 24 motion into one for summary judgment.’”) (quoting Van Buskirk v. Cable News Network, 25 Inc., 284 F.3d 977, 980 (9th Cir. 2001)). The incorporation by reference “doctrine 26 prevents plaintiffs from selecting only portions of documents that support their claims, 27 while omitting portions of those very documents that weaken—or doom—their claims.” 28 Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). -4- 22-cv-1082-MMA (BGS) Case 3:22-cv-01082-MMA-BGS Document 30 Filed 04/17/23 PageID.391 Page 5 of 15 1 Here, Defendant Ethos’s motion to dismiss relies on a document not contained in 2 the FAC. See Doc. No. 23 at 7 n.1. Specifically, Defendant Ethos includes a copy of the 3 “Vehicle Service Contract entered into between [Defendant] Ethos and [Plaintiff] 4 Martinez.” Id.; Doc. No. 23-1 at 1–2 (“Exh. A”). Defendant Ethos urges that the Vehicle 5 Service contract is incorporated by reference as it is central to [Plaintiff] Martinez’s 6 complaint with respect to Ethos.” Doc. No. 23 at 7 fn.1 (citation omitted). Plaintiff’s 7 ninth cause of action is for breach of the service contract by Defendant Ethos. FAC 8 ¶¶ 63–68. Relatedly, as explained infra Section III.A, Plaintiff cannot maintain his fifth 9 cause of action for violation of Business & Professions Code § 17200 without his ninth 10 cause of action. See id. ¶¶ 31–33, 63–68. Plaintiff does not dispute the authenticity or 11 challenge the existence of the service contract. The Court concludes that incorporation 12 by reference is proper for the service contract. See Exh. A. Therefore, to the extent that 13 the document is not a means to “short-circuit the resolution of a well-pleaded claim” by 14 “serv[ing] to dispute facts stated in a well-pleaded complaint[,]” the Court considers the 15 service contract, Exhibit A, in considering Defendant Ethos’s motion to dismiss. See 16 Khoja, 899 F.3d at 1003. 17 Finally, where dismissal is appropriate, a court should grant leave to amend unless 18 the plaintiff could not possibly cure the defects of the pleading. Knappenberger v. City of 19 Phoenix, 566 F.3d 936, 942 (9th Cir. 2009) (quoting Lopez v. Smith, 203 F.3d 1122, 1127 20 (9th Cir. 2000)). 21 III. DISCUSSION 22 Defendant Ethos and Defendant Ford move to dismiss all causes of action against 23 them on the ground that Plaintiff fails to state a claim under Rule 12(b)(6). See Doc. Nos. 24 23, 24. The Court addresses each Defendants’ motion in turn. 25 A. 26 Defendant Ethos’s Motion to Dismiss Plaintiff brings two causes of action against Defendant Ethos: breach of a service 27 contract in violation of Cal. Civ. Code § 1794.4 (“Song-Beverly Act”) (Claim 9) and 28 unlawful business practice in violation of Cal. Bus. & Prof. Code § 17200 et seq. -5- 22-cv-1082-MMA (BGS) Case 3:22-cv-01082-MMA-BGS Document 30 Filed 04/17/23 PageID.392 Page 6 of 15 1 2 (“Unfair Competition Law” or “UCL”) (Claim 5). See FAC ¶¶ 31–33, 63–68. Plaintiff cannot maintain Claim 5 against Defendant Ethos without Claim 9. See 3 Order, Doc. No. 18 at 5. This is because “the [unlawful prong of the] UCL ‘borrows 4 violations of other laws and treats them as unlawful practices that the unfair competition 5 law makes independently actionable.’” Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1177 6 (9th Cir. 2022) (quoting Cel–Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 973 P.2d 7 527, 539–40 (Cal. 1999) (citations omitted)). The Court therefore begins its discussion 8 with Plaintiff’s Song-Beverly Act claim before turning to his UCL claim. 9 10 1. Claim 9: Violation of Song-Beverly Act § 1794.4(b) California Civil Code § 1794.4 governs for “service contracts.” Cal. Civ. Code 11 § 1794.4. Plaintiff specifically cites the “service contract” provisions of the Song- 12 Beverly Act, §§ 1794.4 and 1794.4(b). FAC ¶ 67. The relevant language states that 13 “[e]xcept as otherwise expressly provided in the service contract, every service contract 14 shall obligate the service contractor to provide to the buyer of the product all of the 15 services and functional parts that may be necessary to maintain proper operation and 16 service” of the Vehicle. Cal. Civ. Code § 1794.4(b). 17 Plaintiff alleges he purchased a service contract from Defendant Ethos and that the 18 service contract “covered some repair costs of the Vehicle.” FAC ¶ 64. Plaintiff further 19 alleges that “Plaintiff delivered the Vehicle to Defendant[] [Ethos’s] representative in 20 California to perform repairs” and that Defendant Ethos “repeatedly failed to provide 21 functional parts and service necessary to maintain proper operation of the Vehicle.” Id. 22 ¶ 66. Plaintiff specifically cites the “service contract” provisions of the Song-Beverly 23 Act, §§ 1794.4 and 1794.4(b). Id. ¶ 67. 24 Plaintiff has not alleged facts to afford Defendant Ethos fair notice of its alleged 25 violation. Starr, 652 F.3d at 1216. Elsewhere in the FAC, Plaintiff discusses mechanical 26 failures and attempted repairs. However, these allegations are neither specific to 27 Defendant Ethos—Plaintiff simply refers to a singular “Defendant,” ostensibly Defendant 28 Ford—nor responsive to the Court’s prior Order (1) concluding that Plaintiff does not -6- 22-cv-1082-MMA (BGS) Case 3:22-cv-01082-MMA-BGS Document 30 Filed 04/17/23 PageID.393 Page 7 of 15 1 plead how Defendant Ethos allegedly violates the service contract, and (2) noting that 2 Plaintiff failed to plead facts such as failure of repayment or functional parts withheld by 3 Defendant Ethos. Order at 5. Relatedly, Plaintiff’s bald allegation that “Defendant Ethos 4 Group, Inc., repeatedly failed to provide functional parts and service necessary to 5 maintain proper operation of the Vehicle” is insufficient to plausibly plead a claim for 6 breach of the service contract. See FAC ¶ 66. 7 Moreover, Plaintiff’s argument that the terms of the service contract are irrelevant 8 to Plaintiff’s breach of service contract claim is unpersuasive. See Doc. No. 26 at 10, 12– 9 13. “[Section] 1794.4(b) provides that a service contractor must comply with its terms 10 ‘[e]xcept as otherwise expressly provided in the service contract.’” Cal. Civ. Code 11 § 1794.4(b) (2009). “Thus, to the extent the service contract’s terms differ with 12 § 1794.4(b), the terms of the contract govern.” Harlan v. Roadtrek Motorhomes, Inc., 13 No. 07-CV-0686 IEG (BLM), 2009 U.S. Dist. LEXIS 29169, at *36–37 (S.D. Cal. Apr. 14 2, 2009). The Court is similarly unconvinced by Plaintiff’s argument that a service 15 contract must “disclaim or provide any terms in contradiction to [Cal.] Civ. Code Section 16 1794.4(b)[.]” See Doc. No. 26 at 12–13. Plaintiff cites no authority for this proposition, 17 and the Court is aware of none. 18 Plaintiff has already been given guidance and an opportunity to amend this claim 19 against Defendant Ethos but has failed to plausibly plead the claim. Accordingly, the 20 Court GRANTS the motion and DISMISSES Claim 9 against Defendant Ethos with 21 prejudice and without leave to amend. Allen v. Beverly Hills, 911 F.2d 367, 373 (9th 22 Cir. 1990) (“The district court's discretion to deny leave to amend is particularly broad 23 where plaintiff has previously amended the complaint.”). 24 2. 25 California’s UCL prohibits “any unlawful, unfair or fraudulent business act or Claim 5: Violation of Business & Professions Code § 17200 26 practice . . . .” Cal. Bus. & Prof. Code § 17200. “Because the statute is written in the 27 disjunctive, it applies separately to business acts or practices that are (1) unlawful, 28 -7- 22-cv-1082-MMA (BGS) Case 3:22-cv-01082-MMA-BGS Document 30 Filed 04/17/23 PageID.394 Page 8 of 15 1 (2) unfair, or (3) fraudulent.” Wilson v. Gateway, Inc., No. CV 09-7560-GW(VBKX), 2 2011 WL 13187108, at *9 (C.D. Cal. Apr. 21, 2011). 3 The Court previously dismissed this claim as insufficiently pleaded as to all three 4 prongs of the UCL. Order at 6–7. Plaintiff appears to concede in his opposition to the 5 instant motion to dismiss that he is only pursuing a UCL claim against Defendant Ethos 6 under the “unlawful prong.” See Doc. No. 26 at 13–16. The Court therefore confines its 7 analysis to the “unlawful” prong. 8 9 Plaintiff fails to plead the unlawful prong of the UCL because—as discussed in the preceding section—he fails to adequately plead a violation of the Song-Beverly Act. “A 10 UCL claim ‘stands or falls depending on the fate of antecedent substantive causes of 11 action.’” Portelli v. WWS Acquisition, LLC, No. 17-CV-2367 DMS (BLM), 2018 WL 12 9539773, at *4 (S.D. Cal. July 6, 2018) (quoting Krantz v. BT Visual Images, 107 Cal. 13 Rptr. 2d 209, 219 (Cal. Ct. App. 2001)). Here, Plaintiff’s unlawful UCL claim against 14 Defendant Ethos depends on a violation of the Song-Beverly Act. See FAC ¶ 32. Thus, 15 because Plaintiff’s Song-Beverly Act claim fails, his fifth cause of action against 16 Defendant Ethos also fails. 17 Plaintiff has already been given guidance and an opportunity to amend this claim 18 against Defendant Ethos but has failed to do so. Accordingly, the Court GRANTS the 19 motion and dismisses Claim 5 against Defendant Ethos with prejudice and without 20 leave to amend. Allen, 911 F.2d at 373. 21 B. 22 Defendant Ford’s Motion to Dismiss Plaintiff brings six causes of action against Defendant Ford: breach of express 23 warranty in violation of California Civil Code § 1793.2(d) (Claim 1); failure to repair in 24 violation of California Civil Code § 1793.2(b) (Claim 2); breach of express warranty in 25 violation of California Civil Code § 1794 and the Uniform Commercial Code (“UCC”) 26 (Claim 3); breach of the implied warranty of merchantability in violation of California 27 Civil Code § 1791.1 (Claim 4); violation of UCL § 17200 et seq. (Claim 5); and violation 28 -8- 22-cv-1082-MMA (BGS) Case 3:22-cv-01082-MMA-BGS Document 30 Filed 04/17/23 PageID.395 Page 9 of 15 1 of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (Claim 6). FAC ¶¶ 6–44. 2 The Court addresses each in turn. 3 1. 4 To prevail on a section 1793.2(d) breach of warranty claim, the plaintiff must 5 Claim 1: Violation of Cal. Civ. Code § 1793.2(d) prove that 6 7 8 9 10 11 (1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element). 12 Oregal v. American Isuzu Motors, Inc., 109 Cal. Rptr. 2d 583, 588 (Cal. Ct. App. 2001). 13 Defendant Ford argues that “[t]he FAC still relies on conclusory, formulaic 14 recitations [and] allegations, which cannot support [Plaintiff’s] claim for breach of 15 warranty.” Doc. No. 24-1 at 9. Specifically, Defendant Ford urges that “Plaintiff is 16 clearly unable to identify any actual qualifying repair within an eligible warranty period - 17 by date, mileage or otherwise.” Id. at 9. 18 The Court previously found the nonconformity element plausibly pleaded but 19 found the presentation and failure to repair elements insufficiently pleaded. Order at 9. 20 Accordingly, the Court focuses its instant analysis on the latter two elements of Plaintiff’s 21 § 1793.2(d) claim. Plaintiff now alleges details germane to the presentation and failure to 22 repair elements, including dates of presentations to Defendant’s authorized repair 23 facilities, what repairs were attempted, and the allegation that the “Vehicle continues to 24 overheat, and the fans are not working.” See FAC ¶ 10. Accepting as true all material 25 allegations in the FAC, as well as reasonable inferences to be drawn from them, and 26 construing them in the light most favorable to Plaintiff, Plaintiff sufficiently pleads the 27 “presentation” and “failure to repair” elements. See Cholla Ready Mix, Inc. v. Civish, 28 382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v. City of Burbank, 352 F.3d 1188, 1192 -9- 22-cv-1082-MMA (BGS) Case 3:22-cv-01082-MMA-BGS Document 30 Filed 04/17/23 PageID.396 Page 10 of 15 1 (9th Cir. 2003)). Accordingly, the Court DENIES the motion to dismiss Claim 1 against 2 Defendant Ford. 3 2. 4 Plaintiff’s second cause of action arises from nonconforming goods that were not 5 “serviced or repaired to conform to the applicable warranties within 30 days.” Cal. Civ. 6 Code § 1793.2(b). Plaintiff alleges that he “presented the Vehicle to Defendant’s 7 representative in this state, Defendant and its representative failed to commence the 8 service or repairs within a reasonable time and failed to service or repair the Vehicle so as 9 to conform to the applicable warranties within 30 days[.]” FAC ¶ 17. 10 Claim 2: Violation of Cal. Civ. Code § 1793.2(b) Defendant Ford urges that Plaintiff fails to plausibly allege that Defendant Ford did 11 not timely repair the Vehicle. See Doc. No. 24-1 at 9–10. The Court agrees. Plaintiff’s 12 allegations lack specificity; for example, Plaintiff does not make any specific allegations 13 regarding the length of time it took to commence or complete repairs on each of those 14 occasions. Instead, Plaintiff’s cause of action is a “formulaic recitation of the elements” 15 of the cause of action, which does not survive under Rule 8(a). Iqbal, 556 U.S. at 678 16 (quoting Twombly, 550 U.S. at 555). 17 Because Plaintiff has failed to adequately allege a claim under § 1793.2(b), the 18 Court GRANTS the motion and DISMISSES Claim 1 against Defendant Ford. See 19 Teckrom, Inc. v. Ford Motor Co., No. 22-cv-00357-RBM-KSC, 2022 U.S. Dist. LEXIS 20 211072, at *7–8 (S.D. Cal. Nov. 21, 2022) (finding an identically pled claim insufficient 21 because “Plaintiff has merely recited the elements of a cause of action without plausibly 22 alleging it is entitled to relief.”) (quoting Potts v. Ford Motor Co., No. 3:21-cv-00256- 23 BEN-BGS, 2021 U.S. Dist. LEXIS 96228, 2021 WL 2014796, at *6 (S.D. Cal. May 20, 24 2021)) (alteration in original). However, because it is possible that Plaintiff would be 25 able to cure the defects in this cause of action, the Court grants leave to amend this claim. 26 27 28 -10- 22-cv-1082-MMA (BGS) Case 3:22-cv-01082-MMA-BGS Document 30 Filed 04/17/23 PageID.397 Page 11 of 15 Claim 3: Violation of Cal. Civil Code § 1794, CA UCC § 23133 1 3. 2 “Under California law, to establish breach of express warranty, ‘the plaintiff must 3 prove (1) the seller’s statements constitute an affirmation of fact or promise or a 4 description of the goods; (2) the statement was part of the basis of the bargain; and (3) the 5 warranty was breached.’” Zuehlsdorf v. FCA US LLC, No. EDCV181877JGBKKX, 6 2019 WL 2098352, at *11 (C.D. Cal. Apr. 30, 2019) (quoting Weinstat v. Dentsply Int’l, 7 Inc., 103 Cal. Rptr. 3d 614, 626 (Cal. Ct. App. 2010)). 8 Defendant Ford urges that Claim 3 should be dismissed because Plaintiff provides 9 only “conclusory allegations.” See Doc. No. 24-1 at 10–11. The Court agrees. Plaintiff 10 again merely recites the elements of the cause of action. This is insufficient. 11 Plaintiff has already been given guidance and an opportunity to amend this claim 12 against Defendant Ford but has failed to do so. Accordingly, the Court GRANTS the 13 motion and DISMISSES Claim 3 against Defendant Ford with prejudice and without 14 leave to amend. See Allen, 911 F.2d at 373. 15 4. 16 Claim 4: Implied Warranty of Merchantability — Violation of Cal. Civ. Code § 1791.1(a) 17 An implied warranty of merchantability accompanies every retail sale of consumer 18 goods in the state, unless specific disclaimer methods are followed. See Cal. Civ. Code 19 § 1792; Music Acceptance Corp. v. Lofing, 32 Cal. App. 4th 610, 619 (1995). An 20 implied warranty of merchantability guarantees that “consumer goods[:]” (1) pass 21 without objection in the trade under the contract description; (2) are fit for the ordinary 22 purposes for which such goods are used; (3) are adequately contained, packaged, and 23 labeled; and (4) conform to the promises or affirmations of fact made on the container or 24 25 26 27 28 3 The Court notes that Plaintiff failed to correct the typographical error noted in the Court’s prior Order. See Order at 10 (noting that Plaintiff conceded the proper commercial code section for this claim is Cal. Com. Code § 2313 and not § 2725). Plaintiff’s third cause of action—brought pursuant to the California Civil Code and CA UCC— arises from an alleged breach of an express warranty. See Cal. Com. Code. § 2313. -11- 22-cv-1082-MMA (BGS) Case 3:22-cv-01082-MMA-BGS Document 30 Filed 04/17/23 PageID.398 Page 12 of 15 1 label. Cal. Civ. Code § 1791.1(a). The implied warranty of merchantability “arises by 2 operation of law” and “provides for a minimum level of quality.” Am. Suzuki Motor 3 Corp. v. Sup. Ct., 37 Cal. App. 4th 1291, 1295–96 (1995). The basic inquiry is whether 4 the vehicle was fit for driving. See Keegan v. Am. Honda Motor Co., Inc., 838 F. Supp. 5 2d 929, 945 (C.D. Cal. 2012). 6 7 Plaintiff alleges that “the Vehicle contained or developed [ ] defects” and “he did not discover the latent defect until on or about August 24, 2020.” FAC ¶ 29. 8 Plaintiff again merely recites the elements of the cause of action. Additionally, 9 Plaintiff again alleges that the Vehicle “is not adequately contained, packaged, and 10 labelled” and “does not conform to the promises or affirmations of fact made on the 11 container or label” but provides no facts suggesting the Vehicle was packaged or labeled, 12 and despite the Court’s prior Order noting that “there is no suggestion the Vehicle was 13 purchased in a labeled container.” See id.; Order at 13; see also Teckrom, Inc., 2022 U.S. 14 Dist. LEXIS 211072, at *10 (dismissing a claim under § 1791.1 where the plaintiff 15 alleged the vehicle was “not adequately contained, packaged, and labelled” and did “not 16 conform to the promises or affirmations of fact made on the container” because the case 17 had “nothing to do with packaged or labeled products”). Therefore, the Court finds 18 Plaintiff has failed to satisfy the minimum pleadings requirements. See Iqbal, 556 U.S. at 19 678. 20 Plaintiff has already been given guidance and an opportunity to amend this claim 21 against Defendant Ford but has failed to add the requisite particularity to this claim. 22 Accordingly, the Court GRANTS the motion and DISMISSES Claim 4 against 23 Defendant Ford with prejudice and without leave to amend. See Allen, 911 F.2d at 24 373. 25 5. 26 California’s UCL prohibits “any unlawful, unfair or fraudulent business act or Claim 5: Violation of B&P Code § 17200 27 practice . . . .” Cal. Bus. & Prof. Code § 17200. “Because the statute is written in the 28 disjunctive, it applies separately to business acts or practices that are (1) unlawful, -12- 22-cv-1082-MMA (BGS) Case 3:22-cv-01082-MMA-BGS Document 30 Filed 04/17/23 PageID.399 Page 13 of 15 1 (2) unfair, or (3) fraudulent.” Wilson v. Gateway, Inc., No. CV 09-7560-GW(VBKX), 2 2011 WL 13187108, at *9 (C.D. Cal. Apr. 21, 2011). 3 The Court previously dismissed this claim as insufficiently plead as to all three 4 prongs of the UCL. Order at 14–15. Plaintiff appears to concede in his opposition to the 5 instant motion to dismiss that he is only pursuing a UCL claim against Defendant Ford 6 under the “unlawful prong.” See Doc. No. 26 at 13–16. The Court therefore confines its 7 analysis to the “unlawful” prong. 8 9 “[T]he [unlawful prong of the] UCL ‘borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently 10 actionable.’” Beaver, 816 F.3d at 1177 (quoting Cel–Tech Commc’ns, Inc., 973 P.2d at 11 539–40 (citations omitted)). Here, Plaintiff’s unlawful UCL claim against Defendant 12 Ford depends on a violation of California law. See FAC ¶ 32. Claim 1 survives as to 13 Defendant Ford. Defendant Ford points to no authority suggesting that the facts 14 supporting this claim are insufficient to plausibly state a claim for unfair competition. 15 Accordingly, the Court DENIES the motion to dismiss Claim 1 against Defendant Ford 16 on this basis. 17 Additionally, Defendant Ford urges that “Plaintiff’s claims for disgorgement of 18 fees, penalties, and interest are without merit and must be dismissed.” Doc. No. 24-1 at 19 13. As the Court noted in its prior Order, in general, remedies for a violation of the UCL 20 are confined to injunctive relief and restitution. See Order at 14 (citing Potts, 2021 WL 21 2014796, at *6). Though “a plaintiff may not recover monetary damages” under the 22 UCL, remedies can include disgorgement if equitable in nature. See Potts, 2021 WL 23 2014796, at *6)); Cortez v. Purolator Air Filtration Prod. Co., 999 P.2d 706, 714–15 24 (Cal. 2000) (citing Cal. Bus. & Prof. Code § 17203). At this early stage of litigation, the 25 Court declines to decide this issue and therefore DENIES the motion to dismiss Claim 1 26 against Defendant Ford on this basis without prejudice to the parties raising the issue at a 27 later stage of the litigation. 28 -13- 22-cv-1082-MMA (BGS) Case 3:22-cv-01082-MMA-BGS Document 30 Filed 04/17/23 PageID.400 Page 14 of 15 1 Plaintiff also seeks injunctive relief in connection with his UCL claim. FAC ¶ 33. 2 Defendant Ford argues that injunctive relief is not available because Plaintiff “fails to 3 make any showing that no adequate remedy at law exists” and that Plaintiff lacks 4 standing for injunctive relief because “Plaintiff has failed to allege any injury, let alone 5 the threat of a repeated future injury.” See Doc. No. 24-1 at 13–16. The Court 6 previously determined that Plaintiff failed to specifically plead the inadequacy of 7 monetary damages in federal court and that Plaintiff had not alleged any threat of future 8 harm. See Order at 14. 9 Plaintiff has already been given guidance and an opportunity to amend this portion 10 of Claim 5 against Defendant Ford but has failed to do so. Accordingly, the Court 11 GRANTS the motion to dismiss Claim 5 against Defendant Ford with prejudice and 12 without leave to amend to the extent he seeks injunctive relief. See Allen, 911 F.2d at 13 373. 14 6. 15 “To state a claim under the Magnuson Moss Warranty Act (‘MMWA’), [p]laintiffs 16 must adequately plead a cause of action for breach of a written or implied warranty under 17 state law.” Zuehlsdorf, 2019 WL 2098352, at *11 (citing Clemens v. DaimlerChrysler 18 Corp., 534 F.3d 1017, 1022 (9th Cir. 2008)). Accordingly, “[c]laims under the 19 Magnuson-Moss Warranty Act ‘stand or fall with . . . express and implied warranty 20 claims under state law.’” See Daniel v. Ford Motor Co., 806 F.3d 1217, 1227 (9th Cir. 21 2015). For the reasons set forth above, Plaintiff adequately pleads breach of a written 22 warranty under California law. Therefore, the Court DENIES Defendant Ford’s motion 23 to dismiss Claim 6 against it. Claim 6: Magnuson-Moss Warranty Act— Violation of 15 U.S.C. § 2301(3) 24 IV. CONCLUSION 25 For the foregoing reasons, the Court GRANTS Defendant Ethos’s motion to 26 dismiss and GRANTS IN PART and DENIES IN PART Defendant Ford’s motion to 27 dismiss. Plaintiff may not reallege claims that have been dismissed with prejudice. 28 Plaintiff may file a Second Amended Complaint, if any, on or before May 8, 2023 that -14- 22-cv-1082-MMA (BGS) Case 3:22-cv-01082-MMA-BGS Document 30 Filed 04/17/23 PageID.401 Page 15 of 15 1 cures the pleading deficiencies identified in this Order. If Plaintiff fails to cure the 2 deficiencies outlined by the Court, the Court may dismiss the relevant claims against 3 Defendant Ford with prejudice and without further leave to amend. 4 5 IT IS SO ORDERED. Dated: April 17, 2023 6 _____________________________ 7 HON. MICHAEL M. ANELLO United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- 22-cv-1082-MMA (BGS)

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