Nilsen v. Tesla, Inc., No. 5:2022cv07472 - Document 38 (N.D. Cal. 2023)
Court Description: ORDER GRANTING 34 MOTION TO DISMISS; DENYING MOTION TO STRIKE. Signed by Judge Beth Labson Freeman on 11/6/2023. (blflc3, COURT STAFF) (Filed on 11/6/2023)
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 ROALD NILSEN, Plaintiff, 8 TESLA, INC., Defendant. 11 United States District Court Northern District of California ORDER GRANTING MOTION TO DISMISS; DENYING MOTION TO STRIKE v. 9 10 Case No. 22-cv-07472-BLF 12 [Re: ECF No. 34] This is a lemon law case involving an allegedly defective 2016 Tesla X that Plaintiff Roald 13 Nilsen purchased in 2020. On May 21, 2023, the Court granted in part and denied in part 14 Defendant Tesla, Inc’s (“Tesla”) Motion to Dismiss Nilsen’s Complaint. ECF No. 31 (“Order”). 15 Nilsen filed a First Amended Complaint ( ECF No. 33, “FAC”) and Tesla moves to dismiss Claim 16 One and Claim Three of the FAC under Rule 12(b)(6) and Strike Claim One under Rule 12(f). 17 ECF No. 34 (“Mot”) at 8. Nilsen has not filed an opposition to Tesla’s motion. This matter is 18 suitable for determination without oral argument. See Civ. L.R. 7-1(b). For the following reasons, 19 the motion to dismiss is GRANTED and the motion to strike is DENIED. 20 21 I. BACKGROUND On February 3, 2020, Nilsen purchased a used 2016 Tesla X (the “Subject Vehicle”). FAC 22 ¶ 8. Nilsen alleges that the Subject Vehicle was delivered to him with “with serious defects and 23 nonconformities to warranty and developed other serious defects and nonconformities to warranty 24 including, but not limited to, interior component defects, electrical defects, suspension system 25 defects and other serious nonconformities to warranty.” Id. ¶ 10. Nilsen brings three claims: (1) 26 Violation of the Song-Beverly Act, California Civil Code § 1793.2(b); (2) Violation of the 27 Magnuson-Moss Warranty Act; (3) Breach of Express Warranty Under California Commercial 28 Code. Tesla moves to dismiss Claims One and Three and strike Claim One. Id. ¶ 32-79. 1 LEGAL STANDARD 2 Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a complaint if it fails 3 to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion, the plaintiff 4 must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads facts 6 that allow the court to “draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There must 8 be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts do not 9 require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a 10 11 United States District Court Northern District of California II. right to relief above the speculative level.” See Twombly, 550 U.S. at 555, 570. When determining whether a claim has been stated, the Court accepts as true all well-pled 12 factual allegations and construes them in the light most favorable to the plaintiff. Reese v. BP 13 Expl. (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court need not “accept as 14 true allegations that contradict matters properly subject to judicial notice” or “allegations that are 15 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead 16 Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citations 17 omitted). On a motion to dismiss, the Court’s review is limited to the face of the complaint and 18 matters judicially noticeable. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); 19 N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). 20 In deciding whether to grant leave to amend, the Court must consider the factors set forth 21 by the Supreme Court in Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227 (1962), and discussed at 22 length by the Ninth Circuit in Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 23 2003). A district court ordinarily must grant leave to amend unless one or more of the Foman 24 factors is present: (1) undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure 25 deficiencies by amendment, (4) undue prejudice to the opposing party, or (5) futility of 26 amendment. Eminence Capital, 316 F.3d at 1052. “[I]t is the consideration of prejudice to the 27 opposing party that carries the greatest weight.” Id. However, a strong showing with respect to 28 one of the other factors may warrant denial of leave to amend. Id. 2 United States District Court Northern District of California 1 III. DISCUSSION 2 A. 3 Claim One is based on fourteen alleged repairs to the Subject Vehicle. The FAC alleges 4 that Nilsen “delivered the Subject Vehicle to Tesla, Inc.’s authorized service representatives on 5 multiple occasions” but “Defendant’s authorized facilities did not conform the Subject Vehicle to 6 warranty within 30-days.” FAC ¶¶ 40-41. The Court previously dismissed identical claims. In an 7 attempt to remedy the deficient pleading, the FAC additionally lists fourteen dates when Nilsen 8 brought the Subject Vehicle to Tesla for repairs. FAC ¶¶ 11-24. The FAC notes that several of 9 the repairs were for issues regarding the same parts of the vehicle. For example, the FAC alleges 10 that on March 6, 2020, Nilsen brought the Subject Vehicle to Tesla for repairs to the “falcon doors 11 and front passenger door.” FAC ¶ 11. Nilsen then brought the Subject Vehicle back on June 17, 12 2020 for repairs to the “falcon door sensors.” Id. ¶ 13. The FAC then claims that because “[t]his 13 was the second presentation for defects in the falcon door system . . . the complaints from the 14 March 6, 2020 presentation were not commenced within a reasonable time [and] the repairs from 15 the March 6, 2020 presentation were not completed within 30-days.” Id. Nilsen makes similar 16 claims for other components that required multiple repairs. See, e.g., id. ¶¶ 17-19, 21-24. 17 Violation of the Song-Beverly Act (Claim One) Tesla argues that the FAC is deficient because it “failed to plead . . . that Tesla took longer 18 than 30 days to complete any single repair attempt.” Mot. at 4. Tesla argues that Nilsen “has 19 attempted to obfuscate this deficiency by confusingly and vaguely alleging, for example, ‘the 20 repairs from the January 17, 2021 presentation were not completed within 30-days’ or ‘the repairs 21 from the April 4, 2022 presentation were not completed within 30-days.’” Id. (quoting FAC ¶¶ 22 15, 21). 23 Nilsen does not oppose Tesla’s motion. 24 The Court agrees with Tesla. “[U]nder any reasonable reading of the statute, § 1793.2(b) 25 requires only that [the defendant] complete any single repair attempt within 30 days.” Schick v. 26 BMW of N. Am., LLC, 801 F. App’x 519, 521 (9th Cir. 2020); Ortega v. BMW of N. Am., LLC, No. 27 2:18-CV-06637-RSK, 2019 WL 9044692, at *4 (C.D. Cal. Oct. 16, 2019) (finding that more than 28 thirty days between repair attempts for the same defect does not violate Section 1793.2(b) of the 3 1 Act because a manufacturer violates this provision only when a single repair attempt takes more 2 than thirty days to complete). United States District Court Northern District of California 3 The FAC alleges that Nilsen “delivered the Subject Vehicle to [Tesla’s] authorized service 4 representatives on multiple occasions” and that Tesla’s “authorized facilities did not conform the 5 Subject Vehicle to warranty within 30-days” and “failed commence repairs within a reasonable 6 time.” FAC ¶¶ 39-41. The FAC also includes the dates Nilsen took the vehicle in for repairs and 7 alleges that certain problems persisted. Id. ¶¶ 11-24. But the FAC does not state how long any of 8 the individual repairs took, nor does it allege that separate visits (listed individually in paragraphs 9 11-24) constitute a single repair. It is not enough that Nilsen alleges several different visits to 10 repairs the same general component; these visits must be the same “single repair attempt.” Schick, 11 801 F. App’x at 521. 12 The Court finds that the FAC does not allege that any individual repair attempt was not 13 completed within 30 days. Accordingly, the FAC fails to state a claim for violation of Section 14 1793.2(b). The Court GRANTS Tesla’s motion to dismiss Claim One and DENIES Tesla’s 15 motion to strike Claim One as moot. 16 B. 17 Nilsen previously requested that he be permitted to include claims under the California Breach of Express Warranty (Claim Three) 18 Commercial Code in an amended pleading, which Tesla did not oppose. Order at 9. The Court 19 allowed Nilsen to include such claims in its amended pleading. Id. 20 The FAC alleges that “[t]he act and/or omissions of Defendant, in failing to perform the 21 proper repairs, part replacements, and/or adjustments, to conform the Subject Vehicle to the 22 applicable express warranties constitute a breach of the express warranties that Defendant 23 provided, thereby Defendant’s obligations; including, but not limited to, Defendant’s obligations 24 to Plaintiff under section 2-313 of the California Commercial Code.” FAC ¶ 76. 25 Tesla argues that § 2607 of the California Commercial Code bars Claim Three for breach 26 of express warranty. Under § 2607, a “buyer must, within a reasonable time after he discovers or 27 should have discovered any breach, notify the seller of breach or be barred from any remedy.” 28 Cal. Comm. Code § 2607; Alvarez v. Chevron Corp., 656 F.3d 925, 932 (9th Cir. 2011) (“To 4 1 avoid dismissal of a breach of contract or breach of warranty claim in California, ‘[a] buyer must 2 plead that notice of the alleged breach was provided to the seller within a reasonable time after 3 discovery of the breach.’”). Tesla argues that Nilsen “fails to allege in the FAC that he provided 4 pre-suit notice to Tesla regarding an alleged breach of an express warranty within a reasonable 5 time after he discovered the breach” and “fails to state the date that he discovered the alleged 6 breach” and is therefore “barred from any remedy under § 2607.” Mot. at 7. United States District Court Northern District of California 7 Tesla also argues that the FAC does not plead the material facts required under the federal 8 pleading standard. Tesla claims that “[e]ssential facts required for a breach of express warranty, 9 i.e., a guarantee, and a breach of that guarantee, as well as dates of the alleged breach and notice, 10 are nonexistent.” Mot. at 7. Tesla adds that “the FAC is completely devoid of any facts to plead 11 Plaintiff’s breach of warranty cause of action under the California Commercial Code. Id. (citing 12 FAC ¶¶ 71-79). Tesla claims that the FAC does not contain allegations relating to the “specific 13 issues Plaintiff allegedly experienced with the vehicle or its parts, when the alleged issues 14 occurred and/or manifested, the repairs attempted, the length of each service visit, the repairs 15 performed, and/or damages resulting of such claims.” Id. at 7. 16 Nilsen does not oppose Tesla’s motion. 17 The Court is not familiar with “section 2-313 of the California Commercial Code” (FAC 18 ¶¶ 76-77) but assumes that Nilsen means § 2313 of the California Commercial Code, which 19 largely adopts § 2-313 of the UCC. Nonetheless, the Court agrees with Tesla that Nilsen must 20 allege pre-suit notice before bringing a breach of express warranty claim. Cal. Comm. Code § 21 2607; Alvarez, 656 F.3d at 932. 22 The Court finds that the FAC does not allege pre-suit notice. Accordingly, the FAC fails 23 to state a claim for breach of express warranty under § 2313. The Court GRANTS Tesla’s motion 24 to dismiss Claim Three. 25 C. 26 The Court addresses the five Foman factors: (1) undue delay, (2) bad faith or dilatory Leave to Amend 27 motive, (3) repeated failure to cure deficiencies by amendment, (4) undue prejudice to the 28 opposing party, or (5) futility of amendment. Eminence Capital, 316 F.3d at 1052. 5 The first four factors weigh only slightly towards dismissal without leave to amend. The United States District Court Northern District of California 1 2 Court does not find any undue delay or bad faith by Nilsen, nor does that Court find that Tesla 3 would experience undue prejudice if Nilsen was given leave to amend (factors one, two, and four). 4 As to factor three, Nilsen has shown some failure to cure deficiencies by amendment. While 5 Nilsen has only amended his complaint once, the Court notes that he provided scant additional 6 detail about the repairs (Claim One, see FAC ¶¶ 11-24) and does not address pre-suit notice 7 (Claim Three), a basic prerequisite to § 2313 claims. These four factors alone do not necessitate 8 dismissal without leave to amend. 9 But the Court finds that the fifth Foman factor, futility of amendment, alone warrants 10 dismissal without leave to amend. Nilsen did not oppose Tesla’s motion to dismiss. Having failed 11 to demonstrate that he could allege additional facts to cure the deficiencies, the Court has no basis 12 upon which to find that amendment would not be futile. The Court dismisses Claim One and 13 Claim Three WITHOUT LEAVE TO AMEND. 14 IV. 15 16 17 ORDER For the foregoing reasons, IT IS HEREBY ORDERED that: 1. Tesla’s Motion to Dismiss Claim One for Violation of California Civil Code § 1793.2(b) is GRANTED WITHOUT LEAVE TO AMEND. 18 2. Tesla’s Motion to Dismiss Claim Three for Breach of Express Warranty Under the 19 California Commercial Code is GRANTED WITHOUT LEAVE TO AMEND. 20 21 3. Tesla’s Motion to Strike Claim One is DENIED as moot. The case will go forward on Claim Two, Violation of the Magnuson-Moss Warranty Act. 22 23 24 25 Dated: November 6, 2023 ______________________________________ BETH LABSON FREEMAN United States District Judge 26 27 28 6
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