Opinion
C 23-04488 WHA
01-30-2024
ANNETTE RODRIGUES and CHARLES SMITH, Plaintiffs, v. GENERAL MOTORS LLC, a limited liability company; and DOES 1 through 10, inclusive, Defendants.
ORDER DENYING LEAVE TO AMEND
WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE
Last month, an order denied a motion to remand and granted a motion to dismiss plaintiffs Annette Rodrigues and Charles Smith's fraud claims (Dkt. No. 35). That order also dismissed their remaining claims, which were brought under the Song-Beverly Act and simply restated elements without alleging specific facts. Plaintiffs were allowed to seek leave to file an amended complaint by motion and encouraged to plead their best case. Upon review of plaintiffs' motion for leave to file an amended complaint and proposed amended complaint, that motion is DENIED.
Plaintiffs also separately filed an “Opposition to General Motors LLC's Motion to Dismiss” (Dkt. No. 38). Seeing that there is no pending motion to dismiss, and that the arguments in this brief mirror those in plaintiffs' motion for leave to file an amended complaint and proposed amended complaint, the “opposition” will not be discussed further.
Rule 15(a)(2) provides that leave to amend shall be freely given “when justice so requires.” “When considering whether to grant leave to amend, a district court should consider several factors including undue delay, the movant's bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility.” Brown v. Stored Value Cards, Inc., 953 F.3d 567, 574 (9th Cir. 2020) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). “Futility of amendment can, by itself, justify the denial of a motion for leave to amend. If no amendment would allow the complaint to withstand dismissal as a matter of law, courts consider amendment futile.” Kroessler v. CVS Health Corp., 977 F.3d 803, 815 (9th Cir. 2020) (internal quotation and citations omitted).
Plaintiffs seek to resurrect only their claims brought under the Song-Beverly Act: breach of express warranty, breach of implied warranty, and violation of Section 1793.2. Alas, these amended claims would fare no better than their predecessors.
To state a claim for breach of express warranty, plaintiffs must show that “the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle.” See Oregel v. Am. Isuzu Motors, Inc., 90 Cal.App.4th 1094, 1101 (Cal.Ct.App. 2001). To state a claim for breach of implied warranty, they must show that the vehicle was unfit for its ordinary purpose. See Am. Suzuki Motor Corp. v. Superior Ct., 37 Cal.App.4th 1291, 1298-99 (Cal.Ct.App. 1995). And, to state a claim for violation of Section 1793.2, the Song-Beverly Act's replace-or-refund provision, they must show a breach of express warranty and, therefore, a nonconformity as set out above. See Cal. Civ. Code § 1793.2(d). Simply put, all of these claims require a showing that plaintiffs' vehicle experienced some defect. No such defect was alleged previously. So too here.
In their proposed amended complaint, plaintiffs broadly contend that they presented the vehicle to a dealership on five occasions “for repair due to a defect in the vehicle's battery” (Proposed Amd. Compl. ¶¶ 14-18). But, as defendant General Motors observes, plaintiffs fail to adequately elaborate. Note they do not allege that their vehicle's battery caught on fire, melted, burned, or otherwise suffered from the defect that was the basis for the issuance of the 2021 recall, which was the subject of plaintiffs' original complaint. In fact, rather than address the judge's observation that searching their VIN on General Motors' recall webpage turned up no existing recall - as requested in the prior order - plaintiffs went ahead and omitted all mention of the recall. As such, they do not contest that recall repair for this vehicle has been completed.
See Dkt. No. 35 n.3 (citing General Motors, GM Recall and Warranty Center (last accessed Dec. 21, 2023), https://perma.cc/G6EV-EZR6). Meanwhile, searching plaintiffs' VIN on the National Highway Traffic Safety Administration (“NHTSA”) website likewise turned up no existing recall. See NHTSA, Safety Issues & Recalls (last accessed Jan. 26, 2024), https://perma.cc/K6Y4-H8ZE.
Taking a different tack, plaintiffs now suggest that the defect was introduced by recall repair. Specifically, plaintiffs suggest that the defect is a reduction in their vehicle's charging capacity. It is undisputed that General Motors reduced the Chevrolet Bolt charging capacity using software to limit the risk of fire while working through the 2021 recall. Plaintiffs allege that the battery charging capacity of their vehicle was reduced by ten percent in November 2021, and that it was reprogrammed in December 2021, May 2022, and July 2023 (Proposed Amd. Compl. ¶¶ 14-16, 18). Recall notices reflect that General Motors initially reduced charging capacity by ten percent as an interim fix starting in August 2021, and that advanced diagnostic software it rolled out in June 2023 to continuously monitor batteries in lieu of replacing them reduces charging capacity by twenty percent for 6,200 miles before automatically returning vehicles to a maximum state-of-charge and proceeding to monitor.Such limited reductions in charging capacity do not substantially impair the use, value, or safety of a vehicle, or render it unfit for its ordinary purpose.
General Motors, Product Safety Recall N212345940 High Voltage Battery May Melt or Burn (Aug. 2021), https://perma.cc/GA6T-XMRH; General Motors, Safety Recall N212345944 High Voltage Battery May Melt or Burn (June 2023), https://perma.cc/MNY5-UXB5. See FRE 201; Daniels-Hallv. Nat'lEduc. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010) (taking judicial notice of information on a government website).
To the extent plaintiffs want their preferred replacement battery instead of advanced diagnostic software, they want too much. Of course, if their software detects a problem in their existing battery, plaintiffs will be alerted to contact a certified General Motors dealer to have that battery replaced. But plaintiffs have not alleged that their software has detected a problem in their battery (or that a certified General Motors dealer has failed to replace their battery under such circumstances). In any event, it appears that plaintiffs and their counsel do not really want a replacement battery but rather a windfall far greater than the value of their vehicle, even accounting for the reduction in damages sought in the proposed amended complaint, now not to exceed $74,500 (Proposed Amd. Compl., Prayer for Relief).
See Safety Recall N212345944 .
Because amendment would be futile, the motion for leave to file an amended complaint is DENIED. Judgment shall be entered accordingly.
IT IS SO ORDERED.