Opinion
Case No.: 2:22-cv-01924-FWS-JPR
07-05-2023
Kyle FITZPATRICK v. FORD MOTOR COMPANY et al.
Mani Arabi, Nadine Alsaadi, Tionna Grace Dolin, Ariel Harman-Holmes, Elizabeth A. LaRocque, Joy Moiselle De Leon, Rabiya F. Tirmizi, Nino Sanaia, Daniel A. Law, Strategic Legal Practices, APC, Los Angeles, CA, Steven Whang, Kaufman Borgeest and Ryan LLP, Woodland Hills, CA, for Kyle Fitzpatrick. Amy Patricia Maclear, Rodrigo E. Salas, Shane Bays Kolding, Amir M. Nassihi, Shook Hardy and Bacon LLP, San Francisco, CA, for Ford Motor Company.
Mani Arabi, Nadine Alsaadi, Tionna Grace Dolin, Ariel Harman-Holmes, Elizabeth A. LaRocque, Joy Moiselle De Leon, Rabiya F. Tirmizi, Nino Sanaia, Daniel A. Law, Strategic Legal Practices, APC, Los Angeles, CA, Steven Whang, Kaufman Borgeest and Ryan LLP, Woodland Hills, CA, for Kyle Fitzpatrick. Amy Patricia Maclear, Rodrigo E. Salas, Shane Bays Kolding, Amir M. Nassihi, Shook Hardy and Bacon LLP, San Francisco, CA, for Ford Motor Company.
PROCEEDINGS: ORDER DENYING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT [42]
FRED W. SLAUGHTER, UNITED STATES DISTRICT JUDGE
Before the court is Defendant Ford Motor Company's ("Defendant") Motion to Dismiss Plaintiff Kyle Fitzpatrick's ("Plaintiff") Second Amended Complaint ("SAC") ("Motion" or "Mot."). (Dkt. 42.) On March 2, 2023, Plaintiff opposed the Motion ("Opposition" or "Opp."). (Dkt. 43.) Plaintiff's Opposition is supported by the declaration of Plaintiff's counsel Daniel Law ("Law Decl.") and exhibits thereto. (Id.) On the same day, Plaintiff filed a Request for Judicial Notice in support of the Opposition. (Dkt. 44.) On March 9, 2023, Defendant filed a Reply ("Reply"). (Dkt. 45.)
Plaintiff requests judicial notice of two documents: (1) a letter from Defendant regarding a defect investigation; and (2) Defendant's search criteria used in responding to the investigation. (Dkt. 44.) Plaintiff suggests these documents are proper for judicial notice because they are either government documents or matters of public record. (Id. at 2.) Under Federal Rule of Evidence 201, the court may take judicial notice of facts that are either "generally known within the trial court's territorial jurisdiction" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Courts cannot take judicial notice of facts subject to reasonable dispute. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 593 n.11, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("Under Federal Rule of Evidence 201(b), a judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.") (internal quotation marks omitted). The court finds Plaintiff has not sufficiently demonstrated why the two documents are appropriate for judicial notice and DENIES Plaintiff's Request.
The court finds this matter appropriate for resolution without oral argument. See Fed. R. Civ. P. 78(b) ("By rule or order, the court may provide for submitting and determining motions on briefs, without oral hearings."); L. R. 7-15 (authorizing courts to "dispense with oral argument on any motion except where an oral hearing is required by statute"). Based on the state of the record, as applied to the applicable law, the Motion is DENIED.
I. Background
a. Summary of Allegations
On or about August 9, 2018, Plaintiff entered into a warranty contract with Defendant for a 2017 Ford Focus with vehicle identification number WF0DP3TH4H4126069 ("Vehicle"), which was manufactured and/or distributed by Defendant. (SAC ¶ 9.) The warranty contract contained various warranties on the Vehicle, including but not limited to a bumper-bumper warranty, powertrain warranty, and emission warranty. (Id. ¶ 10.) A copy of the warranty contract is attached to the Complaint. (Id., Exh. A.) Defendant also provided Plaintiff with a California Emission Warranty and the Owner's Manual for the Vehicle. (Id. ¶ 10.) On information and belief, Plaintiff alleges Defendant deliberately refuses to include the terms of the California Emission Warranty in its main express warranty booklet so that California consumers are "kept in the dark" when Defendant fails to comply with its warranty obligations. (Id. ¶ 11 n.1.)
Plaintiff has used the Vehicle primarily for family or household purposes. (Id. ¶ 11.) Plaintiff alleges the Vehicle constitutes "consumer goods"; Plaintiff is a "buyer"; and Defendant a "manufacturer" and/or "distributor" under the Song-Beverly Consumer Warranty Act, Cal. Civil Code §§ 1790 et seq. ("Song-Beverly Act"). (Id.) Manufacturing defects in materials and/or workmanship and nonconformities to warranty manifested themselves within the express warranty period. (Id. ¶ 14.) Plaintiff alleges these defects and nonconformities substantially impair the use, value, or safety of the Vehicle. (Id. ¶ 15.) For example, the Vehicle lost motor power and/or acceleration on multiple occasions while Plaintiff was driving it and Plaintiff lost use of the Vehicle for "substantial" periods of time. (Id.)
Defendant had an affirmative duty to promptly offer to repurchase or replace the Subject Vehicle at the time if it failed to conform the Vehicle to the terms of the express warranty after a reasonable number of repair attempts. (Id. ¶ 16.) Plaintiff alleges Defendant failed to replace the Vehicle or make restitution and Plaintiff is entitled to damages in an amount exceeding $75,000. (Id. ¶¶ 17-23.)
Plaintiff alleges the Vehicle has the following repair history. (Id. ¶¶ 24-28.) On or about April 2, 2020, with approximately 9,956 miles on the odometer, Plaintiff presented the Vehicle to Defendant's authorized repair facility with complaints that the engine was losing coolant and overheating and there was no acceleration while driving. (Id. ¶ 25.) The dealer noted that "the steering gear, brake lines from HCU unit to rear calipers, turbo, clutch pressure plates & disc, as well as all required hardware, seals and gaskets" were damaged and repaired and/or replace these parts. (Id.) The Vehicle was out of service for over 45 days. (Id.)
On or about June 4, 2020, with approximately 10,198 miles on the odometer, Plaintiff presented the Vehicle to Defendant's authorized repair facility with complaints about the air conditioning. (Id. ¶ 26.) The dealer replaced a leaking valve that, on information and belief, was damaged from the engine overheating during the prior repair visit. (Id.) The Vehicle was out of service for two days. (Id.)
On or about June 11, 2020, Plaintiff presented the Vehicle to Defendant's authorized repair facility with complaints that the brake pedal was hard to engage when braking. (Id. ¶ 27.) The dealer replaced the brake booster under warranty. (Id.) The Vehicle was out of service for two days. (Id.)
On or about August 11, 2020, with approximately 10,377 miles on the odometer, Plaintiff presented the Vehicle to Defendant's authorized repair facility complaining of lack and/or loss of power. (Id. ¶ 28.) Plaintiff stated that the Vehicle's engine lacks power because "there is no turbo boost & can hear a high-pitched sound under the hood when trying to accelerate." (Id.) The dealer conducted repairs to the charge-air-cooler, which cools the airflow moving from the turbocharger to the engine intake manifold. (Id.) The Vehicle was out of service for ten days. (Id.)
Plaintiff alleges Defendant and its authorized dealers failed to conform the Vehicle to warranties after a reasonable number of repair attempts and the symptoms of the Vehicle's defects persisted. (Id. ¶ 29.) Plaintiff further alleges the statute of limitations has been tolled here because Plaintiff discovered Defendant's conduct shortly before commencing the lawsuit. (Id. ¶¶ 34-36.)
II. Procedural History
On March 24, 2022, Plaintiff filed a Complaint asserting five claims against Defendant for violations of the Song-Beverly Act; breach of the implied warranty of merchantability, violation of the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq.; and fraudulent inducement. (See Dkt. 1.) On May 13, 2022, Plaintiff filed a Notice of Dismissal as to the sixth claim for fraudulent inducement. (Dkt. 19.)
On May 27, 2022, Defendant filed a Motion to Dismiss as to all claims in the Complaint. (Dkt. 20.) On November 15, 2022, the court granted Defendant's Motion to Dismiss. (Dkt. 36.) On December 15, 2022, Plaintiff filed a First Amended Complaint. (Dkt. 37.) On January 23, 2023, the court granted the parties' Stipulation permitting Plaintiff to file a Second Amended Complaint. (Dkt. 40.) On January 23, 2023, Plaintiffs filed the Second Amended Complaint ("SAC"). (Dkt. 41.) Plaintiff now asserts three claims against Defendant: (1) violation of Cal. Civil Code § 1793.2(d); (2) violation of Cal. Civil Code § 1793.2(b); and (3) breach of the implied warranty of merchantability. (Id.) Defendant now moves to dismiss the SAC. (Dkt. 42.)
III. Legal Standard
a. Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6)
Rule 12(b)(6) permits a defendant to move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To withstand a motion to dismiss brought under Rule 12(b)(6), a complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). While "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," a plaintiff must provide "more than labels and conclusions" and "a formulaic recitation of the elements of a cause of action" such that the factual allegations "raise a right to relief above the speculative level." Id. at 555, 127 S.Ct. 1955 (citations and internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (reiterating that "recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice").
"Establishing the plausibility of a complaint's allegations is a two-step process that is 'context-specific' and 'requires the reviewing court to draw on its judicial experience and common sense.' " Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 995-96 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). "First, to be entitled to the presumption of truth, allegations in a complaint . . . must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Id. at 996 (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). "Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Id. (quoting Starr, 652 F.3d at 1216); see also Iqbal, 556 U.S. at 681, 129 S.Ct. 1937.
Plausibility "is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955 (2007)). On one hand, "[g]enerally, when a plaintiff alleges facts consistent with both the plaintiff's and the defendant's explanation, and both explanations are plausible, the plaintiff survives a motion to dismiss under Rule 12(b)(6)." In re Dynamic Random Access Memory (DRAM) Indirect Purchaser Antitrust Litig., 28 F.4th 42, 47 (9th Cir. 2022) (citing Starr, 652 F.3d at 1216). But, on the other, " '[w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.' " Eclectic Props. E., LLC, 751 F.3d at 996 (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). Ultimately, a claim is facially plausible where "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955); accord Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012).
In Sprewell v. Golden State Warriors, the Ninth Circuit described legal standards for motions to dismiss made pursuant to Rule 12(b)(6):
Review is limited to the contents of the complaint. See Enesco Corp. v. Price/Costco, Inc., 146 F.3d 1083, 1085 (9th Cir. 1998). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. See id. The court need not, however, accept as true allegations that contradict matters properly subject to judicial notice or by exhibit. See Mullis v. United States Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987). Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).266 F.3d 979, 988 (9th Cir. 2001).
IV. Discussion
Defendant argues that all three of Plaintiff's claims—for violation of Cal. Civil Code §§ 1793.2(d) and 1793.2(b), and breach of the implied warranty of merchantability—fail because Plaintiff has not adequately identified the existence of a particular defect. (Mot. at 5-8.) Defendant argues Plaintiff still has not identified the part or system affected by the defect and the resulting problems, and these pleading deficiencies violate Federal Rule of Civil Procedure 8(a)(2). (Id.)
Defendant further argues Plaintiff's express warranty claims fail for the additional reasons that Plaintiff still does not allege whether the defect is one of material or workmanship, and does not allege Defendant was given a reasonable number of opportunities to repair any particular nonconformity. (Id. at 8-11.) As for Plaintiff's implied warranty claims, Defendant argues these claims fail because Plaintiff has not sufficiently alleged the vehicle was not fit for its intended purpose, and Plaintiff does not allege any issues were presented within the one-year warranty period for implied warranties. (Id. at 11-14.)
a. Elements of Causes of Action One through Three
The court briefly reviews the elements of Plaintiff's claims below: (1) violation of Cal. Civil Code § 1793.2(d); (2) violation of Cal. Civil Code § 1793.2(b); and (3) breach of the implied warranty of merchantability.
Under the first cause of action under Cal. Civil Code § 1793.2(d), for a plaintiff to establish that a manufacturer failed to promptly repurchase or replace new motor vehicle after a reasonable number of repair opportunities, the following elements must be met:
(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).Donlen v. Ford Motor Co., 217 Cal. App. 4th 138, 152, 158 Cal.Rptr.3d 180 (2013).
Under the second cause of action under Cal. Civil Code § 1793.2(b), where "service or repair of the goods is necessary because they do not conform with the applicable express warranties," a defendant must "service[ ] or repaire[ ]" the applicable goods "so as to conform to the applicable warranties within 30 days." Id. § 1793.2(b).
Under the third cause of action for breach of the implied warranty of merchantability under the Song-Beverly Act, the consumer goods must: "(1) [p]ass without objection in the trade under the contract description"; "(2) [be] fit for the ordinary purposes for which such goods are used"; "(3) [be] adequately contained, packaged, and labeled"; and "(4) [c]onform to the promises or affirmations of fact made on the container or label." Cal. Civ. Code § 1791.1(a). "The core test of merchantability is fitness for the ordinary purpose for which such goods are used." Isip v. Mercedes-Benz USA, LLC, 155 Cal. App. 4th 19, 26, 65 Cal.Rptr.3d 695 (2007). "Such fitness is shown if the product 'is in safe condition and substantially free of defects.' " Mexia v. Rinker Boat Co., 174 Cal. App. 4th 1297, 1303, 95 Cal.Rptr.3d 285 (2009) (quoting Isip, 155 Cal. App. 4th at 27, 65 Cal.Rptr.3d 695).
b. The SAC Adequately Alleges an Engine Defect Under Federal Rule of Civil Procedure 8(a)
As stated in its prior Order, the court notes that the level of detail required to allege an automobile defect is an unsettled question in the Ninth Circuit. (See Dkt. 36 at 8.) The court further observes that multiple district courts in the Ninth Circuit have recognized this split in case law. See Williams v. Tesla, Inc., 2021 WL 2531177, at *3 (N.D. Cal. June 21, 2021) ("[T]he Ninth Circuit has not addressed the disagreement among district courts about the level of detail required to allege an automobile defect."); DeCoteau v. FCA US LLC, 2015 WL 6951296, at *3 (E.D. Cal. Nov. 10, 2015) ("The Ninth Circuit has not squarely addressed the level of detail necessary under these circumstances. Nor is there any consensus at the district level."); Zuehlsdorf v. FCA US LLC, 2019 WL 2098352, at *6 (C.D. Cal. Apr. 30, 2019) ("Faced with divergent district court holdings, the Court looks to the general guidance provided by the Ninth Circuit.").
Given this unsettled question of law, courts have looked to Federal Rule of Civil Procedure 8, governing pleading requirements, to determine whether an automobile defect is adequately alleged. See Williams, 2021 WL 2531177, at *3 ("Given the divergent district court holdings, other courts have looked to the general rule governing pleadings, namely that a complaint must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively, and those allegations must plausibly suggest an entitlement to relief.") (cleaned up); Zuehlsdorf, 2019 WL 2098352, at *6 (same); Browning v. Am. Honda Motor Co., 549 F. Supp. 3d 996, 1005 (N.D. Cal. 2021) (same); Mosqueda v. Am. Honda Motor Co., Inc., 443 F. Supp. 3d 1115, 1126 (C.D. Cal. 2020) (same).
The Ninth Circuit has held that Rule 8(a) sets forth the following pleading requirements:
First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.Starr, 652 F.3d at 1216 (9th Cir. 2011).
"In the context of product defect claims, district courts in the Ninth Circuit have often held that a complaint provides fair notice of the defect if it (1) identifies the particular part or system affected by the defect, and (2) describes the problems allegedly caused by the defect." Clark v. Am. Honda Motor Co., 528 F. Supp. 3d 1108, 1115 (C.D. Cal. 2021).
In this case, based on the allegations of the Complaint, the court finds the SAC adequately alleges an engine defect in accordance with the standards set forth under Clark. See id., 528 F. Supp. 3d at 1115 ("In the context of product defect claims, district courts in the Ninth Circuit have often held that a complaint provides fair notice of the defect if it (1) identifies the particular part or system affected by the defect, and (2) describes the problems allegedly caused by the defect."). The SAC identifies an issue with the engine and problems caused by the engine such as the Vehicle losing motor power while driving, the engine overheating and losing coolant, the air conditioning unit being damaged by the engine overheating, and the Vehicle making a high-pitched sound under the hood when accelerating. (SAC ¶¶ 25-26, 28.) Plaintiff further argues in Opposition that the defect is one with the engine and does not argue that any other defect exists. (Opp. at 1-8.) However, to the extent Plaintiff argues there are additional defects beyond an engine defect, the court finds any additional defects are not adequately pled. (See, e.g., SAC ¶ 27 (identifying an additional issue with the brake pedal being "very hard to engage while braking").
Accordingly, the Motion is DENIED as to the sufficiency of Plaintiff's allegations regarding an engine defect in the Vehicle for Claims One through Three.
c. Plaintiff's Express Warranty Claims (Claims One and Two)
Apart from the sufficiency of Plaintiff's allegations regarding defects in the Vehicle, which apply to Claims One through Three of the SAC, Defendant also challenges Claims One and Two of the SAC on additional grounds. Defendant argues Plaintiff's express warranty claims—those in Claims One and Two—fail because Plaintiff does not specify whether the Vehicle suffered from a defect in materials or workmanship and Plaintiff fails to allege a reasonable number of opportunities for repair. (Mot. at 8-11.)
Plaintiff argues the express warranty here covers defects in design, materials, or workmanship and the SAC alleges there were "[m]anufacturing defects in materials and/or workmanship." (Opp. at 8-18.) Plaintiff further argues even if each defect has to be the subject of at least two repair visits, as Defendant maintains, the SAC satisfies this standard because the Vehicle was presented to the dealer with engine issues at least three times. (Id. at 17-18.)
The court addresses Defendant's arguments that Plaintiff has not alleged whether the defect was in materials or workmanship and nor a reasonable number of opportunities for repair in order below.
i. Defects of Materials or Workmanship
Defendant contends any express warranty claim asserted by Plaintiff must be limited to defects in materials and workmanship because the warranty in this case does not cover design defects. (Mot. at 8-9.) Plaintiff argues the Ninth Circuit held in Daniel v. Ford Motor Co., 806 F.3d 1217, 1224 (9th Cir. 2015) that Defendant's express warranty covers defects of design, materials, and/or workmanship. (Opp. at 8-12.) Plaintiff further argues the SAC sufficiently alleges the defect arose from materials and/or workmanship. (Id. at 12.)
In this case, Plaintiff's warranty is limited to "all parts on your vehicle that malfunction or fail during normal use during the applicable coverage period due to a manufacturing defect in factory-supplied materials or factory workmanship." (See SAC, Exh. A ("2017 Model Year Ford Warranty Guide") at 9.))
The court takes judicial notice of the 2017 Model Year Ford Warranty Guide, which is attached to the SAC as Exhibit A. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (courts "may consider material which is properly submitted as part of the complaint on a motion to dismiss without converting the motion to dismiss into a motion for summary judgment," if the material is "physically attached to the complaint"), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).
The court observes the warranty discussed by the Ninth Circuit in Daniel does not track the language of the warranty at issue in this case. In Daniel, the Ninth Circuit held that the following warranty language guaranteed against both manufacturing and design defects:
This warranty does not mean that each Ford vehicle is defect free. Defects may be unintentionally introduced into vehicles during the design and manufacturing processes and such defects could result in the need for repairs. For this reason, Ford provides the New Vehicle Limited Warranty in order to remedy any such defects that result in vehicle part malfunction or failure during the warranty period.806 F.3d at 1224.
In this case, the warranty provides:
This warranty does not mean that each Ford vehicle is defect free. Defects may be unintentionally introduced into vehicles during the design and manufacturing processes and such defects could result in the need for repairs. Ford provides the New Vehicle Limited Warranty only to remedy manufacturing defects that result in vehicle part malfunction or failure during the warranty period.(SAC, Exh. A at 9) (emphasis added).
Based on the different language of the two warranties, the court finds that Plaintiff's argument—that Daniel dictates the scope of the warranty in this case—is not persuasive. Indeed, the plain language of the warranty in this case states that the warranty only covers "manufacturing defects." (SAC, Exh. A at 9.) See also Anderson v. Apple Inc., 500 F. Supp. 3d 993, 1023 (N.D. Cal. 2020) ("As many courts have held—including about this same Warranty—an express warranty covering materials and workmanship does not include design defects.") (internal quotation marks and citation omitted).
However, the SAC alleges "[m]anufacturing defects in materials and/or workmanship and nonconformities to warranty manifested themselves within the applicable express warranty period." (SAC ¶ 14.) The court finds this allegation sufficiently identifies that Plaintiff bases his claim on a manufacturing defect in material and/or workmanship rather than a design defect. However, to the extent Plaintiff argues there is also a design defect, the court finds this theory is not adequately pled.
Accordingly, the Motion is DENIED as to Claims One and Two regarding the sufficiency of Plaintiff's allegations that the express warranty claim is limited to defects in materials and workmanship.
ii. Reasonable Number of Opportunities for Repair
The parties further dispute whether Plaintiff has alleged a reasonable number of opportunities for repair. (Mot. at 9-11; Opp. at 12-18.) As discussed in the court's prior Order (see Dkt. 36 at 14-16), the crux of the parties' dispute is whether a plaintiff must present the same nonconformity for repair multiple times or whether a plaintiff is only required to present the vehicle for repair multiple times.
Under the Song-Beverly Act, a plaintiff pursuing an express warranty claim must prove:
(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).Oregel v. Am. Isuzu Motors, Inc., 90 Cal. App. 4th 1094, 1101, 109 Cal.Rptr.2d 583 (2001).
"The reasonableness of the number of repair attempts is a question of fact to be determined in light of the circumstances, but at a minimum there must be more than one opportunity to fix the nonconformity." Robertson v. Fleetwood Travel Trailers of Cal., Inc., 144 Cal. App. 4th 785, 799, 50 Cal.Rptr.3d 731 (2006). "Suffice it to say that the critical question of whether a reasonable number of attempts were provided, thereby allowing the consumer to forego further repair attempts and pursue a 'replace-or-repurchase' remedy, depends upon the facts and circumstances of each case." Robertson, 144 Cal. App. 4th at 803, 50 Cal.Rptr.3d 731.
The parties' dispute as to the correct application of a "reasonable number of repair attempts" is reflected in a split in case law on this question. Some courts in the Ninth Circuit, in applying the Song-Beverly Act, have held that a plaintiff must complain of the same defect each time. See, e.g., Treuhaft v. Mercedes-Benz USA, LLC, 2021 WL 2864877, at *3 (C.D. Cal. July 6, 2021) ("To constitute a 'reasonable number of repair attempts,' a plaintiff must present the vehicle to the manufacturer or seller more than once, complaining of the same defect each time."); Brownfield v. Jaguar Land Rover N. Am., LLC, 584 F. App'x 874, 875 (9th Cir. 2014) (approving a jury instruction stating that "for Plaintiff to be entitled to relief for any particular problem with her Jaguar, she must show that she brought the car in to Jaguar for the repair of that particular problem on more than one occasion.").
Other district courts have held that the Song-Beverly Act cannot be construed so narrowly. See, e.g., Shamilian v. BMW of N. Am., LLC, 2017 WL 7156245, at *1 (C.D. Cal. Sept. 18, 2017) ("The plain language of § 1793.2(d)(2) is not so narrow as to apply only to discrete defects; it also applies to related defects."); Zomorodian v. BMW of N. Am., LLC, 2018 WL 10087304, at *6 n.5 (C.D. Cal. Aug. 7, 2018) ("The cases upon which BMW relies to advance the proposition that a plaintiff must present precisely the same complaint two or more times do not persuade the Court."); Arakelian v. Mercedes-Benz USA, LLC, 2020 WL 1969255, at *1 (C.D. Cal. Feb. 25, 2020) ("Consistent with that approach, a plaintiff need not present precisely the same issue for repair multiple times to be entitled to relief.").
In this case, the court finds the SAC sufficiently alleges Plaintiff presented the engine defect for repair multiple times. (See generally SAC.) Plaintiff alleges he presented the engine for repair on three occasions : (1) on or about April 2, 2020, for engine issues including that the engine was losing coolant, overheating, and there was no acceleration when driving (SAC ¶ 25); (2) on or about June 4, 2020, for an air conditioning issue caused by a leaking valve from the engine overheating (id. ¶ 26); and (3) on or about August 11, 2020, for engine issues including that there was loss of power and a high-pitched sound under the hood when accelerating (id. ¶ 28). Based on the allegations of the SAC regarding the engine and its three repair attempts, the court finds the SAC sufficiently alleges the engine defect was presented to Defendant or its authorized dealer for repair on three occasions.
Plaintiff also includes the repair history on June 11, 2020, for an issue with the brake pad unrelated to the engine. (SAC ¶ 27.) The court does not include the brake pad repair as part of Plaintiff's requirement to present the engine defect for repair.
Accordingly, the Motion is DENIED as to Plaintiff's Claims One and Two regarding whether Plaintiff provided a reasonable number of opportunities to repair.
d. Plaintiff's Implied Warranty Claim (Claim Three)
Defendant argues Plaintiff's implied warranty claims fails because the SAC alleges no facts that the vehicle was not fit for its ordinary purpose and Plaintiff fails to allege presentation within the one-year warranty period for implied warranties. (Mot. at 11-14.) Plaintiff argues the SAC sufficiently alleges the Vehicle was not fit for its intended purpose and an implied warranty claim is valid where a latent defect exists at the time of sale but manifests outside the one-year warranty period. (Opp. at 18.)
"The Song-Beverly Consumer Warranty Act creates 'an implied warranty of merchantability,' whereby the seller guarantees that consumer goods meet each of the following conditions: (1) pass without objection in the trade under the contract description; (2) are fit for the ordinary purposes for which such goods are used; (3) are adequately contained, packaged, and labeled; and (4) conform to the promises or affirmations of fact made on the container or label." Falco v. Nissan N. Am. Inc., 2013 WL 5575065, at *8 (C.D. Cal. Oct. 10, 2013) (citing Cal. Civ. Code § 1791.1). "Unlike express warranties, which are basically contractual in nature, the implied warranty of merchantability arises by operation of law." Am. Suzuki Motor Corp. v. Superior Ct., 37 Cal. App. 4th 1291, 1295, 44 Cal.Rptr.2d 526 (1995). "It does not impose a general requirement that goods precisely fulfill the expectation of the buyer. Instead, it provides for a minimum level of quality." Id. at 1296, 44 Cal.Rptr.2d 526 (citation and internal quotation marks omitted). "The duration of the implied warranty of merchantability and where present the implied warranty of fitness shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer." Cal. Civ. Code § 1791.1(c).
In this case, the SAC alleges the Vehicle displayed issues such as loss of power, loss of coolant, overheating, lacking acceleration while driving, and emitting a high-pitched sound under the hood. (SAC ¶¶ 25-26, 28.) Based on these allegations, the court finds the SAC sufficiently alleges the Vehicle was not fit for its ordinary purpose. See Isip v. Mercedes-Benz USA, LLC, 155 Cal. App. 4th 19, 27, 65 Cal. Rptr.3d 695 (2007) ("We reject the notion that merely because a vehicle provides transportation from point A to point B, it necessarily does not violate the implied warranty of merchantability. A vehicle that smells, lurches, clanks, and emits smoke over an extended period of time is not fit for its intended purpose."); Cholakyan v. Mercedes-Benz USA, LLC, 796 F. Supp. 2d 1220, 1244 (C.D. Cal. 2011) ("Vehicles subject to engine failure cannot be said to be merchantable.").
As for whether a latent defect existed that was only discovered after the one-year implied warranty period, the SAC alleges Plaintiff only learned of the latent defect after "symptoms of the defects persisted following Defendant's representations that the Vehicle was repaired," and Plaintiff discovered the latent defect "shortly before the filing of the complaint." (SAC ¶ 34.) Based on these allegations, the court finds Plaintiff sufficiently alleges that a latent defect existed that was only discovered after the one-year implied warranty period. See Cholakyan, 796 F. Supp. 2d at 1244 ("Plaintiff has alleged a latent defect in the windshield existed at the time he purchased his MINI, and that the defect eventually caused the windshield to crack over three years after his purchase . . . Plaintiff has therefore adequately alleged a breach of the implied warranty that satisfies the one-year time period.").
Accordingly, the Motion is DENIED as to Plaintiff's Claim Three regarding whether Plaintiff has adequately alleged the Vehicle was not fit for its ordinary purpose and presented within the one-year warranty period for implied warranties.
To the extent Plaintiff argues any deficiency in pleading the existence of a latent defect is due to Defendant's discovery violations (see Opp. at 19), the court observes there is no request for the court to make any discovery rulings through a noticed Motion. (See generally Dkt.) Accordingly, the court does not address any discovery issues in this Order.
V. Disposition
For the reasons set forth above, the Motion is DENIED. Defendant is ORDERED to file an Answer to the Second Amended Complaint within thirty (30) days of the date of this Order.